Allscripts Healthcare, LLC v. Andor Health, LLC et al
MEMORANDUM. Signed by Judge Mark A. Kearney on 7/29/2022. (nmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALLSCRIPTS HEALTHCARE, LLC, et : CIVIL ACTION
: NO. 21-704-MAK
ANDOR HEALTH, LLC, et al.
July 29, 2022
Two healthcare technology companies working together since 2018 blame each other for
disputes destroying their short-lived business relationship last spring. Their disputes ended up
before us and later involved the Indian police. Their relationship began in spring 2018 when
Allscripts Healthcare, LLC purchased a company, Health Grid, from Raj Toleti who then became
an Allscripts’s employee. Allscripts’s relationship with Mr. Toleti and his entities later expanded
when Allscripts signed contracts with two of Mr. Toleti’s other companies, Mahathi Software
PVT., LTD. and Andor Health, LLC. The relationship began to sour in spring 2020 resulting in
Mr. Toleti and high-level employee Amar Bulsara leaving Allscripts within months of each other.
Allscripts ended its relationship with Mahathi by spring 2021 and immediately sued alleging
breaches of agreements, sharing confidential and trade secret information, and a variety of
commercial torts against Andor, Mahathi, and Messrs. Toleti and Bulsara.
Allscripts’s filing the case last spring started another round of conduct now about to
proceed to trial. Each party alleges the other engaged in a week-long cyberattack on the parties’
once-shared virtual workspace within days of Allscripts filing this case. The parties allege stealing,
destroying, or preventing access to each other’s confidential and proprietary information. Mahathi
reported Allscripts to the Indian police leading to criminal charges against Allscripts’s employees
in the United States and its affiliates in India. The parties continued to allegedly disparage and
tortiously interfere with each other’s business relationships.
The parties are now preparing for trial on claims for breaches of various agreements, claims
surrounding the cyberattack, misappropriation of trade secrets and other confidential information,
and various torts including tortious interference, abuse of process, unfair competition, and
defamation to merely name a few. Funded by apparently sizable litigation budgets, the parties
hired purported experts to presumably help the jury understand this healthcare technology industry,
Indian criminal process, and damages. They now move to preclude a total of fourteen experts from
offering varied opinions largely relating to the nature of the shared workspace in high tech (hint:
not a brick-and-mortar office), alleged lost profits caused by the other’s alleged conduct, and how
Indian criminal process works.
All parties declined our offer for an evidentiary hearing so we could better explore their
wide-ranging objections and meet their burdens. We did our best to understand these issues which
counsel claim are subjects of expertise. We will not hamstring the trial lawyers, but we must
preclude some of the opinions cloaking as lawyer advocacy and conclusions rather than qualified
opinions fitting the issues based on reliable methods and data.
We specifically preclude experts on Indian criminal law and procedure from opining as to
corruption or police abuse in India, Mahathi’s state of mind, or whether Mahathi’s conduct violated
Indian law. These experts may generally describe––consistent with Federal Rule of Evidence
611—the Indian criminal justice process, how it generally works, and opine whether Mahathi’s
conduct varies from the standard role and practices of an alleged victim of a cyberattack under
Indian law. We allow the lost profits and damages experts to opine subject to rigorous crossexamination and consistent with Rule 611. We largely permit the parties’ technology experts to
testify but exclude opinions beyond their qualifications and to the extent the opinions constitute
improper legal opinions or opinions on intent or state of mind. We permit Andor’s rebuttal expert
Aneesh Chopra to testify over Allscripts’s objection, permit one of Allscripts’s expert John
Cauthen’s opinions on a purportedly fabricated document, and permit some but not all of
Allscripts’s expert Dr. Yael Harris’s opinions.
We are mindful of the balancing in our gatekeeping role.
We must ensure a witness offering an expert opinion possesses adequate “knowledge, skill,
experience, training, or education” to support the opinion. 1 We act “as a ‘gatekeeper’ to ensure
that ‘any and all expert testimony or evidence is not only relevant, but also reliable.’” 2 Congress,
through Rule of Evidence 702, “usually favors admissibility.” 3 Rule 702 embodies a “trilogy of
restrictions on expert testimony: qualification, reliability[,] and fit.” 4 The burden is on the party
offering expert testimony to show it meets the standards for admissibility. 5
The first category of restrictions—qualification—requires “that the witness possess
specialized expertise.” 6 Our Court of Appeals interprets this requirement “liberally.” 7 “[A] broad
range of knowledge, skills, and training qualify an expert.” 8 We should not “impos[e] overly
rigorous requirements of expertise”; “more generalized qualifications” suffice. 9
The second category—reliability—requires us to examine “the process or technique the
expert used in formulating the opinion.” 10 The opinion must be based on “the ‘methods and
procedures of science’ rather than on ‘subjective belief or unsupported speculation.’” 11 “In other
words, the expert must have ‘good grounds’ for his belief.” 12 In cases not involving scientific
testimony, “the relevant reliability concerns may focus upon personal knowledge or experience.” 13
The third category—fit—requires we ask “whether [the] expert testimony proffered . . . is
sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” 14
“Put another way, this is a question of relevance, and Rule 702, which governs the admissibility
of expert testimony, has a liberal policy of admissibility if it has the potential for assisting the trier
of fact.” 15 “The standard is not that high, but is higher than bare relevance.” 16
Rule 702’s trilogy of restrictions “incorporates to some extent a consideration of the
dangers, particularly the danger of unfair prejudice, enumerated in” Rule 403. 17 But Rule 403 still
independently applies to expert testimony. 18 We should exclude evidence under Rule 403 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.” 19
Under Federal Rule of Evidence 704(a), an expert’s opinion “is not objectionable just
because it embraces an ultimate issue.” 20 Although Rule 704 permits an expert to give testimony
embracing the ultimate issue to be decided by the fact finder, an expert may not render a legal
opinion. 21 Because the “boundaries of Rule 704 are often hazy,” our Court of Appeals will not
permit expert testimony if the expert’s opinion will interfere with the district court’s “pivotal role
in explaining the law to the jury.” 22
We group the Daubert motions into four broad categories: (A) the Indian criminal justice
system experts; (B) damages experts; (C) technology experts; and (D) miscellaneous experts.
We allow limited opinions offering expertise into the Indian criminal justice
system but preclude legal conclusions or opinions which otherwise invade our or
the jury’s province.
Allscripts will proceed to trial on a claim Mahathi and its agents abused lawful Indian
cybercrime process for the ulterior purpose of affecting Allscripts’s earlier-filed claims before us.
There are two elements of an abuse of process claim under Delaware law: “(1) an ulterior purpose;
and (2) a willful act in the use of the process not proper in the regular conduct of the
proceedings.” 23 The tort of abuse of process is “perversion of the process after it has been
issued.” 24 The tort “addresses a litigant’s use of the legal system to perpetuate an improper purpose
to sue by using, or abusing, the imposition of proceedings that accompany litigation upon an
Andor moves to exclude Allscripts’s proffered experts Mark Jenkins, Zulfiquar Memon,
and Harry Brandon who opine on the conduct of the Indian police in the criminal investigation.
Allscripts moves to exclude Andor’s proffered experts Srividhya Ragavan and Susanah Naushad,
two attorneys of the Indian bar, who opine on the Indian criminal justice system. We review the
parties’ Daubert motions within the context of Allscripts’s abuse of process claim.
The opinions are buried in extended “reports” leaving us without clear direction on the
anticipated opinions. But we have enough to clarify: The qualified witnesses can tell the jury about
the Indian cybercrime process and whether Mahathi’s conduct (as the alleged victim) is consistent
with how the Indian process operates. But the qualified experts cannot opine as to whether the
Indian police or system is corrupt or whether the police acted inappropriately nor can a witness
tell the jury what is in another person’s mind.
A. Allscripts’s experts Mark Jenkins, Attorney Zulfiquar Memon, and Harry
1. We exclude Mark Jenkins’s proffered opinion testimony.
Andor moves to exclude the opinion of Mark Jenkins. 26 Mr. Jenkins is a certified fraud
examiner and is the Director of Forensic Investigations for The Kreller Group, providing
professional consulting services. 27 Mr. Jenkins prepared three expert reports: an original report,28
an amended report, 29 and a supplemental report analyzing expense documentation showing
expenses paid by Mahathi for travel-related costs incurred by the Indian cybercrime police. 30 He
defines the scope of his retention by Allscripts to review and analyze travel documents and travel
cost reimbursement documents relating to trips sponsored, paid for, and taken by Mahathi
employees with Indian cyber unit police officers. 31
Mr. Jenkins offers six “conclusions/opinions”: 32
1. Mahathi employees directly purchased or directed a travel agency to book air or rail tickets
for Vizag cyber police officers. The support documents for airfare were provided by the
defendants that only indicate partial reimbursement by Vizag cyber unit police officers in
cash to the travel agency. No verifiable or objective records kept in the normal course of
business was provided for rail ticket reimbursement by Vizag police officers.
2. Of the total trips Mahathi Software employees booked for and were taken by the Vizag
police officers, assuming the support documents are authentic (I am unaware if these
documents have been authenticated by a document expert as they were copies), 11 out of
33 trips taken had support documents and 10 cancellation fees had support for potential
reimbursement. According to the documents provided, the 11 trips with support cost totaled
INR (Indian Rupees) 82,240 out of a total [Indian Rupees] 112,762 (73.0%). The travel
agency that booked the 11 trips show cash receipts were received from the Vizag police
officers approximately one month and then three months after the travel dates. I was not
provided support by the defendants for the remaining [Indian Rupees] 30,522 in travel
3. I was not provided additional travel related costs such as lodging, meals or other travel
related costs (such as parking, taxis, and COVID travel tests-only the tests results were
provided) nor support documents that would indicate whether or not those costs for the
Vizag police officers were paid by Mahathi Software and then reimbursed by Vizag police
officers or paid directly by Vizag police officers.
4. I reviewed three handwritten notes with Mahathi Software PVT. LTD. stamps/seal on
Mahathi Software letterhead that stated: “Received amount of 1.549 Rupees by way of cash
on 17/08/2021 towards train tickets” from VSKP to BZA.” The names of each of three
Vizag police officers were included in these notes. I do not consider these notes valid
support for cash received from the officers. The company should provide bank statements
and deposit slips as well as travel receipts as proof of reimbursement. The police officers
would or should have requested reimbursement from the Vizag police department for these
trips and, if so, those records should be available.
5. The Vizag “Certified Copy of the Chargesheet” dated 9/20/2021 does not mention the 43
trips that Mahathi booked for the Vizag police officers. Two trips mentioned in the
Chargesheet were on 9/2/2021 to 9/4/2021. One trip to Allscripts India LLP in Vadadora,
India by V. Gopinath and during the same time to Pune by M. Avataram. Conversely, these
two trips were not included in the 43 trips that Mahathi booked on behalf of the Vizag
polices officers that I was provided the details and support.
6. Although I do not have direct evidence for why the production of the travel support
documents was delayed and provided in batches by the defendants, typically in my
experience as a fraud investigator this behavior is an indicator of potential manipulation or
creation of support to defend a narrative.
Andor objects to Mr. Jenkins’s methodology, arguing Mr. Jenkins acted as a “human
calculator” who simply added up receipts to show only seventy-three percent of the trips booked
by Mahathi employees for Indian police were reimbursed—meaning the Indian police did not
reimburse Mahathi for twenty-seven percent of the travel expenses incurred during the
investigation. 33 Andor argues experts are not needed to perform simple math, and we must exclude
Mr. Jenkins’s opinion. We agree with Andor as to Mr. Jenkins’s calculations of reimbursement
and travel costs and who paid for what. He is reciting the contents of documents and adding and
subtracting expenses. There are no complicated extrapolations. He offers no specialized expertise.
We exclude this opinion.
Mr. Jenkins also offers an opinion as to Andor’s state of mind without direct evidence
suggesting delay in production could indicate potential manipulation. Andor argues we must
exclude Mr. Jenkins’s opinion, in his experience as a fraud investigator, the delayed production of
documents by Andor regarding the travel expenses “is an indicator of potential manipulation of
create of support to defend a narrative.” 34 Andor considers this an impermissible opinion on state
of mind. We agree and exclude Mr. Jenkins’s opinion the delay in production of documents is an
indicator of manipulation. Any delay by counsel for Andor in producing documents cannot be
attributed to it in the context of Allscripts’s abuse of process claim. Such an opinion does not “fit”
the abuse of process claim. We prelude Mr. Jenkins’s proffered opinions.
2. We admit Zulfiquar Memon’s proffered opinion testimony as to Indian
criminal procedure and Mahathi’s participation in the criminal process
but exclude opinions on the conduct of the Indian police.
Andor moves to exclude the opinion of Indian attorney Zulfiquar Memon. 35 Attorney
Memon is the founder and managing partner of a law firm in Mumbai and New Delhi, India. 36
Attorney Memon defines the scope of his retention by Allscripts to: (1) “[explain] … Indian
criminal procedure, including an explanation of a private citizen or company’s role in Indian
criminal procedure;” (2) “[explain] … what qualifies as legal process in India;” (3)
“[summarize]… Mahathi Software Pvt., Ltd.’s initiation of and participation in criminal
proceedings in … India;” and (4) “[opine] on any procedural violations that may have taken place
during the investigation carried out in India.” 37
Attorney Memon summarizes his opinion in eleven paragraphs, with the tenth paragraph
containing twenty sub-paragraphs, concluding it is his opinion “there have been numerous
violations by the Cyber Crime [Police Station] and Mahathi India of Indian law and procedure, as
detailed in my report.” 38 Andor objects to Attorney Memon’s opinion for two reasons: (1) it is
duplicative of Mr. Jenkins’s opinion on the issue of Mahathi’s payment of police travel expenses;
and (2) it “nitpicks” the Indian police investigation and does not fit the issues of the case.
We disagree Attorney Memon’s opinion is duplicative of Mr. Jenkins’s opinion. Attorney
Memon identified deviations from lawful processes in the investigation based, in part, on
Mahathi’s funding and sponsoring of a “substantial portion of the investigation.” 39 Attorney
Memon relied on Mr. Jenkins’s report addressing the travel documents. Attorney Memon’s
opinion is not duplicative of Mr. Jenkins’s opinion; Mr. Jenkins’s opinion reviewed the financial
documents and concluded the Indian police never reimbursed a portion of the travel expenses paid
by Mahathi. This is entirely different than Attorney Memon’s opinion the Mahathi-funded travel
is impermissible under Indian law. But disagreeing with Andor on this duplicative argument does
not necessarily mean we will allow this testimony as to violations of Indian law.
Andor next argues Attorney Memon’s opinion “nitpicks” the Indian police investigation,
citing, as examples, Attorney Memon’s findings the Indian police:
improperly treated the statements of Mr. Wakankar—the subject of Andor’s
criminal complaint—as a “confession statement” which can only be recorded
before a Magistrate (rather than police) under India’s rules of criminal procedure; 40
engaged in improper searches and seizures of Mr. Wakankar’s laptop and mobile
phone without a search warrant in violation of India’s rules of criminal
provided an “unusual” letter to Mahathi confirming police paid for all their own
travel; 42 and
improperly prepared and promulgated two versions of the First Information Report
for the case. 43
Attorney Memon relied on these––and other findings in his 102-page report––to conclude
Mahathi “participated in the legal process” and there were “numerous violations” of Indian law
and procedure by the Indian cybercrime police and Mahathi. These are not “nitpicks” having
nothing to do with case; these findings serve as the bases for Attorney Memon’s opinion. It is
sufficiently tied to the facts of the abuse of process claim and will aid the jury in resolving factual
disputes. He may opine as to Mahathi’s conduct assuming a foundation. But the conduct of the
Indian police is not before us. The issue is whether Mahathi abused lawfully issued process in
India. We preclude Attorney Memon opining on whether the Indian police did their job; Allscripts
and its agents may be able to dispute the police conduct in the Indian proceedings in India, but not
before us. Those arguments and opinions do not fit this case.
Attorney Memon may opine generally and only as previewed in his disclosed opinions, as
to Indian criminal procedure, including an explanation of a private citizen or company’s role in
Indian criminal procedure and explaining what qualifies as legal process in India. We do not need
him to summarize evidence of what Mahathi did in India. Fact witnesses will swear to the conduct.
But he may opine as to whether Mahathi’s conduct is consistent with his understanding of an
alleged victim’s rights under Indian cybercrime law without opining as to Mahathi’s state of mind
or the nature of the Indian police’s conduct.
3. We exclude Harry Brandon’s proffered opinion testimony except as to
Mahathi’s deviation from expected standards in arranging and paying for
Andor moves to exclude the opinion of Harry Brandon, a former Special Agent of the
Federal Bureau of Investigation. 44 Mr. Brandon is a founder and current Chief Operating Officer
of Kreller Smith Brandon, Inc., a professional consulting firm providing services including global
due diligence, risk avoidance, corporate investigations, political risk assessments, security and
safety assessments of operations, and business intelligence counsel and plans of action for
international operations. 45 He is familiar with investigations in India through his work with the
FBI and for Kreller Smith Brandon.
Mr. Brandon vaguely defines the scope of his retention by Allscripts to: (1) “provide
background and opinions on the conduct and operations of the Indian police force … generally
and of the [Visakhapatnam City, India] police force specifically;” (2) “investigate the background
of the police personnel involved in the Indian investigation of Allscripts and provide my
conclusions and opinions from that investigation;” and (3) “offer my opinions on the India criminal
investigation based on my background, education, experience, and training, and my review of the
results of (a) my investigation[,] (b) the analysis of travel documents performed by Mark Jenkins,
and (c) the description of India law provided by Zulfiquar Memon.” 46
It appears Mr. Brandon hopes to offer seven opinions/conclusions: 47
100. Having reviewed the travel details and documentation and investigated the
background information of the members of the Vizag police force concerning the Allscripts
investigation conducted in India, and the reports of Mark Jenkins and Zulfiquar Memon, it
is my opinion that the investigation was not consistent with the ethics or expectations of
police investigations in the U.S. Instead, the India criminal investigation was consistent
with the often corrupt and heavily influenced investigations of the [Indian Police Force]
generally and the Vizag police force more specifically.
101. Based on my experience and knowledge, travel for Vizag cybersecurity
investigations when there are cybersecurity units in the cities visited does not follow proper
Indian police procedures.
102. I have worked with Indian law enforcement at times for over 20 years and have
never observed a complainant making flight reservations and/or paying for travel for police
officers to investigate their complaint. In my opinion, this is a conflict of interest and
103. The analysis of the travel documents and deposition testimony relating to the [sic]
Mahathi’s participation in the criminal investigation of Allscripts in India shows the indicia
of corruption common in Indian criminal investigations. In my opinion, based on my
background and experience, the investigation was corrupted by Mahathi’s influence in the
process and by the Indian police allowing themselves and their investigation to be
corrupted (assuming they were not active participants in the corruption).
104. Based on my experience and knowledge, the deviations from proper Indian legal
procedure identified by Zulfiquar Memon further support and reinforce my opinion that
the Indian investigation of Allscripts was corrupted and unreliable.
105. The investigations we performed on litigation and adverse media on the individuals
involved in the criminal investigation of Allscripts in India further support my opinion that
the criminal investigation of Allscripts in India was corrupt and unreliable.
106. To the extent Allscripts made any representations that the India criminal
investigation was corrupt and/or that Defendants supported and participated in that
investigation, or engaged in criminal or fraudulent conduct, it is my opinion that any such
conclusions are reasonable and more likely than not true based on my education, training,
and experience, and my review of the factual record, our investigation, and the conclusions
of Mark Jenkins and Zulfiquar Memon, as described herein.
Andor moves to exclude these opinions because Mr. Brandon “retracted” his opinion
Mahathi improperly influenced the criminal investigation and his opinions do not fit the issues. 48
Andor argues Mr. Brandon’s “recantation of opinions … leaves only irrelevant opinions about
generalized corruption in India, which don’t fit the issues in this case.” 49
This is not a proper “fit” argument; it is the subject of cross-examination at trial. If Andor
believes Mr. Brandon recanted his opinion, it may examine him at trial. The “fit” prong is satisfied
when the expert’s testimony is sufficiently tied to the facts to aid the jury in resolving the factual
dispute. We apply Rule 702 liberally to admit expert testimony if it has the potential for assisting
the jury as fact finder.
Mr. Brandon offers one opinion at paragraph 102 which we permit if not duplicative of
Attorney Memon. Mr. Brandon may opine Mahathi’s conduct in paying for police travel is not
consistent with his understanding of the Indian cybercrime process. But the remainder of his
opinions are wildly speculative and do not fit. The issue on the abuse of process claim is whether
Mahathi and its affiliates used the Indian police or criminal justice system for an improper purpose
in this case. Allscripts can persuade the jury as to this claim regardless of whether or how the
Indian police did their job. Allscripts’s fact witnesses can swear what happened in India but the
jury is not deciding whether the Indian police are corrupt or whether the police abused the Indian
criminal justice system. We are also not interested in whether Mahathi or the Indian police had
some conflict of interest under Indian law. We are interested in whether Mahathi abused the system
and Attorney Memon can set the standards.
We will allow Mr. Brandon to opine only as the payment of the police’s travel expenses is
not typical by alleged victims in the Indian cybercrime process. We otherwise preclude Mr.
Brandon’s proffered opinions.
B. Andor’s experts Attorneys Srividhya Ragavan and Susanah Naushad.
1. We allow limited portions of Attorney Ragavan’s proffered opinion as to
standards of the Indian criminal justice system and whether Mahathi
deviated from those standards.
Andor hopes to adduce an opinion from Attorney Srividhya Ragavan describing the Indian
legal and criminal justice system. Andor retained Attorney Ragavan both as an affirmative expert
and as a rebuttal expert to Allscripts’s proffered expert Harry Brandon who opines India and its
criminal justice system are systematically corrupt. 50 Attorney Ragavan’s report identifies the scope
of her retention: “I have been asked to respond to Allscripts’ contention that the Indian legal and
criminal justice system is susceptible to … alleged manipulation and abuse.” 51 She offers her
opinion “India has a robust legal and judicial system which is well-equipped to deal with cyber
breach and is not subject to the sort of improper influence and misuse Allscripts alleges here.” 52
Attorney Ragavan’s report offers six “conclusions” which we construe as her opinion: 53
(a) India has a robust, independent criminal justice system with protections for accused
persons similar to due process protections in the U.S. India’s criminal justice system is not
susceptible to improper manipulation or abuse based on influence and connections, as
(b) India has strong and well-developed protections for intellectual property and against
cybercrimes, including hacking. These protections strongly encourage, and even require,
victims of cybercrimes to report them to the relevant authorities, including by filing [a]
[First Information Report], as Mahathi did here;
(c) Once the victim of a cybercrime files [a] [First Information Report], government authorities
are responsible for pursuing the investigation and prosecution, much like in the US.
Accused persons have ample “due process” protections, and decisions whether to move
forward with, drop or dismiss a criminal charge rest with investigating authorities and the
judicial system, not private parties such as the Defendants;
(d) State Government in India encourages reporting of violations because strong protection
against cybercrime enhances states’ abilities to attract jobs and economic benefits;
(e) International and Indian corporations value strong cybercrime protections and have
recognized that India maintains a strong system; and
(f) The IT Act of India has detailed procedures for filing a complaint and for conducting an
Allscripts moves to exclude Attorney Ragavan’s opinion for three reasons: (1) Attorney
Ragavan is not qualified to offer an opinion on India’s criminal procedure and criminal justice
system; (2) her opinions are not relevant; and (3) her opinions are based on speculation.
Attorney Ragavan is qualified to render the opinion. 54 Allscripts argues Attorney
Ragavan’s opinions are not relevant and do not “fit” the allegations of either Andor’s defense to
Allscripts’s abuse of process claim or Andor’s counterclaims. Allscripts considers Attorney
Ragavan’s opinion as “character evidence of an entire country’s legal and judicial system to argue
that those specific individuals could not have done those specific things.” 55 Andor responds
Attorney Ragavan will not offer an opinion applying “legal principles” to the facts of the case, and
specifically will not offer an opinion on: (1) “whether a cyberattack occurred”; (2) “whether a
crime occurred in this case”; (3) “whether Mahathi was a victim of a crime”; or (4) “what entity
committed any purported crime.” 56
We will allow Attorney Ragavan to opine solely on the general framework of the Indian
criminal justice system, including how a complaint is filed under India’s Code of Criminal
Procedure and the investigation procedure employed by the Indian police after a complainant files
a criminal complaint. We will allow Attorney Ragavan to testify generally to India’s Information
Technology Act. Attorney Ragavan’s general description of the Indian criminal process without
her characterizations or suppositions (e.g., the Indian criminal justice system “is not susceptible to
improper manipulation or abuse based on influence and connections, as Allscripts alleges”), 57 and
conclusions at § G.(c) and (f) are sufficiently tied to the facts of Allscripts’s abuse of process claim
providing context to the jury to resolve the factual dispute.
We will not allow expert opinions characterizing India’s legal system (conclusions at
§G.(a) or (b)), the reasons why India state government encourages reporting of cybercrime
(conclusion at § G.(d)), or the “value” International and Indian corporations place on India’s
“strong cybercrime protections and have recognized that India maintains a strong system”
(conclusion at § G.(e)).
As a specific aid to the parties, we allow Attorney Ragavan to opine:
“The registration of a complaint, initiates the role of § 156(1) of the [Indian Code of
Criminal Procedure] which requires a police officer to investigate without any order from
the magistrate.”; 58
“When Mahathi filed a complaint, it necessarily triggered the events that Allscripts allege
amount to an abuse of process under Delaware law, when in fact they were necessary steps
to the statutory procedures in India.”; 59
“[W]hen a criminal activity under a special enactment is suspected, reporting it by filing a
complaint is the norm and practice.”; 60
“[M]ahathi’s actions were in line with §§ 66B & 66E of the IT Act, which outlines the
punishment for ‘retaining  stolen computer resource or information, or violating privacy
of others’ [quoting the Information Technology Act]. Reporting the breach puts Mahathi
in a good position to assert compliance of § 64 and § 66 read with § 8 of the IT Rules of
sufficiently protecting the data involved”; 61
And Attorney Ragavan cannot opine:
Mahathi, as a hacking victim, would construe the alleged hack as a cognizable offense
mandating reporting to the police; 62
Mahathi’s reporting can be construed as required under Indian law to show it did not
knowingly or negligently cause a data violation nor ignore a breach of data; 63
“It does not seem plausible that Mahathi could use their ‘influence’ to improperly drive a
prosecution action against an affiliate of a Fortune 500 company (Allscripts) – a company
with a market capital of $2.583 billion and thousands of Indian employees, and with the
means to hire one of the most prominent criminal attorneys in India”; 64 and,
“While the allegation is that Mahathi/Raj Toleti bought the system, it is Allscripts that is
putting up the most expensive defense of corruption.” 65
Attorney Ragavan also seems to opine as to whether a fact is true: Mahathi did not sponsor
either travel or lunch or cabs for the police.” 66 We will not allow Attorney Ragavan to lend
expertise to whether a fact is true; Andor must show this fact. Attorney Ragavan may opine as to
whether the alleged payment of travel or lunch or cabs for the police is consistent with the practices
in the Indian criminal justice system. Attorney Ragavan may rebut Harry Brandon’s opinion as to
the propriety in paying for these types of police costs but cannot make a fact finding as to whether
it occurred. Harry Brandon assumes it did and opines the payments are not typical; Attorney
Ragavan can also assume the payments occurred and opine on the propriety of Mahathi’s conduct
in the Indian criminal process. But Attorney Ragavan cannot tell the jury the payments did not
2. We allow limited portions of Susanah Naushad’s proffered opinion
Andor retained attorney Susanah Naushad to: (1) describe applicable Indian law; (2)
“show” the investigation by the Indian police “was appropriate under the law” based on the facts
as Attorney Naushad understands them; and (3) respond to “specific conclusions” of Allscripts’s
expert Attorney Memon. Allscripts concedes Attorney Naushad may testify to a “neutral
description of Indian law” but seeks to preclude her testimony regarding the appropriateness of the
Indian police investigation and to rebut certain opinions of Attorney Memon. 67 We again remind
counsel the Indian police are not on trial. We will allow non-duplicative expert testimony on how
the Indian criminal justice system operates and whether Mahathi’s conduct varied from those
Attorney Naushad identifies the scope of her retention: “I have been retained by [Andor]
… to provide my statement on the Indian law pertaining to the legal framework of criminal
investigation and trial in India, more specifically on the investigation of cybercrimes [sic] in
India.” 68 Attorney Naushad offers eighteen “conclusions” we consider her opinions: 69
1. The complaint filed by Mahathi (revised on June 12, 2021 per the request of the
investigating officers), and the commencement of investigation by the cyber-crime
police in Vishakhapatnam pursuant to the [First Information Report], are in line with
the procedure established by the [Code of Criminal Procedure in India].
2. Once the complaint or [First Information Report] is filed, the Indian criminal law
machinery is set into motion. Police has [sic] the power to investigate crimes, and this
is an independent inquiry. The Complainant can only assist in this investigation by
providing necessary documents or information, however the Complainant can in no
way influence the process of investigation.
3. There is no anomaly in the process of investigation followed by the cybercrime police
in Vishakhapatnam. The powers of conducting investigation that are conferred on the
police in accordance with the provisions of the [Code of Criminal Procedure] are
exclusive to the police and are unfettered as long as the power is exercised within the
provisions of the law. The present case has been investigated within the contours of the
[Code of Criminal Procedure], and thus there is no reason to discredit the investigation.
4. Mahathi is a company registered under the (Indian) Companies Act, 1956 and has its
registered office in Visakhapatnam. Thus, if Mahathi faced data breach pursuant to a
hacking incident, Mahathi rightly filed the criminal complaints in Vishakhapatnam,
5. In fact, had Mahathi not filed a complaint after the incidence of data breach, it would
likely fall afoul of its obligations under Section 43A of the [Information Technology]
6. As per the [Code of Criminal Procedure], where certain elements of an offence are
committed within India (even if all elements of the offence were not completed within
Indian territory), the offence can be deemed to be an offence committed within India
and may be tried by Indian Courts. Further, the both [sic] [Indian Penal Code] and the
[Information Technology] Act provide that Indian courts will have jurisdiction to try
cases where the the [sic] offence targets a computer resource located in India. Thus,
Indian courts have the jurisdiction to try the present matter.
7. As per the Chargesheet, the Indian entity of Allscripts – M/s Allscripts India LLP was
actively involved in the transactions relating to the [Statement of Work]. The nexus
between M/s Allscripts India LLP and its American parent company, with respect to
the [Statement of Work] and the alleged hacking is clear, basis the [sic] exchange of
emails between the two companies with regard to a project that Mahathi executed for
M/s Allscripts India LLP under the same [Statement of Work], the lack of financial
autonomy of M/s Allscripts India LLP, and through emails of Ms. Catherine Spector,
an employee of the parent M/s Allscripts Healthcare Solutions Inc, USA, giving
instructions to Mr. Nihar Sheth who is an employee of M/s Allscripts India LLP, vide
[sic] email dated 2 September 2021 to stay somewhere apart from his residence to avoid
8. Therefore, on the basis of this nexus, it would be justifiable for the Vishakhapatnam
police to investigate M/s Allscripts India LLP and its officials. The investigation by the
cyber-crime unit into M/s Allscripts India LLP revealed enough prima facie evidence
for them to continue investigating further, especially Mr. Wakankar who was the
Director and Managing Partner of M/s Allscripts India LLP, for discerning relevant
information and facts for the purposes of conducting a thorough investigation.
9. Further, as per the Chargesheet, Allscripts was found to be obstructing investigation
and deleting evidence.
10. During investigation by the police, it was found that many emails which established
the alleged breach and the involvement [sic] Mr. Wakankar and M/s. Allscripts India
LLP in the entire scheme, were deleted.
11. The police tried to gather relevant information for the investigation in the case through
issuing Section 91 and Section 41A notices. However, those notices were not complied
with. Mr. Wakankar and Mr. Pandya failed to appear before the police several times in
violation of Section 41A notices.
12. Further, an email dated 2 September 2021 from Ms. Catherine Spector to Mr. Nihar
Sheth telling to him [sic] to stay somewhere apart from his residence to avoid the police,
in fact, shows malafide on part of Allscripts, and its intent to evade investigation.
13. Thus, by evading investigation, Allscripts left the police with little choice but to visit
the Allscripts offices physically and procure the relevant information for the
investigation. As per Indian law, the Indian police can carry out a surprise inspection,
mainly at the premises of the accused, if they suspect that the accused is withholding
information or other evidence.
14. A police officer, pursuant to the evaluation of the materials collected during the
investigation, can file the charges/Chargesheet even if a prima facie case against the
accused is being made out. At this stage, the police officer need not have enough
evidence to prove that the accused is guilty beyond a reasonable doubt.
15. Based on the averments in the Chargesheet, there is prima facie cause to charge the
accused persons under Sections 43, 65, 66, 66-B, 66-C, 66-D of the [Information
Technology] Act and 204, 120B of the [Indian Penal Code], and proceed for trial.
16. Allscripts Healthcare Technologies (India) Private Limited filed a quashing petition
titled Allscripts Healthcare Technologies (India) Private Limited & Anr. v. State of
Andhra Pradesh & Ors., numbered Criminal Petition No. 4157 of 2021 before the
Hon’ble High Court of Andhra Pradesh praying for quashing of the FIR. However, the
Hon’ble Court was not aligned to grant Allscripts any relief, and the Chargesheet was
eventually filed on 20 September 2021. This demonstrates that Allscripts claim [sic]
that the FIR was based on false information given by Mahati [sic] and discloses no
probable cause to investigate further, was dismissed by the Hon’ble the High Court of
17. After the Chargesheet was filed on 20 September 2021, vide order dated 22 September
2021, the Ld. Chief Metropolitan Magistrate, Vishakhapatnam took cognisance of the
Chargesheet and issued summons to the accused persons. This demonstrates that even
the Ld. Chief Metropolitan Magistrate, Vishakhapatnam found probable cause in the
Chargesheet to proceed with the trial.
18. The burden of proof in criminal cases in India is on the prosecution. If the prosecution
is not able to prove beyond reasonable doubt that the accused persons committed the
offenses they have been charged with, the case will be dismissed. However, even if the
case if [sic] dismissed at trial later, the same would not imply improper or biased
Allscripts moves to exclude Attorney Naushad’s opinion for three reasons: (1) she is not
qualified to offer an opinion on Indian criminal procedure; 70 (2) her opinions are not relevant; 71
and (3) her opinions are unreliable as based on speculation. 72 Allscripts argues even if Attorney
Naushad’s opinions are otherwise admissible, they must be excluded under Federal Rule of
Evidence 403 because any probative value of her opinions is outweighed by confusion of the
issues, misleading the jury, and unfair prejudice. Andor’s response is, essentially, because
Allscripts’s expert Attorney Memon renders similar opinions, Attorney Naushad should be
allowed to do the same. 73
As we found with Attorney Ragavan, we will allow Attorney Naushad to opine solely on
the general framework of the Indian criminal justice system, including how a complaint is filed
under India’s Code of Criminal Procedure and the investigation procedure employed by the Indian
police after a complainant files a criminal complaint. We allow Attorney Naushad’s opinions
identified in conclusion one; the first sentence only of conclusion two; the first two sentences only
of conclusion three; the first sentence only of conclusion four; conclusions six and fourteen; the
first sentence only of conclusion seventeen; and the first sentence only of conclusion eighteen. All
other sentences in conclusions two, three, four, seventeen, and eighteen are excluded. The opinions
identified in conclusions five, seven, eight, nine, ten, eleven, twelve, thirteen, fifteen, and sixteen
are excluded in their entirety as impermissible legal opinion.
We admit the lost profit opinions but preclude the damages experts from opining
as to causation or simple mathematical calculations.
Each side proffers a damages expert. Allscripts proffers Ian Ratner and Andor proffers
Brent Bersin. Each side makes the same principal argument to preclude the other side’s expert:
Their opinions are unreliable because the experts did not verify the data they entered into their
A. Allscripts’s expert Ian Ratner.
Allscripts proffers damages expert Ian Ratner. Mr. Ratner is a certified public accountant
with thirty years’ experience in forensic accounting. 74 He reviewed filings, contracts between the
parties, customer databases, Andor’s pipeline reports, internal business presentations and financial
documents occasioning the merger between Health Grid and Allscripts, and internal Allscripts
payroll data to form his lost profits opinions. 75
Mr. Ratner proffers five opinions:
1) Allscripts incurred $156,831 in costs to develop a new Config Tool after Andor failed to
deliver a functioning Config Tool; 76
2) Allscripts incurred $1,828,128 in costs to fix the functionality issues of the Mobile Patient
Experience application acquired from Health Grid; 77
3) Allscripts incurred $184,175 in costs to defend and mitigate the attacks on its technology; 78
4) Allscripts lost between $92.8 million and $107.6 million in profits because of Andor’s
conduct; 79 and,
5) Andor received value of at least $53 million in unjust enrichment by avoiding research and
development costs it would have incurred had it not misappropriated Allscripts’s trade
We admit Mr. Ratner’s fourth opinion regarding Allscripts’s lost profits. We also admit his
fifth opinion regarding the value Andor received in unjust enrichment from misappropriating
Allscripts’s trade secrets. But we exclude his first three opinions, which require only basic math
and do not help the jury.
1. We admit Mr. Ratner’s fourth and fifth opinions regarding Allscripts’s
Andor argues we must exclude Mr. Ratner’s lost profits analysis as unreliable because Mr.
Ratner relied upon Allscripts’s internal projections without verifying them. Allscripts responds
Mr. Ratner relied on documents regularly used by valuation experts which underwent extensive
testing and research before their publication. We agree with Allscripts as to lost profits.
Mr. Ratner used “Merger Projections” included in a valuation of Health Grid conducted by
Valuation Research Corporation in 2018 to calculate lost profits. 81 Valuation Research in turn
based the Merger Projections on Health Grid’s internal projections of revenues for 2018 to 2020
included in a PowerPoint presentation of Health Grid. 82 Mr. Ratner did not know the assumptions
undergirding Health Grid’s projections. Mr. Ratner did not know when the Merger Projections
were created, who created them, the training and experience of those who created them, the
information used to create the projections, and the purpose of the projections. 83 He did not know
who at Health Grid provided Health Grid’s projections to Valuation Research and did not know
whether they were provided before or after the merger; he assumed someone on the “leadership
team” provided the projections to Valuation Research. 84
Valuation Research incorporated Health Grid’s projections, which projected years 2018 to
2020, with slight changes. Valuation Research then extended the projections from 2021 to 2025. 85
Mr. Ratner assumed the validity of the Merger Projections from 2021 to 2025 by reading the
Valuation Research report, his knowledge an “extensive review process” occasioned the report,
and his “conversations with management” showing “everybody relied on” the Valuation Research
Valuation Research “relied on certain information furnished by” Health Grid which
Valuation Research did not verify. 87 Mr. Ratner did not think Valuation Research accepted the
Merger Projections “without any analysis” because Valuation Research did “whatever the
standards call for” to review them. 88 Mr. Ratner has “general” familiarity with such “standards”
as an accredited appraiser. 89 Mr. Ratner swore the people at Valuation Research who produced the
report were “professional,” so they must have “believe[d] that the information is reliable for
accuracy [and] completeness.” 90 Mr. Ratner did not review any papers of Valuation Research or
speak to the Valuation Research representatives who prepared the report. 91 Mr. Ratner swore he
did not know “what all the material assumptions are” undergirding Health Grid’s projections, but
Valuation Research knew the material assumptions because it “reviewed the merger plan, [and]
had discussions” as part of its “due diligence.” 92 Mr. Ratner did not know what Valuation Research
“specifically” did other than what it “said” it did. 93 Valuation Research “said” in its report it
reviewed information “as deemed appropriate by” it; developed value for intangible assets of
Health Grid; discussed intangible assets with Health Grid management; and, discussed past,
present, and future operating and financial conditions with Health Grid management. 94 Mr. Ratner
concluded “nothing unusual” existed in Valuation Research’s report because it performed purchase
price allocation consistent with his understanding of industry standards. 95 Mr. Ratner also deemed
the Valuation Research numbers reliable because they went through the “valuation review
process,” in which another entity reviews the file for accuracy. 96
To calculate lost profits, Mr. Ratner increased Allscripts’s 2021 revenue of $16.868 million
and assumed the revenue would increase each year “at the same growth rate as the yearly growth
rates for the Merger Projections.” 97 This assumption created a figure Mr. Ratner called the
“Expected Actual Revenues.” Mr. Ratner subtracted Allscripts’s actual revenues from the
Expected Actual Revenues, subtracted the costs Allscripts avoided, and multiplied by a discount
factor to determine Allscripts’s lost profits. 98 Mr. Ratner calculated one estimate of about $93
million in lost profits using lower avoided cost data; he calculated a second estimate of about $108
million in lost profits using high avoided cost data. 99
Where an expert witness “rel[ies] upon the estimates of others” to form a lost damages
opinion, “the expert must explain why he relied on such estimates and must demonstrate why he
believed the estimates were reliable.” 100 The expert’s reliance upon others’ estimates need not be
“correct,” it must only be “reliable.” 101 Whether the expert “relied on the best data in forming his
opinions is a question for the jury.” 102 If a “rational connection” exists “between the data and the
opinion . . . an expert’s reliance on [allegedly] faulty information is a matter to be explored on
cross-examination; it does not go to admissibility.” 103
We find Mr. Ratner’s lost profits opinions admissible. Mr. Ratner’s opinion implicates two
decisions of our Court of Appeals regarding when a lost profits expert may rely upon “the estimates
of others” to calculate lost profits. 104 We first explain our Court of Appeals’s guidance regarding
reliability of lost profit opinions. We then apply the guidance to Mr. Ratner.
First, in ZF Meritor, LLC v. Eaton Corp., 105 our Court of Appeals affirmed exclusion of an
expert’s lost profits analysis where the expert simply “relied on a one-page set of profit and volume
projections without knowing the circumstances under which such projections were created or the
assumptions on which they were based.” 106 Our Court of Appeals acknowledged experts “regularly
and reasonably rel[y] upon” a “company’s internal financial projections” because “[b]usinesses
are generally well-informed about the industries in which they operate, and have incentives to
develop accurate projections.” 107 But an expert’s reliance upon such projections is appropriate
only if the expert can “explain why he relied on such estimates” and “demonstrate why he believed
the estimates were reliable.” 108 Our Court of Appeals affirmed Judge Robinson’s exclusion of the
expert’s lost profits analysis because the expert “was unaware of the qualifications of the
individuals who prepared” the estimates and “the assumptions on which the estimates were
based.” 109 While the expert “was generally aware of the circumstances under which” the one-page
estimate “was created and the purposes for which it was used, he lacked critical information”
necessary for effective cross-examination. 110 For example, the expert knew “experienced
management professionals” presented the estimates to the board of a company, but he “did not
know who initially calculated” the estimates, the “methodology used to create” the estimates, or
“the assumptions on which the” estimates were based. 111 Several judges have reasoned similarly
to ZF Meritor by excluding lost profits opinions where the experts lack “personal knowledge of
the assumptions” or “qualifications of those persons in charge of making the assumptions.” 112
About four years after ZF Meritor, our Court of Appeals in In re SemCrude L.P. affirmed
Judge Robinson’s order admitting a lost profit expert’s report where the expert relied on a
company’s business plan to calculate lost profits. 113 The expert opined on the insolvency of a
company by relying on a valuation prepared by well-known investment bank Goldman Sachs. 114
Our Court of Appeals distinguished the expert’s analysis from the ZF Meritor analysis in three
ways: (1) Goldman Sachs valuated the company in anticipation of a securities offering, which
required Goldman Sachs to perform “significant due diligence in connection with its valuation
efforts” not prepared in anticipation of litigation; (2) the expert previously worked for Goldman
Sachs and possessed familiarity with its valuation practices; and (3) the expert “did not simply
adopt the Goldman Sachs’ evaluation as his own”; rather, he “used his own analysis and judgment
to adjust” the report to account for facts in the case. 115 Our Court of Appeals concluded by
reminding us expert testimony need not be “correct,” it must only be “reliable.” 116 Our colleagues
cite similar reasons to admit expert testimony which does not uncritically adopt others’
We apply the guidance found in these two appellate decisions to find Mr. Ratner adequately
explains his reasons for relying on the Merger Projections adopted by Valuation Research. Mr.
Ratner explained at his deposition he found the Merger Projections valid because Valuation
Research adopted them after performing due diligence. Mr. Ratner noted the Valuation Research
Merger Projections constituted a GAAP-compliant valuation of a publicly traded company’s
merger. Mr. Ratner cited an “extensive review process” preceding the Valuation Research report
which included a third party’s review of Valuation Research’s work. Mr. Ratner’s conversations
with Allscripts’s management showed “everybody relied on” the Merger Projections to effectuate
the merger. Mr. Ratner felt satisfied Valuation Research verified the Merger Projections using
industry standards with which he possesses familiarity. For example, the Valuation Research
report confirmed it reviewed information “as deemed appropriate by” Valuation Research;
developed value for intangible assets of Health Grid; discussed intangible assets with Health Grid
management; and discussed past, present, and future operating and financial conditions with
Health Grid management. Valuation Research disclosed the qualifications and certifications of the
two professionals who led the valuation, which Mr. Ratner confirmed in his sworn testimony. Mr.
Ratner concluded “nothing unusual” existed in Valuation Research’s report because its valuation
is consistent with Mr. Ratner’s understanding of industry standards.
Mr. Ratner’s lost profits analysis resembles the analysis admitted in SemCrude. The three
bases upon which our Court of Appeals distinguished SemCrude from ZF Meritor exist in some
form here. First, Mr. Ratner did not “simply ‘rel[y] on a one-page set of profit and volume
projections’ to calculate damages.” 118 He, like the expert in SemCrude, relied on Valuation
Research’s adoption of those projections “contemporaneously prepared” around Health Grid’s
merger with Allscripts not “in anticipation of litigation.” 119 Mr. Ratner, like the SemCrude expert,
relied on Valuation Research’s use of the Merger Projections because Valuation Research
undertook “significant due diligence” to publish a GAAP-compliant valuation of a publicly traded
company’s merger. Valuation Research’s stamp of approval distinguishes this case from the onepage set of unverified projections upon which the expert relied in ZF Meritor. Second, Mr. Ratner
possesses experience comparable to the experience of the valuators who prepared the Valuation
Research report. While Mr. Ratner never worked at Valuation Research like the SemCrude expert
worked at Goldman Sachs, Mr. Ratner still possesses enough experience in the field to know the
methods undergirding Valuation Research’s due diligence. Third, Mr. Ratner “did not simply
adopt the [Valuation Research report] as his own.” 120 Mr. Ratner swore as to his reasons for finding
the data in the Valuation Research report reliable. He applied his judgment and experience in the
field to determine Valuation Research’s adoption of the Merger Projections made the Merger
Projections reliable. This satisfies us Mr. Ratner’s methods are reliable enough to be admitted.
To be sure, Mr. Ratner’s opinion bears several similarities to the opinion excluded in ZF
Meritor. Mr. Ratner’s opinion, for example, relies on underlying Health Grid projections which
are themselves only one page. And Mr. Ratner did not know who at Health Grid created the Health
Grid projections or the methodology undergirding the Health Grid projections. But these
similarities do not warrant exclusion. Our Court of Appeals in ZF Meritor did not hold an expert’s
opinion is always unreliable when the expert does not know the methodology ungirding the
projections. Our Court of Appeals rather found the district court did not err under a “deferential
abuse of discretion standard” by excluding such testimony. 121 This analysis does not mean judges
do abuse their discretion by admitting evidence possessing some of the same flaws as the evidence
in ZF Meritor. 122 Indeed, our Court of Appeals in ZF Meritor reminded us economists “regularly
and reasonably” rely upon “a company’s internal financial projections” to calculate lost profits
because such projections “often serve as legitimate bases for expert opinions.” 123 As Judge Sannes
in the Northern District of New York recently found, “ZF Meritor is not the typical case; rather, it
represents an extreme category of cases in which the data relied on by an expert is so patently
unreliable as to render it inadmissible.” 124 We must interpret ZF Meritor in the context of our
Court of Appeals’s broader interpretation of the Federal Rules of Evidence: to “encourage the use
of expert testimony to render trials more rational and efficient.” 125 Andor can vigorously crossexamine Mr. Ratner about his reliance on the Merger Projections. The jury will decide whether
Mr. Ratner’s reliance is “correct,” 126 or relies upon the “best data.” 127
2. We admit Mr. Ratner’s opinions regarding Andor’s avoided costs from
allegedly misappropriating Allscripts’s trade secrets.
Mr. Ratner also opined regarding the value of the trade secrets Andor allegedly
misappropriated from Allscripts. He measured the value to Andor by measuring the value of its
avoided costs by misappropriating the trade secrets. 128 To do so, Mr. Ratner reviewed HealthGrid’s
“historical financial statements” before its sale to Allscripts to identify HealthGrid’s research and
development costs. Mr. Ratner concluded Andor avoided $53 million in costs. 129 Mr. Ratner swore
he did not allocate the avoided costs among different trade secrets. 130 He instead used “an
expansive definition of trade secrets” to value “[a]ll of the things acquired” by Allscripts. 131
Andor moves to exclude Mr. Ratner’s opinion regarding costs Andor avoided by
misappropriating trade secrets because Mr. Ratner did not identify individual trade secrets which
Andor misappropriated, but instead quantifies the value of Health Grid’s entire business as a trade
secret. Andor argues Mr. Ratner did not limit its avoided costs simply to trade secrets: He instead
assumed the entirety of Health Grid’s business constituted a trade secret. Allscripts responds no
requirement exists experts must allocate damages among the specific trade secrets at issue. We
agree with Allscripts.
Andor’s argument to exclude Mr. Ratner’s opinion amounts to a disagreement with his
valuation of the trade secrets at issue. Mr. Ratner essentially evaluated Health Grid’s entire
business as a trade secret. While this might constitute grounds for effective cross-examination, it
does not render his opinion unreliable because experts need not apportion damages among
different trade secrets. 132 Requiring Mr. Ratner to apportion the damages for misappropriating
trade secrets among the trade secrets would require Mr. Ratner to offer opinions regarding
technical trade secret analysis which he appears unqualified to provide. Allscripts must provide
fact evidence Andor misappropriated specific trade secrets before the jury may consider Mr.
Ratner’s opinion on trade secrets. We may offer a limiting instruction if requested. 133
3. We exclude the opinions in sections 7.1, 7.2, and 7.3 of Mr. Ratner’s report
because they do not help the jury.
Andor challenges Mr. Ratner’s damages calculations which simply perform math. In
Sections 7.1, 7.2, and 7.3 of his report, Mr. Ratner respectively calculates damages for Allscripts’s
payments to develop a “Config Tool” after Andor failed to deliver a functioning Config Tool;
Allscripts’s payments to fix the functionality of the Mobile Patient Experience; and Allscripts’s
costs to defend against Andor’s alleged mobile app attacks. 134
Andor argues Mr. Ratner’s calculations are mere math. Allscripts does not respond to this
portion of Andor’s motion. We agree with Andor.
In Section 7.1 of his opinion, Mr. Ratner analyzed two things to calculate Allscripts’s
damages for developing a “Config Tool”: (1) a “data export” from Allscripts’s “time keeping
system . . . summarizing the hours worked by Allscripts’ employees to develop the Config Tool”;
and (2) “[p]ayroll data” showing “the pay rates for Allscripts programmers.” 135 Mr. Ratner used
the payroll data to “calculate an average pay rate” for Allscripts’s programmers. 136 Mr. Ratner
then multiplied the average pay rate by the number of hours shown in the data export. Mr. Ratner
opined this calculation resulted in $156,831 in damages for Allscripts to develop its own Config
Tool. 137 In Section 7.2 of his opinion, Mr. Ratner performed a similar equation to calculate
Allscripts’s payments to fix the Mobile Patient Experience applications. Mr. Ratner reviewed a
“data export” of time Allscripts’s employees worked and “[p]ayroll data” about pay rates. 138 He
calculated an average pay rate, multiplied it by hours worked, and concluded Allscripts spent
$1,828,128 to fix the Mobile Patient Experience functionality. 139 And in Section 7.3, Mr. Ratner
calculated Allscripts’s costs to respond to the mobile app attacks by reviewing a data export, results
of an Allscripts investigation revealing how many hours higher-level employees worked, and
payroll data. 140 He concluded it cost Allscripts $184,175 to respond to the attacks.
We exclude these opinions because they constitute basic mathematics which do not help
the jury. An expert witness is not required to perform basic addition and multiplication because
those tasks do not require “specialized knowledge outside a juror’s common understanding.” 141
Counsel asked Mr. Ratner at his deposition if he did anything “other than add[ing] the amounts
that Allscripts provided” to determine the Config Tool damages. 142 Mr. Ratner answered: “No.” 143
He simply added the hours provided, calculated an average pay rate from the pay rate provided,
and multiplied those two totals to determine damages. Mr. Ratner’s report discloses the same
methodology to calculate Allscripts’s costs to fix its Mobile Patient Experience functionality and
to respond to the attacks. It required no specialized knowledge to gather the input data used for
these calculations: Allscripts provided the data to Mr. Ratner and he simply calculated it. Our
colleagues regularly exclude such testimony because “[m]ultiplication is not a specialized form of
knowledge that a jury lacks or a scientific technique that a jury is incapable of performing.” 144
Allscripts provides no reason why we should admit this evidence; its Response to Andor’s
Motion says nothing about Sections 7.1, 7.2, and 7.3 of Mr. Ratner’s opinion.
We exclude these opinions.
B. Andor’s expert Brent Bersin.
Brent Bersin proffers opinions on Andor’s lost profits from losing four opportunities but
for Allscripts’s alleged interference. Mr. Bersin opines Andor lost “at least four significant
business opportunities” with companies Optum and Northwell “due to Allscripts’ lawsuit and
related alleged conduct and interference.” 145
Mr. Bersin concluded Andor lost $6.68 million from losing the Optum telehealth
opportunity. Optum is a company which provides “technology-enabled healthcare solutions and
services.” 146 Andor evidently had two business opportunities with Optum: an opportunity to
“provid[e] telehealth services” and an opportunity to replace “its installed base of GrandPad
tablets,” a telehealth device senior patients use to “increase engagement and connections between
caregivers and older adults.” 147 Mr. Bersin described five steps he used to calculate lost profits
from Andor missing out on the telehealth services opportunity: (1) calculating a contractual period
of three years “based on the representations of Andor’s executives regarding expected start date
and proposed agreement length consistent with terms of Andor customer agreements”; (2) finding
Andor would have licensed at least 10,000 Optum physicians at a certain cost per physician per
month “[b]ased on discussions with Andor’s executives, Andor’s pricing model, and its sales
pipeline report;” (3) finding Andor would need a full-time development/solution engineer to
support physicians to whom Andor licensed its telehealth at a certain cost per physician based on
“analysis and investigation of Andor’s projections and 2022 financial data and discussions with
Shane Streufert,” Andor’s chief financial officer; (4) calculating hosting fees per physician per
month based on “analysis and investigation of Andor’s projections and 2021 financial data, and
discussions with” Mr. Streufert; and (5) applying a discount rate of 10% to account for present
Mr. Bersin also opined Andor lost $15.41 million from losing the Optum GrandPad
opportunity. Mr. Bersin also used a similar five-step process to calculate these lost profits: (1)
calculating a three-year period; (2) opining Andor would have replaced and supported 50,000
GrandPad users at a certain cost per month based on “discussions with Andor’s executives,”
“communications from Microsoft,” “and deposition testimony of Noel Khirsumkhani,” Andor’s
chief growth officer; (3) needing one full-time development/solution engineer for licensed
physicians at a certain cost per physician, plus licensed physicians to support the GrandPad users
requiring an additional full-time engineer; (4) certain hosting fees of per physician; and (5)
applying a 10% discount rate. 149
Andor also had two opportunities to do business with Northwell, the largest healthcare
provider in New York: an opportunity to license Andor’s telehealth module to Northwell
physicians, and an exclusive licensing arrangement to develop and market Northwell’s proprietary
product “Nora,” a virtual assistant for clinicians. 150 Mr. Bersin concluded Andor lost $1.95 million
in profits from losing the Northwell telehealth opportunity. Like the Optum opportunities, Mr.
Bersin described five steps he used to calculate Andor’s lost profits from the Northwell telehealth
opportunity: (1) calculating a three-year time period based on conversations with Andor
executives, (2) opining Andor would have licensed 3,504 Northwell physicians at a certain cost
per physician per month based on discussion with Andor executives, (3) opining a full-time
engineer would be required to support physicians at a certain cost per engineer based on his
analysis and investigation of Andor’s projections and 2021 financial data and discussion with
Andor’s chief financial officer Streufert, (4) calculating hosting fees of per physician per month
based on his analysis and investigation of Andor’s projections and 2021 financial data and
discussions with Andor’s Streufert, and (5) applying a 10% discount rate. 151
Mr. Bersin concluded Andor lost $42.4 million from the lost Nora opportunity. 152 Mr.
Bersin described six steps he used to calculate lost profits from the Nora opportunity: (1)
calculating annual lost revenue using target sales from a term sheet between Northwell and Andor
based on negotiations to determine “realistically achievable sales targets”; (2) considering royalties
to Northwell of 50% of Andor’s gross sales during the initial term of the would-be licensing
agreement with Northwell, followed by a 5% royalty in the next three years of the agreement,
according to the term sheet; (3) considering sales commissions to Andor for the first year of the
agreement; (4) calculating no expense to Andor related to maintenance or research and
development; (5) calculating five engineers at a certain cost each to support the Nora software;
and (6) applying a 10.5% discount rate. 153
We admit Mr. Bersin’s opinions regarding Andor’s lost profits. We exclude his opinions
to the extent he attempts to opine as to the legal causes of Andor’s alleged harms.
1. We admit Mr. Bersin’s lost profits opinions.
Allscripts argues Mr. Bersin employed unreliable methodology. As to the Optum telehealth
deal, Allscripts argues Mr. Bersin simply accepted what Andor told him to calculate his lost profit
input data. Allscripts argues Mr. Bersin used an inflated monthly fee per physician even though
Optum itself projected a lower monthly fee per physician. Allscripts makes the same arguments as
to the other three opportunities Mr. Bersin evaluated: he simply accepted what Andor told him
about its prospects regarding the Optum GrandPad, Northwell’s telehealth licensing, and
Northwell’s Nora opportunities, and used Andor’s unverified projections to form his input data.
We disagree and find Mr. Bersin’s lost profits opinions reliable subject to fulsome crossexamination. Mr. Bersin’s lost profit opinions, like Mr. Ratner’s opinion, also implicate our Court
of Appeals’s findings in ZF Meritor and SemCrude. Mr. Bersin’s opinion is analogous to the
admissible opinion in SemCrude. Mr. Bersin did not “blindly accept” Andor’s profit estimates
“without question.” 154 Mr. Bersin instead analyzed Andor’s internal data prepared in the regular
course of business and not for litigation to determine its estimated profits from its projections. Mr.
Bersin discussed the projections with Andor executives, reviewed deposition testimony regarding
the deals, and reviewed the paperwork prepared explaining the goals of the deals. Mr. Bersin
explained the documents and data he relied upon during his deposition. Judges regularly admit
opinions like Mr. Bersin’s where the expert explains what data he relied upon to form his lost
profit opinion. 155 We join our colleagues and admit Mr. Bersin’s opinion.
Allscripts argues Andor’s data is wrong because Andor, a relatively young company which
had never turned an annual profit, could not have made as much money as the data projected. But
as we explained in admitting Mr. Ratner’s opinion, we must not decide whether Mr. Bersin’s
reliance on Andor’s data is “correct,” only whether it is reliable. 156 Mr. Bersin provided sufficient
reasons for his reliance on Andor’s data. Allscripts may explore the correctness of the data on
2. Mr. Bersin cannot testify as to the legal cause of Andor’s harms.
But Mr. Bersin tries to go too far. We exclude Mr. Bersin’s opinions to the extent he opines
regarding the legal cause of Andor’s harms. Allscripts also moves to exclude portions of Mr.
Bersin’s opinion in which he opines regarding the cause of Andor’s harms. We agree Mr. Bersin
cannot opine regarding causation. Andor concedes Mr. Bersin may not offer opinions regarding
the cause of the lost business opportunities. It is unclear at points of Mr. Bersin’s opinion whether
he opines regarding the cause of the lost business opportunities or assumes Allscripts caused the
lost opportunities. The former is improper; the latter is proper. 158 Mr. Bersin cannot opine
regarding the cause of the lost business opportunities.
We permit portions of expert testimony about Microsoft Azure, the May 2021
“attack,” and portions of the parties’ source code experts’ opinions, but we
exclude improper legal opinions and opinions on intent or state of mind.
A. Allscripts’s experts Terry Rankhorn and Sam Youness.
Allscripts engaged two experts to offer opinions about Microsoft Azure and the May 2021
“attack” on the shared workspace: Terry Rankhorn and Sam Youness. Mr. Rankhorn offers eight
“opinions” regarding the May 2021 attack and who owns the Microsoft Azure “environment” or
“tenant.” 159 He generally opines Andor, Mahathi, and Messrs. Toleti and Tyriver attacked
Allscripts’s applications, making them inaccessible to Allscripts’s customers and causing damage
to them; they did so without consent or authorization; they do not own the environment or tenant;
they caused damage in excess of $5,000; and their conduct violated various statutes. 160 Mr.
Youness offers six opinions regarding Microsoft Azure, Microsoft Azure tenants including who
owns a tenant, and whether Allscripts had authorization to block Mahathi from accessing the
tenant. 161 Andor moves to preclude Messrs. Rankhorn and Youness’ opinions because: (1) Mr.
Rankhorn is unqualified; (2) Messrs. Rankhorn and Youness’ opinions are unsupported and thus
unreliable; and (3) both offer improper legal opinions. 162 There is much to unpack as the lawyers
hope to explain complicated computer programming and engineering to eight jurors.
1. Mr. Rankhorn is not qualified to opine broadly about Microsoft Azure
tenants but may opine as to the nature of the conduct by the parties
affecting the tenant.
Andor first argues Mr. Rankhorn is not qualified to offer opinions regarding Microsoft
Azure tenants, specifically the “multiple opinions regarding Microsoft Azure tenants including
what tenants are, the relationship between tenants and subscriptions, ownership of tenants, and
whether Defendants’ actions regarding the tenant were ‘lawful.’” 163 Andor contends Mr. Rankhorn
merely took a ninety-four-minute online course on “Azure fundamentals” and then experimented
online using a tenant for the purposes of this litigation. 164 Thus, Mr. Rankhorn’s opinions regarding
the tenant are inadmissible because he is unqualified to opine on them. 165 Allscripts does not
specifically address Andor’s argument regarding the online course taken on Azure tenants. 166
Allscripts instead argues Mr. Rankhorn is a “former special agent with the” Federal Bureau of
Investigation (FBI) who retired recently “after more than [twenty years of service]” during which
time he “investigated cyber-attacks . . . reviewed and analyzed log files, databased [sic], metadata,
and other digital information, and interviewed witnesses and reviewed other information as part of
those investigations.” 167 Allscripts contends he formed his opinions based on his FBI-related
Experts are qualified if they “possess specialized expertise,” and our Court of Appeals
interprets this requirement “liberally.” 169 “[A] broad range of knowledge, skills, and training
qualify an expert.” 170 We should not “impos[e] overly rigorous requirements of expertise”; “more
generalized qualifications” suffice. 171 But while generalized qualifications are sufficient, “more
specific knowledge is required to support more specific opinions.” 172
Andor does not challenge Mr. Rankhorn’s qualifications to offer any opinions in this case;
just those regarding Microsoft Azure tenants. We agree Mr. Rankhorn is not an expert on Microsoft
Azure tenants and cannot opine about “what tenants are, the relationship between tenants and
subscriptions, [and] ownership of tenants.” 173
Mr. Rankhorn served as a special agent in the FBI for twenty-one years. 174 During his
employment he investigated cybercrime matters including violations of the Computer Fraud and
Abuse Act. 175 Mr. Rankhorn also worked as a computer forensic examiner and computer forensic
laboratory manager with the FBI. 176 Mr. Rankhorn has experience “locating and analyzing logs,
databases and file metadata” as well as “collecting and reviewing log files showing evidence of
unauthorized access to data.” 177 He developed and taught various courses regarding cybercrimes
and attacks. 178 Mr. Rankhorn wrote “multiple log analysis tools for use on complex investigations
where thousands of pages of logs required analysis.” 179 Mr. Rankhorn also served on the FBI’s
“Black Bag” team “tasked with court-sanctioned break-ins into the hardest targets of the FBI.” 180
His “specific function was to penetrate the secure network of the targets and disable their security
system or install authorized monitoring software tools.” 181 Mr. Rankhorn holds a “Bachelor of
Science degree in occupational technology . . . and a Master of Science degree in Information
Systems.” 182 Mr. Rankhorn started providing “security, investigative consulting services” in
September 2021 through his business, Rankhorn & Associates. 183
Allscripts argues without citation Mr. Rankhorn’s opinions are “based on [his FBI]
experience.” 184 But Mr. Rankhorn’s sworn testimony confirms the opposite. The opinions Andor
seeks to exclude focus on “what tenants are, the relationship between tenants and subscriptions,
[and] ownership of tenants.” 185 Mr. Rankhorn swore he never consulted on a case involving Azure
tenants, never performed investigations regarding Microsoft Azure tenants, and is not an expert in
the infrastructure and setup of Microsoft Azure tenants. 186 He swore he is “an expert in analyzing
the logs, looking at the information, and consolidating that as [he] did in the FBI to provide a
picture of what happened.” 187
Mr. Rankhorn’s knowledge about Microsoft Azure did not come from the FBI; it rather
came from taking an introductory course of Microsoft Azure, creating a tenant and experimenting
with it, and consulting with Allscripts’s other expert, Mr. Youness. 188 He swears his understanding
of tenants and subscriptions is “informed by Mr. Youness,” not by his experience as an FBI agent
or as a cybersecurity consultant. 189 Mr. Rankhorn offers specific opinions about Microsoft Azure
tenants and subscriptions for which he lacks qualifications. His general qualifications for
investigating computer hacking and/or cybercrimes do not lend themselves to his specific opinions
here. We exclude his specific opinions about “what tenants are, the relationship between tenants
and subscriptions, [and] ownership of tenants” because he lacks qualifications to offer them. 190
But Andor also seeks to exclude Mr. Rankhorn’s opinions about “whether Defendants’
actions regarding the tenant were ‘lawful’” arguing he is unqualified. 191 Andor cites Mr.
Rankhorn’s sworn testimony it is important to understand the Microsoft Azure infrastructure when
analyzing the actions which occurred within the tenant but acknowledging he is not an expert in
the infrastructure. 192 Andor thus argues Mr. Rankhorn is unqualified to offer his opinions regarding
what happened during the May 2021 cyberattacks alleged to have occurred by both sides in this
We disagree; Andor is asking for too much. Andor is correct Mr. Rankhorn cannot opine
as to whether actions are lawful. But Mr. Rankhorn is undoubtedly qualified to offer his opinions
about what happened in and/or surrounding the Microsoft Azure tenants and subscriptions during
the “attack” in the May 2021 timeframe (without explaining what a tenant is, subscription is, or
who owned the tenant). His general qualifications qualify him to testify to these matters. Andor’s
objection is functionally requesting we require Mr. Rankhorn to have a subspecialty of
investigating cybercrime which specifically occurs in and/or surrounding a Microsoft Azure
tenant. This is not required under Daubert; we would abuse our discretion if we required it. 193
Andor’s argument is really a reliability challenge. But we deny Andor’s challenge to Mr.
Rankhorn’s qualifications in this regard. Mr. Rankhorn is qualified to testify as to the actions
constituting the May 2021 cyber “attacks” alleged by each side but not as to whether those actions
2. Mr. Youness’ and Mr. Rankhorn’s opinions are supported.
Andor argues Mr. Youness’ and Mr. Rankhorn’s opinions are unsupported. Andor argues
Mr. Youness’ opinions about Microsoft Azure are unsupported because they are premised on
“unsupported assertions.” 194 Andor argues Mr. Youness cites no studies, surveys, or other
documents to support his “ipse dixit about what people in the industry ‘mean’ when they refer to
a tenant.” 195 Andor lastly argues Mr. Youness fails to square his “unsupported views with official
and contradictory Microsoft documents.” 196 Allscripts counters Mr. Youness is a highly qualified
expert who worked for Microsoft for twelve years and as a Microsoft consultant after leaving
Microsoft, specifically in the Azure cloud computing space. 197 Mr. Youness testified on behalf of
Microsoft as an expert, and his expertise comes from his experience working with Microsoft
Azure. 198 Allscripts argues Mr. Youness relies upon documents to support his opinions, and even
if he did not, Mr. Youness can rely upon his experience to form his opinions. 199 Allscripts lastly
argues any reference to contradictory documents is a matter for cross examination. 200 We agree
Andor’s argument Mr. Youness’ opinion is unsupported and thus unreliable is based on the
false premise Mr. Youness cannot form an opinion based on his knowledge and experience in a
specific field. Andor demands Mr. Youness’ opinions be supported by “studies, surveys, or other
documents.” 201 But the Supreme Court and our Court of Appeals make clear the non-exhaustive
Daubert factors used to assess an expert’s methodology for non-scientific testimony “may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” 202 And when an expert testifies about non-scientific
matters, as here, our inquiry on reliability focuses on “personal knowledge and experience of the
witness” and how the expert applies the experience to the facts of the case. 203 Mr. Youness’
opinions are reliable.
Mr. Youness swore in response to Andor’s extensive questioning his opinions are based on
his “significant” experience working in the industry “for more than [twenty-six] years, working on
Microsoft Azure for more than a dozen years,” working with “literally hundreds of partners and
customers over the years and working with literally hundreds, if not thousands of IT
professionals.” 204 We agree Mr. Youness has extensive qualifications. 205 He worked for Microsoft
for over twelve years with five years specifically focused on cloud computing including Microsoft
Azure; he led a project at Microsoft to accelerate adoption of Microsoft Azure leading to
commitments of $80 million during the first year; after leaving Microsoft he worked as an Azure
expert consultant for a company in Michigan “helping their staff and customers on many projects
build the best architectural solutions for their requirements and use cases”; he currently consults
with a large automotive original equipment manufacturer on a project for which the “system
backend is built on Microsoft Azure cloud services and infrastructure”; he has had multiple
speaking engagements relating to Microsoft Azure; and he teaches classes in which he uses
Microsoft Azure to instruct his students. 206 Based on this experience, Mr. Youness opines about
who owns tenants and what people mean when they use the word “tenant” in the IT industry. Mr.
Youness’ opinions are not ipse dixit; they are grounded in his industry experience and thus
Andor next argues Mr. Youness fails to “square his unsupported opinions with official and
contradictory Microsoft documents.” 208 Allscripts disagrees and counters this is grounds for crossexamination, not a basis for exclusion. We agree with Allscripts. We disagree with Andor’s
contention Mr. Youness does not square his opinions with documents Mahathi perceives as
contradictory to Mr. Youness’s opinions. 209 Andor’s argument better reads “Mr. Youness fails to
square his opinions with contradictory documents to our satisfaction.” Andor thus takes issue with
“the facts underlying [Mr. Youness’] opinions and on his opinions to the extent [they] . . . ignore
purportedly contrary facts of record.” 210 As our colleague Judge Mariani recently found, this is
proper grounds for cross-examination, not a basis for exclusion. 211
Andor next argues Mr. Rankhorn’s opinions are “entire[ly] bas[ed]” on Mr. Youness’
unsupported assertions. 212 Allscripts disagrees, arguing Mr. Rankhorn formed his opinions based
on his experience and knowledge and could rely on Mr. Youness’ opinions regarding Microsoft
Azure in forming his own. We agree with Allscripts. We already concluded Mr. Youness’ opinions
are not unsupported. We disagree with Andor’s characterization of Mr. Rankhorn’s “unblinking
reliance” or “blindly adopt[ing]” Mr. Youness’ opinions. 213 Mr. Rankhorn formed his opinions
based on his own expertise while using Mr. Youness’ opinions and expertise about Microsoft
Azure, an area in which Mr. Rankhorn is admittedly not an expert. This opinion is permitted. 214
3. We exclude improper legal opinions, state of mind opinions, and
interpretations of contracts.
Andor argues we should exclude Messrs. Youness’ and Rankhorn’s opinions about who
owned the Microsoft Azure tenant based on their interpretations of the Merger Agreement. 215
Allscripts counters with a long-winded argument which boils down to “they did it, so we can
too.” 216 We agree Messrs. Rankhorn and Youness cannot testify about their interpretations of the
Merger Agreement. But to the extent their opinions about who owns the Azure tenant are based
on sources other than the Merger Agreement, we do not exclude the opinion. Messrs. Rankhorn
and Youness simply may not testify about their interpretation of a contract and the rights and
obligations of the parties based on their interpretation.
Experts are not permitted to render a legal opinion or testify as to “legal duties, standards
or ramifications arising from a contract.” 217 Experts may, however, testify about an agreement
where the testimony does not constitute a legal opinion or where the expert does not offer opinions
as to “the scope and meaning of the Agreement and its terms.” 218 An expert cannot offer an opinion
as to the “legal effect of the [contract].” 219
The opinions Andor seeks to exclude are opinions about the legal effect of the Merger
Agreement, i.e. the Merger Agreement transferred certain assets to Allscripts. Messrs. Rankhorn
and Youness offer opinions as to the scope and meaning of the Merger Agreement. 220 We exclude
this testimony. We are not persuaded by Allscripts’s response—they did it, so we can too. We will
not permit an expert to testify as to the meaning of, and rights and obligations arising from, the
Merger Agreement or any other contract. This is improper expert testimony which invades the
Andor next moves to exclude opinions about Andor’s “ill motive” and “intent.” 221 Andor
cites testimony and Messrs. Rankhorn and Youness’ written reports where they opine Andor acted
with ill intent. 222 Allscripts responds it does not know what “state of mind” testimony Andor seeks
to exclude, but it is permitted in any event. 223 We agree with Andor. “Expert testimony as to intent,
motive, or state of mind offers no more than the drawing of an inference from the facts of the case
. . . and permitting expert testimony on this subject would be merely substituting the expert’s
judgment for the jury’s and would not be helpful to the jury.” 224 We exclude any opinion relating
to intent, motive, or state of mind.
Andor last moves to exclude opinions it violated statutes or acted illegally. 225 Allscripts
counters the experts may testify to ultimate issues. We agree expert opinions concluding Andor
acted illegally or in violation of a statute are not permitted. 226 It is the jury’s job to determine
whether Andor’s conduct violated the statutes Allscripts sues under, not the expert’s. 227 This is not
to say the experts cannot opine about Andor’s conduct in relation to elements of the statutes. The
expert may not, however, go so far as to conclude an element is met or Andor violated the statute.
This is the jury’s province.
B. Allscripts’s source code expert Robert Zeidman.
Andor moves to exclude Allscripts’s source code expert Robert Zeidman. 228 Mr. Zeidman
opines Andor copied Allscripts’s FollowMyHealth Mobile Patient Experience platform source
code into its AndorNow and ThinkAndor applications. 229 Andor argues Mr. Zeidman’s opinion
must be excluded because it is unreliable and does not fit. 230 Allscripts counters Mr. Zeidman
employed reliable methodology and his opinion fits. 231 We agree with Allscripts.
1. Mr. Zeidman’s opinion is reliable.
Andor argues Mr. Zeidman’s opinion is unreliable because he does not employ reliable
methodology due to improper “filtering” and by concluding Andor copied Allscripts’s source code
en masse rather than just copying 260 lines of source code. 232 We disagree on both grounds.
Mr. Zeidman holds two Bachelor’s degrees from Cornell University, one in Electrical
Engineering and one in Physics, and a Master’s degree in electrical engineering from Stanford
University. 233 He has over forty-eight years of experience in software development. 234 He has
written extensively in this area, including the “seminal” book in the software forensics field, The
Software IP Detective’s Handbook, Measurement, Comparison, and Infringement Detection. 235
He holds twenty-three patents, including patents for software tools used to detect plagiarism in
source code. 236 Mr. Zeidman is the originator of “source code correlation,” which is “the measure
of the similarity of one program’s source code to another program’s source code.” 237 Mr. Zeidman
first presented this technique at a peer-reviewed International Conference and has continued to
present and write on this topic extensively. 238 The “source code correlation” technique has gained
widespread acceptance in engineering and law. 239
To assist in a source code correlation analysis, Mr. Zeidman developed the product,
“CodeSuite.” 240 CodeSuite includes a function called “CodeMatch” to calculate source code
correlation by analyzing each source code file and using specific algorithms to find similarities
which may otherwise be difficult to manually detect. 241 CodeMatch’s algorithms compare the
source code’s statements, comments/strings, identifiers, and instruction sequences to determine
source code correlation. 242 Although CodeMatch automates a process which would otherwise be
done manually, “[a]n expert is required to examine the CodeMatch results to determine whether
the source code correlations are due to copying or other reasons.” 243 The “other reasons” for the
same or similar source code as identified by Mr. Zeidman include: third-party source code, code
generation tools, commonly used identifier names, common algorithms, or common author. 244
“The process of running CodeMatch, examining the results, and filtering out those results that are
not relevant is simply automating the process known in legal terms as the ‘abstraction-filtrationcomparison test.’” 245
CodeSuite contains other programs as well, including CodeCross and SourceDetective. 246
CodeCross “cross-compares statements in one set of files to comments in the other set of files, and
vice versa in order to find code that has been commented out . . . [it] finds sections of source code
that were used as guides to develop other source code; it finds signs of copying that CodeMatch
can miss.” 247 An expert similarly must review the CodeCross results to determine whether the
matches are due to copying or some other reason. 248 SourceDetective is a filtering tool which
“automatically measures the number of times each identifier, comment, string, and statement can
be found on the Internet (‘hits’) as determined by the Microsoft Bing search engine.” 249 The results
of running SourceDetective are “particularly important as signs of copying when program
elements can be found in both programs that were compared but rarely found, or not found at all,
during an Internet search.” 250
Mr. Zeidman through his business, Zeidman Consulting, used the CodeSuite products in
over 100 lawsuits to date resulting in no successful challenges to his conclusions about copying. 251
Mr. Zeidman also licenses CodeSuite to other experts to use in source code analysis with fifty
people trained in its use worldwide. 252 CodeSuite’s products are primarily used for litigation, but
CodeSuite has other versions–“LT and  academic” with the academic version “designed for
universities and teaching institutions, testing their students for – their students’ assignments, the
programming assignments for plagiarism.” 253
Mr. Zeidman performed a CodeMatch and CodeCross comparison of Allscripts’s
FollowMyHealth MPE platform and Andor’s ThinkAndor and AndorNow applications. 254 He then
“utilized an iterative step-by-step method” to filter and “evaluate the correlations identified by
CodeMatch and CodeCross” to identify whether the correlations were due to third-party code, code
generation tools, common identifier names, common algorithms, and common authors. 255 If the
correlation cannot be explained by any of the above, Mr. Zeidman concludes copying occurred. 256
Mr. Zeidman found correlation between the products’ source code remained unexplained,
i.e. the correlations remaining were not due to third-party code, code generation tools, common
identifier names, common algorithms, or common authors. 257 He concluded “the only reasonable
explanation for the remaining correlation is that code was copied”—i.e. Andor copied Allscripts’s
code for its ThinkAndor and AndorNow applications. 258
Andor first argues Mr. Zeidman’s opinion is unreliable because Mr. Zeidman did not
adequately filter the correlation results to exclude other reasons besides copying for the
correlations the CodeSuite products identified. 259 Andor argues Mr. Zeidman did not run the
CodeSuite program “SourceDetective,” relied “entirely on Google searches” to determine if open
or third-party source code caused correlations, failed to filter out commonly used identifier names,
failed to account for common authors, and failed to take into account the use of an “Integrated
Development Environment.” 260 We disagree. Mr. Zeidman ran his programs and then filtered to
exclude other reasons besides copying for the correlations identified. 261 Andor’s gripes about the
adequacy of Mr. Zeidman’s filtering is proper for cross-examination, not a basis to exclude the
opinion. For example, Andor complains Mr. Zeidman failed to properly filter because he failed to
account for common authors, concluding “with no explanation” the fact common authors worked
on both codes did not explain any code correlations found. This is not true. Mr. Zeidman testified
how he reached this conclusion at his deposition. 262 Andor evidently does not agree the explanation
constitutes adequate filtering. Andor may cross-examine Mr. Zeidman about the adequacy of the
filtering. Andor’s argument Mr. Zeidman’s filtering is inadequate, largely relying on its own
expert’s report, is not a basis for exclusion.
Andor’s next contention Mr. Zeidman cannot infer widespread copying based on 260
copied lines of source code is based on Andor’s continued mischaracterization, or
misapprehension, about Mr. Zeidman’s opinion. Andor continuously questioned Mr. Zeidman
about the “segments or lines” of copied source code. 263 But Mr. Zeidman continuously pushed
back, explaining the specific instances he identifies in his reports are not instances of copying as
Andor characterizes them; they are indicators of copying. 264 He explained: “When I find
indications of copying, the process is to err on the side of eliminating – well, to be sure to eliminate
false positives. In other words, I never want to accuse a party of copying code if I – if there are
other reasonable explanations for the correlation that I’m finding . . . The analogy would be if I
compared two novels. Of course the word ‘the’ will appear many, many times. You know, common
words will appear throughout the novel, and I can’t use that as an indication of copying. So I have
to find something unique that can’t be described. And what I’ve done is, I’ve indicated lines or
elements of code that can only be described by copying, only be explained by copying. And in that
case, it’s not my accusation that only those elements were copied, which is – logically makes no
sense; but, rather, that the code in full was copied, or at least sections of it were copied, and –
because I find conclusive evidence of unique code elements that can only be explained by
copying.” 265 Mr. Zeidman’s opinion based on his methodology is Andor copied significant
portions of Allscripts’s source code. 266
Mr. Zeidman’s conclusion about significant copying is further illuminated by his
explanation of correlation scores. 267 Mr. Zeidman explained correlation scores range from zero to
100, but he explained he does not rely on the numerical value of the correlation score to form his
opinion about copying because the value is not meaningful. 268 He explained correlation scores are
assigned pre-and post-filtering. 269 Once filtering occurs, the only thing that matters for determining
whether copying occurred is whether the correlation score is zero or non-zero. 270 He explained
“[a]fter filtering out everything that can be explained for reasons other than copying, if the
correlation score is zero, then there was no – there’s no indication of copying. And if the correlation
is non-zero, regardless of the value, then copying occurred.” 271 Andor questioned Mr. Zeidman
about whether he could determine “the amount of copying” between two programs without
filtering. 272 Andor proposed: “Without filtering, you can’t give a correlation score that validly
represents the amount of copying that went on between two programs; is that fair?” 273 Mr. Zeidman
responded: “I would adjust that slightly. Without filtering, I would not be able to determine
conclusively that code was copied.” 274
In other words, Mr. Zeidman’s conclusion here is black and white: copying occurred if the
correlation score is anything except zero, or no copying if the correlation score is zero. He
identifies indicators of copying which lead him to the conclusion Andor significantly copied
source code from Allscripts.
He explained it is impossible to copy one line or a few lines of code from one program to
another. 275 To explain to counsel––a lay person in this regard––why his analysis is black and
white––i.e., copying or no copying—he used several analogies, such as copying a paragraph from
a novel into another novel or reviewing a partial fingerprint at the crime scene but concluding the
perpetrator’s whole body was there, not just the fingerprint. 276 It is disingenuous to argue Mr.
Zeidman relied on these analogies as the basis for his opinion on significant copying. Mr. Zeidman
used the analogies to explain to a lay person why one cannot merely copy 260 lines of source code,
which Andor continuously represented is what occurred here during Mr. Zeidman’s deposition.
Andor’s argument Mr. Zeidman used no reliable methodology to conclude widespread
copying occurred is incorrect because it starts from the improper premise of assuming Mr.
Zeidman only found 260 lines of copied source code. Mr. Zeidman employed his software and
then filtered the results to conclude widespread copying occurred. Mr. Zeidman does not merely
conclude 260 lines of source code are copied; he found 260 indicators of copying and concluded
significant copying occurred based on this methodology. Andor does not challenge Mr. Zeidman’s
scientific methodology in general, i.e. employment of the CodeSuite applications and filtering
process after running the programs; Andor only argues Mr. Zeidman’s opinion is unreliable
because he inadequately filtered here during the filtering step. Mr. Zeidman used reliable
methodology; Andor merely disagrees with his conclusion. Andor may cross-examine Mr.
Zeidman. But we will not exclude his opinion as unreliable.
2. Mr. Zeidman’s opinion fits.
Andor next argues Mr. Zeidman’s opinion does not fit because he does not opine whether
the “260 lines” of copied code is a trade secret. We disagree. First, we already explained why
Andor’s reliance on “260 lines” of copied code as the basis of its arguments to exclude Mr.
Zeidman’s opinion is unfounded. Second, Allscripts can lay the foundation at trial for the jury to
determine whether the source code is a trade secret. Mr. Zeidman does not himself need to testify
it is a trade secret for his opinion to fit. He is opining Andor copied Allscripts’s source code. This
is one element of the trade secret misappropriation claim. Allscripts can prove the trade secret
prong through other witness testimony besides Mr. Zeidman’s. We deny Andor’s motion as to fit
subject to Allscripts laying a foundation at trial.
C. Andor’s source code expert Brad Ulrich.
Andor’s expert Brad Ulrich opines Allscripts reverse engineered the Config Tool, and the
value of Andor’s Config Tool. 277 Allscripts moves to preclude arguing: Mr. Ulrich’s opinions
about reverse engineering are unreliable, do not fit, or he is not qualified to offer them; he is not
qualified to offer his general opinions about economic value; and he offers improper opinions on
Allscripts’s state of mind. 278 Andor counters Mr. Ulrich’s reverse engineering opinions are
reliable, he is qualified to offer them, and they fit; he is qualified to generally offer non-quantitative
opinions about economic value; and he does not offer improper state of mind opinions. 279 We
address each argument in turn.
1. Mr. Ulrich’s reverse engineering opinions are admissible.
Allscripts first argues we should exclude Mr. Ulrich’s reverse engineering opinion because
he is “unable to provide any coherent definition of reverse engineering.” 280 Allscripts argues Mr.
Ulrich could not opine whether a product is needed to reverse engineer something or whether
Allscripts could reverse engineer the Andor Config Tool without access to it, and Mr. Ulrich
abandoned his definition of reverse engineering provided in his report. 281 We disagree with
Allscripts’s characterization of Mr. Ulrich’s testimony. Allscripts’s concerns with Mr. Ulrich’s
opinions are proper cross-examination issues.
Mr. Ulrich provides a definition of reverse engineering in his affirmative report, which he
applied in this case. 282 He provided substantially the same definition at his deposition. 283 It is true
Mr. Ulrich refused to provide an opinion about whether something can be reverse engineered
without a final product, and whether Allscripts needed the Andor Config Tool to reverse engineer
it. 284 But Mr. Ulrich also explained his inability or refusal to provide an opinion on the question(s)
asked. 285 This is an issue for the jury to weigh in assessing Mr. Ulrich’s credibility and the veracity
of his opinions. It is not a basis to exclude his opinions. Mr. Ulrich opined Allscripts reverse
engineered the Andor Config Tool by applying the definition in his report to the facts. To the extent
Allscripts disagrees with the application of the definition, whether reverse engineering is possible
without a final product, or his conclusions, Allscripts can cross-examine him at trial and present
its own rebuttal evidence.
Allscripts next seemingly makes a qualifications argument, arguing Mr. Ulrich cannot
provide a coherent definition of reverse engineering because he has never been qualified as an
expert on reverse engineering. 286 We disagree Mr. Ulrich fails to provide a coherent definition of
reverse engineering for the reasons already discussed. We also disagree with Allscripts’s
characterization of Mr. Ulrich’s testimony. Allscripts asked Mr. Ulrich if he considers himself an
expert in reverse engineering software. 287 Mr. Ulrich explained his areas of expertise and why he
feels he is qualified to offer his opinion. 288 Mr. Ulrich testified he reverse engineered products
throughout his career but did not have a list prepared to provide at his deposition. 289 A jury may
weigh this failure to recall in assessing Mr. Ulrich’s testimony if Mr. Ulrich cannot provide an
example at trial. But he is not unqualified because he cannot name a product he reverse engineered
off the top of his head. We are unpersuaded Mr. Ulrich is unqualified based on Allscripts’s
arguments, which notably do not challenge his extensive experience as a computer scientist in the
healthcare technology field. 290
Allscripts next argues Mr. Ulrich’s opinions do not fit because he answers an inapplicable
question. 291 Allscripts argues the Reseller Agreement, which Andor contends Allscripts breached
by reverse engineering the Andor Config Tool, does not prohibit reverse engineering the product,
only reverse engineering the source code for the product. 292 Thus, Mr. Ulrich answers the wrong
question because he does not opine on whether Allscripts reverse engineered the source code for
the Andor Config Tool. 293 We disagree with Allscripts’s reading of the contract and thus find Mr.
Ulrich’s opinion fits.
Andor hitches its breach of the Reseller Agreement claim to Section 2.2 of the Reseller
Agreement. 294 We begin with the text:
2.2 Restrictions. Allscripts acknowledges that the Company Product(s) constitutes
valuable trade secrets of Company. Except as expressly permitted by this Agreement,
Allscripts will not: (a) modify, adapt, alter, translate or create derivative works for any
Company Product; (b) merge any Company Product with any other service, product,
equipment, data, or software, except that Allscripts may offer an [sic] Company Product as
bundled with Allscripts’ products or services; (c) sublicense, distribute, sell, use for service
bureau use or outsourcing purposes, lease, rent, loan, or otherwise transfer Company
Product or Documentation to any third party (other than to Sublicensed Customers as
permitted above); (d) obtain order for Company Product outside of the Territory or transmit
or distribute Company Product outside of the Territory; (e) reverse engineer, decompile,
disassemble, or otherwise attempt to derive the source code for Company Product; (f)
remove or alter any copyright or any other proprietary rights notice included in Company
Product or Documentation; (g) otherwise use Company Product except as expressly
permitted hereunder; or (h) permit any third party to do any of the foregoing. 295
Allscripts reads this provision as prohibiting it from “reverse engineer[ing] . . . the source
code for Company Product.” 296 We disagree. The provision prohibits reverse engineering
Company Product, decompiling Company Product, disassembling Company Product, or otherwise
attempting to derive the source code for Company Product. 297 This reading is wholly consistent
with the phrasing of all other prohibitions in this section, all of which apply to Company Product
as defined in the Agreement. For example, subsection (a) of Section 2.2 prohibits Allscripts from
modifying Company Product, adapting Company Product, altering Company Product, translating
Company Product or creating derivative works for any Company Product. 298 Subsection (c)
prohibits Allscripts from, for example, sublicensing Company Product, distributing Company
Product, selling Company Product, leasing Company Product, renting Company Product, or
otherwise transferring Company Product. 299 Subsection (g) prohibits Allscripts from using
Company Product except as provided by the Reseller Agreement. 300 The prohibitions in each
subsection, including subsection (e), relate to what Allscripts may not do with the Company
Product. It is illogical to conclude in subsection (e) the prohibitions relate to the source code for
Company Product, rather than Company Product. There is no dispute the Company Product at
issue is the Andor Config Tool. Mr. Ulrich’s opinion fits because the Reseller Agreement prohibits
reverse engineering the Andor Config Tool––the question upon which he opines.
Allscripts next argues Mr. Ulrich’s opinion on reverse engineering is inadmissible because
he bases his conclusions on an improper starting point. 301 Allscripts argues Mr. Ulrich assumes
the Andor Config Tool and source code he reviewed was the deliverable contemplated by the
Reseller Agreement but provides no independent analysis or evidence tying the files reviewed to
the deliverables under the Reseller Agreement. 302 We deny Allscripts’s argument without
prejudice subject to Andor laying a foundation at trial the information reviewed by Mr. Ulrich is
the deliverable contemplated by the Reseller Agreement.
Allscripts then argues Andor never delivered Allscripts the Config Tool so Allscripts did
not have the product necessary to reverse engineer it. 303 This argument is appropriate for crossexamination. Allscripts merely disagrees Mr. Ulrich could have reached the opinion he reaches in
this case because in Allscripts’s view, one needs a product to reverse engineer. Mr. Ulrich opines
Allscripts reverse engineered the Config Tool based on the facts before him. Allscripts may crossexamine Mr. Ulrich and may present rebuttal evidence from its own expert indicating reverse
engineering cannot occur without a final product. This is an issue for the jury to consider, not
grounds to exclude Mr. Ulrich’s opinion.
Allscripts next argues Mr. Ulrich fails to tie his analysis to the information Allscripts
possessed when it allegedly reverse engineered Andor’s Config Tool. 304 Allscripts’s entire
argument relies upon its misinterpretation of the Reseller Agreement, namely its belief the Reseller
Agreement only prohibits reverse engineering the source code for the Andor Config Tool.
Allscripts argues we must exclude Mr. Ulrich’s opinion because the facts do not support a
conclusion Allscripts reverse engineered the source code for the Andor Config Tool. We reject
Allscripts’s argument here for the reasons already stated herein.
Allscripts finally argues Mr. Ulrich employs no reliable methodology so we must exclude
his opinion. 305 Allscripts posits Mr. Ulrich “fabricated from whole cloth a [nine-step] methodology
solely for the purposes of this litigation.” 306 Andor counters Allscripts oversimplifies the
methodology Mr. Ulrich used. 307 Andor argues Mr. Ulrich employed industry-accepted standards
and practices to reach his conclusion and thus his opinions as to reverse engineering are reliable. 308
We again note a Daubert hearing would have assisted us in making this determination. But the
parties declined. We are thus left reviewing Mr. Ulrich’s reports and testimony. We find based on
the information before us today (and subject to review after hearing the evidence) Mr. Ulrich
employed a reliable methodology.
Mr. Ulrich performed a “static analysis” of the source code at issue in this case to
understand the products and their functions and compare the source code between the two Config
Tools as part of his analysis to determine whether Allscripts reverse engineered Andor’s Config
Tool. 309 Allscripts does not argue “static analysis” is not an industry-accepted method to analyze
source code. While Allscripts contends the nine steps Mr. Ulrich used to reach his conclusion are
not scientifically accepted or peer-reviewed, Mr. Ulrich performed the analysis at each step using
an accepted practice of static analysis to reach his conclusion. We do not see how Mr. Ulrich failed
to employ a reliable methodology. Mr. Ulrich explained the sequential steps he took and employed
industry-accepted analysis at each step. Nor do we consider his opinions mere ipse dixit because
he only “review[ed]” and “conclude[d].” 310 He used static analysis, which he explained is
“reviewing the source code itself and looking at various aspects of that source code that are familiar
to a trained software engineer, and using that information to determine things about how software
functions and operates.” 311 Mr. Ulrich used static analysis to review and analyze the code here,
then compared the Config Tools’ code, reviewed other information the parties shared about the
Config Tool, and concluded whether reverse engineering occurred. We disagree Mr. Ulrich failed
to employ a reliable methodology to opine about whether Allscripts reverse engineered the Config
Allscripts also argues Mr. Ulrich offers a factual narrative of “cherry-picked facts” not tied
to his analysis which is not permitted. 312 We largely disagree. But to the extent Mr. Ulrich attempts
to narrate facts which did not inform his analysis, he may not do so, and Allscripts may object at
We deny Allscripts’s motion to exclude Mr. Ulrich’s reverse engineering opinion because
we find Mr. Ulrich’s opinions reliable and relevant.
2. Mr. Ulrich may offer his non-quantitative opinion on whether Allscripts
saved time and money by reverse engineering the Config Tool but not the
value of the Andor Config Tool or the value of limited lines of Allscripts’s
Allscripts argues Mr. Ulrich cannot opine on the value of Andor’s Config Tool because he
is not qualified. Allscripts also argues Mr. Ulrich cannot opine on whether Allscripts saved time
and money by reverse engineering the Config Tool because his opinion is unreliable. 313 Allscripts
finally argues Mr. Ulrich’s opinion about the value of the specific lines in its source code is
inadmissible because he is unqualified. 314
We start with Mr. Ulrich’s opinions on the value of the 260 lines of Allscripts’s source
code. We exclude Mr. Ulrich’s opinion. As we explained, Mr. Zeidman does not merely opine
Andor copied 260 lines of Allscripts’s source code; he opines Andor significantly copied
Allscripts’s code. Mr. Ulrich rebuts Mr. Zeidman’s report by concluding no copying occurred. 315
The value of the 260 copying indicators Mr. Zeidman found in his analysis to conclude significant
copying occurred is not at issue based on Mr. Zeidman’s admissible opinion finding widespread
copying. Thus, the opinion regarding the value of 260 lines of source code does not fit, regardless
of whether he is qualified to provide it.
Allscripts also argues Mr. Ulrich is unqualified to opine on the value of Andor’s Config
Tool. 316 Allscripts contends Mr. Ulrich provides no methodology or metrics to estimate the value
of the Config Tool. 317 Allscripts’s argument appears to implicate Mr. Ulrich’s qualifications and
the reliability of his opinion. Andor counters Mr. Ulrich provides no quantitative opinion as to the
value of the Config Tool; rather he opines it has significant value based on his experience, review
of the code, and understanding of the developers used, time spent, and prevailing wages in the
industry to make this non-quantitative conclusion. 318
We start with Mr. Ulrich’s opinion. Mr. Ulrich opines:
The source code for the Andor Config Tool, as a whole, has significant economic value.
Based on the staffing information above,[ 319] it would have cost more than several hundred
thousand dollars, (likely significantly more), based on current prevailing wages and rates
for health IT software designers, developers, testers, and similar. In addition, the software
has value because it allows healthcare providers to create the ability to expand, scale and
manage MPE campaigns efficiently and effectively from a technical perspective – and
specifically campaigns utilizing the HealthGrid platform – the platform owned and
marketed by Allscripts – a large EHR vendor in the U.S. The value of MPE campaigns in
general is well understood and it is a national strategy supported and followed by CMS,
the National Health Council, and EHR vendors groups. 320
Allscripts asked Mr. Ulrich what formed the basis of his opinion the Andor Config Tool
has significant economic value. 321 Mr. Ulrich swore: “So there’s a few—a few parts to that. You
know, one is – is the time and money it would take to develop the product. And the second half of
that is, you know, based on my understanding of the value of mobile – mobile patient engagement
campaigns and the value in rolling those out to customers on scale, which is the primary purpose
of the Andor Config Tool. And then I provide some citations here that establish where I develop
my understanding of, you know, why mobile patient engagement campaigns are a very lucrative
and very important to the health care of the country and supported by CMS and the National Health
Council, and so on and so forth.” 322 To be clear, despite Andor’s argument in its brief suggesting
Mr. Ulrich’s opinion is partially based on his source code analysis, Mr. Ulrich himself did not
explain in his report or testimony his source code review informed his analysis of significant value.
Thus, we proceed with the two prongs Mr. Ulrich explained informed his analysis: (1) time and
money to develop the Config Tool; and (2) the value mobile patient engagement campaigns have
in the health care industry.
Allscripts asked Mr. Ulrich how he determined the cost to develop the Andor Config Tool–
–the first prong which informed his conclusion the Config Tool has significant value. 323 He
responded: “So I don’t have the equation in front of me. But basically by looking at the time that
it would take the staff above, assuming they were working nearly full time on the project at current
prevailing wages.” 324 Allscripts questioned whether Mr. Ulrich used the eighteen-month
timeframe it took Andor to develop the product in his equation. 325 He responded yes “as an input”
but “not with an equal sign.” 326 Allscripts asked if he used any other time period besides eighteen
months. 327 Mr. Ulrich explained: “No. Like I said, it’s not a time period. I think you’re – I don’t
think you’re understanding the equation. You – you can – you can use – or maybe you are. But
anyway, I shouldn’t say that. But there’s, you know, you have a period of time and a number of
people. You can shorten the time but increase the people to a certain extent. So the equation doesn’t
require a fixed assumption on the amount of time. It doesn’t require a fixed assumption on the
amount of people either . . . I didn’t need to do that to make my estimate of several hundred
thousand dollars.” 328
Allscripts pressed Mr. Ulrich to provide the inputs he used here to come up with his
estimate of several hundred thousand dollars in development costs. 329 He answered: “I looked at a
few different scenarios. I don’t have all of those in front of me here. Because I kind of do a scenario
analysis when I do something like this. I don’t just sort of come up with one estimate. I sit down
and kind of look at some different – different scenarios. So I apologize, I don’t have an equation
for you here right now.” 330 Allscripts asked if the scenarios he analyzed are in his report, to which
he responded “[n]o, they are not.” 331 Andor directs us to Mr. Ulrich’s report, not deposition
testimony, to defend against his methodology here. 332 But Mr. Ulrich himself admits his
methodology in reaching his conclusion does not appear in his report.
We have no idea how Mr. Ulrich derived his conclusion Andor’s development costs of the
Config Tool are “several hundred thousand dollars, (likely significantly more).” 333 Mr. Ulrich does
not provide the basic equation he used in his report or at his deposition – all we have because the
parties declined a Daubert hearing. He does not provide us with the “scenarios” he considered in
his “scenario analysis” to come up with the amount of several hundred thousand dollars. We do
not know what he does after his “scenario analysis” to reach the conclusion. Does he average the
numbers? Determine the highest number? Lowest? Median? We have no clue how Mr. Ulrich
came up with the amount it cost Andor to develop the Andor Config tool based on his report and
testimony. Mr. Ulrich’s opinion about the amount it cost Andor to develop the Config Tool is
inadmissible as unreliable based on the record before us.
We review the second basis for his opinion. Mr. Ulrich testified his opinion on the
“significant value” of the Config Tool also rested upon the value mobile patient engagement
campaigns have in the healthcare industry. Mr. Ulrich testified his opinion here is informed by a
review of multiple public documents explaining patient engagement in the healthcare field, 334 his
“extensive professional experience in the health IT field working with numerous electronic health
vendors and patient – and providers,” 335 and “to some extent, on [his] own personal experience,
which is [he] absolutely love[s] it when [he] get[s] an appointment reminder from [his]
provider.” 336 Mr. Ulrich continued about his own personal experience, explaining: “I know
inherently that there’s a lot of value in that feature. And I know inherently, based on my experience,
not just as a patient, of course, but as a health care technology provider, that there’s a lot of value
in – in this functionality. Just about everybody that is in the industry that I know is aware of it,
they’re interested in it, and they’re looking for a solution for it.” 337
We start with the citations to the documents in his report. Mr. Ulrich’s citations in his report
to the publicly available documents relate to “the value of MPE campaigns in general” –– not the
value of configuration tools as they relate to a mobile patient engagement campaign. 338 But the
issue is not whether a mobile patient engagement campaign has value; the issue is the value of
Andor’s Config Tool in the context of a mobile patient engagement campaign. Mr. Ulrich explains
why the Config Tool is valuable to MPE campaigns in his report: “[T]he software has value
because it allows healthcare providers to create the ability to expand, scale and manage MPE
campaigns efficiently and effectively from a technical perspective – and specifically campaigns
utilizing the HealthGrid platform – the platform owned and marketed by Allscripts – a large
[electronic health records 339] vendor in the U.S.” 340 He also explains he is informed by his years
of experience in the healthcare technology field and his experience as a patient receiving
appointment reminders, which he loves.
So Mr. Ulrich’s opinion about the significant value of Andor’s Config Tool is based on an
unreliable calculation of development costs, the general value of mobile patient engagement
campaigns, the fact a Config Tool assists providers in “expand[ing], scal[ing], and manag[ing]”
the campaigns efficiently and effectively, and his experience in the healthcare technology field and
as a patient who receives appointment reminders. Based on all of this, he concludes the Config
Tool has significant value. The development cost basis of this opinion is wholly unreliable,
rendering his final opinion similarly unreliable. Andor comes up short even if we looked at the
second proffered basis to determine whether this is itself sufficient to find the opinion on value
reliable. It is unpersuasive Mr. Ulrich likes getting appointment reminders. We have no idea how
his preference to receive appointment reminders extrapolates to a Config Tool used in a mobile
patient engagement campaign having significant value. He offers no reason why his experience in
the healthcare technology field informs his opinion as to the Config Tool’s value. It is not
immediately apparent how his experience qualifies him to offer an opinion on the value of the
Config Tool. And he relies on publicly available documents which support his conclusion mobile
patient engagement campaigns themselves have value, but he fails to tie in the value derived from
the Config Tool. He instead merely concludes the Config Tool has significant economic value. We
cannot allow this type of unsupported expert opinion based on the record we have before us.
Perhaps a Daubert hearing may have clarified how Mr. Ulrich reached this conclusion, but the
parties declined one. We exclude Mr. Ulrich’s opinion on the significant value of Andor’s Config
Tool as unreliable.
Allscripts finally moves to exclude Mr. Ulrich’s opinion as to whether Allscripts saved
time and avoided risk by reverse engineering Andor’s Config Tool. 341 Allscripts argues Mr. Ulrich
disclosed no metrics, calculations, or standards to conclude Allscripts saved time and money in
development. 342 Allscripts also argues Mr. Ulrich concedes he did not know many facts about
Allscripts’s development of the Config Tool. 343 Thus, Allscripts argues we should exclude his
opinion. Andor counters Mr. Ulrich need not use metrics, standards, or calculations because he is
not offering a quantitative opinion, just a qualitative one based on his experience and his
understanding of the software development lifecycle. 344
We again begin with Mr. Ulrich’s opinions. The essence of his opinions are: “Allscripts
likely saved a significant savings in both time-to-market and level of effort (LOE) required by
reverse engineering the Andor product,” and “Allscripts likely avoided material technical risk
during development of the Allscripts Products by drawing on know-how gained from Andor’s
Config Tool.” 345 Mr. Ulrich formed his first opinion about time savings “[b]ased on the totality of
[his] analysis of both [Config] tools, and the source code and other development artifacts made
available to [him], and the considerations, based on [his] experience with similar projects, of work
required under each phase of an industry-standard software development lifecycle.” 346 His second
opinion about avoiding material technical risk is based on his experience with risk management,
which is one of his specialties, 347 as well as a review of the facts before him in this case, including
Allscripts’s “extensive exposure to Andor’s Config Tool through documentation, detailed
demonstrations, and the JSON files – and direct plans to utilize and to integrate with that Tool –
as a basis from which to start from.” 348
Mr. Ulrich does not opine Allscripts saved time and avoided material risk. He opines
Allscripts likely did those things. But Allscripts only challenges his methods to reach these
equivocal conclusions, not the conclusions themselves. We disagree with Allscripts these opinions
are mere ipse dixit. Mr. Ulrich did not merely pull opinions out of thin air about time saved or risks
averted. He relied upon his experience, knowledge of the development process for this type of
product, and his analysis of the source code and facts to conclude Allscripts saved time and avoided
material technical risks by reverse engineering Andor’s Config Tool. This is not ipse dixit.
Allscripts may cross-examine Mr. Ulrich about the facts underlying his opinion, including whether
he ignored or failed to consider other facts.
3. We exclude Mr. Ulrich’s opinions about Allscripts’s state of mind.
Allscripts finally moves to exclude Mr. Ulrich’s opinions on Allscripts’s state of mind as
improper expert opinions. The parties do not dispute state of mind opinions are not proper expert
testimony. Andor instead argues Mr. Ulrich’s opinions are not about Allscripts’s state of mind or
Allscripts argues we must exclude this opinion as an improper state of mind opinion:
“Allscripts set out with a direct and explicit goal of reverse engineering the Andor Config Tool
and its output.” 349 Mr. Ulrich cannot testify as to Allscripts’s goals. It is the jury’s role to determine
Allscripts’s goal, if relevant, when it started developing its own Config Tool. Mr. Ulrich then
opines: “In fact, a major part of Allscripts[’s] approach, which [it] did accomplish in code, was to
mimic functionality and structure of the Andor tool so that [it] could seamlessly migrate customers
and [its] prior HealthGrid configurations (which the Andor Config Tool was already designed to
interface with), onto the new Allscripts Config Tool and updated MPE/FMH platform.” 350 The
first part of the opinion is admissible because it is not about Allscripts’s state of mind or intent.
Mr. Ulrich merely opines Allscripts’s approach, which is discernable from his review of the source
code and materials underlying his opinion, included mimicking the functionality and structure of
the Andor tool. But Mr. Ulrich may not testify as to Allscripts’s purpose—i.e. to seamlessly
migrate customers and its prior Health Grid configurations onto the new Allscripts Config Tool
and updated FollowMyHealth platform. This is not proper expert opinion because it goes to
Allscripts’s state of mind.
Allscripts also seeks to exclude the opinion: “It is clear from these statements and other
emails in the record that Mr. Franks and the Allscripts team had the Andor Config Tool in mind
when designing their system.” 351 There are multiple issues with this overreach. First, if it is clear
from documents what Allscripts thought, the jury does not need an expert opinion. Second, Mr.
Ulrich cannot opine on Allscripts’s state of mind. A jury may infer or conclude from the very
documents Mr. Ulrich relied on Allscripts had “the Andor Config Tool in mind when designing
their systems.” An expert need not, and cannot, tell them so.
We permit Andor’s rebuttal expert Aneesh Chopra to testify and exclude some
opinions of Allscripts’s experts John Cauthen and Dr. Yael Harris.
A. Andor’s expert Aneesh Chopra.
Andor proffers Aneesh Chopra’s rebuttal opinion about whether Andor’s products compete
with Allscripts’s, formerly Health Grid’s, product offerings. 352 Allscripts renews its Daubert
motion to exclude this rebuttal opinion arguing we should exclude Mr. Chopra’s opinions because
he failed to disclose an expert report or because he fails to provide any analysis for his opinions
and his opinions do not fit. 353 We must start with the brief background of this renewed motion.
Our April 15, 2022 Order required all Daubert motions “if warranted based on a good faith
argument as to qualification, fit, or reliability” to be filed no later than May 16, 2022 with responses
due no later than May 27, 2022. 354 Allscripts moved to exclude Mr. Chopra’s testimony under
Rule 37(c) because he failed to provide a written report consistent with Rule 26. 355 Allscripts
presented no further argument regarding Mr. Chopra’s qualifications or whether his opinions “fit”
or are “reliable.” 356 We reviewed the Motion and entered an Order providing Andor the
opportunity to provide a written report, granting Allscripts the ability to re-depose Mr. Chopra on
non-duplicative information contained in the report at Andor’s expense, and permitted Allscripts
“leave to challenge a new aspect of Mr. Chopra’s opinion not earlier disclosed by no later than
June 8, 2022.” 357 Andor filed a notice compliant with our Order indicating it would serve Mr.
Chopra’s written report, and we denied Allscripts’s motion as moot. 358 Our Order denying the first
Motion to exclude as moot again confirmed Allscripts could “seek relief on newly adduced
information” consistent with our May 17, 2022 Order. 359
Allscripts “renewed” its motion on May 31, 2022. 360 Allscripts now posits three reasons to
exclude Mr. Chopra’s testimony: (1) he must provide a written report, failed to do so, and we
should exclude his testimony under Rule 37(c); (2) he failed to support his opinions with analysis;
and (3) his opinions do not “fit.” 361 Allscripts’s renewed motion fails to comply with all three of
the operative Orders. We required Daubert motions raising issues of qualifications, fit, and
reliability be filed on or before May 16, 2022. 362 Allscripts moved to exclude Mr. Chopra’s
testimony on May 16 without challenging qualifications, fit, or reliability. Its “renewed” motion
now raising these issues is fifteen days late under our Scheduling Order. 363 Its “renewed” motion
is also noncompliant with our Orders addressing its first motion. 364 We denied Allscripts’s first
motion without prejudice permitting Allscripts “leave to challenge a new aspect of Mr. Chopra’s
opinion not earlier disclosed.” 365 Allscripts’s challenges are not based on new opinions not earlier
disclosed; Allscripts itself admits there are no new opinions provided because Mr. Chopra merely
submitted his deposition transcript as his report. 366
We decline to consider arguments regarding reliability and fit as untimely and
noncompliant with our Orders.
We turn to the merits of Allscripts’s argument we should grant the extraordinary relief of
excluding evidence under Federal Rule of Civil Procedure 37(c). Andor disclosed Mr. Chopra as
a rebuttal expert on April 25, 2022 under Federal Rule of Civil Procedure 26(a)(2)(C). Andor
maintains Mr. Chopra need not submit an expert report, and was otherwise properly disclosed,
because he is not a “retained” or “specially employed” expert. 367 Andor argues Mr. Chopra serves
on Andor’s advisory board and acquired his knowledge forming the basis of his expert opinions
during his employment as Chief Technology Officer to then-President Obama as well as through
the work for his company, CareJourney. 368 Andor also argues Allscripts elevates form over
substance by renewing its motion arguing it did not submit an adequate expert report. 369 Allscripts
disagrees, and argues Mr. Chopra needed to produce an expert report under Rule 26, failed to do
so, and we should exclude his testimony under Rule 37(c). 370 We decline to follow the parties into
the thicket of whether Mr. Chopra needed to produce an expert report and whether the materials
produced satisfies Rule 26’s requirements. We assume for the purposes of our analysis he needed
to provide a report and his report did not comply with requirements. We nevertheless find his
testimony admissible and not excludable under Rule 37(c).
Rule 37(c)(1) provides: “If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
evidence . . . at a trial, unless the failure was substantially justified or is harmless.” 371 But we
should not exclude evidence for technical non-compliance with the Federal Rules. 372 We should
instead only exclude evidence for failing to comply with disclosure obligations after considering
five factors: (1) “the prejudice or surprise in fact of the party against whom the excluded witnesses
would have testified or the excluded evidence would have been offered; (2) the ability of that party
to cure the prejudice; (3) the extent to which allowing such witnesses or evidence would disrupt
the orderly and efficient trial of the case or of other cases in the court; (4) any bad faith or
willfulness in failing to comply with the court’s order; and (5) the importance of the excluded
Four of the five factors weigh heavily in favor of admitting Mr. Chopra’s testimony.
Factors one and two counsel admission. Allscripts’s argument it suffered prejudice or surprise is
inconceivable. Allscripts argues Andor disclosed Mr. Chopra as a rebuttal witness “at 6:00 pm on
April 25, 2022, the last possible moment to comply with the rebuttal expert disclosure deadline.” 374
We are unpersuaded. The disclosure complied with our Order. The “last possible minute”
disclosure is still timely. There is no way Allscripts had any more “surprise” at this witness’s
disclosure than any other witness’s merely because the disclosure occurred at 6:00 pm on the due
date. Allscripts’s feigned argument it did not know Mr. Chopra’s identity or area of expertise ahead
of time is nonsensical. Mr. Chopra is disclosed as a rebuttal expert. Following receipt of the
disclosure, Allscripts did not raise an objection arguing he needed to produce a report. Allscripts
instead deposed Mr. Chopra learning of all his opinions and the factual bases for them. 375 Allscripts
suffered no surprise or prejudice by Mr. Chopra’s failure to produce a written report. Allscripts
has full notice of Mr. Chopra’s opinions and the bases for them as well as his qualifications,
publications, compensation, and past expert testimony. 376 We permitted Allscripts the chance to
re-depose Mr. Chopra on new opinions. No new opinions issued and no second deposition
occurred. There is no surprise or prejudice and thus no need to cure prejudice. Factors one and two
weigh in favor of admitting the testimony.
Allowing this testimony will not disrupt the orderly and efficient presentation of evidence.
Allscripts does not even argue this prong. 377 Factor three weighs in favor of admission. Because
we decline to decide whether Mr. Chopra needed to produce an expert report and whether the
report produced sufficed, we weigh the “bad faith” or “willfulness in failing to comply” with our
Order in Allscripts’s favor. But this is wholly insufficient to warrant exclusion considering every
other factor weighing heavily in favor of admitting the evidence. Mr. Chopra’s testimony is
important. It is rebuttal expert testimony regarding a key issue in the case––whether Andor’s
products compete with Health Grid’s (now Allscripts’s) products.
Exclusion of evidence under Rule 37 for failure to comply with Rule 26 is an extraordinary
remedy not warranted today. Because we find the testimony admissible as expert testimony under
Federal Rule of Evidence 702, we will not issue an advisory opinion about whether it is also
admissible under Federal Rule of Evidence 701 as lay opinion testimony. 378
B. Allscripts’s expert John Cauthen.
Allscripts proffers John Cauthen’s opinion regarding the authenticity or fabrication of three
documents. 379 Andor moves to exclude this opinion on three bases: relevance; improper opinion
on state of mind; and his opinion does not require specialized knowledge. 380 Allscripts counters
Mr. Cauthen’s opinions are relevant and admissible. 381
Andor first argues Mr. Cauthen’s opinions do not “fit” because they are irrelevant.382
Andor contends Mr. Cauthen reviewed three documents––a statement of work between Health
Grid and Nicklaus Children’s Hospital, a letter from KGN Technologies to Mahathi confirming
Mahathi owns the tenant, and a notice of intellectual property assignment from Mahathi––none of
which give rise to the claims at issue. 383 Allscripts does not dispute the documents do not give rise
to any claim or defense. 384 Allscripts instead counters Andor is asking for too much to establish
“fit.” Allscripts posits Mr. Cauthen’s testimony is relevant to the claims and defenses as well as
Our inquiry is “whether [the] expert testimony proffered . . . is sufficiently tied to the facts
of the case that it will aid the jury in resolving a factual dispute.” 385 This is a question of relevance,
and we apply “a liberal policy of admissibility if it has the potential for assisting the trier of fact.” 386
The standard is more than “bare relevance” but not “that high.” 387 We examine each document in
1. We exclude testimony regarding statement of work number five.
Allscripts argues Mr. Cauthen’s testimony about the statement of work number five
between Health Grid and Nicklaus Children’s hospital is relevant because: both parties allege a
breach of the settlement agreement; it goes to Mahathi, Andor, and Messrs. Toleti and Tyriver’s
credibility; and, it supports the “truthfulness” defense to the defamation counterclaims. Allscripts
throws spaghetti at the wall and hopes it sticks. It does not.
Allscripts first argues this evidence fits because both parties allege breaches of the
Settlement Agreement. Allscripts explains Andor submitted the statement of work to Allscripts to
aid collection efforts from Nicklaus Children’s Hospital, and if successful, would have resulted in
payments to Andor under the Settlement Agreement. Allscripts’s claim for breach of the
Settlement Agreement is based on violations of the non-compete, non-solicitation, and
confidentiality provisions incorporated into it. 388 Mahathi’s counterclaim is based on the nondisparagement clause and Allscripts’s officers’ alleged comments about “swindl[ing]” or
“dup[ing]” Allscripts into purchasing Health Grid. 389 Allscripts fails to show even bare relevance
of this testimony to either sides’ Settlement Agreement claims. Neither party even touches upon
this issue in their allegations. Discussion of Nicklaus Children’s Hospital only came up in
summary judgment for Allscripts’s tortious interference claim. 390 We are unpersuaded this
We similarly reject this testimony is relevant to credibility. Allscripts provides no argument
besides “all of [the documents] are relevant to the Defendants’ credibility.” 391 But Mr. Cauthen
admits he does not know who fabricated the statement of work. His opinion has no actor. 392 Andor
points us to Mr. Cauthen’s admissions he cannot identify an actor. 393 Allscripts fails to identify
contrary testimony; we will not search the hundreds of pages of appendix relating to Mr. Cauthen
for contrary testimony. Allscripts did not even attempt to identify an actor who we or a jury may
infer from the facts surrounding this statement of work. Allscripts chooses to argue the alleged
fabrication goes broadly to all Defendants’ credibility. Allscripts functionally seeks to argue
Andor, Mahathi, and Messrs. Toleti and Tyriver are all liars because one of them (or someone else)
might have fabricated a document. We decline to permit this testimony as relevant to “the
[collective] Defendants’” credibility.
We finally reject Allscripts’s argument Mr. Cauthen’s testimony about the statement of
work number five fits because Andor’s defamation claim involves an allegation of swindling. First,
Mr. Cauthen fails to identify an actor. Second, Andor alleges Allscripts breached the nondisparagement clause in the Settlement Agreement by telling individuals at Northwell Mr. Toleti
“swindled” and “duped” Allscripts into buying Health Grid. 394 It appears this allegation carries
over to Andor’s defamation claim. 395 None of the allegations involve Allscripts’s telling anyone
Andor, Mahathi, and Messrs. Toleti and Tyriver are swindlers because they fabricate documents
(even if they did). Thus, we do not see how this “fits” Allscripts’s truth defense to the defamation
Mr. Cauthen’s testimony about the statement of work number five does not “fit” and is
excluded. Because we exclude testimony about the allegedly fabricated statement of work number
five, we need not address Andor’s argument about improper opinion on an individual’s state of
We exclude testimony about the KGN Technologies letter.
We turn to the second document reviewed by Mr. Cauthen––the letter from KGN
Technologies. Andor challenges the admissibility of this testimony as irrelevant and because Mr.
Cauthen’s analysis requires no specialized knowledge. 396 Andor’s argument this letter is irrelevant
and unhelpful to the jury is baseless. Ownership of the tenant––and whether anyone can own a
tenant at all––is central to all claims arising from the “attack” both Allscripts and Andor say the
other side orchestrated in May 2021, including the Computer Fraud and Abuse Act claims and
Allscripts’s abuse of process claim. Andor posits this letter came from KGN Technologies and
confirms it owns the tenant at issue. Testimony opining the letter is fabricated is helpful to the
jury. But we do not have such testimony here. We exclude Mr. Cauthen’s opinion on this issue.
Mr. Cauthen’s original report opined “Mahathi modified a file received from KGN
Technologies (KGN) to include additional language.” 397 Allscripts asked him to analyze “the facts
and circumstances surrounding the modification of a file labeled MahathiSoftware_Letter.pdf on
or about May 27, 2021.” 398 He concluded based on his examination Mahathi modified it. In
reaching this conclusion, Mr. Cauthen reviewed and analyzed multiple emails and attachments,
analyzing the attachments’ metadata and other characteristics to determine whether they were the
same or different as other documents circulated as attachments to various communications. 399 His
first opinion clearly required specialized knowledge.
But Mr. Cauthen filed a supplemental report walking back his first opinion. He now opines:
(1) “A file labeled MahathiSoftware_Letter.pdf was received by Mahathi on or about May 27,
2021 from KGN. The verbiage in this letter originated with Mahathi”; (2) “A second version of
the MahathiSoftware_Letter.pdf was received by Mahathi. This second version contained verbiage
which originated with Mahathi. This second version was created shortly after Venkat Deepak had
asked Raj Toleti if he needed to modify anything in the first version”; (3) “Venkat Deepak, at the
direction of Raj Toleti and/or others caused the original letter from KGN to be updated with
additional language”; and (4) “The second version was then sent back to Raj Toleti twice. The first
time asking if any further modifications were needed and the second time in an email omitting any
references to modifications.” 400 To reach this opinion Mr. Cauthen created a timeline of emails
between Mahathi and KGN, and messages between Mahathi and KGN sent on the messaging
platform “WhatsApp.” 401 Mr. Cauthen did not have the “WhatsApp” messages at the time of his
Mr. Cauthen details no comparable analysis of metadata and document comparison
between the original KGN letter and modified KGN letter in reaching his supplemental opinion
about the origin of the modified letter. 402 This makes sense. The mystery of who created the
modified document was solved by the smoking gun evidence provided to Mr. Cauthen. He had the
“WhatsApp” messages between a Mahathi employee and KGN with the Mahathi employee
sending the exact language Mahathi wanted on KGN’s letterhead, and KGN sending the letters to
Mahathi shortly thereafter. 403 The emails and messages confirm KGN did in fact create both letters
following Mahathi’s input on the language to use without any type of specialized analysis. This is
not proper expert testimony. 404 An expert cannot simply narrate internal documents and form a
conclusion evident to a lay person from their face. This is the jury’s province.
Perhaps a Daubert hearing may have led us to a different result. Maybe Mr. Cauthen could
have explained what exactly he needed from his first report regarding this issue to reach his
amended conclusions in his supplemental report. Allscripts merely points us to his first report as
evidence of his specialized knowledge in forming his conclusion. 405 We fail to see Mr. Cauthen
employed specialized knowledge to reach his conclusions in his supplemental report. The parties
declined a Daubert hearing. We must exclude Mr. Cauthen’s testimony regarding the KGN letter.
3. We permit testimony regarding the Intellectual Property Notice
Andor’s only argument regarding Mr. Cauthen’s testimony on the Intellectual Property
Notice Clarification letter is the letter is not helpful to the jury because it is irrelevant. 406 Andor
fails to address this document in its reply. 407 Allscripts counters this document is wholly relevant
because a central issue in the case is who owns the Standard User Interface which is expressly
addressed in this document. 408
Mr. Cauthen generally opines the Intellectual Property Notice of Assignment and
Assumption “was not created on or around September 6, 2019” or executed by Dr. C S Padmavathi
and Mr. Toleti contemporaneously with the assignment and assumption agreement. 409 He opines
it “appears to have been made at a later in time, perhaps in October 2021, and was digitally
signed.” 410 We agree with Allscripts this testimony “fits” at this stage subject to Allscripts laying
a foundation for its relevance at trial. This notice as well as the assignment and assumption
agreement, formed the basis of a partial motion to dismiss Mahathi’s breach of contract
counterclaim regarding the license Mahathi provided to Allscripts in the 2018 statement of
work. 411 We explained the relevance of this document in our November 22, 2021 Memorandum
granting Allscripts’s partial Motion to dismiss. 412 We will not explain it again here. But we
ultimately dismissed the breach of contract counterclaim. Allscripts posits this document is still
relevant to other claims, including its request for declaratory judgment. We agree at this stage. But
Allscripts must first lay a foundation at trial to demonstrate why this document being falsified or
misrepresented is relevant to its claim it owns the Standard User Interface. Allscripts makes a
sufficient showing at this stage to satisfy our gatekeeping function based on Andor’s argument this
testimony does not “fit.”
C. Allscripts’s expert Dr. Yael Harris.
Yael M. Harris, Ph.D., MHS submitted an expert report about the telehealth industry. 413
Dr. Harris is a researcher of health information technology. 414 Dr. Harris offers four opinions: (1)
telehealth is a tool of patient engagement; (2) Allscripts and Andor products deliver patient
engagement services; (3) Andor’s features are similar to those provided by Allscripts; and (4)
interruption to the availability of the Mobile Patient Experience tool caused harm to patients,
providers, and Allscripts. 415
Andor moves to exclude two of Dr. Harris’s opinions: her speculative opinions regarding
harms caused by the attack on Allscripts’s product, and her attempts to interpret contracts. We
agree with Andor and preclude these two opinions from Dr. Harris.
1. Dr. Harris cannot speculate as to harms the attack “may” have caused.
Andor challenges portions of Dr. Harris’s fourth conclusion. Andor argues Dr. Harris
speculated as to the harms patients and providers suffered from Andor’s alleged attack,
constituting inappropriate expert testimony. Andor also argues Dr. Harris is unqualified to opine
on medical harms incurred by the patients using Mobile Patient Experience because she has no
medical background. Allscripts cites facts Dr. Harris included in her report, arguing Dr. Harris did
not speculate but based her opinions on facts.
We agree with Andor and find Dr. Harris cannot opine regarding medical harms which
“may” have been caused by the outage because those opinions are speculative and she is
unqualified to provide them. It is well-established “an opinion based on speculation or an educated
guess is inadmissible.” 416 An opinion is speculative if it “is not based on any direct or
circumstantial evidence” in the record. 417
Dr. Harris offers several speculative opinions about the effects the outage had on patient
health. The very wording of Dr. Harris’s conclusions reveal her speculation. For example, she
speculates “the health of some patients, especially those with chronic conditions, may have been
exacerbated,” patients “may have missed appointments,” and “patients may have skipped their
appointments.” 418 Dr. Harris swore these “conclusions” constituted presumptions. For example,
she admitted she did “not know how much [the patients] were impacted”; her “presumption is, if
they did not have access to the technology they were planning to use . . . then they were
impacted.” 419 While an expert may assume facts to form opinions, the expert’s opinions
themselves cannot constitute assumptions. Allscripts offers no meaningful rebuttal to Andor’s
argument; Allscripts simply cites portions of Dr. Harris’s report where Dr. Harris includes facts
but fails to explain how Dr. Harris’s conclusions do not constitute speculation. We preclude Dr.
Harris from offering speculative opinions as to harms the attack may have caused.
2. Dr. Harris cannot interpret contracts.
Andor also moves to exclude portions of Dr. Harris’s rebuttal report regarding the import
of the settlement agreement. Andor argues Dr. Harris improperly interprets contracts. Dr. Harris
submitted a report rebutting the conclusions of Andor’s expert, Mark Anderson. Dr. Harris
discusses a confidential settlement agreement between Raj Toleti, Andor, and Mahathi Software,
including many of the terms in the contract. 420
It is well-established “the law of contract interpretation . . . firmly prohibits expert
testimony as to legal duties, standards or ramifications arising from a contract.” 421 An expert may
not opine regarding “the scope and meaning” of a contract. 422
Dr. Harris impermissibly opines on “the scope and meaning” of the settlement agreement
in section II.A of her rebuttal report. 423 She opines a section of the agreement “reflects the parties’
agreed understanding of Andor’s products as of the date [of] the Settlement Agreement”; “[b]y
signing the Settlement Agreement, Andor represented and agreed that [its] products specifically
targeted providers to help coordinate care amongst each other”; “Andor did not indicate that [its]
product could (or would) be used to engage patients”; the agreement “required the parties to enter
into a Marketing Services Agreement”; “[u]nder the Marketing Services Agreement, Andor could
market its ThinkAndor and AndorNow solutions to Allscripts clients”; “the Marketing Services
Agreement expressly forbids Andor from” selling certain solutions; section 3.1(v) “prohibits
Andor from” referencing certain things; and the contracts “evidence the parties’ understanding and
agreement” regarding the definition of Andor’s products. 424
These opinions contain legal conclusions regarding the meaning of contractual terms. Dr.
Harris opines on the parties’ obligations under the contracts, the parties’ intent entering the
contracts, and the “meaning” of the contractual terms. These tasks are for the jury. Dr. Harris may
not offer a contract interpretation to the jury.
Both sides in this case collectively employ eighteen experts to assist the factfinder. They
collectively move to exclude fourteen of the eighteen for varied reasons under Daubert. We
reviewed and studied the Daubert motions in the context of the parties’ claims, counterclaims, and
defenses. We largely deny the parties’ motions and permit the experts to testify subject to rigorous
cross-examination. But we must exercise our gatekeeping function and exclude some experts’
opinions they are unqualified to offer, or which lack fit, are unreliable, or constitute improper legal
or state-of-mind opinions. We excluded some but not all of the experts’ opinions regarding the
Indian criminal system. We exclude Mr. Jenkins’s opinions. We exclude all of Mr. Brandon’s
opinions except his opinion payment of police travel by crime victims is atypical. We permit
Attorney Memon to opine on Indian criminal procedure and Mahathi’s participation in the criminal
process, but we preclude his opinions on the conduct of the Indian police. We permit Attorney
Naushad to opine on the standards of the Indian criminal justice system and whether Mahathi
deviated from those standards but preclude all other opinions. We similarly permit Attorney
Ragavand’s opinions on the standards of the Indian criminal justice system and whether Mahathi
deviated from those standards but preclude all other opinions. We permit most of the damages
experts’ opinions. We allow Mr. Ratner to testify to all opinions except those only requiring simple
math in sections 7.1, 7.2, and 7.3 of his report. We permit all of Mr. Bersin’s opinions except those
which opine on the legal cause of Andor’s alleged harms. We permit most but not all of the
technology expert opinions. We exclude Mr. Rankhorn’s opinion as to “what tenants are, the
relationship between tenants and subscriptions, [and] ownership of tenants”, and Messrs.
Rankhorn and Youness’ state of mind opinions, legal conclusions, and interpretations of contracts.
We permit all other opinions of Messrs. Rankhorn and Youness. We permit Mr. Zeidman’s opinion
Andor copied Allscripts’s source code. We permit Mr. Ulrich’s reverse engineering opinions, his
non-quantitative opinion on whether Allscripts saved time and money by reverse engineering the
Config Tool, and opinions not involving Allscripts’s state of mind, but preclude his opinions on
the value of Andor’s Config Tool and his opinions involving Allscripts’s state of mind. We finally
permit some but not all of the miscellaneous expert testimony. We permit Aneesh Chopra’s
testimony in full. We only permit Mr. Cauthen to testify regarding the clarifying assignment and
assumption letter. We finally preclude Dr. Harris from offering speculative opinions and opinions
Fed. R. Evid. 702.
Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).
Honeywell, Inc. v. Am. Standards Testing Bureau, Inc., 851 F.2d 652, 656 (3d Cir. 1988).
Calhoun v. Yahama Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003).
B. Braun Melsungen AG v. Terumo Medical Corp., 749 F. Supp. 2d 210, 222 (D. Del. 2010)
(citing Daubert, 509 U.S. at 592 n. 10; In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999)).
Pineda, 520 F.3d at 244.
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).
Id. at 742.
Walker v. Gordon, 46 F. App’x 691, 694 (3d Cir. 2002) (quoting In re Paoli, 35 F.3d at 742).
Id. (quoting In re Paoli, 35 F.3d at 741–42).
Betterbox Commc’ns Ltd. v. BB Techs., Inc., 300 F.3d 325, 329 (3d Cir. 2002) (quoting Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).
United States v. Schiff, 602 F.3d 152, 173 (3d Cir. 2010) (cleaned up).
Id. (internal quotations omitted).
Id. (internal quotations omitted).
United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985).
Fed. R. Evid. 403.
Fed. R. Evid. 702.
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006) (citing United States v.
Leo, 941 F.2d 181, 195–96 (3d Cir. 1991)).
Patrick v. Moorman, 536 F. App’x 255, 258 (3d Cir. 2013) (quoting Berckeley, 455 F.3d at 217).
Nix v. Sawyer, 466 A.2d 407, 412 (Del. Super. Ct. 1983).
Adams v. Aidoo, 2012 WL 1408878, at *13 (Del. Super. Ct. Mar. 29, 2012) (quoting Pfeiffer v.
State Farm Mut. Auto. Ins. Co., 2011 WL 7062498, at *5 (Del. Super. Ct. Dec. 20, 2011)), aff’d, 58
A.3d 410 (Del. 2013), as revised (Jan. 3, 2013).
D.I. 471-21 at 2, § II.3.
D.I. 471–24 at 1, 19, §§ I.1, VI. Mr. Jenkins’s report purports to do two things: (1) opine on the
travel expenses incurred by Indian police but paid for by Mahathi, and (2) rebut Andor’s expert
Kenneth Mathieu, forensic accounting expert. Mr. Mathieu’s report is not at issue. We confine our
review of Mr. Jenkins’s opinion to his travel analysis conclusions.
D.I. 471–24 at 17–18, § 23.a.–f.
See Jenkins report at § 23.b., D.I. 471–24 at 17.
See Jenkins report at § 23.f, D.I. 471–24 at 22–23.
D.I. 471-25 at 3.
Id. at 6.
Id.at 13, ¶ 11.
Id.at 80–81, ¶ 37.53.
Id. at 87, ¶¶ 37.63, 37.64.
Id. at 89–96, ¶¶ 37.69–37.74.
Id. at 82–84, ¶¶ 37.55–37.56.
Id. at 7–8, ¶¶ 2–3; at 76–80, ¶¶ 37.45–37.52; at 96, ¶ 37.75.
D.I. 471–27 at 4–6, § II, ¶¶ 7–13.
Id. at 1, § I. ¶ 1.
Id. at 32, § VI, ¶¶ 100–106.
Andor believes the following testimony shows Mr. Brandon “retracted” his opinion during his
Q. Before we had our technical difficulties a few minutes ago, Mr. Brandon, I read to you
the statement at the end of your rebuttal report that “Mahathi’s conduct amounts to
influencing, funding, and actively participating in the police investigation, corrupting the
investigation and making it unethical and unreliable.” And my question is just is that an
opinion you continue to intend to present to the jury in this case?
A. The difference is that there’s nothing in here that said I would present this to the jury. I
will – I will continue to consider this something to be considered and to be investigated. If,
in fact, I don’t find anything that supports this, clearly, this will not be a factor at all, but
I’m not talking about presenting anything to a jury tomorrow or anything else. I’m just
saying this is my investigative process, my thoughts at this point, and I will pursue that in
determining the facts in my own mind to see if there is an issue.
Q. Are you saying you still need to conduct further investigation to determine whether you
can support the statement that I just read to you?
Q. You haven’t reached that as an opinion at this point in time that you could present to a
A. Well, I’m not sure at what point an opinion carries any weight that, in fact, that is my
investigative opinion now that what I said is possible, and we will consider this. We will
look at it to either determine whether that this may be what has occurred or say – we come
to the end and we say we do not have any indication that any of this did occur.
Q. If you were on the witness stand and sworn in right now, you would not testify under
oath to the statement that I just read you?
A. I know. Today I do not have anything to completely support or give that opinion. That
is my --- that was my opinion at a point in time, and it continues because it has not been
resolved to my satisfaction either way.
See D.I. 472 at 19, citing deposition testimony at D.I. 471-28 at 257–58.
D.I. 472 at 19.
D.I. 467–2 (expert report of Attorney Ragavan); D.I. 467-4 (rebuttal report of Attorney Ragavan
to Mr. Brandon’s opinion).
D.I. 467–2 at 6, § A.
D.I. 467–2 at 29–30, § G.
We find Attorney Ragavan qualified. A proffered expert witness “at a minimum, … must possess
skill or knowledge greater than the average layman,” a requirement liberally construed by our
Court of Appeals. Schuchardt v. President of the United States, 802 F. App’x 69, 75 (3d Cir. 2020)
(quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)). And our Court of Appeals
“eschew[s] imposing overly rigorous requirements of expertise and [is] satisfied with more
generalized qualifications.” In re Paoli R.R. Yard PCB Litig., 35 F.3d at 741. Here, Attorney
Ragavan received her law degree in India and obtained two additional degrees in the law. She is a
professor of law and directs Texas A&M law school’s India Program. She worked in the legal
departments of two corporations in India. She is an expert in intellectual property law. She
possesses knowledge greater than the average layman and is qualified to opine on the framework
of the Indian criminal justice system.
D.I. 467–1 at 5.
D.I. 497 at 6–7.
We exclude Attorney Ragavan’s opinion India’s “robust, independent criminal justice system”
makes it impervious from manipulation or abuse. Attorney Ragavan’s opinion suggests Andor
cannot be liable for abuse of process. This is an improper legal opinion under Rule 704(a).
D.I. 467–2 at 14, § C.(iii). Attorney Ragavan may describe the Code of Criminal Procedure. She
may opine as to whether the Mahathi’s conduct is not typical of the standards of a victim reporting
crime in India.
D.I. 467-2 at 15, § D.
Id. at 19–20, § D.(ii).
D.I. 467–2 at 12, § C.(ii).
Id. at 18.
D.I. 467–4 at 11, § B (rebuttal report).
Id. at 11, § B (rebuttal report) (emphasis in original).
Id. at 24, § F. This is a fact question unless Attorney Ragavan can show how Mahathi’s conduct
is typical of a victim under the Indian cybercrime law.
D.I. 498 at 1. There appears to be disagreement between the parties regarding Attorney
Naushad’s retention. Allscripts believes Andor offers Attorney Naushad affirmatively and not as
a rebuttal expert. See D.I. 468-1 at 1. Andor contends it retained Attorney Naushad in rebuttal to
Allscripts’ expert Zulfiquar Memon. D.I. 498 at 1.
D.I. 468-2 at 1, § 1.1.
Id. at 29–30, § 9.1.
D.I. 468–1 at 5. We find Attorney Naushad qualified as an expert. She is an Advocate in the Bar
Council of Delhi since 2015 and is currently working on a Master of Laws degree from Columbia
University specializing in criminal law and procedure. She practiced law in India, focusing her
legal career in advisory and litigation in white collar crimes. Before starting her program at
Columbia University, she served as a Principal Associate in dispute resolution of a premier law
firm in India where she specialized in white collar crime defense and investigations. She is the
author of research papers, a book on white collar crime in India, and co-authored articles including
on Indian criminal law. See D.I. 468-2 at 1–2, § 2.
D.I. 468–1 at 2.
Id. Allscripts additionally argues expert opinion, even on foreign law, must still be reliable and
not constitute a legal conclusion, citing Federal Rule of Civil Procedure 44.1. Rule 44.1 provides:
“A party who intends to raise an issue about a foreign country’s law must give notice by a pleading
or other writing. In determining foreign law, the court may consider any relevant material or
source, including testimony, whether or not submitted by a party or admissible under the Federal
Rules of evidence. The court’s determination must be treated as a ruling on a question of law.” We
fail to see how Rule 44.1 applies here. We are not applying foreign law to Allscripts’s abuse of
process claim. The parties agree Delaware law applies to the abuse of process claim.
See D.I. 498 at 5–8.
D.I. 471-2 ¶ 7.
Id. at Appendix 2.
Id. ¶ 94.
Id. ¶ 101.
Id. ¶ 109.
Id. ¶ 133.
Id. ¶ 144.
D.I. 471-2 ¶ 58; id. at 46; see also D.I. 471-1, Ratner Dep. at 117:18–118:5 (confirming Mr.
Ratner relied on the Merger Projections to create his lost profits opinions). The Merger Projections
ran from 2018 to 2025. Mr. Ratner applied a three-year delay to the Merger Projections because
functionality issues delayed implanting the Health Grid technology. See Ratner Dep. at 116:14–
Ratner Dep. at 125:3–9 (noting the Merger Projections “rel[ied] on the premerger projections”
in the Health Grid PowerPoint); 126:18–23 (same); 128:6–12.
Id. at 121:1–122:2.
Id. at 130:4–131:13.
See D.I. 471-4 at 12 (the Merger Projections); Ratner Dep. at 142:9–144:3.
Ratner Dep. at 153:18–24.
D.I. 471-4 at 45.
Ratner Dep. at 133:12–24.
Id. at 133:20–134:5.
Id. at 137:22–138:6.
Id. at 140:7–17.
Id. at 134:22–135:2.
Id. at 135:10–11.
Id. at 135:15–136:11.
Id. at 139:17–140:5.
Id. at 152:16–153:1.
D.I. 471-2 at 42–43.
Id. at 45–46.
Id. at 46–47.
Apotex, Inc. v. Cephalon, Inc., 321 F.R.D. 220, 232 (E.D. Pa. 2017) (internal quotations
omitted) (citing ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291–92 (3d Cir. 2012)).
In re SemCrude L.P., 648 F. App’x 205, 214 (3d Cir. 2016) (quoting Oddi v. Ford Motor Co.,
234 F.3d 136, 145 (3d Cir. 2000)).
Apotex, 321 F.R.D. at 233.
Id. (alteration in original) (quoting Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 809 (7th
In re SemCrude, 648 F. App’x at 213.
696 F.3d 254 (3d Cir. 2012).
Id. at 292.
Id. at 293.
MOSAID Techs. Inc. v. LSI Corp., 2014 WL 807877, at *3 (D. Del. Feb. 28, 2014); see also,
e.g., AngioDynamics, Inc. v. C.R. Bard, Inc., 537 F. Supp. 3d 273, 339 (N.D.N.Y. 2021) (excluding
expert opinion by following ZF Meritor where expert possessed “ignorance as to the most basic
facts underlying the data he relies on”); Bruno v. Bozzuto’s, Inc., 311 F.R.D. 124, 137 (M.D. Pa.
2015) (excluding lost profits analysis based on expert’s “blind adherence to data absent any sort
of independent investigation”); Legendary Art, LLC v. Godard, 2012 WL 3550040, at *4 (E.D. Pa.
Aug. 17, 2012) (excluding lost profits opinion which relied on business projections “without
independent verification” as unreliable); Chemipal Ltd. v. Slim-Fast Nutritional Foods Int’l, Inc.,
350 F. Supp. 2d 582, 590–92 (D. Del. 2004) (excluding opinion which “simply adopted” a
marketing plan’s analysis “without reviewing its underpinnings,” resulting in “a damages expert
making untested and unverified marketing projections the foundation of a damages calculation”).
648 F. App’x 205.
Id. at 213.
Id. at 213–14.
Id. at 214.
See, e.g., Apotex, 321 F.R.D. at 233 (a “rational connection” between data and opinion existed,
warranting admission of opinion); In re Mushroom Direct Purchaser Antitrust Litig., 2015 WL
5767415, at *16 n.10 (E.D. Pa. July 29, 2015) (admitting expert opinion where expert relied on
internal data estimates because jury should determine weight to apply to report); In re: Chocolate
Confectionary Antitrust Litig., 2013 WL 11305184, at *4 (M.D. Pa. May 10, 2013) (admitting
opinion of expert who employed “flawed data” because “concerns about the sufficiency of the data
upon which [the expert] relief properly go to the weight of the evidence, not its admissibility”).
In re SemCrude, 648 F. App’x at 213 (quoting ZF Meritor, 696 F.3d at 213).
Id. (quoting ZF Meritor, 696 F.3d at 213).
Id. (quoting ZF Meritor, 696 F.3d at 213).
ZF Meritor, 696 F.3d at 293 (finding appellants “cannot clear [the] high hurdle” of an abuse of
discretion standard); id. at 291 (“[T]he District Court did not abuse its discretion by finding that
[the expert’s] damages estimate, which was based heavily on the SBP projections, bore insufficient
indicia of reliability to be submitted to a jury.”).
A district judge abuses his discretion only where the Court of Appeals obtains “a definite and
firm conviction” the district judge “committed a clear error of judgment.” Id. at 293.
Id. at 292.
AngioDynamics, 537 F. Supp. 3d at 339.
Salas by Salas v. Wang, 846 F.2d 897, 905 (3d Cir. 1988).
See In re SemCrude, 648 F. App’x at 214.
See Apotex, 321 F.R.D. at 233.
D.I. 471-2 at 47–49.
Id. at 49.
Ratner Dep. at 222:16–223:2.
See, e.g., Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Grp., 2020 WL 5822058, at *2
(S.D.N.Y. Sept. 30, 2020) (concern about failing to apportion damages among trade secrets “boils
down to a dispute over the extent of misappropriation” and “is an issue for cross-examination”);
see also Philips N. Am. LLC v. Summit Imaging Inc., 2021 WL 2118400, at *7 (W.D. Wash. May
25, 2021) (similar holding).
See Syntel, 2020 WL 5822058, at *2.
D.I. 471-2 at 34–38.
Id. at 34.
Id. at 35.
Id. at 36.
Id. at 37.
Id. at 38.
CareDx, Inc. v. Natera, Inc., 2021 WL 1840646, at *3 (D. Del. May 7, 2021).
Ratner Dep. at 281:19–282:2.
CareDx, 2021 WL 1840646, at *3; AgroFresh Inc. v. Essentiv LLC, 2019 WL 9514565, at *2
(D. Del. Oct. 7, 2019) (jurors are “more than capable of adding” data offered through fact
witnesses); Cavi v. Evolving Sys. NC, Inc., 2018 WL 2317594, at *2 (D. Del. May 21, 2018) (where
expert opinion “amounts to nothing more than a simple math equation,” the opinion involves “no
scientific, technical, or other specialized knowledge involved that would help the jury”).
D.I. 469-2 at 25.
Id. at 29.
Id. at 28–29.
Id. at 30–31.
Id. at 41–42.
Id. at 41–42.
Id. at 44.
Id. at 42–44.
ZF Meritor, 696 F.3d at 292.
See, e.g., In re SemCrude, 648 F. App’x at 214; Apotex, 321 F.R.D. at 233.
In re SemCrude, 648 F. App’x at 214.
Mr. Bersin’s opinion on lost profits passes our gatekeeping function far more easily than Mr.
Ratner’s. Unlike Mr. Ratner, Mr. Bersin analyzed the documents underlying the input data he used
for his lost profits calculations. While Mr. Ratner accepted the Merger Projections largely because
Valuation Research adopted them, Mr. Bersin reviewed the primary source of the projections by
analyzing Andor’s internal documents. While we find both opinions admissible, Allscripts should
realize if Mr. Ratner’s opinion is inadmissible for the reasons Allscripts argues in its motion, Mr.
Bersin’s would also be inadmissible for the same reasons.
See Rhoads Indus., Inc. v. Shoreline Found., Inc., 2021 WL 2778562, at *35 (E.D. Pa. July 2,
2021) (“[E]xpert opinions on damages commonly assume liability, which must be established
D.I. 471-9 at 6–7.
D.I. 471-14 at 4–5.
D.I. 472 at 18–21.
Id. at 18–19.
Id. at 19.
D.I. 501 at 14–15.
Id. at 14–15.
Id. at 15.
Pineda, 520 F.3d at 244.
In re Paoli, 35 F.3d at 741.
Calhoun, 350 F.3d at 322 (“While the background, education, and training may provide an
expert with general knowledge to testify about general matters, more specific knowledge is
required to support more specific opinions.”); Three Rivers Hydroponics, LLC v. Florists' Mut.
Ins. Co., 2020 WL 419946, at *3 (W.D. Pa. Jan. 27, 2020) (“However, ‘[a]n expert may be
generally qualified but may lack qualifications to testify outside [their] area of expertise.’ While
‘background, education, and training may provide an expert with general knowledge to testify
about general matters, more specific knowledge is required to support more specific opinions.’”)
(quoting Calhoun, 350 F.3d at 322); Michaux v. Temas, 2019 WL 6606110, at *5 (W.D. Pa. Dec.
5, 2019) (“An expert's qualifications are determined with respect to each matter addressed in the
proposed testimony.”) (citing Calhoun, 350 F.3d at 322); Am. Cruise Lines, Inc. v. HMS Am.
Queen Steamboat Co. LLC, 2017 WL 3528606, at *2 (D. Del. Aug. 16, 2017) (“Generalized
qualifications are sufficient . . . but ‘more specific knowledge is required to support more specific
opinions[.]’”) (citing In re Paoli, 35 F.3d at 741, then citing Calhoun, 350 F.3d at 322).
D.I. 472 at 18.
D.I. 471-9 ¶ 1.
Id. ¶¶ 1, 3.
Id. ¶ 4.
Id. ¶¶ 8–11.
Id. ¶ 13.
Id. ¶ 14.
Id. ¶ 15.
D.I. 471-10, Rankhorn Dep. at 10:4–10; see also D.I. 471-9 at 2.
D.I. 501 at 15.
D.I. 472 at 18.
Rankhorn Dep. at 10:18–11:5.
Id. at 11:9–11; see also id. at 46:18–25.
Id. at 27:16–30:14, 47:10–48:15.
Id. at 57:3–58:15.
D.I. 472 at 18.
Id. at 19.
Pineda, 520 F.3d at 244 (further citations omitted) (“This liberal policy of admissibility extends
to the substantive as well as the formal qualifications of experts. ‘[I]t is an abuse of discretion to
exclude testimony simply because the trial court does not deem the proposed expert to be the best
qualified or because the proposed expert does not have the specialization that the court considers
D.I. 472 at 19.
Id. at 20.
D.I. 501 at 12.
Id. at 13.
D.I. 472 at 19.
Betterbox Commc’ns Ltd., 300 F.3d at 329 (quoting Carmichael, 526 U.S. at 150) (internal
quotations omitted); Palmer v. Black & Decker (U.S.) Inc., 2022 WL 1721207, at *2–3 (M.D. Pa.
May 27, 2022); Ezeibe v. Chivers, 2022 WL 882732, at *4 (M.D. Pa. Mar. 24, 2022) (“In cases
like this one ‘where an expert is proffered to testify regarding non-scientific matters, ‘[t]he relevant
reliability concerns [will] focus upon personal knowledge [and] experience’ of the witness and the
methodology used will be applying that experience to the facts of the case.’”) (further citation
omitted); Christoforetti v. Bally's Park Place, Inc., 2021 WL 3879074, at *4, 6 (D.N.J. Aug. 31,
2021) (“[W]hen examining expert testimony that is based on practical experience, rather than
academic theories, ‘the Daubert factors (peer review, publication, potential error rate, etc.) simply
are not applicable’ because the reliability of testimony from a practical experience expert ‘depends
heavily on the knowledge and experience of the expert, rather than the methodology or theory
behind it.’”) (further citation omitted).
Ezeibe, 2022 WL 882732, at *4.
See, e.g., D.I. 471-11, Youness Dep. at 177:3–185:17.
See, e.g., D.I. 471-14 at 2–4.
Id. at 2–4, 33–34.
Christoforetti, 2021 WL 3879074, at *6–7.
D.I. 472 at 20.
See, e.g., Youness Dep. at 110:18–114:8, 164:19–167:2, 187:20–193:14.
Palmer, 2022 WL 1721207, at *3.
Id. (“Rather, to the extent that Defendants believe that the opinions of [the expert] are
unsubstantiated by the available facts upon which he based his conclusions, or that he relied on
incorrect facts in forming his opinions and conclusions, the appropriate remedy is the presentation
of contrary evidence and ‘vigorous’ cross-examination of the witnesses.”); see also Stecyk v. Bell
Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002) (“A party confronted with an adverse
expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the
basis for his opinion can highlight those weaknesses through effective cross-examination.”).
D.I. 472 at 20.
Shire Viropharma Inc. v. CSL Behring LLC, 2021 WL 1227097, at *25 (D. Del. Mar. 31, 2021);
see also In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 2020 WL
6887885, at *5 (E.D. Pa. Nov. 24, 2020); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 286
F.R.D. 266, 271 (W.D. Pa. 2012).
D.I. 472 at 21.
D.I. 501 at 15–16.
Colkitt, 455 F.3d at 217; Comcast Cable Commc’ns, LLC v. Sprint Commc’ns Co., LP, 203 F.
Supp. 3d 499, 546 (E.D. Pa. 2016); Sprint Commc’ns Co. LP v. Charter Commc’ns, Inc., 2021 WL
982732, at *16 (D. Del. Mar. 16, 2021).
Sprint Commc’ns Co. LP, 2021 WL 982732, at *16; Comcast Cable Commc’ns, LLC, 203 F.
Supp. 3d at 546 (both citing Roche Diagnostics Ops., Inc. v. Abbott Diabetes Care, 756 F. Supp.
2d 598, 606 (D. Del. 2010), aff’d sub nom. Roche Diagnostics Operations, Inc. v. Lifescan Inc.,
452 F. App’x 989 (Fed. Cir. 2012).
Comcast Cable Commc’ns, LLC, 203 F. Supp. 3d at 546.
Rankhorn Dep. at 53:7–54:7 (“I believe in the merger agreement, the area I focused on, I
believe, was – refer to my report – but I believe it was 3.6 talking about, in essence, what do you
get – what does Allscripts get when they purchase HealthGrid, and that is a plain statement that I
feel I can interpret.”); Youness Dep. at 267:24–269:12, 307:15–308:1 (“According to the merger
agreement, they belong to Allscripts along with the tools used for building and managing those
applications, and one of those tools is the Active Directory.”); see also Youness Dep. at 308:2–16
(indicating Merger Agreement not sole basis for opinion).
D.I. 472 at 21.
D.I. 471-9 ¶ 3 (“Andor, Mahathi, Toleti, and Tyriver, working together, accessed Allscripts’
computer resources with knowledge that they were owned by Allscripts and with the willful intent
to deny Allscripts access to Allscripts’ computer resources.”), 32; D.I. 471-14 at 23 (Youness
opining, “In my opinion this was an intentional malicious act to hack into and sabotage an
organization’s access to its own cloud resources.”).
D.I. 501 at 17.
Zimmer Surgical, Inc. v. Stryker Corp., 365 F. Supp. 3d 466, 497 (D. Del. 2019) (ellipses in
original) (further citation omitted); see also Sec. & Exch. Comm’n v. Ambassador Advisors, LLC,
2021 WL 6052589, at *6 (E.D. Pa. Dec. 21, 2021) (publication in F. Supp. 3d forthcoming); Shire
Viropharma Inc., 2021 WL 1227097, at *5 (intent not proper expert testimony because it is “classic
jury question”); In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prod. Liab. Litig., 181 F.
Supp. 3d 278, 294–95 (E.D. Pa. 2016);
D.I. 472 at 21.
Patrick, 536 F. App’x at 258.
Id.; see also Leo, 941 F.2d at 197; Colkitt, 455 F.3d at 217–18 (permitting testimony about
customs but not whether complied with legal duties and/or exempt from registration requirements
because improper legal conclusions); Hartle v. FirstEnergy Generation Corp., 2014 WL 5089725,
at *3–4 (W.D. Pa. Oct. 9, 2014).
D.I. 472 at 14–18.
D.I. 471-5 ¶ 102.
D.I. 472 at 15–18.
D.I. 501 at 9–11.
D.I. 472 at 15–17.
D.I. 471-5 ¶ 6.
Id. ¶¶ 9, 10, 21; see also id., Exhibit A (Zeidman resume including list of all publications).
Id. ¶ 10; see also id., Exhibit A.
Id. ¶¶ 20–21.
Id. ¶ 21; see also id., Exhibit A.
Id. ¶ 21.
Id. ¶¶ 10, 22.
Id. ¶¶ 22, 25–26.
Id. ¶¶ 28–31; see also id. ¶¶ 13–19 (explaining the function of statements, comments/strings,
identifiers, and instruction sequences in the source code).
Id. ¶ 22.
Id. ¶ 24.
Id. ¶ 22; see also id. ¶ 27.
Id. ¶¶ 32–34, 36.
Id. ¶ 32.
Id. ¶ 34.
Id. ¶ 36.
Id. ¶ 23.
Id.; D.I. 471-6, Zeidman Dep. at 39:14–18.
Zeidman Dep. at 38:19–39:10.
D.I. 471-5 ¶ 57.
Id. ¶¶ 57–69.
Id. ¶ 57.
Id. ¶ 70.
Id. ¶¶ 70–102; see also D.I. 501-2, Zeidman Supplemental Report ¶¶ 22–54.
D.I. 472 at 15–16.
Id. at 16.
See, e.g., D.I. 472-5 ¶¶ 57–69; Zeidman Dep. (explaining process of filtering throughout
Zeidman Dep. at 163:21–169:9.
Zeidman Dep. at 58:12–59:20, 115:23–117:23, 126:21–127:21, 136:19–137:13, 226:3–227:4,
Id. at 58:19–59:20.
Id. at 117:13–23.
Id. at 78:9–83:3.
Id. at 79:2–7.
Id. at 82:21–24.
Id. at 83:1–3.
Id. at 115:23–117:23, 136:19–137:13.
Id. at 115:23–117:23, 126:21–127:21, 136:19–137:13, 138:12–17, 170:3–171:9.
D.I. 473-1 at 11.
D.I. 473-5, Ex. C at 9. Mr. Ulrich’s report has been filed on CM/ECF multiple times, making
it impossible to discern the CM/ECF pagination provided. Thus, when referencing Mr. Ulrich’s
affirmative expert report, we use the page numbers provided by Mr. Ulrich on the bottom of the
D.I. 473-7, Ulrich Dep. at 29:5–17, 36:15–38:24.
Id. at 28:8–18, 34:11–35:6.
Id. at 37:1–38:24.
D.I. 473-1 at 11–12.
Ulrich Dep. at 117:24–119:13.
Id.; see also D.I. 473-1 at 11 (Allscripts selectively citing a portion of his answer).
Ulrich Dep. at 119:14–120:12.
See, e.g., D.I. 473-5 ¶¶ 12–22; see also id., Ex. A (curriculum vitae).
D.I. 473-1 at 12.
D.I. 277, Counterclaim Count VI ¶¶ 304–309.
D.I. 473-2 at 7 § 2.2. The Reseller Agreement has been filed on CM/ECF multiple times,
making it impossible to discern the CM/ECF pagination provided. Thus, when referencing the
Reseller Agreement, we use the page numbers of the Agreement in the bottom center of the page.
D.I. 473-1 at 12.
D.I. 473-2 at 7 § 2.2(e).
Id. § 2.2(a)
Id. § 2.2(c).
Id. § 2.2(g).
D.I. 473-1 at 13.
Id. at 14.
Id. at 15.
Id. at 17–21.
Id. at 18.
D.I. 500 at 15.
Id. at 15–18.
D.I. 473-5, Ex. C.
D.I. 473-1 at 19.
Ulrich Dep. at 140:12–24.
D.I. 473-1 at 20–21.
Id. at 19, 21–22.
Id. at 22.
D.I. 471-8 ¶ 99.
D.I. 473-1 at 21.
D.I. 500 at 18–19.
In a preceding paragraph, Mr. Ulrich explained based on his interviews with Andor, “2 industry
advisors, 5 design/product architects, 7 software engineers/developers, 2 graphics/UI developers,
and a 3-person QA team were continuously involved over a roughly 18 [sic] month period to build
the Andor Config Tool.” D.I. 473-5 ¶ 34.
Id. ¶ 35.
Ulrich Dep. at 210:16–22.
Id. at 210:23–211:14. The parties do not identify what Mr. Ulrich is referring to as “CMS”. We
generally understand CMS to be the Centers for Medicare and Medicaid Services but we cannot
bolster counsel’s burden.
Id. at 211:15–212:3.
Id. at 212:4–8.
Id. at 212:9–213:10.
Id. at 213:11–12.
Id. at 213:13–14.
Id. at 213:15–214:6.
Id. at 214:7–15.
Id. at 214:17–24.
Id. at 215:1–2.
D.I. 500 at 19.
D.I. 473-5 ¶ 35.
D.I. 473-5 ¶ 35 n.6–8.
Ulrich Dep. at 217:13–16.
Id. at 217:17–19.
Id. at 217:19–218:5.
D.I. 473-5 ¶ 35 (“The value of MPE campaigns in general is well understood and it is a national
strategy supported and followed by CMS, the National Health Council, and EHR vendors
https://www.healthit.gov/faq/what-electronic-health-record-ehr (last visited July 27, 2022).
D.I. 473-5 ¶ 35.
D.I. 473-1 at 19.
D.I. 500 at 16.
D.I. 473-5 ¶¶ 68–70.
Id. ¶ 68.
Ulrich Dep. at 152:19–153:2.
D.I. 473-5 ¶ 70.
D.I. 473-5 ¶ 63.
Id. ¶ 64.
D.I. 466, 466-1.
D.I. 482, 484.
D.I. 479, 484.
D.I. 479; 484 (permitting the same).
Fed. R. Civ. P. 37(c)(1).
See, e.g., ZF Meritor, 696 F.3d at 298.
Id. (internal quotations omitted).
D.I. 466-1 at 13; D.I. 521 at 13 (incorporating previous arguments raised in first motion).
D.I. 521-2 (Chopra’s deposition transcript); see also Fed. R. Civ. P. 26(b)(4)(A) (“(A)
Deposition of an Expert Who May Testify. A party may depose any person who has been identified
as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from
the expert, the deposition may be conducted only after the report is provided.”) (italics in original)..
D.I. 521-2 (deposition transcript, CV, publications, past testimony, no compensation).
D.I. 466-1, 521.
D.I. 542 at 9 (Andor arguing we need not decide this issue because Mr. Chopra is properly
testifying under Federal Rule of Evidence 702.).
D.I. 472 at 23.
D.I. 501 at 20.
D.I. 472 at 23.
D.I. 501 at 20.
Schiff, 602 F.3d at 173 (3d Cir. 2010).
Id. (internal quotations omitted).
Id. (internal quotations omitted).
D.I. 41 ¶¶ 187–202, 512–519.
D.I. 277 ¶¶ 73–77, 111–15, 364–73.
D.I. 444 (Allscripts’s 339 paragraphs of facts in support of summary judgment); D.I. 503
(Allscripts’s response to Defendants’ facts and additional facts in support of summary judgment
only mentioning Nicklaus Children’s Hospital with respect to tortious interference.)
D.I. 501 at 20.
D.I. 471-18 at 5 ¶ 4(a). Compare D.I. 471-18 at 5 ¶ 4(a), 29 ¶ 53 (no actor identified in
conclusion) with D.I. 471-18 at 5 ¶ 4(b) (actor identified in conclusion); D.I. 471-20 at 4 ¶ 6
(amending opinion in paragraph 4(b)).
D.I. 471-19, Cauthen Dep. at 132:23–133:6, 136:17–137:11.
D.I. 277 ¶ 369.
D.I. 277 ¶ 360.
D.I. 472 at 23.
D.I. 471-18 at 5 ¶ 4(b).
Id. at 5 ¶ 3.
Id. at 30–44 ¶¶ 1–69.
D.I. 471-20 at 10–11 ¶¶ 35–39.
D.I. 471-20 at 5–11.
Compare D.I. 471-20 at 10–11 ¶¶ 35–39, with 471-18 at 30–44 ¶¶ 1–69.
D.I. 471-20 at 5–11.
Wilburn v. Maritrans GP Inc., 139 F.3d 350, 359 (3d Cir. 1998) (quoting Salem v. United States
Lines Co., 370 U.S. 31, 35 (1962)); In re Davol, Inc., 546 F. Supp. 3d 666, 679 (S.D. Ohio 2021);
Krys v. Aaron, 112 F. Supp. 3d 181, 206 (D.N.J. 2015) (“In other words, ‘an expert cannot be
presented to the jury solely for the purpose of constructing a factual narrative based on record
evidence.’” (quoting Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 469
D.I. 501 at 21.
D.I. 472 at 23.
D.I. 501 at 21.
D.I. 471-18 at 6 ¶¶ 4(c), 71–72 ¶¶ 75–81.
Id. at 72 ¶ 81.
Id. at 97–103.
Id. at 65.
United States ex rel. Jackson v. DePaul Health Sys., 454 F. Supp. 3d 481, 491 (E.D. Pa. 2020);
see also Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir. 1996) (“[I]f
an expert opinion is based on speculation or conjecture, it may be stricken.”).
Fedorczyk, 82 F.3d at 75.
D.I. 471-15 at 64 (emphases added).
D.I. 471-16 at 79 (Harris Dep. at 306:4–8).
D.I. 471-17 at 10–11.
Dow Chem. Canada Inc. v. HRD Corp., 656 F. Supp. 2d 427, 435 (D. Del. 2009), aff’d, 587 F.
App’x 741 (3d Cir. 2014).
Roche Diagnostics Operations, Inc., 756 F. Supp. 2d at 606.
D.I. 471-17 at 10–11.
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