ADT Security Services, Inc. v. Security One International, Inc. et al

Filing 349

NOTE: This Amended Order supersedes Docket Number 331 .AMENDED PRETRIAL ORDER NO. 5 Re: Defendants' Motion to Exclude Expert Testimony of Stewart and Irwin; Defendants' Motion in Limine No. 11; Plaintiffs' Motions in Limine Nos. 3, 4 and 6. Signed by Judge Yvonne Gonzalez Rogers on 09/12/2013. (ygrlc3S, COURT STAFF) (Filed on 9/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADT SECURITY SERVICES,

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Plaintiff,

United States District Court
Northern District of California

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v.
SECURITY ONE INTERNATIONAL, INC., et al.,

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Case No.: 11-CV-5149 YGR
AMENDED PRETRIAL ORDER NO. 5 RE:
DEFENDANTS’ MOTION TO EXCLUDE EXPERT
TESTIMONY OF STEWART AND IRWIN;
DEFENDANTS’ MOTION IN LIMINE NO. 11;
PLAINTIFFS’ MOTIONS IN LIMINE NOS. 3, 4,
AND 6

Defendants.

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Now before the Court are: a Daubert motion seeking to exclude the expert testimony of

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Plaintiff’s designated experts Dr. David Stewart and Ms. Carlyn Irwin; three motions in limine that

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seek exclusion of various aspects of proffered expert opinions; and a late-filed motion in limine

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seeking three kinds of relief. Dkt. Nos. 227 (“Daubert motion”), 243 (“Defs.’ MIL #11”), 247

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(“Pl. MIL 2”), 248 (“Pl. MIL 3”), 321 (“Pl. MIL 6”). At a pretrial conference on September 3,

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2013, the Court ordered the parties to supply summaries of the opinions their respective experts

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would proffer at trial. The parties have complied. See Dkt. Nos. 303 (“Sponsler Opinion”), 305

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(“Harris Opinion”), 306 (“Stewart Opinion”), 307 (“Irwin Opinion”), 313 (“Harris Rebut.

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Opinion”), 319 (“Stec Rebut. Opinion”), 330 (“Sponsler Rebut. Opinion”).
Having considered the motions, oral argument, the experts’ full reports, and the summary

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of opinions to be proffered at trial, the Court hereby ORDERS as follows:

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I.

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General Limitation on Expert Testimony
Counsel shall admonish their respective expert witnesses that, at trial, the expert’s opinions

shall be confined to those expressed in the written summary submitted to the Court. This order

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does not preclude counsel from exploring the basis of the proffered opinion, consistent with this

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Court’s Pretrial Orders.

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II.

Defendants’ Daubert Motion Is GRANTED IN PART AND DENIED IN PART:
With respect to Dr. Stewart, Defendants’ motion is granted insofar as it seeks to exclude

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evidence relating to the four survey questions related to caller ID misrepresentations. Any

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probative value of that evidence is substantially outweighed by the risk of confusion to the jury.

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Fed. R. Evid. 403. ADT argues that the questions stand as a proxy for other types of

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misrepresentation. Given, however, that allegations of actual caller ID misrepresentation are

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peripheral at best to Plaintiff’s case-in-chief, this “proxy” approach runs a substantial risk of
confusing the issues.1 Accordingly, Dr. Stewart is barred from offering Opinion B from the written

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United States District Court
Northern District of California

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Stewart Opinion to the extent it references the caller ID aspect of his report,2 and from otherwise

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opining on the Caller ID aspect of his report. Defendants’ motion is denied as to Dr. Stewart’s

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remaining opinions. Defendants’ objections as to those portions of Dr. Stewart’s opinions relate to

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weight, not admissibility. Dr. Stewart may opine at trial consistent with the written Stewart

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Opinion and this Order.
With respect to the opinion of Ms. Irwin, Defendants’ motion is granted in part and denied

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in part, as follows. To the extent that Defendants’ motion objects to Ms. Irwin’s earlier assumption

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that 50 percent of former ADT customers who did not recall hearing misrepresentations from

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Security One representatives did in fact hear them, the motion is granted. However, the written

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Irwin Opinion omits that assumption from her analysis. Defendants have had an opportunity to vet

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Ms. Irwin’s revised opinion, as evidenced in the rebuttal opinion of their expert, Dr. Jeffrey Stec.

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No prejudice flows from permitting Ms. Irwin to opine consistent with the Irwin Opinion. As to

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Defendants’ argument that Ms. Irwin’s opinion invites jury “speculation,” it is not well-taken; Ms.

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Irwin’s opinion gives the jury a basis from which to make a reasonable estimate of damages, if any.

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This Order does not bar ADT from presenting evidence of actual caller ID misrepresentation, for
example, as alleged in the Fourth Amended Complaint at paragraph 19.

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The Court amended the emphasized text, which previously could be read to exclude the entirety of
Opinion B.
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Defendants’ remaining objections relate to weight rather than admissibility. Ms. Irwin may opine

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at trial consistent with the written Irwin Opinion.

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III.

Defendants’ Motion in Limine Number 11 Is GRANTED IN PART AND DENIED IN PART:
Defendants seek to bar ADT’s designated telemarketing expert witness, Kenneth Sponsler,

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from referring to any Do Not Call (“DNC”) laws, wiretap laws, or federal regulations governing the

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telemarketing industry. The motion is granted as to the DNC and wiretap laws. Reference to those

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laws is unlikely to help the trier of fact decide the material issues in dispute in this case, which do

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not center on compliance with DNC or state wiretap laws. Accordingly, discussion of such laws is

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substantially likely to result in jury confusion. Mr. Sponsler therefore may not open the door to
discussion of DNC or wiretap laws. As to the federal telemarketing regulations, Defendants’

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United States District Court
Northern District of California

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motion is denied. Mr. Sponsler may opine as to telemarketing industry standards, and insofar as

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those federal regulations comprise an industry standard, they are relevant to the issues in this case.

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Mr. Sponsler may refer to federal telemarketing regulations in his opinion at trial, consistent with

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the written Sponsler Opinion and Sponsler Rebuttal Opinion.
To the extent, however, that Defendants seek to bar Mr. Sponsler’s testimony from being

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offered to show a propensity by Defendants to commit bad acts, the motion is granted. Fed. R.

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Evid. 404(b). Mr. Sponsler may not present his opinion as to whether Defendants violated

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particular laws. Further, Mr. Sponsler’s opinion at trial shall conform to the Court’s ruling on

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Defendants’ Motion in Limine No. 2 (Dkt. No. 312 at 1-2), barring specific reference to contempt

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proceedings or the preliminary injunction entered in this case.

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IV.

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Plaintiff’s Motion in Limine Number 3 Is DENIED:
Plaintiff seeks to bar Dr. Jeffrey Stec, Defendants’ designated statistical expert, from

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rebutting Dr. Stewart on the ground Dr. Stec allegedly misapprehends the relevant legal standard

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and from rebutting Ms. Irwin because she is a forensic accountant and he is a statistician. Neither

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argument is persuasive. Plaintiff’s argument as to the relevant legal standard relates to the weight

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of Dr. Stec’s opinion. Plaintiff’s argument as to Dr. Stec’s credentials is inapt because Ms. Irwin’s

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analysis of possible damages is but one method of calculating damages, one that Plaintiff selected;

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Dr. Stec’s opinion may assist the jury in identifying the limitations of Plaintiff’s chosen approach to

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proving damages. Dr. Stec may opine consistent with the written Stec Opinion.

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V.

Plaintiff’s Motion in Limine Number 4 Is DENIED:
Plaintiff seeks to exclude both the affirmative and rebuttal opinions of Mr. Robert Harris,

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Defendants’ designated telemarketing industry expert and rebuttal expert with respect to Mr.

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Sponsler. The motion is denied. Plaintiff’s objections, when distilled, reveal nothing more than

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disagreement with Mr. Harris’s opinions. As such, they relate to weight, not admissibility. Mr.

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Harris may opine consistent with the written Harris Opinion and Harris Rebuttal Opinion.

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IV.

Plaintiff’s Motion in Limine Number 6 Is GRANTED IN PART WITH MODIFICATION AND
DENIED IN PART:

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United States District Court
Northern District of California

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Plaintiff’s sixth motion in limine raises three issues. Plaintiff seeks to: (i) bar Defendants

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from presenting evidence of their pricing scheme on the ground it is not relevant to liability; (ii)

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exclude portions of a chart Defendants intend to proffer, which purports to summarize recordings of

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telephone calls pursuant to Federal Rule of Evidence 1006, on the ground that those portions of the

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chart contain inadmissible hearsay; and (iii) have the Court bar any jury instruction on the

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competition privilege.

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With respect to the first issue, the motion is denied. Defendants’ evidence of pricing relates
directly to damages causation, a central issue in this case.
With respect to the second issue, the motion is granted with modification. The Court orders

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as follows with respect to both parties’ FRE 1006 summary charts, Plaintiff’s Exhibit 80 and

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Defendants’ Exhibit 129. Generally speaking, the content of the charts is admissible, insofar as the

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recordings they summarize are admissible. See Pretrial Order No. 2 (Dkt. No. 295). The principal

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problem with the charts is not the substance of the material therein summarized but their

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argumentative wording. Assuming proper foundation, both charts are admissible with the

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following modifications:

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The heading of the third column of both charts shall be changed to “Company

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Mentioned.”3 The wording of the columns below shall be changed such that each entry

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merely indicates “ADT,” “GE,” “Honeywell,” “Manufacturer,” or a combination

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thereof, consistent with the designations in the current versions of the charts. For

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example, in the first row of the third column of both charts, the entry would change

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from “ADT Affiliation” to “ADT.”
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The heading of the fifth column of Defendants’ chart shall be changed from “Was

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customer made aware that Security One and ADT are not affiliated?” to “Was customer

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told that Security One and the Company Mentioned are not affiliated?”
The Court will entertain specific objections to the content of specific summaries in Defendants’

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United States District Court
Northern District of California

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sixth column at the pretrial conference scheduled for 9:00 a.m. on September 13, 2013.
With respect to the third issue raised in Plaintiff’s sixth motion in limine (whether the jury

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should be instructed on the competition privilege), the Court reserves.

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This Order terminates Docket Nos. 227, 243, 247, 248, and 321.

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IT IS SO ORDERED.

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Dated: September 12, 2013

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As Amended: September 15, 2013

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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Column 3 of Plaintiff’s chart currently bears the heading “Type of Representation.” The
corresponding column in Defendants’ chart currently bears the heading “ADT Alleged Type of
Representation.”
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