Beaton v. SpeedyPC Software

Filing 210

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 12/21/2017. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARCHIE BEATON, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
SPEEDYPC SOFTWARE, a British
Columbia company,
Defendant.

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No. 13-cv-08389

Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Defendant SpeedyPC Software (“SpeedyPC”) is a Canadian software company that sells
software to optimize computer performance and protect computers from malware. In this class
action, Plaintiff Archie Beaton has sued SpeedyPC claiming that the premium version of
SpeedyPC’s software that he and other class members purchased and installed on their
computers did not live up to SpeedyPC’s promises. Beaton and other SpeedyPC customers
purchased the premium software after first running a diagnostic scan using SpeedyPC’s free
software that, according to Beaton, would report extensive problems regardless of whether such
problems were actually present. After receiving the results of the scan, the customers were
invited to purchase the premium software, SpeedyPC Pro, to fix those problems. But the
premium software did not actually do what it claimed. As a result, Beaton claims that SpeedyPC
breached implied warranties of fitness for a particular purpose and merchantability and
committed fraudulent misrepresentation under various consumer protection laws. In connection
with his motion to certify the class and subclass, Beaton proffered the expert report of Craig
Snead. (Ex. 6 to Pl.’s Memo. in Supp. of Class Cert., Dkt. Nos. 125-6, 127-3 (“Snead’s Expert

Rep.”).) In opposing Beaton’s motion, SpeedyPC proffered the expert report of Monty G. Myers.
(Ex. F to Def.’s Resp. to Pl.’s Mot. for Class Cert., Dkt. No. 135-13 (“Myers’s Expert Rep.”).)
The parties filed cross-motions to bar each other’s proffered expert testimony. (Dkt. Nos. 143,
145.)1 The Court now rules on those motions as follows.
I.

Legal Standards

Rule 702 governs the admissibility of expert evidence in federal court. It provides as
follows:
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.
Fed. R. Evid. 702. Under this rule, expert testimony must not only assist the trier of fact, it must
also demonstrate sufficient reliability. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th
Cir. 2015). “[T]he district court serves as a ‘gatekeeper’ whose role is to ensure that an expert’s
testimony is reliable and relevant.” Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409
(7th Cir. 2014). The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. laid out
four factors by which courts can evaluate the reliability of expert testimony: (1) whether the
expert’s conclusions are falsifiable; (2) whether the expert’s method has been subject to peer
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The Court previously issued a memorandum opinion granting Beaton’s motion for class certification.
(Dkt. No. 201.) Although the present memorandum opinion regarding the parties’ proffered expert
testimony is being issued subsequent to the class certification ruling, the Court considered the challenged
expert testimony for purposes of class certification only to the extent consistent with the rulings stated
herein.

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review; (3) whether there is a known error rate associated with the technique; and (4) whether the
method is generally accepted in the relevant scientific community. 509 U.S. 579, 593–94 (1993).
This list is neither exhaustive nor mandatory and, ultimately, reliability is determined on a caseby-case basis. Textron, Inc., 807 F.3d at 835.
II.

SpeedyPC’s Motion to Bar Plaintiff’s Expert Snead

Snead is a software and website developer with significant experience in custom software
development and source code review. He was hired by Beaton in this matter and tasked with
analyzing the diagnostic function of the free version of SpeedyPC’s software. Snead concludes
that the diagnostic function of the free version of SpeedyPC’s software assesses the level of
computer damage indiscriminately and is programmed to classify routine computing behavior as
problematic. (Snead’s Expert Rep. ¶¶ 50, 52, Dkt. No. 125-6.) SpeedyPC argues that Snead’s
opinions, as reflected in his report and deposition testimony, fail to meet the requirements of
Rule 702 because (1) Snead is not qualified to render the opinions proffered, and (2) Snead’s
opinions were rendered based on a deficient methodology and therefore do not satisfy the
reliability standards of Rule 702.
A.

Qualifications to Render Opinions

Despite SpeedyPC’s protests, the Court determines that Snead is qualified “as an expert
by knowledge, skill, experience, training, or education” to render the proffered opinions. Fed. R.
Evid. 702. Snead is an experienced software developer with a bachelor’s degree in Information
Engineering from the University of Cincinnati. (Snead’s Expert Rep. ¶ 3, Dkt. No. 125-6.) Since
graduating in 2004, he has worked as a software developer. (Id.) He represents that he is
experienced in software-code analysis for litigation and that he has worked in designing,

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developing, and maintaining a variety of security software products. (Ex. 1 to Snead’s Expert
Rep. at 28 of 29, Dkt. No. 125-6.)
SpeedyPC complains that Snead is not a “computer forensics expert” but does not at all
explain why knowledge of computer forensics is required for Snead’s opinions. (Def.’s Mot. to
Bar Pl.’s Expert at 5, Dkt. No. 143.) On the Court’s review of Snead’s expert report, Snead’s
experience with software and source code is sufficient to render him qualified to state his
opinions.
SpeedyPC also argues that “most of Snead’s training has been in developing websites,”
and so he should not be able to opine about software products. (Id. at 6.) But this is a blatant
mischaracterization of Snead’s deposition testimony. Counsel for SpeedyPC asked Snead,
“[Y]ou have more than seven years of experience developing websites. Is that right?” (Ex. C to
Def.’s Mot. to Bar Pl.’s Expert at 46, Dkt. No. 143-3.) Snead responds, “Websites and software.”
(Id.) Snead then testified that he had developed “hundreds of utilities,” including “[d]ata parsing
utilities, computer forensics utilities, [and] electronic data interchange utilities.” (Id.) Indeed, this
testimony is corroborated by his Curriculum Vitae. (Ex. 1 to Snead’s Expert Rep. at 28–29 of 29,
Dkt. No. 125-6.) Thus, in sum, SpeedyPC has provided no reason to think that Snead is not
qualified to render his proffered opinions.
B.

Reliability Standards and Proper Methodology

The Court also concludes that Snead’s opinions satisfy Rule 702’s reliability and
methodological standards. SpeedyPC complains that: (1) Snead only looked at the code for the
free version of the software and not the premium version of the software; (2) Snead never looked
at an image of Beaton’s laptop; (3) Snead did not inquire into the “efficacy” of the software’s
purported fixes; and (4) Snead did not know or research if there were any “standards relating to

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the issues in this case.” (Def.’s Mot. to Bar Pl.’s Expert at 6, Dkt. No. 143.)
The first three of these concerns is inapposite. Snead was tasked with providing his
expert opinion on the free version of SpeedyPC’s software and, specifically, its diagnostic
function. As such, Snead did not even proffer any opinions about the premium version of
SpeedyPC’s software or Beaton’s laptop. SpeedyPC has not identified any reason why Snead
cannot render an informed opinion on the source code of the free software without considering
the premium version of SpeedyPC’s software or Beaton’s laptop. Similarly, Snead did not
investigate the “efficacy of the purported fixes” of the free software because his job was to
consider its diagnostic function. Again, SpeedyPC has given the Court no reason to conclude that
Snead was unable to opine on the diagnostic function of the software without considering the
software’s ability to fix problems with the customer’s computer.
SpeedyPC’s assertion that Snead was unaware of industry standards regarding the issues
of the case is similarly unpersuasive. Snead’s testimony on this point arose in the context of
Snead’s opinion that the free diagnostic software was assessing the level of computer damage
arbitrarily. (Ex. C to Def.’s Mot. to Bar Pl.’s Expert at 84–85, Dkt. No. 143-3.) Specifically,
Snead identified that the free software would assess damage based on the number of “system
problems.” (Id. at 84.) Counsel for SpeedyPC asked Snead whether he had researched industry
standards on this point and Snead testified that he had not and was unaware of any. (Id. at 85.)
Importantly, the Court notes that it is not even clear that such standards exist—SpeedyPC did not
cite any such standards in its submissions to the Court. Nevertheless, as an experienced software
engineer, Snead was entitled to present his opinions about the utility and function of the
diagnostic capabilities of SpeedyPC’s free software, as long as those opinions were supported by
proper reasoning. Snead explained in his report that the free software only accounted for the

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“number” of system problems and not the severity of those problems, and thus the free software
was arbitrary in its determination of computer damage. (Snead’s Expert Rep. ¶ 26, Dkt. No. 1256.) SpeedyPC does not directly challenge that reasoning, with industry standards or otherwise.
Instead, it asks this Court to strike the opinion of a qualified expert because he did not cite
standards that may or may not exist. The Court declines to do so.
Finally, SpeedyPC claims that Snead’s opinions are “subjective” and “nothing more than
uninformed speculation, conjecture, and guesswork.” (Def.’s Mot. to Bar Pl.’s Expert at 7, Dkt.
No. 143.) However, SpeedyPC provides nothing more to support these characterizations. Thus,
the Court denies SpeedyPC’s motion to bar Snead’s expert report and testimony.
III.

Beaton’s Motion to Bar SpeedyPC’s Expert Myers

The Court next turns to consider Beaton’s challenge to SpeedyPC’s expert witness.
Myers is the founder of a custom-software development company with substantial experience in
negotiating software development agreements and executing the development of software for
those agreements. Myers was tasked with assessing the contentions underlying Beaton’s motion
for class certification and Snead’s expert report. Myers concludes that Beaton’s contention that
SpeedyPC’s software is designed always to report that a user’s computer is severely damaged,
regardless of the condition or type of the computer, is false. He also opines that Snead’s
conclusions—that the diagnostic function of the free version of SpeedyPC’s software assesses
the level of computer damage indiscriminately and is programmed to classify routine computing
behavior as problematic—are incorrect, because the way SpeedyPC’s software diagnoses
damage and computer problems can have utility for users. (Myers’s Expert Rep. at 38–39, 42,
45, 48, Dkt. No. 135-13.) Beaton argues that parts of Myers’s report and testimony should be
barred because: (1) they exceed the scope of a rebuttal report; (2) they include an improper

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factual narrative; (3) they contain improper speculation about Beaton’s mental state and offers
improper legal conclusions; and (4) their conclusions about consumer behavior and expectations
do no satisfy the strictures of Rule 702.
A.

Scope of Myers’s Expert Report

Beaton first argues that Myers’s report exceeds the scope of a rebuttal report because it
discusses topics that were never discussed in Snead’s expert report. Specifically, Myers discusses
Beaton’s laptop and the performance of SpeedyPC’s software under reasonable test conditions.
But it is not at all clear why SpeedyPC’s expert would be limited to rebutting Snead’s opinions.
Beaton only points to the Court’s orders referencing “rebuttal witnesses regarding class
certification.” (Dkt. Nos. 80, 87, 90.) However, the Court’s order setting forth the class
certification expert disclosure and briefing schedule does not explicitly limit SpeedyPC’s expert
to only rebutting Beaton’s expert. (Dkt. Nos. 80, 87, 90.) The term “rebuttal witnesses regarding
class certification” is broad enough to include witnesses used to rebut the contention that
Beaton’s claims are entitled to class certification. Moreover, at a court hearing on June 30, 2015,
SpeedyPC’s counsel explained that SpeedyPC’s proffered expert would argue that class
certification should be denied because the software operated differently for each user. Thus, to
the extent SpeedyPC and Beaton understood the Court’s scheduling order differently, Beaton had
notice of SpeedyPC’s interpretation and what sort of expert testimony Myers intended to
introduce, and there is no indication in the record that Beaton would be prejudiced by allowing
Myers’s testimony. Accordingly, the Court will not limit Myers’s report to responding to
Snead’s contentions and, instead, will consider whatever is relevant to Beaton’s motion for class
certification in Myers’s report.

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B.

Propriety of Factual Narrative

Beaton next argues that Section D of Myers’s report—which discusses Beaton’s laptop—
contains improper factual narrative. In particular, Beaton objects to two sentences in which
Myers refers to Beaton’s testimony about his purchase and use of his laptop and the operating
system on the laptop as “confusing.” (Myers’s Expert Rep. at 16, Dkt. No. 135-13.) In the first
instance, Myers notes that Beaton at one point claimed to have purchased the laptop in 2012, but
at another point claimed he purchased the laptop in 2008. In the other instance, Myers notes that
Beaton stated he was running the Windows 7 Home Operating System on his laptop from 2008,
even though Windows 7 was not publicly available in 2008. Myers goes on to suggest that
Beaton’s laptop may have had Windows Vista, which was known for its performance and
compatibility issues. (Id. at 16–17.) Myers seems to be opining that Beaton’s problems may have
been related to his computer and not SpeedyPC’s software, a point which may be relevant to
Beaton’s class and individual claims.
The Court finds Myers’s commentary that certain purported inconsistencies in Beaton’s
testimony are “confusing” to be irrelevant to his expert opinions about Beaton’s laptop. The
Court will not strike these portions of Section D of Myers’s report but also will not consider
Myers’s commentary on Beaton’s testimony in evaluating Beaton’s motion for class
certification.
C.

Speculation about Mental State and Offering of Legal Conclusions

Beaton next challenges two paragraphs in Myers’s report as including improper
conclusions about Beaton’s mental state and improper legal conclusions.
The first of these paragraphs states:
The formatting/reinstall event that [Myers] observed on Plaintiff’s laptop is not an
action that could happen accidentally or unexpectedly on a computer, but rather is
the type of activity that requires a deliberate and intentional decision and set of
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actions on the part of a reasonably experienced computer user in order to properly
complete.
(Id. ¶ 81.) This paragraph does not include any legal conclusions nor does it present improper
conclusions about Beaton’s mental state. Myers’s conclusion is not about Beaton’s motivations
in particular. Rather, Myers opines that, based on his review of the forensic image of Beaton’s
computer, the actions taken to effectuate the formatting/reinstall—by whoever took them—
evinced a level of deliberation and experience such that it could not have been accidental. This
conclusion does not exceed the bounds of proper expert opinion under Rule 702. As the Seventh
Circuit elucidated in DePaepe v. General Motors Corp., an expert, in his expert capacity, can
provide an opinion that certain actions require or demonstrate a certain mental state; but an
expert cannot provide an opinion that a particular person in fact acted with that mental state. 141
F.3d 715, 720 (7th Cir. 1998) (“[The expert] lacked any scientific basis for an opinion about the
motives of GM’s designers. He could give an opinion as an engineer that reducing the padding
[of the sun visor] saved a particular amount of money; he might testify as an engineer that GM’s
explanation for the decision was not sound (from which the jury might infer that money was the
real reason); but he could not testify as an expert that GM had a particular motive. Because [the
expert] did not participate in the deliberations leading to the design of the sun visor, he could not
testify as a fact witness on the subject, either.”). Myers’s opinions here regarding the deliberation
and intentionality required for the actions at issue properly adhere to that rule.
The second challenged paragraph states:
From a technical/forensic perspective, given Plaintiff’s claims that his computer
had issues that lead him to download and use the SpeedyPC Pro software and his
claims that the SpeedyPC Pro software did not perform as represented on his
laptop, it would not make sense for Plaintiff to format his hard drive after
retaining legal counsel and shortly before this lawsuit was filed unless he had
concern about exposing the content of his laptop in the course of this lawsuit or
had concern that the content of his laptop would not support the allegations of this
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lawsuit. Regardless of the potential reasons for the formatting of the hard drive
evidence, such clear spoliation of evidence can’t be condoned in the litigation
context.
(Id. ¶ 83.) The conclusions of this paragraph are explicit that Beaton himself had a bad faith
motive to format the hard drive of his computer. As discussed above, this does transgress the
Seventh Circuit’s delineation of proper expert testimony as set forth in DePaepe, 141 F.3d at
720.2 Even if this opinion were proper, the report offers no reasoning to support the stark
conclusion, and so the Court would strike it on that basis. Id. (“[T]he whole point of Daubert is
that experts can’t ‘speculate.’ They need analytically sound bases for their opinions.”). Finally,
this paragraph contains legal conclusions—such as characterizing the actions as “spoliation of
evidence [that] can’t be condoned in the litigation context.” (Myers’s Expert Rep. ¶ 81, Dkt. No.
135-13.) These legal conclusions are not the proper subject of expert testimony. Good Shepherd
Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (“[E]xpert testimony
as to legal conclusions that will determine the outcome of the case is inadmissible.”). Thus, the
Court will strike this paragraph 83 and bar any testimony from Myers on this subject matter.
D.

Qualifications and Propriety under Rule 702

Finally, Beaton challenges portions of Sections B, C, and E of Myers’s report, arguing
that Myers’s conclusions do not meet the requirements of Rule 702 and Daubert. In terms of his
qualifications, Myers has a bachelors’ degree in Engineering from Texas A&M University and is
a licensed professional engineer in the State of Texas. (Myers’s Expert Rep. ¶ 5, Dkt. No. 13513.) Myers founded a software development company, Eureka Software Solutions Inc., and
serves as its CEO. In that role, he has negotiated hundreds of software development agreements
and he has himself has substantial experience in writing software code. (Id. ¶¶ 3–4.)
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Nor is there any indication that Myers has a basis to testify as a fact witness regarding Beaton’s
motivations and mental state.

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Section B of Myers’s report, entitled General Industry Overview, provides general details
about software products related to personal computer cleaning and performance improvement.
This section explains at a high level of generality what software products in this area do, when
they are used, how they work, and why consumers may opt for them. Beaton argues that Myers
was not an expert in the “software genre” of personal computer cleaning utilities, noting that he
testified that he had not performed “comparative analys[es]” of the products in this area. (Pl.’s
Memo. in Supp. of Mot. to Strike Myers’s Expert Rep. and Testimony at 12, Dkt. No. 146.) But
the general conclusions in this section are within the purview of Myers’s extensive experience in
the software industry, including in various types of software applications. Thus, the Court will
not strike any part of Section B.
Section C of the report concerns SpeedyPC’s Product Warranty/Guarantee. Beaton
challenges Myers’s statement that SpeedyPC’s 30-day money-back guarantee was a reasonable
option for certain consumers. Myers supports this conclusion with a discussion, based on his
experience, of the relative efficacy and cost of hiring a technical expert. Again, the Court finds
that these conclusions are within the purview of Myers’s expertise in the computer software
industry, including his experience negotiating numerous software development agreements.
Finally, Section E of the report assesses the report of Beaton’s expert, Snead. In two
paragraphs, Myers opines on certain aspects of the design of SpeedyPC’s software as follows:
Thus, a consumer/end user who arrives at this non-default prescan screen after
installing and starting the SpeedyPC Pro software for the first time would
generally expect that the needle of the scan gauge/meter would initially rest on the
left hand side of the gauge and would not likely be influenced one way or the
other by this typical needle position.
In fact, the alternative to the image cited by Mr. Snead, a gauge or meter image
with the needle resting on the right hand side or “high” performance reading
displayed on the initial screen would likely have more potential influence on the
consumer/end user, who downloaded the software over concern about their
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system, by somehow suggesting that their system is fine or running at an optimal
state and thereby leading such consumer/end user to not run a system scan and
thereby not identify the potential problems with their system. The worst case
scenario resulting from the use of the image cited by Mr. Snead in the SpeedyPC
Pro software is that the consumer/end user is influenced to run the initial scan of
their computer in order to see what, if any, problems or malware may be present.
(Myers’s Expert Rep. ¶¶ 127–28, Dkt. No. 135-13.) Myers reaches these conclusions despite
having no formal training in marketing or consumer expectations and behavior. (Ex. A to
Myers’s Expert Rep. at 61–70 of 119, Dkt. No. 135-13.) Myers does have experience in getting
consumer feedback on his company’s products, but SpeedyPC points to nothing in the record to
indicate that such feedback bore any relationship to Myers’s opinions about SpeedyPC’s
software design and it is insufficient to give him the requisite general expertise to provide expert
opinions on design aspects of SpeedyPC’s software. Moreover, Myers did not commission any
consumer surveys on the gauge/meter referenced in his conclusions, nor did he review any
market research on the point. (Ex. 1 to Pl.’s Memo. in Supp. of Mot. to Strike Myers’s Expert
Rep. and Testimony at 187–88, Dkt. No. 146-1.) Even if he were generally qualified, his
conclusions about the gauge do not meet the reliability and methodology standards of Rule 702.
LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp. 2d 940, 957 (N.D. Ill. 2009) (striking
purported “common sense observations” about lay people’s understanding of “steam” in the
context of advertising about steam dryer, because expert was not qualified in “marketing,
consumer surveys[,] consumer perceptions[, or] linguistics” and had “not conduct[ed] any
surveys or consumer research to reach these opinions”). Thus, the Court will strike these two
paragraphs of the report and any testimony from Myers on the points therein.
IV.

Conclusion

For the foregoing reasons, the Court denies SpeedyPC’s motion to bar Beaton’s expert
Craig Snead (Dkt. No. 143), and denies in part and grants in part Beaton’s motion to strike the
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expert report and testimony of Monty G. Myers (Dkt. No. 145), striking paragraphs 83, 127, and
128 from Myers’s expert report and barring any testimony from Myers on the subject matter of
those paragraphs.
ENTERED:

Dated: December 21, 2017

__________________________
Andrea R. Wood
United States District Judge

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