ELI Research, LLC v. Must Have Info Inc. et al
Filing
189
ORDER granting 127 The Plaintiffs, Eli Research, LLC and American Academy Holdings' Motion to Strike Expert Report and Exclude Testimony of Patti Wyscoki. Patti Wyscki's Expert Report and Testimony will not be admitted pursuant to Fed. R. Civ. P. 702. Signed by Judge Sheri Polster Chappell on 9/9/2015. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ELI RESEARCH, LLC and AMERICAN
ACADEMY HOLDINGS,
Plaintiffs,
v.
Case No: 2:13-cv-695-FtM-38CM
MUST HAVE INFO INC., SAMANTHA
SALDUKAS and LACY GASKINS,
Defendants.
/
ORDER1
This matter comes before the Court on the Plaintiffs, Eli Research, LLC and
American Academy Holdings' Motion to Strike Expert Report and Exclude Testimony of
Patti Wyscoki (Doc. #127) filed on July 2, 2015. The Defendants, Samantha Saldukas
and Lacy Gaskins filed their Response in Opposition (Doc. #146) on July 20, 2015. The
Motion is fully briefed and ripe for the Court’s review.
The legal principles governing the admissibility of expert testimony are well settled.
Federal Rule of Evidence 702 is the starting point, and provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the
1
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their
websites. Likewise, the Court has no agreements with any of these third parties or their websites. The
Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the case.
In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238
(1999) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), the Supreme Court held that the trial court had a “gatekeeper” function
designed to ensure that any and all expert testimony is both relevant and reliable. The
importance of this gatekeeping function “cannot be overstated.” Royal Marco Point 1
Condominium Ass’n. v. QBE Ins. Corp., 2011 WL 47056 *3 (M.D. Fla. 2011) (citing U.S.
v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (en banc)).
In determining the admissibility of expert testimony under Rule 702, the Court
applies a “rigorous” three-part inquiry. Frazier, 387 F.3d at 1260. “Expert testimony is
admissible if (1) the expert is qualified to testify on the topic at issue, (2) the methodology
used by the expert is sufficiently reliable, and (3) the testimony will assist the trier of fact.”
Club Car, Inc. V. Club Car (Quebec) Import, Inc., 362 F.3d 775, 780 (11th Cir.2004). See
also U.S. v. Hansen, 262 F.3d 1217, 1234 (11th Cir.2001). “The burden of laying a proper
foundation for the admissibility of an expert's testimony is on the party offering the expert,
and the admissibility must be shown by a preponderance of the evidence.” Hall v. United
Ins. Co. Of Am., 367 F.3d 1255, 1261 (11th Cir.2004). See also McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.2002). The admission of expert
testimony is a matter within the discretion of the district court, which is accorded
considerable leeway in making its determination. Cook ex rel. Tessler v. Sheriff of Monroe
County, 402 F.3d 1092, 1103 (11th Cir.2005); Frazier, 387 F.3d at 1258.
The first requirement for the admissibility of expert testimony is that the expert is
qualified to testify competently regarding the matters he or she intends to address.
2
Hansen, 262 F.3d at 1234; City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548,
563 (11th Cir.1998). Rule 702 permits a person to qualify as an expert based upon
knowledge, skill, experience, training, or education. Frazier, 387 F.3d at 1260-61.
Reliability is different than believability or persuasiveness, which remains an issue for the
trier of fact. Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 n. 7 (11th Cir.2005).
The second requirement, discrete and independent from the witness'
qualifications, is reliability. Frazier, 387 F.3d at 1261. While the criteria used to evaluate
the reliability of nonscientific, experience-based testimony may vary from case to case,
the district court must evaluate the reliability of the testimony before allowing its admission
at trial. Id. at 1261-62.
The third requirement for admissibility is that the expert testimony must assist the
trier of fact. Thus, “expert testimony is admissible if it concerns matters that are beyond
the understanding of the average lay person.... Proffered expert testimony generally will
not help the trier of fact when it offers nothing more than what lawyers for the parties can
argue in closing arguments.” Id. at 1262-63.
Finally, expert testimony which satisfies these three requirements may
nonetheless be excluded under Rule 403 if the probative value of the expert testimony is
substantially outweighed by its potential to confuse or mislead the jury, or if it is cumulative
or needlessly time consuming. Id. at 1263. Additionally, an expert witness may not offer
a legal conclusion, but Rule 704(a) provides that an opinion or inference is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Cook, 402 F.3d at 1112-13 n. 8.
3
In this instance, the Plaintiffs move the Court to strike the expert testimony and
opinion of the Defendants’ expert Patti Wyscoki. Wyscoki is the Executive Director of the
Specialized Information Publishers Association (SIPA). She was with SIPA for twentythree (23) years before resigning in 2006.
Since 2006 Wyscoki has worked as a
consultant for SIPA members. In addition, she is the Vice President of Training and
Education for WPL Publishing Company and Chief Operating Officer for Financial
Operations Networks.
She is also the trustee of the trust that owns FDAnews, a
healthcare publisher, and she serves on the FDANews board of directors. All tolled, she
has more than thirty (30) years of experience in the specialized publishing industry.
The Defendant’s offer Wysocki as an expert on the following issues: (1) what is
considered confidential information and/or a trade secret in the newsletter/specialized
publishing industry; (2) whether Eli’s Editorial Manual and Executive Editor Manual are
trade secrets; (3) the potential reasons a newsletter publisher may have seen declines in
its print subscriber counts in the past several years; and (4) her opinion of the expert
reports submitted by the Plaintiff from Mary Compton and James D. Wood, PhD. (Doc.
#127-1 at 1). The Plaintiffs object to Wysocki giving her opinion as they argue she is not
qualified as an expert in any of the areas listed by the Defendants.
Trade Secret, Editorial Manuals and Confidential Information
The Defendants argue Wysocki is qualified to opine on whether or not they violated
the Plaintiffs’ trade secrets in publishing their newsletters because of her thirty (30) years
of experience in the specialized newsletter business. The Plaintiffs argue that trade
secret and confidential information definitions are legal determinations outside of the
scope of her expertise.
4
The Plaintiffs’ objection is well taken. The first requirement for the admissibility of
expert testimony is that the expert is qualified to testify competently regarding the matters
he or she intends to address. Hansen, 262 F.3d at 1234. Wysocki herself admitted in her
deposition that she is not an expert on trade secrets.
Wysocki stated that she did not
have a legal understanding of what a trade secret is but stated in her deposition “[w]ell, I
guess in my non-legal opinion a trade secret is something that is secretive and is not
divulged to the general public. . . .” Wysocki said her research into trade secrets involved
looking up the term “trade secret” in Google.
Wysocki admitted that her testimony is
basically her guess as to what a trade secret is or is not.
Expert testimony must be reliable and beyond the understanding of the jurors or
average person. Frazier, 387 F.3d at 1261. Wysocki’s opinion does not pass the common
sense inquiry of whether or not the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular issue without enlightenment
from those having a specialized understanding of the subject involved in the dispute.
Rosenfeld v. Oceania Crusies, Inc., 682 F. 3d 1320, 1331 (11th Cir. 2012). Any juror or
layman could look up the term “trade secret” on Google and provide a basic definition
which is all Wysocki admittedly did in this case. Therefore, she will not be allowed to
testify as an expert regarding trade secret in regards to Eli Research’s Executive Editorial
Manuel and Editorial Manuel.
Decline in Print Sales
The Defendants argue that based on Wysocki’s years of experience in the
newsletter industry she is qualified as an expert to determine why Eli’s printed newsletters
are declining in subscribers. The Plaintiffs argue that her opinion regarding the decline
5
in the print industry is nothing more than opinions as to damages which she again admits
she is not qualified to give.
Wysocki opined that the Plaintiffs’ expert report filed by Dr. James Woods
concerning declining subscriptions, did not include sufficient information for Dr. Woods to
formulate the conclusion he reached. To establish her opinion, Wysocki states she
reviewed the amended complaint, answers to the amended complaint, discovery
materials provided to her by the Defendants, and a chapter from her book The Ultimate
Guide to Newsletter & Specialized Information Publishing. Wysocki did not perform any
surveys, tests, or research into why Eli Research’s newsletters lost subscriptions or
whether or not printed newsletters in general were experiencing declining subscriptions.
Instead, she bases her opinion off her years of experience running SIPA to conclude that
Dr. Woods did not have enough information to make a definitive opinion as to why Eli’s
subscriber counts are down. (Doc. #127-1, at 8).
While experience alone may offer a reliable expert opinion, experience alone does
not always qualify an individual as an expert. In United States v. Frazier, the Eleventh
Circuit addressed the admissibility of expert testimony based on experience and held:
The Committee Note to the 2000 Amendments of Rule 702
also explains that “[n]othing in this amendment is intended to
suggest that experience alone ... may not provide a sufficient
foundation for expert testimony.” Fed. R. Evid. 702 advisory
committee's note (2000 amends.). Of course, the
unremarkable observation that an expert may be qualified by
experience does not mean that experience, standing alone, is
a sufficient foundation rendering reliable any conceivable
opinion the expert may express. As we observed in Quiet
Technology, “while an expert's overwhelming qualifications
may bear on the reliability of his proffered testimony, they are
by no means a guarantor of reliability ... [O]ur case law plainly
establishes that one may be considered an expert but still
offer unreliable testimony.” 326 F.3d at 1341-42.... Indeed, the
6
Committee Note to the 2000 Amendments of Rule 702
expressly says that, “[i]f the witness is relying solely or
primarily on experience, then the witness must explain
how that experience leads to the conclusion reached,
why that experience is a sufficient basis for the opinion,
and how that experience is reliably applied to the facts.
The trial court's gatekeeping function requires more than
simply ‘taking the expert's word for it.’ ” Fed.R.Evid.702
advisory committee's not (2000 amends.).
Unleashed Magazine, Inc. v. Orange County, Fla., WL 4304883, *9 -10 (M.D. Fla.
September 16, 2008)(quoting Frazier, 387 F.3d at 1262-63)(emphasis in original). Thus,
before admitting the opinion of an expert, the trial court is required to ensure that the
expert's opinion, even if based on considerable experience and expertise, is supported
by more than the expert's word and that there are “good grounds based on what is
known.” See Daubert, 509 U.S. at 590. Moreover, “[t]he Daubert requirement that the
expert testify to scientific knowledge-conclusions supported by good grounds for every
step in the analysis-means that any step that renders the analysis unreliable under the
Daubert factors renders the expert's testimony inadmissible.” McClain v. Metabolife, 401
F.3d 1233, 1245 (11th Cir.2005); see also Hudgens v. Bell Helicopters/Textron, 328 F.3d
1329, 1344 (11th Cir.2003) (“[A]n expert's failure to explain the basis for an important
inference mandates exclusion of his or her opinion.”).
Wysocki’s opinion regarding Eli’s declining subscriptions is nothing more than
unsupported conclusions based upon her experience as director of SIPA—experience
that even she admits is more directed to customer service and association support. Her
opinion lacks any supporting tests or facts and provides nothing but her own conclusions.
She does not claim to be an economist nor an expert in economic damages, nor an expert
in marketing trends.
The Court cannot simply take Wysocki’s word for it that her
experience running an association for newsletter publishers without any reliable
7
supporting data or methods other than her experience renders her opinion on declining
subscriptions reliable. As such, Wysocki’s expert opinion regarding Eli’s declining sales
is unreliable and due to be stricken.
The Reports Submitted by the Plaintiff from Mary Compton and James D. Wood,
PhD.
Mary Compton’s report applies to the formatting layout characteristics of Eli’s
newsletters and the various corresponding newsletters put out by the Defendants. Dr.
Woods’ expert report relates to the causes for declining subscriptions in Eli’s newsletters.
In regards to Compton’s report, Wysocki has a chapter in her book The Ultimate
Guide to Newsletter & Specialized Information Publishing, relating to newsletter designs.
However, Wysocki notes in her “Dedication” of the book that she relied on Paul Swift,
editor of The Newsletter on Newsletters for the chapter on Newsletter Design. Based
upon her experience running SIPA and the work experience she has, the Court finds that
she lacks the qualifications to opine as an expert on newsletter design.
As noted above, Wysocki does not possess nor does she have the experience that
would allow her to refute Dr. Woods’ expert report concerning declining subscriptions.
Thus, Wysocki will not be allowed to testify as an expert regarding Dr. Woods’ testimony
or expert report.
CONCLUSION
Wysocki fails to meet the necessary requirements to qualify as an expert to testify
on the issues before this Court. Her report in general fails to meet the necessary reliability
standards needed to assist the trier of fact in making a determination in this matter. As
such, the Court finds that her expert report is due to be stricken.
Accordingly, it is now
8
ORDERED:
The Plaintiffs, Eli Research, LLC and American Academy Holdings' Motion to
Strike Expert Report and Exclude Testimony of Patti Wyscoki (Doc. #127) is GRANTED.
Patti Wyscki’s Expert Report and Testimony will not be admitted pursuant to Fed. R. Civ.
P. 702.
DONE and ORDERED in Fort Myers, Florida this 9th day of September, 2015.
Copies: All Parties of Record
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?