FCOA LLC v. FOREMOST TITLE & ESCROW SERVICES LLC
Filing
121
ORDER granting in part and denying in part 79 Defendant's Motion to Exclude the Expert Report and Testimony of Dr. Maronick. Signed by Magistrate Judge Edwin G. Torres on 1/30/2019. See attached document for full details. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-23971-Civ-WILLIAMS/TORRES
FCOA, LLC,
Plaintiff,
v.
FOREMOST TITLE & ESCROW
SERVICES, LLC,
Defendant.
______________________________________/
ORDER ON DEFENDANT’S MOTION TO EXCLUDE
THE EXPERT REPORT AND TESTIMONY OF DR. THOMAS MARONICK
This matter is before the Court on Foremost Title & Escrow Services, LLC’s
(“Defendant”) motion to exclude the testimony and expert report of Dr. Thomas
Maronick (“Dr. Maronick”).
[D.E. 79].
FCOA, LLC (“Plaintiff”) responded to
Defendant’s motion on November 14, 2018 [D.E. 90] to which Defendant replied on
November 21, 2018. [D.E. 100]. Therefore, Defendant’s motion is now ripe for
disposition. After careful consideration of the motion, response, reply, and relevant
authority, and for the reasons discussed below, Defendant’s motion is GRANTED
in part and DENIED in part.1
On November 27, 2018, the Honorable Kathleen Williams referred
Defendant’s motion to the undersigned Magistrate Judge for disposition.
1
1
I.
APPLICABLE LEGAL PRINCIPLES AND LAW
The decision to admit or exclude expert testimony is within the trial court’s
discretion and the court enjoys “considerable leeway” when determining the
admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d
1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.
Evid. 702.2 The party offering the expert testimony carries the burden of laying the
proper foundation for its admission, and admissibility must be shown by a
preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,
1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness
rests on the proponent of the expert opinion, whether the proponent is the plaintiff
or the defendant in a civil suit, or the government or the accused in a criminal
case.”).
“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which
admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,
2
Rule 702 states the following:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (a)
the expert=s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
2
Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589). The
purpose of this role is “to ensure that speculative, unreliable expert testimony does
not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256
(11th Cir. 2002). Also, in its role as Agatekeeper,@ its duty is not Ato make ultimate
conclusions as to the persuasiveness of the proffered evidence.@ Quiet Tech. DC-8,
Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)
To facilitate this process, district courts engage in a three part inquiry to
determine the admissibility of expert testimony:
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable as determined by the sort of
inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted).
The
Eleventh Circuit refers to the aforementioned requirements as the “qualification,”
“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;
“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing
Quiet Tech, 326 F.3d at 1341).
Furthermore, in determining the reliability of a scientific expert opinion, the
Eleventh Circuit considers the following factors to the extent possible:
(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique;
and (4) whether the technique is generally accepted in the scientific
community. Notably, however, these factors do not exhaust the
universe of considerations that may bear on the reliability of a given
expert opinion, and a federal court should consider any additional
3
factors
that
may
advance
its
Rule
702
analysis.
Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are
not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in
case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,
1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on
principles and methodology, not on conclusions that they generate.” Daubert, 509
U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role
under Daubert ‘is not intended to supplant the adversary system or the role of the
jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666
(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;
see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.
2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must
do a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613
F.3d 1329, 1335 (11th Cir. 2010)).
4
II.
ANALYSIS
Defendant’s motion seeks to strike Dr. Maronick3 and his expert report
because he failed to comply with the Federal Rules. Plaintiff retained Dr. Maronick
to assess consumers’ perceptions to determine whether, if at all, consumers perceive
Plaintiff and Defendant as competitors in the Florida real estate market.
Dr.
Maronick’s survey concluded that 74.2% of respondents who had heard of Foremost
Insurance Company believed that Defendant was affiliated with it.
Defendant
argues that Dr. Maronick’s report should be excluded because (1) it violates the
Federal Rules, (2) it contains methodological flaws, (3) it draws from the wrong
universe of consumers, (4) it relies on an improper sample size, and (5) its
conclusions are based on a defective survey.
Defendant also alleges that the
questions presented are improper and that they undermine Dr. Maronick’s
credibility.
Because the findings in Dr. Maronick’s report are unreliable and
irrelevant, Defendant concludes that Dr. Maronick’s expert opinions must be
entirely excluded.
A.
Whether Dr. Maronick’s Report Should be Excluded
Violating Rule 26(a)(2)(B)
for
Defendant’s primary argument is that Dr. Maronick failed to comply with
Federal Rule 26(a)(2)(B) because he did not provide a complete statement of the
reasons for his opinions.
Defendant also contends that Dr. Maronick failed to
disclose the facts and data he considered in forming his opinions and that this is not
Dr. Maronick is a Doctor of Business Administration and an emeritus
professor of marketing at Towson University College of Business and Economics.
5
3
the first time that he has committed this mistake.4 Plaintiff’s response is that
Defendant did not provide an example of any specific piece of information omitted
from Dr. Maronick’s expert report and that Defendant’s argument should be
disregarded.
Federal Rule 26(a) requires that any expert report contain the following
information:
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in
the previous 10 years;
(v) a list of all other cases in which, during the previous four years, the
witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in
the case.
Fed. R. Civ. P. 26(a)(2)(B). These requirements are to be taken very seriously as
Rule 26(a) was intended not only to prevent surprise to opposing counsel, but to
decrease the need for expert depositions and thereby conserve the resources of both
parties. See Fed. R. Civ. P. 26 Advisory Committee Notes (1993); Salgado v. Gen.
Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998).
Federal Rule 37(c)(1) states that “[i]f a party fails to provide information . . .
as required by Rule 26(a) or (e), the party is not allowed to use that information or
Defendant references a deposition of Dr. Maronick’s in a case based in the
Southern District of New York.
6
4
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
This Rule
“requires absolute compliance with Rule 26(a).” Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance v. United
States, 1999 WL 455435, at *3 (6th Cir. June 25, 1999)). When an expert report
does not provide the required disclosures under Rule 26(a)(2)(B), “the sanction of
exclusion is automatic and mandatory unless the sanctioned party can show that its
violation of Rule 26(a) was either justified or harmless.” Johnson, 325 F.3d at
782 (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998))
(emphasis added); see also Walbridge Aldinger Co. v. Aon Risk Servs., Inc. of
Pennsylvania, 2007 WL 1219036, at *1 (E.D. Mich. Apr. 25, 2007) (finding that an
expert report containing only minor omissions-such as merely failing to disclose the
expert’s compensation-should not be struck under Rule 37(c)(1) because the minor
harm caused to opposing party does not justify striking the report). This means
that “the expert witness discovery rules are designed to allow both sides in a case
to prepare their cases adequately and to prevent surprise . . . [and therefore]
compliance with the requirements of Rule 26 is not merely aspirational.” Cooper v.
Southern
Co., 390
F.3d
695,
728
(11th
Cir.
2004) (internal
citation
omitted), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).
Substantial justification is “justification to a degree that could satisfy a
reasonable person that parties could differ as to whether the party was required to
comply with the disclosure request.” Ellison v. Windt, 2001 WL 118617 (M.D. Fla.
7
Jan. 24, 2001) (quotation and citation omitted).
The advisory committee notes
to Rule 37 “strongly suggests that ‘harmless’ involves an honest mistake on the part
of the party coupled with sufficient knowledge on the part of the other party.” Borg
v. Chase Manhattan Bank U.S.A., 247 F. App’x 627, 637 (6th Cir. 2007) (citation
omitted). The burden of proof is on the potentially sanctioned party to prove
harmlessness or justification. See Johnson, 325 F.3d at 782; Salgado, 150 F.3d at
741-42; Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir.
2001); Heidtman v. County of El Paso, 171 F.3d 1038, 1040 (5th Cir. 1999).
Here, Defendant claims that Dr. Maronick failed to provide a complete
statement of the reasons for his opinions, including the facts and data he
considered.
Defendant’s argument, with respect to the data considered, is well
taken because the most that we can discern from the expert report is that some
unspecified set of data was collected from an internet survey platform –
Qualtrics.com – with an indeterminate sample drawn from an internet panel of
individuals named Vanguard who agreed to participate in internet surveys. This
vague and conclusory contention is unhelpful because Dr. Maronick never explains
the data sets, the internet survey platform, or how this relates to the panel of
individuals acquired from Vanguard. Indeed, Dr. Maronick never clarifies the data
that Qualtrics.com offers or its relationship with Vanguard.
Putting aside those problems, Dr. Maronick mentions that he followed
Qualtrics.com’s standard practices – without any explanation of what those
practices are – and states that an unspecified number of panel members were sent
8
an email message inviting them to participate in an online survey. The confusion is
then compounded when Dr. Maronick asserts that 201 respondents completed the
survey and that this data set forms the basis for his opinions.
Without any
specificity in the expert report, the data composition is unclear – including how Dr.
Maronick compiled it in forming his opinions. Because Dr. Maronick’s report is
unclear on the “data or other information considered by the witness in forming” his
opinions, we conclude that Dr. Maronick’s expert report violates Rule 26. Fed. R.
Civ. P. 26(a)(2)(B)(ii).5
Notwithstanding the lack of clarity on the data component of Dr. Maronick’s
expert report, Dr. Maronick should be afforded an opportunity to supplement his
expert report to make clear the data he considered. The trial date in this case is not
until March 4, 2019 [D.E. 42] – meaning Defendant has no viable argument that it
will be prejudiced because it deposed Dr. Maronick on his findings and the expert
report substantially complied with the requirements in Rule 26.
Therefore,
Defendant’s motion to exclude the testimony of Dr. Maronick is GRANTED in part
While we find that Dr. Maronick’s expert report fails to contain the necessary
information on the data reviewed and how that formed his opinions, Defendant’s
broader argument that Dr. Maronick’s report fails to include any reasons for his
opinions lacks merit. Dr. Maronick’s report explicitly includes a section on the basis
for his opinions and it summarizes the answers of respondents that support Dr.
Maronick’s conclusion.
While the expert report could have been far more
comprehensive in its reasoning, the information provided satisfies the requirements
in Rule 26. In other words, the basis for Dr. Maronick’s opinions are the
respondents’ answers to the survey questions presented. We therefore conclude
that Defendant’s argument on the alleged failure to include any reasons in support
of Dr. Maronick’s expert report misses the mark.
9
5
and DENIED in part and any supplemental expert report must be served within
fourteen (14) days from the date of this Order.
B.
Whether Dr. Maronick’s Report is Unreliable
Defendant’s next argument is that Dr. Maronick’s expert report is unreliable
because it contains numerous methodological defects. First, Defendant claims that
Dr. Maronick used an improper universe for his survey.
The Maronick report
included participants that purchased real estate in the past two years, but
Defendant claims that Dr. Maronick did not inquire about whether those
participants intended to purchase real estate or title insurance in the future.
Defendant believes that the survey fails to include the full range of potential
customers that are relevant in determining customer confusion. Second, Defendant
asserts that the sample size is not representative of a target population because it is
limited only to those individuals pulled from an internet panel. Defendant suggests
that the survey sample suffers from selection bias and anyone other than potential
purchasers of Defendant’s goods and services are irrelevant.
Third, Defendant
argues that the survey performed is inadequate because it fails to simulate market
conditions.
And fourth, Defendant challenges Dr. Maronick’s survey because it
includes improper questioning techniques (i.e. leading questions that fail to reduce
bias) and that its flawed design renders the survey results unreliable. Therefore,
Defendant concludes that both the report and the expert testimony of Dr. Maronick
must be excluded.
10
Plaintiff’s response is that Defendant’s arguments lack merit because “this is
a non-jury trial,” meaning “the gatekeeping purpose of Daubert is not implicated.”
Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., 616 F. Supp. 2d 1250,
1256 (M.D. Fla. 2009); see Bristol–Myers Squibb Co. v. Andrx Pharms., Inc., 343 F.
Supp. 2d 1124, 1131 (S.D. Fla. 2004) (“The Court agrees that the question of
reliability and relevance in this case is merely one of degree . . . This is especially
true since this is a bench trial, where the Court must evaluate the evidence
regardless of whether it ultimately decides to exclude it . . . Thus, some courts have
held that, in cases where the judge is the factfinder, the criteria for finding evidence
admissible can be applied less strictly.”) (emphasis added) (internal citations
omitted); see Taubensee Steel & Wire Co. v. Macsteel Int’l USA Corp., 2011 WL
1651239,
at
*4
(N.D.
Ill.
May
2,
2011) (“The
Court
notes
that
while
the Daubert standards apply in a bench trial, concerns about the trier of fact being
fooled by evidence of dubious merit are lessened when the judge is acting in that
role. The Court is capable of evaluating this evidence and giving it the weight that
it deserves.”) (internal citations omitted).
Plaintiff claims that, even if Dr.
Maronick’s opinions are unreliable, there is no jury to be misled and that the Court
should evaluate the evidence regardless of whether it ultimately decides to exclude
it. As such, Plaintiff concludes that the Court should allow Dr. Maronick’s opinions
without any further inquiry and give it the weight that it deserves when this case is
decided on the merits.
11
Alternatively, Plaintiff requests that Defendant’s motion be denied because
any alleged flaws in the expert report go to the weight of the results – not the
survey’s admissibility. See, e.g., Jellibeans, Inc. v. Skating Clubs of Georgia, Inc.,
716 F.2d 833, 844–45 (11th Cir. 1983) (finding that “(1) poor sampling; (2)
inexperienced interviewers; (3) poorly designed questions; and (4) other errors in
execution,” are “technical deficiencies [that] affect the survey’s weight . . . and not
its admissibility.”) (citing Exxon Corp. v. Texas Motor Exchange, 628 F.2d 500, 507
(5th Cir. 1980); Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 264 (5th Cir.
1980); Holiday Inns, Inc. v. Holiday Out In Am., 481 F.2d 445, 447 (5th Cir. 1973)
(“[T]he district court properly admitted the survey evidence in this case, leaving the
format of the questions and the manner of conducting the survey for consideration
as to the weight of the evidence.”)); see also C.A. May Marine Supply Co. v.
Brunswick Corp., 649 F.2d 1049, 1055 n.10 (5th Cir. 1981) (finding that “[i]f the
inadequacies in the survey had been technical, such as the format of the question or
the manner in which it was the survey [sic] was taken, those shortcomings would
have borne on the weight of the evidence, not its admissibility.”)).
As an initial matter, district courts enjoy extremely broad discretion to admit
expert testimony in a bench trial because there are no longer concerns about
“dumping a barrage of questionable scientific evidence on a jury.” Allison v.
McGhan Med. Corp., 184 F.3d 1300, 1310 (11th Cir. 1999) (recognizing that the jury
“would likely be even less equipped than the judge to make reliability and relevance
determinations and more likely than the judge to be awestruck by the expert’s
12
mystique”); Brown, 415 F.3d at 1268-69 (“There is less need for the gatekeeper to
keep the gate when the gatekeeper is keeping the gate only for himself.”); McCorvey
v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002) (“Daubert requires
that trial courts act as “gatekeepers” to ensure that speculative, unreliable expert
testimony does not reach the jury.”) (emphasis added). That is, “[t]he safeguards
outlined in Daubert are less essential in a bench trial,” because a judge need not
gatekeep for herself. M.D. v. Abbott, 152 F. Supp. 3d 684, 709 (S.D. Tex.
2015) (citing Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000)). Therefore, while
the Daubert requirements may not be as rigid as in the case of a bench trial, the
court may consider whether an expert report and testimony fall woefully short of its
expectations.
With that being said, Defendant’s motion – to exclude Dr. Maronick’s expert
report and testimony because of methodological defects – is unpersuasive.
The
general rule is that “methodological flaws in a survey bear on the weight the survey
should receive, not the survey’s admissibility.” Scott Fetzer Co. v. House of Vacuums
Inc., 381 F.3d 477, 488 (5th Cir. 2004) (citing C.A. May Marine Supply Co. v.
Brunswick Corp., 649 F.2d 1049, 1055 n. 10 (5th Cir. 1981)). Defendant claims that
the exception to the general applies because Dr. Maronick’s flaws are so severe that
any reliance on them is entirely unreasonable.
Southwest,
Inc., 741
F.2d
785,
789
(5th
See Bank of Tex. v. Commerce
Cir.
1984) (upholding
judgment
notwithstanding the verdict even though verdict was supported by survey evidence).
13
But, we disagree because this is not a case where a wholesale exclusion of an
expert report is justified based on the record presented. Defendant has certainly
raised valid arguments as to the weight and flaws in the expert report, but there is
nothing in the survey where we can conclude at this time that it is “so badly flawed”
that no reasonable juror could view the survey as evidence of confusion among
consumers. Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 118 (2d Cir.
1984). Therefore, Defendant’s motion to exclude Dr. Maronick’s expert report and
his testimony is DENIED.
III.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendant’s motion to exclude the expert report and testimony of Dr. Maronick is
GRANTED in part and DENIED in part. [D.E. 79]. Any supplemental expert
report must be served within fourteen (14) days from the date of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of
January, 2019.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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