AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 172

ORDER denying #124 Motion to Strike Expert Report. Signed by Judge Tanya S. Chutkan on 9/21/2016. (lctsc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING
AND MATERIALS, et al.,
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.

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Case No. 13-cv-1215 (TSC)

ORDER
Defendant Public Resource moves to strike the expert report of John C. Jarosz (“Jarosz
Report”) (ECF No. 118-12, Ex. 1) on the basis that it does not meet the requirements of Federal
Rule of Evidence 702. The Jarosz Report is used primarily to support Plaintiffs’ economic
arguments regarding the harm to their revenue and incentives if the court were to find that
incorporation of their standards by reference into federal regulations revokes or destroys their
copyrights, or Defendant was otherwise allowed to continue posting the standards on its website.
For the reasons stated herein, Defendant’s motion is DENIED.
A district court has “‘broad discretion in determining whether to admit or exclude expert
testimony.’” United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871, 895
(D.C. Cir. 2010) (quoting United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996)). Under
the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), this court is “required to address two questions, first whether the expert’s testimony is
based on ‘scientific knowledge’ and second, whether the testimony ‘will assist the trier of fact to
understand or determine a fact in issue.’” Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1126

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(D.C. Cir. 2001) (quoting Daubert, 509 U.S. at 592). Trial courts “act as gatekeepers who may
only admit expert testimony if it is both relevant and reliable,” Heller v. D.C., 952 F. Supp. 2d
133, 139 (D.D.C. 2013), though this role is “significantly diminished” at the summary judgment
stage, see Window Specialists, Inc. v. Forney Enters., Inc., 47 F. Supp. 3d 53, 60 (D.D.C. 2014).
In determining whether to strike an expert report, the court’s focus is on whether the
expert’s assumptions “amount to ‘rampant speculation’ and should be excluded” or “merely
represent a weak factual basis for his testimony” which could be appropriately challenged on
cross examination at trial. Boyar v. Korean Air Lines Co., Ltd., 954 F. Supp. 4, 7 (D.D.C. 1996).
As the Court in Daubert instructed, “vigorous cross examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” 509 U.S. at 596.
Defendant argues that the scope of the Jarosz Report exceeds his expertise and that Jarosz
improperly relied on factual information from Plaintiffs themselves, thus acting “as a
mouthpiece.” (Def. Mem. at 6–7). Based on Jarosz’s education, publications, and participation
as an expert in intellectual property infringement in hundreds of other cases, the court finds his
expertise to be well established. While Defendant argues that Jarosz lacks both experience
evaluating standards development organizations and independent knowledge of the development
of those organizations’ standards and the process of incorporation by reference, the court
concludes that such specialized personal knowledge is not required for an expert to be qualified
to opine on the economic impact of copyright infringement. Additionally, based on the extensive
number of deposition transcripts, documents, websites, publications, and data reviewed by
Jarosz, his opinions are sufficiently supported.
Defendant also argues that Jarosz made improper assumptions and failed to apply reliable

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methodologies to the facts. Specifically, Defendant takes issue with Jarosz’s analysis involving
the impact on revenue from the loss of copyright protection, the differences in harms relating to
the standards in this case versus all of Plaintiffs’ standards generally, the potential impact that
Plaintiffs’ reading rooms have on revenue, and the estimation of lost sales. Ultimately,
Defendant appears to argue simply that different analyses would have resulted in an expert report
more favorable to Defendant’s position. Defendant could have offered a rebuttal expert in
response (and was in fact given time to do so by Magistrate Judge Robinson during discovery),
but chose not to. However, the court will not strike an expert report simply because the expert
did not rely on the particular assumptions or data Defendant thought was necessary. Those
issues are more properly addressed through “vigorous cross-examination [and] presentation of
contrary evidence.” Daubert, 509 U.S. at 596.
Plaintiffs have sufficiently established that Jarosz has the experience and education
necessary to be qualified as an expert in this case, and that the content of his testimony—
applying general economic principles to the effects of copyright infringement of Plaintiffs’
standards—may “help the trier of fact.” See Fed. R. Evid. 702; Daubert, 509 U.S. at 588.
Therefore, at this stage, the court will not take the unusual step of striking his report from
consideration.

Date: September 21, 2016

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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