BVS, Inc v. CDW Direct, LLC et al
Filing
183
ORDER denying 101 Motion to Strike CDW Direct, LLC's Expert Witnesses. Signed by Chief Judge Linda R Reade on 2/19/2015. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
BVS, INC.,
Plaintiff,
No. 11-CV-79-LRR
vs.
ORDER
CDW DIRECT, LLC,
Defendant and Third-Party
Plaintiff,
vs.
ARROW ELECTRONICS, INC.,
TSSLINK, INC. and NETAPP, INC.,
Third-Party Defendants.
__________________________________
NETAPP, INC.,
Counter Claimant,
vs.
CDW DIRECT, LLC,
Counter Defendant.
____________________
TABLE OF CONTENTS
I.
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
SUBJECT MATTER JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV.
FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
V.
ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.
B.
Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinions of Eric Engstrom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.
2.
C.
D.
VI.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
a.
Area of expertise.. . . . . . . . . . . . . . . . . . . . . . 8
b.
Proper topics. . . . . . . . . . . . . . . . . . . . . . . . . 9
c.
Reliability. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
d.
Application to facts and role of jury. . . . . . . . . . 9
e.
Summary.. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Opinions of Todd King. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.
Parties’ arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
a.
Timeliness of disclosure. . . . . . . . . . . . . . . . . 11
b.
Proper topics. . . . . . . . . . . . . . . . . . . . . . . . 12
c.
Reliability. . . . . . . . . . . . . . . . . . . . . . . . . . 12
d.
Area of expertise.. . . . . . . . . . . . . . . . . . . . . 13
e.
Role of the jury.. . . . . . . . . . . . . . . . . . . . . . 13
f.
Summary.. . . . . . . . . . . . . . . . . . . . . . . . . . 14
Opinions of Philip Hedtke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. INTRODUCTION
The matter before the court is BVS, Inc.’s (“BVS”) “Motion to Strike CDW Direct,
LLC’s Expert Witnesses” (“Motion”) (docket no. 101).
II. PROCEDURAL HISTORY
On April 16, 2012, BVS filed an Amended Complaint (docket no. 38) against CDW
Direct, LLC (“CDW”). In the Amended Complaint, BVS alleges breach of contract
(Count I), unjust enrichment (Count II), breach of express warranty (Count III), breach
of implied warranty of merchantability (Count IV), breach of implied warranty of fitness
for a particular purpose (Count V), fraud (Count VI) and fraudulent nondisclosure (Count
VII)1 against CDW.
1
The Amended Complaint erroneously marks the fraudulent nondisclosure claim
as a second Count VI. Thus, the court will refer to the fraudulent nondisclosure claim as
(continued...)
2
On May 9, 2012, CDW filed an Answer (docket no. 45) to the Amended
Complaint, denying BVS’s claims and asserting affirmative defenses. On December 14,
2012, CDW filed a Motion for Summary Judgment (docket no. 70). On March 14, 2013,
BVS filed the Motion. On March 28, 2013, the court granted CDW’s motion for summary
judgment against BVS, which rendered the Motion moot. March 28, 2013 Order (docket
no. 109). On July 17, 2014, the Eighth Circuit Court of Appeals reversed and remanded.
See BVS, Inc. v. CDW Direct, LLC, 759 F.3d 869, 873 (8th Cir. 2014). In light of the
Eighth Circuit’s decision, the Motion is no longer moot.
On September 17, 2014, CDW filed a Resistance (docket no. 145). On September
26, 2014, BVS filed a Reply (docket no. 146). On February 17, 2015, the court held a
Final Pretrial Conference at which it heard argument on the Motion. See February 17,
2015 Minute Entry (docket no. 181). The Motion is fully submitted and ready for
decision.
III. SUBJECT MATTER JURISDICTION
BVS is an Iowa corporation with its principal place of business in Cedar Rapids,
Iowa. CDW is an Illinois limited liability company with its principal place of business in
Vernon Hills, Illinois. The court has diversity jurisdiction over this case because complete
diversity exists between BVS and CDW and the amount in controversy exceeds $75,000.
See 28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between . . . citizens of different States . . . .”).
IV. FACTUAL BACKGROUND
In late 2010, BVS was looking to update several components of its computer
system, including its storage area network (“SAN”). BVS was unhappy with its existing
1
(...continued)
Count VII.
3
SAN from manufacturer ECM due to the poor customer service that BVS thought ECM
provided. BVS began looking for a new SAN solution that would store electronic data
from BVS’s Cedar Rapids location and regularly copy the data to BVS’s disaster recovery
site in Omaha.
BVS contacted CDW in the fall of 2010 to discuss options for a SAN solution.
After discussing options with BVS’s information technology manager, CDW set up a
conference call with representatives from NetApp, Inc. (“NetApp”) to begin developing
the SAN solution. Representatives from NetApp also traveled to Cedar Rapids to meet
with BVS employees. CDW did not rely on its own solution architects but instead relied
on NetApp and Arrow Electronics, Inc. (“Arrow”) to architect and implement BVS’s SAN
solution.
BVS received the NetApp goods listed on the invoice. Arrow hired TSSLink, Inc.
(“TSSLink”) to perform the Arrow provisioned services listed on the invoice, which
included installation and implementation of the SAN system. Arrow first proposed
installing and implementing the system from January 27, 2011 to January 28, 2011. BVS
declined to have the installation done during the proposed dates, and the installation was
rescheduled for March 1, 2011 to March 3, 2011. Arrow provided the Arrow provisioned
services from March 1, 2011 through March 3, 2011. Between March 3, 2011 and May
2011, TSSLink made several attempts to complete the installation and implementation of
the SAN system, including several conference calls and web-based troubleshooting
sessions.
On April 14, 2011, BVS sent an email to CDW, expressing frustration that the SAN
system was not fully implemented and functioning properly. In response, NetApp offered
to send a NetApp engineer to Cedar Rapids to get the system working. BVS declined
NetApp’s offer and, on May 19, 2011, BVS decided that the system would not be able to
4
function properly and attempted to send the hardware and software back to CDW.
However, CDW refused to take the system back.
V. ANALYSIS
A. Applicable Law
The admissibility of expert testimony, even when the federal court is sitting in
diversity jurisdiction, is governed by Federal Rules of Evidence 104(a) and 702. Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 592 (1993); see also Unrein v.
Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005) (“[T]he admissibility of expert
testimony in diversity cases is governed by federal law . . . .”).
Before the court will admit expert testimony, it must determine that the expert
witness, pursuant to Rule 104(a), “is proposing to testify to (1) scientific knowledge that
(2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509
U.S. at 592. In addition to “scientific” knowledge, the United States Supreme Court has
stated that this “gatekeeping” inquiry extends to “technical” and “other specialized”
knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Fed. R.
Evid. 702) (internal quotation marks omitted). Essentially, the proponent of expert witness
testimony must convince the court, by a preponderance of the evidence, that the proposed
expert witness’s testimony is both relevant and reliable. See Daubert, 509 U.S. at 592
n.10 (“[Rule 104(a)] matters should be established by a preponderance of proof.”);
Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006) (“[T]rial courts must serve
as ‘gatekeepers to insure that proffered expert testimony is both relevant and reliable.’”)
(quoting Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir. 2003)).
Under Rule 702, evidence is relevant if “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.” Fed. R. Evid. 702(a). “Courts should resolve doubts regarding the
usefulness of an expert’s testimony in favor of admissibility.” Marmo v. Tyson Fresh
5
Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006); see also Arcoren v. United States, 929
F.2d 1235, 1239 (8th Cir. 1991) (“Rule 702 is one of admissibility rather than
exclusion.”).
Relevant evidence is reliable if “the proponent of the expert testimony . . . show[s]
by a preponderance of the evidence both that the expert is qualified to render the opinion
and that the methodology underlying his [or her] conclusions is . . . valid.” Marmo, 457
F.3d at 757-58. An expert witness may be “qualified as an expert by knowledge, skill,
experience, training, or education.” Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th
Cir. 2012) (quoting Fed. R. Evid. 702). If the expert’s testimony is relevant and the
expert is qualified, the expert may “testify in the form of an opinion or otherwise” if “the
testimony is based on sufficient facts or data . . . [,] the testimony is the product of reliable
principles and methods . . . and . . . the expert has reliably applied the principles and
methods to the facts of the case.” Id. (quoting Fed. R. Evid. 702).
The Supreme Court has identified a number of factors that courts should consider
to determine if an expert’s theory or technique has used reliable methodology, including:
(1) whether it has been tested; (2) whether it has been subjected to peer review or
publication; (3) whether it has a known or potential error rate; and (4) whether it is
generally accepted in the relevant scientific or technical community. Daubert, 509 U.S.
at 593-94. The court may also consider whether the opinion was developed in preparation
for litigation and whether the expert can rule out alternative explanations. Lauzon v. Senco
Prods., Inc., 270 F.3d 681, 687 (8th Cir. 2001).
However, these factors are not
“definitive,” and a “trial judge [has] considerable leeway in deciding in a particular case
how to go about determining whether particular expert testimony is reliable.” Kumho, 526
U.S. at 151-52. Moreover, the “evidentiary inquiry is meant to be flexible and fact
specific, and a court should use, adapt, or reject Daubert factors as the particular case
demands.” Unrein, 394 F.3d at 1011.
6
“There is no single requirement for admissibility as long as the proffer indicates that
the expert evidence is reliable and relevant.” Id. Moreover, the court should exclude an
expert’s opinion only if that “opinion is so fundamentally unsupported that it can offer no
assistance to the jury.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001)
(quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1996)). After all,
“[v]igorous 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.” Daubert, 509 U.S. at 596.
As the Eighth Circuit Court of Appeals described:
As a general rule, the factual basis of an expert opinion goes
to the credibility of the testimony, not the admissibility, and it
is up to the opposing party to examine the factual basis for the
opinion in cross-examination. Only if the expert’s opinion is
so fundamentally unsupported that it can offer no assistance to
the jury must such testimony be excluded.
Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 544 (8th Cir. 2006) (quoting
Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 864 (8th Cir. 2004)).
B. Opinions of Eric Engstrom
Eric Engstrom is a Chartered Financial Analyst (“CFA”), a Certified Public
Accountant (“CPA”) and a CPA Accredited in Business Valuation (“CPA/ABV”). See
Eric Engstrom Report (docket no. 101-2) at 8. In his report, Engstrom opines that “BVS’s
damage calculation significantly overstates the economic loss that the [c]ompany . . .
would have allegedly been able to earn on those funds.” Id. at 1. He also opines that
“BVS’s damage calculation significantly overstates the economic loss that the [c]ompany
has allegedly incurred due to its legal claims against CDW.” Id. at 2.
Specifically, Engstrom’s report attacks BVS’s damage calculation for two different
losses. First, Engstrom addresses BVS’s claimed loss of use of the funds paid to CDW
for the SAN solution. BVS contends that it could have invested the $226,000 paid to
7
CDW and earned a return of 26.87%. Second, Engstrom addresses BVS’s claimed loss
for delaying BVS’s implementation of a different product—a Customer Education Center.
1.
Parties’ arguments
BVS argues that the court should strike Engstrom’s testimony because his opinions:
(1) “are outside his expertise”; (2) “are not proper topics for expert testimony”; (3) “are
not sufficiently reliable to meet the standards under Federal Rule of Evidence 702”; and
(4) are not supported by “any reliable principles and/or methods [as applied] to the facts
of this case and his opinions usurp the role of the jury and the [c]ourt.” Brief in Support
of the Motion (docket no. 101-1) at 4.
CDW argues that Engstrom’s opinions are within his area of expertise, are proper
topics for expert testimony and are sufficiently reliable.
CDW also contends that
Engstrom applied reliable principles to the facts and his opinions do not usurp the role of
the jury and the court. See Resistance at 3-12.
2.
Application
a.
Area of expertise
The court finds that Engstrom’s training and experience as a CPA/ABV qualifies
him to testify about BVS’s claimed losses. BVS’s claimed damages include a financial
accounting of a hypothetical investment that would have achieved a 26.87% annual return
on the lost purchase price. Engstrom has financial accounting expertise by virtue of his
training and experience as a CPA/ABV. Engstrom contends that BVS’s return would be
significantly less than 26.87%. In coming to that conclusion, Engstrom assumed that BVS
“would theoretically be able to replace the missing funds by obtaining a bank loan.” Eric
Engstrom Report at 1. To the extent that BVS thinks Engstrom’s opinions are inconsistent
with BVS’s historical rate of returns, it may present its own evidence as well as crossexamine Engstrom about his opinions. See Daubert, 509 U.S. at 596 (“Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
8
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”).
b.
Proper topics
The court finds that Engstrom’s opinions are proper topics for expert testimony.
BVS states that Engstrom’s opinions do not contain scientific, technical or other specialized
knowledge and are therefore inadmissible under Federal Rule of Evidence 702. However,
BVS’s loss calculations relied on financial accounting and business valuation principles.
Engstrom is trained in financial accounting and business valuation. Engstrom’s testimony
concerns damages and, therefore, “will help the trier of fact to understand the evidence or
to determine a fact in issue.” Fed. R. Evid. 702(a).
c.
Reliability
The court finds that Engstrom’s opinions are sufficiently reliable to be admitted.
Engstrom relied on BVS’s financial accounting and reviewed BVS’s financial statements.
Engstrom relied on BVS’s purported history of holding a large amount of cash to conclude
that BVS would have likely invested the missing funds in short-term, fixed-income
investments. BVS is of course free to argue that Engstrom’s assumptions are incorrect or
that he relied on improper numbers or that a different conclusion must be reached based
on such data. However, Engstrom’s opinions are not “so fundamentally unsupported that
[they] can offer no assistance to the jury.” Acosta v. Acosta, 725 F.3d 868, 874 (8th Cir.
2013) (quoting Minn. Supply Co., 472 F.3d at 544).
d.
Application to facts and role of jury
BVS argues that Engstrom relied only on “his own beliefs based on the written
documents provided to him by CDW” in forming his opinions and, therefore, the court
should not permit him to “merely . . . parrot and/or highlight evidence that the jury itself
can consider.” Brief in Support of the Motion at 7. CDW argues that Engstrom reviewed,
among other things, “audited financial statements for BVS and [the co-owned finance arm
9
that monetizes BVS’s contracts] . . . ; other financial statements and payroll information;
and the BVS ‘Damages Analysis.’” Brief in Support of the Resistance at 10.
The court finds that Engstrom “has reliably applied the principles and methods to
the facts of the case.” Fed. R. Evid. 702(d). Engstrom looked at the data on which BVS
relied to come up with its damage calculation. Engstrom reached a different conclusion
than BVS. Engstrom based his conclusion on the purported profitability of the new
Customer Education Center that BVS sought to create. The fact that BVS disagrees with
this conclusion does not render Engstrom’s opinion “so fundamentally unsupported that
it can offer no assistance to the jury.” Acosta, 725 F.3d at 874 (quoting Minn. Supply
Co., 472 F.3d at 544); see also Synergetics, Inc. v. Hurst, 477 F.3d 949, 955-56 (8th Cir.
2007) (“As a general rule, the factual basis of an expert opinion goes to the credibility of
the testimony, not the admissibility, and it is up to the opposing party to examine the
factual basis for the opinion in cross-examination.” (quoting Bonner v. ISP Tech., Inc.,
259 F.3d 924, 929 (8th Cir. 2001)) (quotation marks omitted)).
BVS also contends that Engstrom’s opinions usurp the role of the jury because
“[t]he jury is capable of determining, based on the evidence presented, whether BVS’[s]
damages were reasonably foreseeable and the amount of damages to which BVS is
entitled.” Brief in Support of the Motion at 8. The court finds that Engstrom’s opinions
do not usurp the role of the jury. Engstrom’s opinions state that in calculating BVS’s
damages, he would not include the Customer Education Center because the guidance that
inspired its creation “was not issued by the [Federal Financial Institutions Examination
Council] until . . . approximately six months after BVS placed its purchase order.”
Engstrom’s Opinion at 3. This testimony would clearly assist the jury in determining
BVS’s damages.
e.
Summary
The court shall deny the Motion with respect to Eric Engstrom’s expert opinions.
10
C. Opinions of Todd King
Todd King is a “systems engineer specializing in SAN implementation, NetApp
FAS/V-series, virtualization, Unified Computing Systems and networking with extensive
experience in administration, migration deployment, troubleshooting and system
administration.” Todd King Curriculum Vitae (docket no. 145-1) at 1. King also has
several certifications in the information technology field. See id.
In his report, King opines that: “[the] NetApp product was fully capable of
performing in the BVS environment”; (2) “[t]he Arrow/TSSLink services were above and
beyond the tasks required to install the NetApp product in the BVS environment”; (3)
“BVS caused multiple delays in the delivery and installation of an operating SAN system”;
(4) “BVS rejected the NetApp product primarily because [BVS’s information technology
manager] formed the unsubstantiated belief that the NetApp preferred method of
replication was somehow inferior to the [ECM] method of replication”; and (5) “BVS did
not wait a commercially reasonable time when they rejected the NetApp product.” Todd
King Opinion (docket no. 101-4).
1.
Parties’ arguments
BVS argues that: (1) “CDW failed to timely disclose King as an expert witness”;
(2) “King’s opinions are not proper topics for expert testimony”; (3) “King’s opinions are
not sufficient[ly] reliable”; (4) “King’s opinions are outside the area of his expertise”; and
(5) “King’s opinions usurp the role of the jury.” Brief in Support of the Motion at 9-10.
CDW argues that it timely disclosed King as an expert witness and that his testimony is
admissible.
2.
Application
a.
Timeliness of disclosure
On September 6, 2012, United States Chief Magistrate Judge Jon S. Scoles extended
“[t]he deadline for CDW . . . to disclose expert witnesses . . . to October 19, 2012.”
11
September 6, 2012 Order (docket no. 62) at 6 (formatting omitted). Judge Scoles
permitted this extension to allow CDW to address the fact that BVS increased its damages
claims from $300,000 to $6.9 million. See generally id. CDW disclosed King as one of
its experts on October 19, 2012.
BVS contends that “King’s opinions go well beyond addressing the additional
damages” and, therefore, CDW’s disclosure of King’s testimony was untimely. Brief in
Support of the Motion at 11.
The court finds that CDW timely disclosed King as an expert witness. Judge Scoles
did not limit the extension to disclose expert witnesses only to the issue of lost profits.
BVS provides no other principled basis for the court to exclude such testimony.
b.
Proper topics
BVS contends that “[t]he jury does not need an expert’s assistance to understand the
chronology of events in this case” and that “the same documents and communications [on
which King relied] . . . will be before the jury.” Brief in Support of the Motion at 12.
The court finds that King’s opinions are proper topics for expert testimony. King has
considerably more expertise than a lay juror regarding the requirements of the BVS SAN
solution and whether the NetApp solution worked or would have worked. Because King’s
testimony as to these issues would assist the jury, they are proper topics for expert
testimony. See Acosta, 725 F.3d at 874.
c.
Reliability
BVS argues that King’s opinions are not sufficiently reliable because he “does not
point to any treatise or industry code of conduct or anything outside of his subjective
opinion on what BVS might have learned from accessing certain materials to support this
opinion.” Brief in Support of the Motion at 13.
The court finds that King’s opinions are sufficiently reliable under Federal Rule of
Evidence 702. King has extensive experience in implementing NetApp products and has
12
examined the relevant discovery materials. See generally Todd King Curriculum Vitae;
Todd King Opinion. This combination provides him with a reliable factual basis for
making his opinions. To the extent that BVS believes King is not an appropriate expert
because he is employed by CDW, “[v]igorous 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.” Daubert, 509 U.S. at 596.
d.
Area of expertise
BVS contends that King’s opinions are outside his area of expertise because “[t]here
is nothing in King’s training or experience that would enable him to offer an expert opinion
on why BVS may have rejected the NetApp product” and because “King relies entirely on
his experience as the foundation for his expert testimony.” Brief in Support of the Motion
at 14.
The court finds that Todd King’s opinions are within his area of expertise. King
has experience installing NetApp products. King may use such experience as a foundation
for his opinions. To the extent BVS disagrees with King’s conclusions, “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”
Daubert, 509 U.S. at 596.
King’s opinion is not “so fundamentally
unsupported that it can offer no assistance to the jury.” Acosta, 725 F.3d at 868 (quoting
Minn. Supply Co., 472 F.3d at 544).
e.
Role of the jury
BVS argues that Todd King’s opinions usurp the role of the jury “because his
opinions are replete with his assessment as to the credibility of the witnesses.” Brief in
Support of the Motion at 14. BVS contends that “[t]hese credibility determinations provide
the bases for King’s opinions.” Id. at 15.
13
The court finds that King’s opinions do not usurp the role of the jury. BVS relies
on United States v. Scop, 846 F.2d 135, 142 (2d Cir. 1988). In Scop, the Second Circuit
Court of Appeals held that an expert witness “may not opine as to the credibility of the
testimony of other witnesses at [] trial.” Id. Here, King is not opining as to the credibility
of other witnesses. Rather, he bases his opinion on his knowledge and experience in
implementing SAN systems in conjunction with the facts of record. If BVS disagrees with
the facts on which King relies in forming his opinions, BVS is free to cross-examine King
and present contrary evidence in support of its position.
f.
Summary
The court shall deny the Motion with respect to Todd King’s opinions.
D. Opinions of Philip Hedtke
Philip Hedtke and Kevin Halder are employees of Network Computer Solutions of
Eastern Iowa, Inc. (“NCSEI”). “NCSEI is in the business of selling network computing
products and services.” Philip Hedtke Opinion (docket no. 101-5) at 1. Hedtke and
Halder “possess a great deal of experience in the market for selling computer network
products and services” and “have years of experience and very specific training in network
computing.” Id. In the Philip Hedtke opinion, Hedtke mostly answers questions from
CDW’s counsel related to background information of what SAN systems are and how they
work.
BVS argues that Hedtke’s opinion is not connected with the facts of this case and,
although “[a] general understanding of SAN systems may prove useful to the jury in the
case[,] . . . by the time CDW calls Hedtke to testify, the jury already will have heard
. . . the necessary background information on SAN systems.” Brief in Support of the
Motion at 17.
The court finds that Hedtke’s experience in marketing and selling computer
network products and services would assist the jury in understanding what SAN systems
14
are and how they are installed and implemented. The court finds that, at this stage, it is
premature to prohibit Hedtke from testifying because his testimony may be duplicative of
earlier testimony. If during the course of trial BVS believes Hedtke’s testimony would
result in “undue delay, wasting time, or needlessly presenting cumulative evidence,” it
may object at the appropriate time. Fed. R. Evid. 403. Accordingly, the court shall deny
the Motion with respect to Philip Hedtke’s opinions.
VI. CONCLUSION
In light of the foregoing, BVS, Inc.’s “Motion to Strike CDW Direct, LLC’s Expert
Witnesses” (docket no. 101) is DENIED.
IT IS SO ORDERED.
DATED this 19th day of February, 2015.
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