Romag Fasteners, Inc. v. Fossil, Inc. et al

Filing 386

ORDER granting in part and denying in part #281 Motion in Limine. Signed by Judge Janet Bond Arterton on 03/24/2014. (Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROMAG FASTENERS, INC.,
Plaintiff,
v.
FOSSIL, INC. et al.,
Defendants.

Civil No. 3:10cv1827 (JBA)

March 24, 2014

RULING ON DEFENDANTS’ DAUBERT MOTION
Defendants move [Doc. # 281] in limine to exclude the expert opinion testimony
of Plaintiff’s experts Lisa Steinberg, Terry Van Winkle, and J. Scott Armstrong, arguing
that Steinberg and Van Winkle offer “unreliable, unsupported, and conclusory opinions,”
and that Armstrong offers incomplete opinions, in violation of the standards for the
admission of expert testimony announced in Daubert v. Merrel Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702. Plaintiff opposes this motion,
arguing that it is untimely and as such, is extremely prejudicial, and that the proffered
expert testimony is reliable and would be helpful to the jury in determining whether
Defendants’ profits are attributable to the use of ROMAG brand snaps in their products.
For the following reasons, Defendants motion in limine is granted in part and denied in
part.
I.

Legal Standard
The discretion of this Court to admit expert testimony is governed principally by

Fed. R. Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702; Nimely v. City of N.Y., 414 F.3d 381, 395 (2d Cir. 2005). The Supreme
Court in Daubert, 509 U.S. at 597, made clear that Rule 702 charges district courts with
“the task of ensuring that an expert's testimony both rests on a reliable foundation and is
relevant to the task at hand.” See also Nimely, 414 F.3d at 396.
Daubert sets out a list of non-exhaustive factors that trial courts may consider in
determining whether an expert's reasoning and methodology are reliable: (1) whether the
theory or technique on which the expert relies has been or could be tested; (2) whether
the theory or technique has been subjected to peer review and publication; (3) the known
or potential rate of error of the technique or theory when applied; (4) the existence and
maintenance of standards controlling the technique’s operation; and (5) whether the
theory or technique has been generally accepted in the scientific community. Daubert,
509 U.S. at 593-94; see also Nimely, 414 F.3d at 396. The test of reliability is a “flexible”
one depending on the “nature of the issue, the expert’s particular expertise, and the
subject of his testimony” and no one factor will necessarily be determinative of the
reliability of an expert’s testimony, because the trial court need only “consider the specific
factors identified in Daubert where they are reasonable measures of the reliability of
expert testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 152 (1999); accord
Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265–66 (2d Cir. 2002).
Under the relevancy prong of Rule 702, the Court must also determine if the
expert’s testimony will assist the trier of fact. See Daubert, 509 U.S. at 59. “As with any
other relevant evidence, the court should exclude expert testimony if its prejudicial effect
substantially outweighs its relevance. In addition, the district court should not admit

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testimony that is directed solely to lay matters which a jury is capable of understanding
and deciding without the expert's help.” United States v. Mulder, 273 F.3d 91, 101 (2d
Cir. 2001). Moreover, the district court must “carefully circumscribe [the use of expert
testimony] to assure that the expert does not usurp either the role of the trial judge in
instructing the jury as to the applicable law or the role of the jury in applying that law to
the facts before it.” United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991). Thus,
“although an expert may opine on an issue of fact within the jury’s province, he may not
give testimony stating ultimate legal conclusions based on those facts.” Id.
II.

Discussion
Plaintiff offers the testimony of Steinberg, Van Winkle, and Armstrong. Steinberg

and Van Winkle opine that the quality of the component hardware in a handbag plays an
important role in a consumer’s choice of handbag, and Armstrong opines that an
experiment, rather than a consumer survey was the appropriate way to determine the role
the ROMAG mark plays in consumer decision-making. However, neither Steinberg nor
Van Winkle based their opinion on a consumer survey, and Armstrong failed to conduct
his proposed experiment, and for these reasons, Defendants argue that their proposed
expert testimony is unreliable and incomplete, and should be excluded.
A.

Prejudice

Plaintiff first argues that Defendants should be precluded from seeking to exclude
the testimony of its experts because Defendants have previously filed Daubert motions
regarding this testimony, the current motion is untimely, and because Plaintiff would be
prejudiced by the exclusion of its experts. Defendants do not deny that their motion is
untimely, nor do they deny that they previously moved to preclude the exact same
testimony on different grounds. Judge Young denied [Doc. ## 235, 236] Defendants’
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motions with respect to the testimony of Steinberg and Van Winkle, and denied [Doc.
# 234] Defendants’ motion without prejudice to renew at trial with respect to the
testimony of Armstrong. However, Defendants argue that the Court should still consider
their challenge to Plaintiff’s proposed expert testimony based on its gatekeeping role
under Daubert. As the Court explained on the record at the parties’ pre-trial conference,
“Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ‘ensure
that any and all [expert] testimony . . . is not only relevant but reliable.’” Kuhmo Tire Co.,
526 U.S. at 147 (quoting Daubert, 509 U.S. at 589). The Court has the authority to raise
Daubert concerns sua sponte in order to fulfill this obligation. Fraser v. Wyeth, -- F. Supp.
2d --, 2014 WL 129172, at *21 (D. Conn. Jan. 14, 2014). Therefore, although the
exclusion of Plaintiff’s proposed experts might prejudice Plaintiff’s case, the Court will
consider the merits of Defendants’ Daubert challenge in keeping with its duty to ensure
that only relevant and reliable expert testimony be presented to the jury.
B.

Testimony of Lisa Steinberg and Terry Van Winkle1

Defendants argue that Steinberg’s and Van Winkle’s proposed expert testimony
represents the unreliable ipse dixit of the proposed experts, based solely on their
respective personal experiences, rather than a reasoned analysis of the data in a consumer
survey, and as such, their testimony should be excluded from trial.

Specifically,

Defendants object to Steinberg’s and Van Winkle’s testimony regarding the role quality
hardware plays in a consumer’s decision to purchase a particular handbag. (See Steinberg

1

At oral argument, Plaintiff’s counsel conceded that paragraph 13 of Van
Winkle’s expert report should be struck, because Judge Young struck the nearly identical
paragraph 12 from Steinberg’s report in his ruling [Doc. # 235] on the Defendants’ first
Daubert motion. Similarly, Judge Young previously ruled [Doc. # 236] that paragraph 15
should be struck from Van Winkle’s report. Thus, Van Winkle will not be permitted to
testify as to these two paragraphs.
4

Expert Report, Ex. 2 to Cass. Decl. [Doc. # 294] ¶ 15 (“It is my understanding that Fossil
contends that only a small part of its profits are due to the counterfeit magnetic snaps.
However, hardware is a key component of a handbag.

Good-looking, distinctive

hardware can literally sell a bag. In my opinion, the hardware cannot be separated from
other elements of the bag in determining what motivates a consumer to make a
purchase.”); Van Winkle Expert Report, Ex. 4 to Cass Decl. ¶ 16 (“Hardware is a key
component of a handbag. In my opinion, the hardware cannot be separated from other
elements of the bag in determining what motivates a consumer to make a purchase.”).)
At oral argument, Defendants expanded their objection to the entirety of Steinberg’s and
Van Winkle’s reports, arguing that neither witness is qualified as an expert with respect to
the market for Fossil’s products, and that their testimony is entirely irrelevant to this
case.2
Defendants’ primary challenge to the proposed expert testimony of Steinberg and
Van Winkle is that they have not based their opinions on a consumer survey. See Patsy’s
Italian Restaurant, Inc. v. Banas, 531 F. Supp. 2d 483, 486 (E.D.N.Y. 2008) (excluding
expert opinion testimony regarding the likelihood of consumer confusion as unreliable
and unhelpful to the jury because it was not based on a consumer survey); New Colt
Holding Corp. v. RJG Holdings of Fla., Inc., No. Civ. 3:02CV173 (PCD), 2003 WL
23508131, at *4 (D. Conn. Aug. 11, 2003) (same.)

However, the mere fact that the

proposed testimony is not based on a scientific process does not mean that it is invalid.
As the Advisory Committee Notes to the 2000 Amendment for Rule 702 explain:

2

The Court has serious doubt that these opinions can serve to rebut Dr. Jay’s
consumer survey on the role of the ROMAG mark in consumer decision-making, as
opposed to serving as background information for jurors about manufacturer’s
considerations in design and production detail.
5

“Nothing in this amendment is intended to suggest that experience alone—or experience
in conjunction with other knowledge, skill, training or education—may not provide a
sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly
contemplates that an expert may be qualified on the basis of experience. In certain fields,
experience is the predominant, if not sole, basis for a great deal of reliable expert
testimony.” The Supreme Court has recognized that “an expert might draw a conclusion
from a set of observations based on extensive and specialized experience.” Kumho Tire
Co., 526 U.S. at 156.
Here, both Van Winkle and Steinberg have extensive experience in their
respective fields. Steinberg has twenty-five years of experience in product development
and production with respect to the selection, specification, purchase, and use of the
hardware in handbags and small leather accessories. (Steinberg Expert Report ¶ 3.)
Similarly, Van Winkle has twenty years of experience in the manufacture of handbag
hardware, including the specification and purchase of hardware for use in handbags and
small leather accessories. (Van Winkle Report ¶ 3.) Defendants argue that because Van
Winkle only worked for one company—Coach—he is not qualified to testify as an expert
with respect to the entire handbag industry, and that because Steinberg only worked with
lower-priced accessories, and never specified Romag snaps in her work, she is not
qualified to testify as to the sector of the handbag industry to which Fossil belongs.
However, the upshot of Defendants’ arguments seems to be to suggest that only an
employee of Fossil could testify as an expert in Fossil’s industry. Van Winkle has years of
experience working for an industry leader in the higher-end sector to which Fossil
belongs, and Steinberg’s experience in hardware specification for less expensive handbags
also gives her insight into why higher-end manufacturers might make different choices
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than the manufacturers for which she worked. Therefore, Defendants’ argument that
Steinberg and Van Winkle are not qualified as experts lacks merit.
Steinberg and Van Winkle propose to testify regarding the demand for magnetic
snap fasteners, how manufacturers choose which fasteners to specify, the process by
which handbag manufacturers procure both generic and Romag fasteners, particularly in
China, what features manufacturers take into account in handbag design and
manufacturing predicated on their experience with consumer market response. Such
testimony would provide relevant contextual information about the handbag industry
and manufacturing handbags in China for the jury which could be helpful to them in
evaluating the parties’ evidence. Thus, Steinberg’s and Van Winkle’s proposed expert
testimony will not be excluded in its entirety. However, the Court will exclude several
portions of their respective reports.
With respect to the Steinberg Report, Judge Young has already excluded
paragraph 12 of the report. Furthermore, the Court concludes that paragraph 14 should
be modified to state that “handbag makers like Fossil” are in the best position to avoid
counterfeiting, and Steinberg will not be permitted to opine as to whether Fossil
specifically was in the best position to avoid counterfeiting.

The first sentence of

paragraph 15 will also be struck, and Steinberg will not be permitted to opine as to what
Fossil is arguing. With respect to the Van Winkle Report, Judge Young has already
struck paragraph 15, and Plaintiff concedes that paragraph 13 should be struck in order
to maintain consistency with Judge Young’s ruling striking paragraph 12 of the Steinberg
Report. Therefore, Defendants’ motion is granted with respect to paragraphs 12, 14 in
part, and 15 in part of the Steinberg Report and paragraphs 13 and 15 of the Van Winkle
Report, and denied in all other respects.
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C.

Testimony of J. Scott Armstrong

Defendants also object to the testimony of Armstrong on the basis that it is
incomplete. Specifically, Defendants object to Armstrong’s proposed testimony that Jay
should have conducted an experiment, rather than a consumer survey, and that the Jay
survey was methodologically flawed (Armstrong Expert Report, Ex. 7 to Cass Decl. at 7–
8, Appx.), because Armstrong never himself conducted the proposed experiment, and
admitted in his deposition that he had not fully analyzed the list of alleged flaws in Jay’s
survey (Armstrong Dep. Tr., Ex. 6 to Cass Decl. at 108–10). In its opposition, Plaintiff
represents that Armstrong will not be testifying as to the potential shortcomings of the
Jay survey detailed in the appendix to his report (Pl.’s Opp’n [Doc. # 361] at 12–13), and
thus Defendants’ motion is moot to the extent that it challenges the appendix as
incomplete.
With respect to Defendants’ argument that Armstrong’s proposed testimony is
incomplete because he failed to conduct his proposed experiment, other courts have
permitted expert rebuttal testimony to critique an opponent’s expert where the rebuttal
expert did not conduct his or her own alternative analysis. See Aviva Sports, Inc. v.
Fingerhut Direct Marketing, Inc., 829 F. Supp. 2d 802, 834 (D. Minn. 2011) (“[R]ebuttal
expert witnesses may criticize other experts’ theories and calculations without offering
alternatives.”); Smith v. Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302, 1324–25 (N.D. Ga.
2008) (holding that rebuttal expert could critique opposing expert’s survey based on his
specialized knowledge and experience without conducted his own tests or experiments).
Contrary to Defendants’ argument, Armstrong’s proposed testimony regarding a
consumer experiment is not incomplete.

Armstrong does not propose to testify

regarding the hypothetical outcome of the proposed experiment. Rather, he proposes to
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testify, based on his extensive experience in marketing and survey research as to the flaws
in Jay’s survey, and how those flaws could have been corrected with a different design.
The Court concludes, based on Armstrong’s extensive marketing experience, that such
rebuttal testimony is relevant, reliable, and would be helpful to the jury.3 Therefore,
Defendants’ motion in limine is denied with respect to Armstrong’s proposed expert
testimony.
III.

Conclusion
For the foregoing reasons, Defendants’ Motion [Doc. # 282] in Limine to Exclude

the Unreliable Expert Opinion Testimony of Lisa Steinberg, Terry Van Winkle, and J.
Scott Armstrong is GRANTED, with respect to paragraphs 12, 14 in part, and 15 in part
of the Steinberg Report, and paragraphs 13 and 15 of the Van Winkle Report, and
DENIED in all other respects.
IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 24th day of March, 2014.

3

At oral argument, Defendants expanded their objection to Armstrong, arguing
that his testimony was irrelevant because it did not discuss the importance of the Romag
brand, as opposed to the importance of brands in general. However, Plaintiff’s counsel
clarified that Armstrong would be called as a rebuttal witness to Jay, and thus the full
scope of his testimony will be governed by the content of Jay’s testimony at trial.
Plaintiff’s witness list proposes a more expansive scope of anticipated testimony, beyond
rebuttal to Dr. Jay’s methodology.
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