Crocs, Inc. v. Cheng's Enterprises, Inc. et al

Filing 1127

ORDER by Chief Judge Philip A. Brimmer on 3/30/2022, re: 1037 Counterclaim Plaintiffs Motion to Exclude Certain Expert Testimony is GRANTED in part and DENIED in part. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 06-cv-00605-PAB-MEH
(Consolidated with Civil Action No. 16-cv-02004-PAB-STV)
Civil Action No. 06-cv-00605-PAB-MEH
CROCS, INC.,
Plaintiff,
v.
EFFERVESCENT, INC., et al.,
Defendants.
Civil Action No. 16-cv-02004-PAB-STV
U.S.A. DAWGS, INC., et al.,
Plaintiffs,
v.
RONALD SNYDER, et al.,
Defendants.

ORDER

This matter is before the Court on Counterclaim Plaintiffs’ Motion to Exclude
Certain Expert Testimony [Docket No. 1026]. Crocs, Inc. (“Crocs”) responded, Docket
No. 1059, and counterclaim plaintiffs, U.S.A. Dawgs, Inc., Double Diamond Distribution,
Ltd., and Mojave Desert Holdings, LLC (collectively, “Dawgs”), replied. Docket No.
1079.

I. BACKGROUND
The Court assumes familiarity with this fifteen-year-long dispute and will not
detail the procedural history or background facts beyond what is necessary to resolve
this motion. Additional background can be found in previous orders and
recommendations. See, e.g., Docket Nos. 673, 897, 1071.
Dawgs seeks to exclude Crocs’s expert from “opining about the scope of two of
the asserted patents in this case or the rulings” of the United States International Trade
Commission (“ITC”) or United States Court of Appeals for the Federal Circuit. Docket
No. 1026 at 2. 1 Dawgs also seeks to preclude Crocs’s damages expert, Peter
Schwechheimer, from testifying about (1) whether Dawgs is a “knockoff” or “fast
follower,” (2) the quality of Dawgs’s financial statements or the intent behind its
“discovery discrepancies,” and (3) pre-issuance damages. Id.2
II. LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
1

While Dawgs does not identify these opinions, Dawgs does not dispute Crocs’s
citation of the opinions. Docket No. 1059 at 8. They are Mojave Desert Holdings, LLC
v. Crocs, Inc., 844 F. App’x 343 (Fed. Cir. 2021) (unpublished); Crocs, Inc. v. Int’l Trade
Comm’n, 598 F.3d 1294 (Fed. Cir. 2010); In re Certain Foam Footwear, U.S.I.T.C. Inv.
No. 337-TA-567, USITC Pub. No. 4260, 2011 W L 5997932 (Oct. 1, 2011).
2

Dawgs initially sought to exclude additional opinions; however, the parties
agreed that certain portions of Dawgs’s motion to exclude are moot in light of the
Court’s order, Docket No. 1071, granting Crocs’s motion for summary judgment.
Docket No. 1079 at 1 (“Dawgs notes that the parties have agreed that certain of the
arguments raised in Dawgs’[s] opening brief are mooted by the Court’s recent Order
granting Crocs’[s] and the Individual Defendants’ motion for summary judgment.”).
2

help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to
give opinions in a particular subject area. Rather, the Court m ust “perform[] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
After determining whether the expert is qualified, the proffered opinions must be
assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be
“based on sufficient facts or data,” be the “product of reliable principles and methods,”
and reflect a reliable application of “the principles and methods to the facts of the
case”).
In ruling on a Rule 702 motion, the district court has a “gatekeeper function to
‘ensure that any and all scientific testimony or evidence admitted is not only relevant,
but reliable.’” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004)
(quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). To perform
that function, a court must “assess the reasoning and methodology underlying the
expert’s opinion, and determine whether it is both scientifically valid and applicable to a
particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592–93). W here an expert witness relies on experience,
the expert “must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably

3

applied to the facts.” United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir.
2014) (quoting Fed. R. Evid. 702, advisory committee notes). When examining an
expert’s method, however, the inquiry should not be aimed at the “exhaustive search for
cosmic understanding but for the particularized resolution of legal disputes.” Daubert,
509 U.S. at 597. It is the specific relationship between an expert’s method, the
proffered conclusions, and the particular factual circumstances of the dispute that
renders testimony both reliable and relevant.
In addition to the witness having appropriate qualifications and methods, the
proponent of the witness’s opinions must demonstrate that the process by which the
witness derived his or her opinions is reliable. United States v. Crabbe, 556 F. Supp.
2d 1217, 1220 (D. Colo. 2008). “[T]he trial judge must have considerable leeway in
deciding in a particular case how to go about determining whether particular expert
testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Ultimately, the test requires that the expert “employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.
While the proponent of the challenged testimony has the burden of establishing
admissibility, the proffer is tested against the standard of reliability, not correctness, see
Allstate Sweeping, LLC v. City & Cnty. of Denver, No. 10-cv-00290-WJM-MJW, 2011
WL 2173997, at *3 (D. Colo. June 2, 2011); the proponent need only prove that “the
witness has sufficient expertise to choose and apply a methodology, that the
methodology applied was reliable, that sufficient facts and data as required by the
methodology were used and that the methodology was otherwise reliably applied.”

4

Crabbe, 556 F. Supp. 2d at 1221.
Assuming the standard for reliability is met, the Court must also ensure that the
proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156; United
States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006). “Relevant expert
testimony must logically advance[] a material aspect of the case and be sufficiently tied
to the facts of the case that it will aid the jury in resolving a factual dispute.” United
States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (quotations and citations omitted).
In assessing whether expert testimony will assist the trier of fact, a court should also
consider “whether the testimony ‘is within the juror’s common knowledge and
experience,’ and ‘whether it will usurp the juror’s role of evaluating a witness’s
credibility.’” Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).
Finally, Federal Rule of Evidence 403 permits a court to “exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
III. ANALYSIS
As mentioned earlier, Dawgs seeks to exclude Crocs’s experts from testifying
about the ’858 and ’789 patents, the IT C decision, or the Federal Circuit decision.
Docket No. 1026 at 2. Dawgs also seeks to exclude certain opinions of Mr.
Schwechheimer. Id.
A. Testimony about the Patents and Court Decisions
Dawgs argues that Crocs experts, Dr. Chiagouris, Sarah Butler, and Mr.

5

Schwechheimer, who are not lawyers or patent experts, should be precluded from
testifying about “what they ‘understand’ is covered by the asserted ’858 or ’789 patents
and what the ITC or Federal Circuit previously ruled on about the same.” Docket No.
1026 at 6. Dawgs asserts that, not only are the ITC and Federal Circuit decisions
highly prejudicial and irrelevant under Rule 403, none of the experts is qualified to offer
legal conclusions or interpret the patents or decisions. Id. Dawgs identifies eight
opinions that it believes should be excluded. Id. at 7–8.3 These opinions are:
1. “[I] am informed that Crocs does have design and utility patents,
including U.S. Patent No. 6,993,858 (the ’858 patent), and that claim s 1
and 2 of the ’858 patent both claim ‘a base section including an upper and
a sole formed as a single part manufactured from a moldable foam
material;’ and a strap section made from a ‘moldable foam material.’ I am
further informed that, in prior litigation, the Federal Circuit recognized that
a key difference between Crocs and other footwear was the foam-onfoam friction created by the passive restraint system described in the ’858
patent . . . . Mr. Shuster provides no reason why consumers have not
also drawn the same connection between this patent-protected foampivoting strap and references in the marketplace like ‘patented foam
material, Croslite’ which appear throughout the documents he relies on.”
Docket No. 1026-2 at 6–7, ¶ 122 (Chiagouris Report).
2. “I have been advised that Dawgs asserts it implemented a redesign of
its accused Dawgs’s Clogs so as to avoid the four corners of the ’858
patent asserted by Crocs . . . . While Dawgs contends that it implemented
the redesign (i.e., which I understand included the addition of washers to
disrupt the direct connection, or foam-to-foam connection claimed in the
’858 patent[)].” Docket No. 1026-5 at 17–18, ¶ 57 (Schw echheimer
Opening Report).
3. “Contrary to Mr. Malackowski’s claims, Dawgs didn’t merely ‘stop
selling’ its Beach Dawg clogs in the United States in 2011, it was explicitly
ordered to cease and desist from ‘importing, selling, marketing,
3

Dawgs also identifies an opinion, purportedly by Ms. Butler; however, the cited
language that Dawgs claims comes from Ms. Butler’s rebuttal report does not appear in
the version of the report that Dawgs provided as Docket No. 1026-4. The Court,
therefore, cannot consider this opinion.
6

advertising, distributing, offering for sale . . .’ its Beach/Groovy/Big
DAWGS products ‘for the remaining term of the relevant ’858 or ’789
patent’ under the ITC’s General Exclusion Order (‘GEO’) specifically
because it was determined that Dawgs infringed Crocs’s asserted
patents.” Docket No. 1026-6 at 17, ¶ 63 (Schwechheimer Rebuttal
Report).
4. “I further agree with the United States Court of Appeals for the Federal
Circuit that the ’858 patent was not obvious over the prior art.” Docket No.
1026-7 at 3, ¶ 58 (Whatley Opening Report).
5. “I further agree with the United States Court of Appeal[s] for the
Federal Circuit that the ’789 patent is valid.” Id. at 4, ¶ 88.
6. “I further agree with the United States Court of Appeal[s] for the
Federal Circuit that the ’858 patent was not obvious over the prior art.”
Docket No. 1026-8 at 3, ¶ 33 (W hatley Rebuttal Report).
7. “[T]he United States Court of Appeal[s] for the Federal Circuit and the
ITC concluded that the ’789 patent is valid. I agree with the United States
Court of Appeal[s] for the Federal Circuit, the USPTO, and the ITC that
the ’789 patent is valid.” Id. at 4–5, ¶ 44 (citations omitted).
8. “[T]he Federal Circuit concluded ‘that it was ‘impossible to determine’
the features of the medial view of the shoes based on the ‘OA Figure 11’
photos.” Id. at 7–8, ¶ 59.
Dawgs argues that these opinions should be excluded because the experts who
offer them have no legal training or expertise to opine on legal conclusions. Docket No.
1026 at 6 (citing Pinon Sun Condo. Assn., Inc. v Atain Specialty Ins. Co. , 17-cv-01595CMA-NRN, 2020 WL 1452166, *3–4 (D. Colo. Mar. 25, 2020) (“Mr. Pratt is not qualified
to opine on Colorado law, including the Colorado Revised Statutes. . . . Mr. Pratt is not
an attorney, has no formal legal education, and testified that he is not an expert on
Colorado contract law.”); Pritchett v. I-Flow Corp., No. 09-cv-02433-WJM-KLM, 2012
WL 1059948, at *6 (D. Colo. Mar. 28, 2012) (finding expert witness with no formal legal
training or education was not qualified to opine on legal duties or legal conclusions)).
7

Crocs does not appear to disagree that these experts are not lawyers and have
no legal training or education. See Docket No. 1059 at 8–11. Crocs instead argues
that the holdings in the ITC and Federal Circuit cases are “facts, not opinions” and are
“inextricably bound to the resolution of this case,” in part because the record of the
proceedings before the ITC is automatically admissible in this Court by statute. Id. at 8
(citing 28 U.S.C. § 1659(b) (“the record of the proceeding before the United States
International Trade Commission shall be transmitted to the district court and shall be
admissible in the civil action.”)). As such, Crocs states that its experts are not offering
opinions on the scope or validity of the asserted patents but rather the experts critique
“the failure of Dawgs’s experts to consider how the patents impact their opinions.” Id. at
10–11. Crocs also argues that Dawgs’s motion mostly contains Rule 403 arguments
that are more appropriate for a motion in limine, rather than a motion under Rule 702,
and that the statements are based on sufficient facts and will help the jury understand
the basis for the experts’ opinions. Id. at 9.
“[A]n expert’s testimony is not per se inadmissible simply because it requires
discussion of the law.” Amica Life Ins. Co. v. Wetz, No. 15-cv-1161-WJM-CBS, 2017
WL 897839, at *3 (D. Colo. Mar. 7, 2020). “[A] witness may properly be called upon to
aid the jury in understanding the facts in evidence even though reference to those facts
is couched in legal terms.” Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988).
Such testimony “is proper under Rule 702 if the expert does not attempt to define the
legal parameters within which the jury must exercise its fact-finding function. However,
when the purpose of testimony is to direct the jury’s understanding of the legal

8

standards upon which their verdict must be based, the testimony cannot be allowed.”
Id. at 809–10. Testimony that “articulates the ultimate principles of law governing the
deliberations of the jury” is inadmissible. Id. at 808. While an expert may refer to the
law in expressing his or her opinion, the expert “may not state legal conclusions drawn
by applying the law to facts.” A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d
472, 476 (10th Cir. 1991) (citations omitted).
Subsection 1659(a) provides that, when there is a parallel ITC proceeding and
district court action involving the same parties and same issues, the district court action
shall be stayed pending final resolution of the ITC action. 28 U.S.C. § 1659(a).
Subsection 1659(b) states that, “after dissolution of a stay under subsection (a), the
record of the proceeding before the United States International Trade Commission shall
be transmitted to the district court and shall be admissible in the civil action and shall be
admissible in the civil action” to the extent permitted under the Federal Rules of
Evidence and Civil Procedure. 28 U.S.C. § 1659(b). The two subsections are to be
read together and improve efficiency in the district court proceeding. Courts have found
that “the record developed in the proceeding before the [ITC] may be used to ‘expedite
proceedings and provide useful information to the court.’” SanDisk Corp. v. Phison
Elecs. Corp., 538 F. Supp. 2d 1060, 1067 (W .D. Wis. 2008) (quoting H.R.Rep. No.
103–826(I), at 142, as reprinted in 1994 U.S.C.C.A.N. at 3914); In re Princo Corp., 478
F.3d 1345, 1355 (Fed. Cir. 2007).
As to the first opinion, Crocs provides no justification for Dr. Chiagouris
referencing the Federal Circuit decision. Crocs insists it would “make[] no sense to

9

admit the record of the ITC Action, but not allow Crocs’s experts to make any reference
to it.” Docket No. 1059 at 8. Crocs, however, does not explain why admitting the
“record” of the ITC action would allow Dr. Chiagouris to reference the result of the
proceeding or why discussion of the Federal Circuit’s decision is necessary to Dr.
Chiagouris’s opinion about the ’858 patent, Mr. Shuster’s opinions, or w hat connections
consumers may have drawn. Crocs does not explain why discussion of the Federal
Circuit decision is part of an approved methodology for a marketing expert like Dr.
Chiagouris with no legal training or why it is the type of information that a marketing
expert would typically rely upon. Moreover, the legislative history of § 1659 confirms
that the use of an ITC proceeding record is to expedite proceedings and provide useful
information to the court. Crocs provides no authority that the transmission of the ITC
record is designed to help experts without legal training explain ITC proceedings to the
jury. The Court finds that Dr. Chiagouris is not qualified to opine on the Federal Circuit
decision because he is not an attorney, has no formal legal education, and does not
support his interpretation of the Federal Circuit decision with any citation to authority.
See Pinon Sun Condo. Ass’n, 2020 WL 1452166, at *4; Pritchett, 2012 WL 1059948, at
*6.
The Court also finds that the first opinion is not relevant. The full context of the
opinion is as follows:
There is some evidence showing other reasonable inferences that
consumers might draw when exposed to the “patented” messaging in the
marketplace. For example, I am informed that Crocs does have design
and utility patents, including U.S. Patent No. 6,993,858 (the “’858 patent”),
and that claims 1 and 2 of the ’858 patent both claim “a base section
including an upper and a sole formed as a single part manufactured from
a moldable foam material;” and a strap section made from a “moldable
10

foam material.” I am further informed that, in prior litigation, the Federal
Circuit recognized that a key difference between Crocs and other footwear
was the foam-on-foam friction created by the passive restraint system
described in the ’858 patent. The Shuster Report cites materials
documenting this same litigation, such as a news which states “the judge
ruled that one of the patents – U.S. Patent No. 6,999,858, particularly
noting Croc’s [sic] foam-pivoting strap-was enforceable and being
infringed upon by Effervescent and Double Diamond.” Mr. Shuster
provides no reason why consumers have not also drawn the same
connection between this patent-protected foam-pivoting strap and
references in the marketplace like “patented foam material, Croslite”
which appear throughout the documents he relies on.
Docket No. 1026-2 at 6–7, ¶ 122. This opinion, therefore, appears to be a rebuttal of
an opinion presented by Mr. Shuster, one of Dawgs’s experts, on the issue of consumer
confusion. The Court, however, recently held that the issue of consumer confusion is
immaterial. See Docket No. 1071 at 9 n.7. Therefore, the Court finds that this opinion
on an immaterial issue does not “logically advance[] a material aspect of the case.”
See Garcia, 635 F.3d at 476. Moreover, the Court finds that, even if the opinion were
material, reference to prior rulings by this Court or another court would be prejudicial to
Dawgs, and the Court would exclude Dr. Chiagouris’s opinion on that ground because
the probative value of the opinion is substantially outweighed by unfair prejudice and
confusion of the issues, and could mislead the jury. See Fed. R. Evid. 403; see also
Anderson v. Ford Motor Co., 2014 WL 12597046, at *1 (D. Utah Sept. 16, 2014)
(excluding reference to prior rulings as unduly prejudicial and irrelevant); Wytex Prod.
Corp. v. XTO Energy, Inc., 2014 WL 12799569, at *5 (E.D. Okla. Aug. 29, 2014)
(same). The Court, therefore, will exclude the first opinion.
In the second opinion, Mr. Schwechheimer states, “I have been advised that
Dawgs asserts it implemented a redesign of its accused [infringing] Dawgs’s Clogs so
11

as to avoid the four corners of the ’858 patent asserted by Crocs.” Docket No. 1026-5
at 17–18, ¶ 57. Mr. Schwechheimer also states, “I estimate that the number of unitsales of accused products sold by Dawgs in the U.S. through August 2006 is
approximately 18,394.” Id. However, neither Mr. Schwechheimer nor Crocs explains
why his estimation of the unit-sales of accused Dawgs products depends on what Mr.
Schwechheimer may have been “advised” about Dawgs’s redesign or why Dawgs may
have redesigned its clogs. Similarly, Mr. Schwechheimer and Crocs also fail to explain
why it is necessary to use a prejudicial legal conclusion, namely, that Dawgs
redesigned its clogs to avoid the bounds of the ’858 patent, in order to provide an
estimate on the number of accused products that Dawgs may have sold. Additionally,
the final sentence of this opinion, “[w]hile Dawgs contends that it implemented the
redesign (i.e., which I understand included the addition of washers to disrupt the direct
connection, or foam-to-foam connection claimed in the [’]858 patent,” see Docket No.
1026-5 at 18, ¶ 57, appears to be incom plete, and it is not clear what Mr.
Schwechheimer meant by it. Therefore, the Court will exclude the second opinion as
irrelevant and unduly prejudicial.
The third opinion, part of the seventh opinion, and eighth opinion are also
descriptions of the ITC and Federal Circuit decisions. In the third opinion, Mr.
Schwechheimer states that Dawgs was “explicitly ordered to cease and desist from
‘importing, selling, marketing, advertising, distributing, offering for sale . . .’ its [shoes]
. . . specifically because it was determined that Dawgs infringed Crocs’s asserted
patents.” Docket No. 1026-6 at 17, ¶ 63. Like Dr. Chiag ouris, Mr. Schwechheimer is
not a lawyer and has no legal training to opine on court decisions. However, this
12

opinion directly rebuts an opinion by one of Dawgs’s experts. According to Mr.
Schwechheimer, that expert calculated Dawgs’s lost profits resulting from Crocs’s
allegedly false or misleading advertising, but the expert states that his calculation is
“conservative” because Dawgs stopped selling a clog “as a result of an ITC ruling.” Id.,
¶ 62. Mr. Schwechheimer’s opinion is that Dawgs did not “merely” stop selling a clog
because of an ITC ruling, but rather that Dawgs was ordered to do so because it had
infringed Crocs’s patents. Id., ¶ 63. Dawgs does not argue that this characterization by
Mr. Schwechheimer is inaccurate. However, Crocs does not explain why the second
part of the opinion, i.e., “it was determined that Dawgs infringed,” is necessary to rebut
Dawgs’s expert. Furthermore, the Court agrees with Dawgs that testimony about ITC
decisions may be inadmissible under Rule 403. Although the cases that Dawgs relies
upon pertain to ITC initial determinations, see Realtek Semiconductor Corp. v. LSI
Corp., 2014 WL 46997 (N.D. Cal. Jan. 6, 2014), and decisions by Federal Trade
Commission administrative law judges, see Rambus, Inc. v. Infineon Techs. AG, 222
F.R.D. 101 (E.D. Va. 2004), the Court is persuaded that the sam e conclusion under
Rule 403 may apply to ITC decisions and the ITC rulings like the General Exclusion
Order when referenced by expert witnesses.4 See also Magna Elecs., Inc. v. TRW
Auto. Holdings Corp., 2016 WL 4238769, at *3 (W.D. Mich. Jan. 28, 2016) (“With
respect to the ITC proceedings, the Court finds that the outcome is largely not relevant,

4

“A general exclusion order broadly prohibits entry of articles that infringe the
relevant claims of a listed patent without regard to whether the persons importing such
articles were parties to, or were related to parties to, the investigation that led to
issuance of the general exclusion order.” VastFame Camera, Ltd. v. ITC, 386 F.3d
1108, 1114 (Fed. Cir. 2004).
13

and to the extent it is minimally relevant, the introduction of additional proceedings
needlessly cause jury confusion and waste time.”)
In the seventh opinion, Mr. Whatley states, in part, “the United States Court of
Appeal[s] for the Federal Circuit and the ITC concluded that the ’789 patent is valid.”
Docket No. 1026-8 at 4–5, ¶ 44. In the eighth opinion, Mr. Whatley states, “the Federal
Circuit concluded ‘that it was ‘impossible to determine’ the features of the medial view
of the shoes based on the ‘OA Figure 11’ photos.” Id. at 7–8, ¶ 59. These opinions are
not factual issues that the jury will be asked to decide or statements of the law on which
the Court will instruct the jury. See O’Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917,
928 (D. Colo. 2017). However, the Court will exclude this part of the seventh opinion
and the eighth opinion for the reasons discussed with respect to the first opinion. Mr.
Whatley, like Dr. Chiagouris, has no legal training to opine on legal conclusions or court
decisions. As a result, Crocs has failed to carry its burden of showing the
appropriateness of these opinions under Rule 702, which requires that witness be both
qualified to render an opinion by knowledge, skill, experience, training, or education,
see Fed. R. Evid. 702, and that the witness explain how the experience or training is a
“sufficient basis for the opinion.” See Medina-Copete, 757 F.3d at 1104. Moreover,
the probative value of these opinions is substantially outweighed by unfair prejudice and
confusion of the issues, and the opinions could mislead the jury. See Fed. R. Evid.
403.
The fourth, fifth, sixth, and the remainder of the seventh opinions, all by Mr.
Whatley, express agreement with the ITC and Federal Circuit opinions. Docket No.

14

1026-7 at 3, ¶ 58; id. at 4, ¶ 88; Docket No. 1026-8 at 3, ¶ 33; id. at 4–5, ¶ 44; id. at
6–7, ¶ 59. The Court finds that these opinions would not be helpful to the jury because
it is irrelevant whether Mr. Whatley agrees or disagrees with the ITC and Federal
Circuit. Although Crocs is correct that “issues of infringement and validity are analyzed
in great part from the perspective of a person of ordinary skill in the art, and testimony
explaining some technical evidence from that perspective may be of great utility to the
factfinder,” Docket No. 1059 at 10–11 (quoting Two Moms & a Toy, LLC v. Int’l
Playthings, LLC, No. 10-cv-02271-PAB-BNB, 2012 WL 5249459, at *6 (D. Colo. Oct.
24, 2012) (quotation omitted)), Mr. Whatley’s opinions that he agrees with the ITC and
Federal Circuit are not expressions of “technical evidence” that would be “of great
utility” to the jury. Because these opinions of Mr. Whatley are irrelevant, the Court will
exclude them. See Garcia, 635 F.3d at 476 (“Relevant expert testimony must logically
advance[] a material aspect of the case and be sufficiently tied to the facts of the case
that it will aid the jury in resolving a factual dispute.”).
B. Mr. Schwechheimer’s Opinions that Dawgs is a “Knockoff” or “Fast
Follower” Brand
Dawgs also seeks to exclude Mr. Schwechheimer from rendering any opinions
that “Dawgs is a ‘knockoff’ or a ‘fast follower,’ opinions related to ‘knockoffs’ or ‘fast
followers’ generally . . . and from testifying via ‘assumption’ that Dawgs is a ‘knockoff’ or
a ‘fast follower.’” Docket No. 1026 at 8. Dawgs argues that Mr. Schwechheimer lacks
the necessary qualifications to render such opinions and that these opinions are
irrelevant, unreliable, and “incredibly prejudicial.” Id. Dawgs identifies numerous
instances of Mr. Schwechheimer’s use of the terms knockoff and fast follower in his
15

opening and rebuttal reports. Id. (citing Docket No. 1026-5 at 4–17, ¶¶ 6, 6 n.2, 9, 10,
23–26, 30, 32, 50, 54, 55; Docket No. 1026-6 at 4–22, ¶¶ 18, 50, 55, 68, 73).
Crocs claims that Dawgs’s arguments are more appropriate for a motion in limine
rather than a motion brought under Rule 702. Docket No. 1059 at 11. Crocs contends
that Mr. Schwechheimer should not be precluded from describing Dawgs as a fast
follower or knockoff because those statements are facts, not opinions, as Dawgs’s
investment banker referred to Dawgs as a “fast follower” in a widely distributed
presentation to show that there were no design risks investing in Dawgs because
Dawgs does not create its own designs. Id. at 11–12. Crocs also argues that Dawgs’s
investment banker’s statements are admissible under Federal Rules of Evidence
404(b)(2) and 801(d)(2) and highlights the Federal Circuit’s holding that “an ordinary
observer, familiar with the prior art designs, would be deceived into believing the
accused products are the same as the patented design.” Id. at 12 (quoting Crocs, 598
F.3d at 1304–06).
As an initial matter, the Court agrees with Crocs that Dawgs’s argument that
“knockoff” and “fast follower” are prejudicial is an argument more commonly raised in a
motion in limine. See Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., No. 09-cv-00970PAB-KMT, 2014 WL 348637, at *2 (D. Colo. Jan. 31, 2014) (stating that the purpose of
a motion in limine is “to streamline the trial by providing a forum for resolving certain
evidentiary issues outside the presence of the jury and the heated atmosphere of the
courtroom”). However, the Court finds that Dawgs’s other arguments, namely, those
concerning Mr. Schwechheimer’s qualifications and the relevance and reliability of his
opinions, may be considered through a Rule 702 motion. Moreover, even as a motion
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in limine, Crocs states no convincing reason why the issue cannot be decided now.
Although Dawgs did not attach a copy of Mr. Schwechheimer’s curriculum vitae,
which would have enabled the Court to more thoroughly review Mr. Schwechheimer’s
qualifications, both of Mr. Schwechheimer’s reports provide an overview of his
qualifications and experience. See Docket No. 1026-5 at 3–4, ¶¶ 3–5; Docket No.
1026-6 at 3, ¶ 3. As relevant here, Mr. Schwechheimer states that he has 25 years of
experience as an economic consultant in intellectual property and patent licensing.
Docket No. 1026-5 at 3, ¶ 3. His expertise is in the calculation and analysis of
economic damages in patent, copyright, trade dress infringement, trade secret
misappropriation, antitrust, and breach of contract disputes. Id. at 4, ¶ 3. He is also an
adjunct professor of economics in applied economics, intellectual property strategy, and
microeconomics. Id., ¶ 4.
Under Rule 702, an expert’s qualifications may derive from knowledge, skill,
experience, training, or education. “[A]s long as an expert stays within the reasonable
confines of his subject area, our case law establishes a lack of specialization does not
affect the admissibility of the expert opinion, but only its weight.” Ralston v. Smith &
Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001) (quoting Compton v. Subaru
of Am., Inc., 82 F.3d 1513, 1520 (10th Cir. 1996)) (quotations and alterations omitted);
see also Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir. 1998) (“[D]isputes as
to the strength of his credentials, faults in his use of differential etiology as a
methodology, or lack of textual authority for his opinion, go to the weight, not the
admissibility of his testimony.”).

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Neither Crocs nor Mr. Schwechheimer has shown that Mr. Schwechheimer is
qualified to determine whether Dawgs’s business model involves selling “knockoffs” or
that Dawgs is a “fast follower.” Mr. Schwechheimer’s experience is in calculating and
analyzing economic damages, Docket No. 1026-5 at 4, ¶ 3, and, although Mr.
Schwechheimer teaches a course in “applied economics, intellectual property strategy,
and microeconomics,” see id., ¶ 4, there is no indication that he is qualified to
characterize Dawgs’s business model. As discussed below, Mr. Schwechheimer has
not provided a methodology by which he has determined that Dawgs is a knockoff or
fast follower. Crocs does not address this argument directly in its response. See
generally Docket No. 1059.
As to Mr. Schwechheimer’s use of the term “knockoff,” in the summary of
opinions from his first report, Mr. Schwechheimer explains that “Dawgs’s business
model appears to be based on adopting the designs of footwear and apparel products
already established in the marketplace, which Dawgs then manufactures, imports, and
sells in the United States. These brand knockoff products include the accused foam
clogs, which are ‘deceptively similar’ and ‘nearly identical’ to Crocs’s claimed patented
designs.” Docket No. 1026-5 at 4, ¶ 6. Although the Federal Circuit found Dawgs’s
shoes nearly identical to Crocs’s, see Crocs, 598 F.3d at 1306 (“In one comparison
after another, the shoes appear nearly identical. If the claimed design and the accused
designs were arrayed in matching colors and mixed up randomly, this court is not
confident that an ordinary observer could properly restore them to their original order
without very careful and prolonged effort.”), Crocs and Mr. Schwechheimer have not
shown why the use of the term “knockoffs” is necessary to Mr. Schwechheimer’s
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opinion about Dawgs, Dawgs’s alleged infringement, or Crocs’s alleged economic
damages. Mr. Schwechheimer defines “knockoff behavior” as infringement, see Docket
No. 1026-5 at 5, ¶ 10, and he later states that Daw gs’s alleged knockoffs are “products
copying the ornamental design or ‘look and feel’ of the Crocs brand to confuse or
closely associate with Crocs but not outright deceive that it is, in fact, an original Crocs.”
Id. at 6, ¶ 23. But neither Mr. Schwechheimer nor Crocs justifies his use of the term
“knockoff” in light of the term’s disparaging connotation. The Court finds that probative
value of this term to describe an infringing product is substantially outweighed by the
danger of unfair prejudice. See Fed. R. Evid. 403.
For Mr. Schwechheimer’s use of the term “fast follower,” he cites to a
presentation from Dawgs’s investment banker that Dawgs is “[a] ‘fast follower’ rather
than a trendsetter.” Docket No. 1026-5 at 4, ¶ 6 n.2 (q uoting Docket No. 1059-9 at 6).
Mr. Schwechheimer therefore equates the use of “fast follower” in this presentation with
what he takes to be Dawgs’s business model. He did not reach this conclusion himself,
but rather his use of “deceptively similar” and “nearly identical” comes from Mr.
Whatley’s opening report. See id. (citing “Opening Infringement Expert Report of Ian H.
Whatley, ¶¶ 95–97, 120–122). Neither party has provided the Court with this portion of
Mr. Whatley’s report.
Crocs argues that Mr. Whatley’s report is an admission by Dawgs and is
admissible under Federal Rule of Evidence 801(d)(2) as an opposing party’s statement.
Docket No. 1059 at 12. Crocs, however, does not explain the context of this report by
Mr. Whatley, whether he is or was a representative of Dawgs, or whether he has or had
the authority, as a Dawgs representative, for his statements to be considered
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admissions. See Fed. R. Evid. 801(d)(2)(A)–(E). Crocs has also not explained why or
whether damages experts like Mr. Schwechheimer commonly rely on investment
bankers’ statements for the characterization of business models or why Mr. Whatley is
a source commonly relied upon by damages experts for the same. Moreover, Mr.
Schwechheimer has not shown why he needs to use the term “fast follower,” which he
has not defined, and which could confuse the issues or mislead the jury.
C. Mr. Schwechheimer’s Opinions on the Quality of Dawgs’s Financials
Dawgs next seeks to exclude Mr. Schwechheimer’s “pejorative inferences about
Dawgs’[s] sales data that Dawgs ‘under-reported’ sales and made ‘unsubstantiated
deletions’ that were ‘most likely not the product of chance or error; they had an obvious
expected result.’” Docket No. 1026 at 11 (quoting Docket No. 1026-5 at 12–13, ¶¶ 38
n.57, 39–40). Dawgs argues that Mr. Schwechheimer did not audit Dawgs’s financials,
did not provide a methodology to conclude that Dawgs engaged in “nefarious conduct
as opposed to . . . a mistaken calculation.” Id. Dawgs also argues that his statements
are prejudicial and lack probative value. Id.
Crocs responds that Mr. Schwechheimer’s observations “rest on his review and
analysis of Dawgs’s financial production and interrogatory responses.” Docket No.
1059 at 14. The Court assumes “financial production” means financial documents
produced in discovery. Crocs also explains that Dawgs produced sales summaries in
early 2017 and then, a few months later, produced two sets of updated summaries. Id.
Mr. Schwechheimer found discrepancies in Dawgs’s claimed sales during his review of
these documents, which Crocs insists he explains in his report. Id.

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Mr. Schwechheimer states that he reviewed Dawgs’s corporate financial
statements, interrogatory responses, and fiscal year 2008 income statement. Docket
No. 1026-5 at 11–12, ¶ 38. He states that he rev iewed invoices to CVS, which Dawgs
stated accounted for 91% of its sales, from fiscal year 2008 to 2010. Id. at 12, ¶ 38
n.57. He compared the CVS invoices to reports in Dawgs’s financial statements and
the two versions of Dawgs’s sales summaries. Id. He then determined that Dawgs had
“significantly under-reported” its figures in the second version of its sales summaries
because the second version of the sales summaries omits income earned through
sales of certain kinds of accused product. Id. The Court finds that this is a reliable
methodology to calculate Crocs’s damages since the damages are related to Dawgs’s
infringement-based income, as “[t]he purpose of a damage award for patent
infringement is to give the plaintiff reasonable and full compensation for the loss
incurred because of the patent infringement.” Milgo Elec. Corp. v. United Bus.
Commc’ns, Inc., 623 F.2d 645, 664 (10th Cir. 1980). Mr. Schwechheimer provided
damages figures based on multiple patents and royalties, arising, in part, on what he
assumed was Dawgs’s infringing, fast follower business strategy. Reviewing Dawgs’s
income is reasonable because, if Dawgs infringed, its income due to the infringement
contributes to Crocs’s damages. The Court also finds that Mr. Schwechheimer’s
experience in damages analysis and calculations enable him to express his opinion
about why the two versions of Dawgs’s sales summaries were different, even though
Dawgs may disagree with that opinion. See Allstate Sweeping, 2011 WL 2173997, at
*3 (explaining that an expert’s proffer is tested against the standard of reliability, not

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correctness). The Court will deny Dawgs’s motion on this issue and permit Mr.
Schwechheimer to testify about Dawgs’s financials.

D. Mr. Schwechheimer’s Opinions on Pre-Issuance Damages
Finally, Dawgs seeks to exclude Mr. Schwechheimer’s opinion on “pre-issuance
damages,” which is “[f]rom an economic perspective, Dawgs’s infringement-based, ‘fast
follower’ business strategy provides a textbook case for awarding Crocs’s pre-issuance
damages under 35 U.S.C. § 154(d).” Docket No. 2016 at 12 (quoting Docket No. 10265 at 5, ¶ 9). Section 154(d) states, in part, that a patent ow ner has the right to royalty
damages from an infringer beginning on the date of publication of the application of the
patent and ending on the date that the patent is issued if the infringer “had actual notice
of the published patent.” 35 U.S.C. § 154(d)(1)(B). Dawgs argues that Mr.
Schwechheimer’s opinion on pre-issuance damages should be excluded because
“[t]here is no evidence whatsoever of any actual knowledge, rendering Mr.
Schwechheimer’s opinion irrelevant.” Docket No. 1026 at 12.
In its response, Crocs does not rebut the notion that there is no ev idence of
notice to Dawgs, but says that it will address these issues in response to Dawgs’s
motion for summary judgment. See Docket No. 1059 at 15. Crocs asserts, however,
that Mr. Schwechheimer does not “opine that Dawgs had notice of the ’465 patent,” but
rather “assumes liability, and opines on the damages that would be owed to Crocs.” Id.
Crocs states that it will respond to Dawgs’s arguments on this issue in its response to
Dawgs’s motion for partial summary judgment. Accordingly, the Court will address this
dispute in resolving that motion.
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IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Counterclaim Plaintiffs’ Motion to Exclude Certain Expert
Testimony [Docket No. 1026] is GRANTED in part and DENIED in part.

DATED March 30, 2022.

BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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