Peiker Acustic, Inc. et al v. Kennedy
Filing
105
ORDER granting 91 Motion to Exclude Viva R. Moffat, Esq. as Expert Witness, by Judge Robert E. Blackburn on 03/21/2012.(wjcsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 10-cv-02083-REB-MJW
PEIKER ACUSTIC, INC., and
PEIKER ACUSTIC GMBH & CO. KG,
Plaintiffs/Counterclaim Defendants,
v.
PATRICK KENNEDY,
Defendant/Counterclaimant.
ORDER GRANTING MOTION TO EXCLUDE
VIVA R. MOFFAT, ESQ. AS EXPERT WITNESS
Blackburn, J.
The matter before me is plaintiffs’ Motion To Exclude Viva R. Moffat, Esq. as
Expert Witness [#91]1 filed December 16, 2011. I grant the motion.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1332 (diversity of citizenship).
II. STANDARD OF REVIEW
Plaintiffs seek to exclude the testimony of one of defendant’s expert witnesses.
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert
witness testimony, provides:
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:
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“[#91]” is an exam ple of the convention I use to identify the docket num ber assigned to a
specific paper by the court’s electronic case filing and m anagem ent system (CM/ECF). I use this
convention throughout this order.
(a) the expert's scientific, technical, or other specialized
knowledge will 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 interpreted by the Supreme Court, Rule 702 requires that an
expert’s testimony be both reliable, in that the witness is qualified to testify regarding
the subject, and relevant, in that it will assist the trier in determining a fact in issue.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct.
2786, 2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek,
Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The Supreme Court has described the
court’s role in weighing expert opinions against these standards as that of a
“gatekeeper.” See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147,
119 S.Ct. 1167, 1174, 142 L.Ed.2d 248 (1999).
In this instance, where plaintiffs challenge the expert’s qualifications to opine as
to a particular subject, the district court must determine that the putative expert has
sufficient “knowledge, skill, experience, training, or education” to offer an opinion that
will be helpful to the jury. See Watson v. United States, 485 F.3d 1100, 1106 (10th Cir.
2007). I have discretion in determining whether a witness is so qualified. See Milne v.
USA Cycling Inc., 575 F.3d 1120, 1133 (10th Cir. 2009).
III. ANALYSIS
The basis and background of this case is well-known to the parties and need not
be repeated here at length. This is a case for defamation per se. Plaintiffs claim that
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defendant’s book, IdeaJacked, defames them by suggesting that “Peiker” stole ideas
patented by him or otherwise arrogated his patented ideas and/or inventions.
Defendant filed a counterclaim for abuse of process, by which he asserts that plaintiffs
filed this action in an attempt to gain leverage in a separate lawsuit between his
company and plaintiffs.
In support of his counterclaim, defendant has designated Viva R. Moffat, Esq.,
as a may call expert witness. Ms. Moffat is an assistant professor of law at the
University of Denver Sturm College of Law, whose teaching focuses primarily on
intellectual property issues, unfair competition, and contracts. She purports to offer
essentially four opinions:
(1) “to explain in general terms the structure of the United
States patent system and the circumstances under which
one person or entity may be found to have directly or
indirectly infringed the patent,” as well as explain the
concepts of inducing infringement and contributory
infringement (Motion App., Exh. 1 at 3);
(2) “to comment on Peiker’s decision to file this lawsuit in the
name of Peiker USA as the lead plaintiff” in order to opine
that “[n]one of th[e] evidence supports the conclusion that
Peiker USA is the real party in interest” (id., Exh. 1 at 4);
(3) “to comment on the Plaintiffs’ decision to file this lawsuit
in state court in Michigan and to comment upon where
Peiker might have brought this lawsuit instead” and conclude
that there was “no legal or practical reason why Peiker
chose to file this lawsuit in state court in Michigan” (id., Exh.
1 at 4, 5); and
(4) to offer a chronology of the procedural history of this
case (id., Exh. 1 at 5-6).
Plaintiffs object to the admission of such testimony as usurping the court’s role to be the
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sole source of the jury’s understanding of the legal standards relevant to their
determinations.
I agree. It is “the court’s duty to set forth the law” applicable to the facts
presented at trial. Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988) (en banc),
cert. denied, 109 S.Ct. 792 (1989). The Tenth Circuit court has affirmed that “[t]here is
a significant difference between an attorney who states his belief of what law should
govern the case and any other expert witness. While other experts may aid a jury by
rendering opinions on ultimate issues, our system reserves to the trial judge the role of
adjudicating the law for the benefit of the jury.” Id. at 808-09. In addition to the danger
of confusion inherent in allowing such testimony about legal conclusions to be drawn
from the facts, “testimony which articulates and applies the relevant law . . . circumvents
the jury's decision-making function by telling it how to decide the case.” Id. at 808.
For these reasons, “when the purpose of the testimony is to direct the jury’s
understanding of the legal standards upon which their verdict must be based, the
testimony cannot be allowed.” Id. at 810. See also Anderson v. Suiters, 499 F.3d
1228, 1237 (10th Cir. 2007) (“[W]hile expert witnesses may testify as to the ultimate
matter at issue . . . this refers to testimony on ultimate facts: testimony on ultimate
questions of law, i.e., legal opinions or conclusions, is not favored.”). Thus, the line
between admissible and excludable testimony under Specht is this:
an expert's 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 standards upon which their
verdict must be based, the testimony cannot be allowed. In
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no instance can a witness be permitted to define the law of
the case.
Id. at 809-10.
Ms. Moffat’s proposed testimony contravenes this principle. Clearly, her
opinions as to why plaintiffs filed this suit in Michigan state court and designated Peiker
USA as the lead plaintiff do not merely relate these undisputed facts, but purport to
conclude that Peiker USA is not the real party in interest and that the decisions to name
Peiker USA as a party plaintiff and to file in Michigan were not proper in the regular
conduct of proceedings and/or was motivated by an ulterior purpose. These are the
legal issues that jury will be asked to determine based on the facts before it. Allowing
Ms. Moffat to testify as set forth in her expert report would simply direct the jury as to
how defendant’s counterclaim should be determined and usurp the court’s role as the
sole source of the legal principles governing that claim. There is no apparent reason
why defendant himself could not just as adequately testify to the facts underlying these
issues, which facts do not appear to be in serious dispute. The only dispute is how
those facts are to be interpreted, which is what Ms. Moffat purports to do. Allowing her
to thus apply the law to the facts, however, is not permissible under Specht and its
progeny.
With respect to Ms. Moffat’s purported testimony regarding patent infringement
issues, Ms. Moffat does not even offer an opinion, but merely describes what
constitutes infringement in various forms. This clearly is nothing more than “testimony .
. . direct[ing] the jury’s understanding of the legal standards upon which their verdict
must be based.” Id. at 810. Again, instructing the jury on the definition and contours of
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infringement and its role in this case is this court’s duty, and, thus, not a proper subject
for expert testimony.
THEREFORE, IT IS ORDERED that plaintiffs’ Motion To Exclude Viva R.
Moffat, Esq. as Expert Witness [#91] filed December 16, 2011, is GRANTED.
Dated March 21, 2012, at Denver, Colorado.
BY THE COURT:
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