Phoenix Process Equipment Co. v. Capital Equipment & Trading Corporation et al

Filing 413

MEMORANDUM OPINION AND ORDER signed by Judge Claria Horn Boom on 8/30/22: Plaintiff's Motion to Exclude Testimony of Yuliy Rubinstein [R. 261 ] is GRANTED in part and DENIED in part. The Motion is GRANTED to the extent it seeks to exclude Dr. Rubinstein's testimony on the competitiveness of the Russian economic market. The Motion is DENIED to the extent it seeks to exclude Dr. Rubinsteins testimony on reverse engineering Phoenixs BFPs and whether Phoenix BFPs are readily observable and readily known in the market. cc: Counsel (DJT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
PHOENIX PROCESS EQUIPMENT
COMPANY,
Plaintiff,
v.
CAPITAL EQUIPMENT & TRADING
CORPORATION, et al.,
Defendants.
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Civil Action No. 3:16-CV-024-CHB

MEMORANDUM OPINION AND
ORDER

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This matter is before the Court on a Motion to Exclude Testimony of Yuliy Rubinstein
filed by Plaintiff Phoenix Process Equipment Company (“Phoenix”). [R. 261]. Defendants Capital
Equipment and Trading Corporation, et al. (“Defendants”) filed a Response. [R. 300]. Phoenix
replied. [R. 322]. Fully briefed, this motion is ripe for review. For the reasons outlined below, the
Court will grant in part and deny in part Phoenix’s Motion.
I.

BACKGROUND
Phoenix is a Kentucky-based company that designs, engineers, manufactures, and services

machinery and equipment that recycles water and other materials used to wash coal. In 2009,
Phoenix entered into a distribution agreement that granted Capital Equipment and Technology
Corporation (“Technology Corp.”) an exclusive territory to market and sell Phoenix’s products. In
2012, Phoenix thought it was renewing its distribution agreement with Technology Corp. but,
instead, entered into a new agreement with Capital Equipment and Trading Corporation (“Trading
Corp.”). Phoenix claims that at some point after entering into the 2012 agreement, it obtained
information that Coralina Engineering, LLC (“Coralina”) and Electrogorsk Metal Factory

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(“Elemet”) were selling and distributing products very similar to Phoenix’s in the region covered
by its distribution agreement with Trading Corp.1
Based on this information, Phoenix initiated this lawsuit against Technology Corp.,
Trading Corp., Coralina, Elemet, and Alexander Chudnovets (“Mr. Chudnovets”) in November of
2015.2 See [R. 1–2]. Several of Phoenix’s claims were previously dismissed by Judge McKinley.
See [R. 57; R. 75]. Phoenix’s remaining claims consist of breach of contract (Count I) and violation
of the Kentucky Uniform Trade Secrets Act (KUTSA) (Count III). See [R. 40, pp. 8–10, ¶¶ 32–
36, 41–45]. Phoenix further alleges that Trading Corp. and Coralina are “alter-ego” companies
because the two companies share some of the same employees and offices, and because Mr.
Chudnovets served as CEO of both companies while he was also on the board of directors at
Trading Corp. and the sole member and director of Coralina. Id. at 4–6, ¶¶ 18–20, 25–28.
Discovery in this matter has been a contentious and fragmented process. Magistrate Judge
Edwards and the former magistrate judge in this case have held numerous discovery dispute
conferences. See [R. 97; R. 104; R. 150; R. 157; R. 164; R. 166; R. 180]. The matter currently
before the Court concerns a dispute with expert testimony from Defendants’ witness, Dr. Yully
Rubinstein. Phoenix filed a Motion to Exclude, [R. 261], arguing that Dr. Rubinstein is not
qualified to testify concerning certain matters because his opinions are either conclusory ipse dixit,
unreliable, or do not “fit” the evidence. Id. at 12–16. On January 17, 2022, Defendants filed a
Response, [R. 300]. Phoenix replied. [R. 322]. This matter is now ripe for review.
II.

LEGAL STANDARD

For a more comprehensive summary of the facts in this case, see Magistrate Judge Edwards’ Opinion filed on March
19, 2019, [R. 127], or Chief Judge McKinley’s Opinion filed on January 13, 2017, [R. 57].
2
Because Technology Corp., Trading Corp., Coralina, and Alexander Chudnovets are represented by the same
counsel, the Court will collectively refer to them as “Defendants” for purposes of this Motion unless it is necessary to
distinguish between them.
1

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“Admissibility in federal court, including the admissibility of expert testimony, is
determined by federal standards even when a case . . . is tried in diversity.” Commins v. Genie
Indus., Inc., No. 3:16-CV-00608-GNS-RSE, 2020 WL 1189937 (W.D. Ky. Mar. 12, 2020)
(citation omitted). As a result, Federal Rule of Evidence 702, which governs the use of expert
testimony, guides the Court’s analysis. Rule 702 provides:
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, as amended, the trial judge is the gatekeeper, ensuring that
expert testimony satisfies the requirements of reliability and relevance. See Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 597 (1993) (recognizing “a gatekeeping role for the judge” under
Rule 702).
The Sixth Circuit has found that, based on the language of Rule 702, an expert’s opinion
is admissible if it satisfies three requirements:
First, the witness must be qualified by “knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702. Second, the testimony must be relevant, meaning
that it “will assist the trier of fact to understand the evidence or to determine a fact
in issue.” Id. Third, the testimony must be reliable. Id.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008).
“Experts are permitted wide latitude in their opinions, including those not based on
firsthand knowledge, so long as ‘the expert’s opinion [has] a reliable basis in the knowledge and
experience of the discipline.’” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000)
(quoting Daubert, 509 U.S. at 592). Accordingly, the Court’s role is to examine “not the

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qualifications of a witness in the abstract, but whether those qualifications provide a foundation
for a witness to answer a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.
1994). Ultimately, “a witness is not a qualified expert simply because he self-identifies as such,”
and courts “take a liberal view of what knowledge, skill, experience, training, or education is
sufficient to satisfy the requirement.” Bradley v. Ameristep, Inc., 800 F.3d 205, 208–09 (6th Cir.
2015).
Rule 702 also guides the trial court by providing general standards to assess reliability:
whether the testimony is based upon “sufficient facts or data,” whether the testimony is the
“product of reliable principles and methods,” and whether the expert “has applied the principles
and methods reliably to the facts of the case.” FED. R. EVID. 702. In addition, the Supreme Court
has provided a non-exclusive checklist for trial courts to consult in evaluating the reliability of
expert testimony, including: “testing, peer review, publication, error rates, the existence and
maintenance of standards controlling the technique’s operation, and general acceptance in the
relevant scientific community.” United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) (citing
Daubert, 509 U.S. at 593–94). “The test of reliability is ‘flexible,’ and the Daubert factors do not
constitute a ‘definitive checklist or test,’ but may be tailored to the facts of a particular case.” In
re Scrap Metal Antitrust Litig., 527 F.3d at 529 (quoting Kumho Tire Co. v. Carmichael, 526 U.S.
137, 150 (1999)). The proponent of the testimony bears the burden of establishing its admissibility
by a preponderance of proof. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001)
(citing Daubert, 509 U.S. at 592 n.10).
That being said, “[a]ny doubts regarding the admissibility of an expert’s testimony should
be resolved in favor of admissibility.” In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig.,
337 F. Supp.3d 728, 739 (S.D. Ohio 2015) (citations omitted); see also Marmo v. Tyson Fresh

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Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (“Courts should resolve doubts regarding the
usefulness of an expert’s testimony in favor of admissibility.”). In other words, “rejection of expert
testimony is the exception, rather than the rule, and [courts] will generally permit testimony based
on allegedly erroneous facts when there is some support for those facts in the record.” In re Scrap
Metal Antitrust Litig., 527 F.3d at 530 (citation omitted).
III.

ANLYSIS
A. Qualifications
In its Motion, Phoenix contests Dr. Rubinstein’s qualifications to offer two opinions: (1)

opinions “concerning the competitiveness of the Russian economic market for belt filter presses,”
and (2) opinions on “whether Phoenix’s belt filter presses can be reverse engineered or are readily
observable and readily known in the market.” [R. 261, pp. 12–13].
1. Reverse Engineering and Readily Observable and Readily Known
in the Market
The Court believes Dr. Rubinstein is qualified to offer opinions on whether Phoenix’s belt
filter presses (“BFPs”) “can be reserve engineered or are readily observable and readily known in
the market.” [R. 261, p. 13]. Dr. Rubinstein’s extensive CV reflects that he possesses the
knowledge, skill, experience, training, and education to speak on this subject.
Dr. Rubinstein has the pertinent educational and professional experience to proffer expert
testimony in this case. He received a B.S. and M.S. in Metallurgical Engineering, a Ph.D. and a
Doctor of Science degree in Mineral Processing. [R. 261–2, Ex. B, p. 2]. He was awarded
membership in the Russian Academy of Mining Sciences, the highest distinction awarded to the
top scientists in Russia. Id. Over a thirty-year period, he served as the Head of the Department of
Mineral Processing and Director of Research and Development at the Institute of Solid Fossil Fuels
Preparation in Russia. Id. In total, Dr. Rubinstein has over 50 years of experience in the mining
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industry or in academic and governmental positions related to the mining industry. As
demonstrated in his CV, and as explained by Defendants, Dr. Rubinstein’s expertise in the coal
industry “has resulted in Dr. Rubinstein reviewing technical documentation supplied by a number
of BFP manufacturers; participating in the development of technical documentation and design of
BFPs; visiting several coal beneficiation plants in Russia, Ukraine, and the CIS countries, where
Dr. Rubinstein saw BFPs and processes firsthand, and previously visit[ed] a BFP manufacturer in
Russia.” [R. 300, p. 9].
Phoenix strategically emphasizes Dr. Rubinstein’s statement that BFPs are not his interest.
[R. 261, p. 13–14]. However, Phoenix takes Dr. Rubinstein’s testimony out of context. The
disputed testimony is as follows:
Q. Did you take any pictures of any of these mines and belt filter presses?
A. No, I have not take pictures of belt filter presses. That is not my interest. I not
take picture, but look in equipment. As a rule when I visit factory I talk with director
and with chief engineer and visit factory and look at equipment and ask him about
showing me, maybe, manual operation, if I need him. But not picture.
[R. 263–1, Ex. A, p. 14, 51:20–52:3].
Contrary to Phoenix’s argument, this testimony illustrates that Dr. Rubinstein is not
responsible for the photography aspect of his inspection jobs. Notwithstanding, in its
Reply, Phoenix highlights that Dr. Rubinstein admitted on a second occasion that BFPs
were not his interest:
Q. Your publications are all about flotation and there aren’t any of them about belt
filter presses; are they, sir?
A. Look, I have 200 – 200 article publication for my life. 200. Can you imagine?
And, of course – but I am sure I have not publication for belt filter presses. No, I
haven’t this one. But that is not complicated test, belt filter presses. It is a simple
equipment. It is not important for me. As same Michelangelo not be to he can draw
him.

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Q. Reverse engineering a belt filter presses is not important to you? Is that what
you just said?
A. I say, I not have publication in belt filter presses, period. I have publication in
filtration process, but not in equipment.
Q. Well, you selected -- to use your words -- books and your major publications,
and you certainly didn't select any publications on belt filter presses; did you, sir?
A. I repeat to you, I have not publication in belt filter presses. I have not this kind
of publication. Q. And there is no publications on reverse engineering, either; are
there, sir?
A. Of course I have not a publication on reverse engineering.
Q. Because you are not a mechanical engineer?
A. Not because. Because that is not interest for me. I have publication topic, which
I have interest.
[R. 322, p. 2]. Dr. Rubinstein’s “admission” does not prove he is unqualified. Even if belt filter
presses are not the focus of his professional and academic work (or even his particular “interest”),
such does not negate his extensive experience in the mining industry nor his work on and
development of BFPs. Many experts are plenty knowledgeable about topics and research that do
not necessarily align with their preferred subject matter. Further, as noted above and regardless of
his actual interest in BFPs, Dr. Rubinstein’s academic and professional experience in the mining
industry, spanning over 50 years, see [R. 261–2, Ex. B], clearly provides “a foundation for a
witness to answer a specific question.” Berry, 25 F.3d at 1351. Thus, Dr. Rubinstein’s extensive
academic and work experience demonstrate that he is qualified to offer opinions on whether
Phoenix’s belt filter presses can be reverse engineered and whether they are readily observable
and readily known in the market.
Next, Phoenix argues that though Dr. Rubinstein might be qualified to proffer an opinion
on “ore processing and dressing focuse[d] on how to process and prepare mined ore for its ultimate
end-use,” he is not qualified to speak on BFPs. [R. 261, p. 13]. Phoenix simplifies this argument,

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stressing that Dr. Rubinstein’s expertise relates to the “front-end of the use of ore,” not the backend, where BFPs “are used … and are designed to assist in disposal of waste after processed and
prepared ore has been separated from the waste.” Id. Indeed, “[e]xpertise in the technology of fruit
is not sufficient when analyzing the science of apples, and courts have excluded the testimony of
engineers because their expertise was not particular to the science involved in the case.” Buck v.
Ford Motor Co., 810 F. Supp.2d 815, 842 (N.D. Ohio 2011) (citation omitted). However,
“[w]hether a proposed expert’s experience is sufficient to qualify the expert to offer an opinion on
a particular subject depends on the nature and extent of that experience.” U.S. v. Cunningham, 679
F.3d 355, 379 (6th Cir. 2012).
Dr. Rubinstein is qualified to speak about this “back-end” process. First, it bears repeating,
Dr. Rubinstein has over 50 years of experience in the mining industry. See [R. 261–2, Ex. B].
Phoenix seeks to minimize this experience by emphasizing the fact that Dr. Rubinstein is not an
engineer. See [R. 261, pp. 13–14]. However, such argument seems to imply that only engineers
can provide expert testimony on BFPs –– an implication the Court rejects. Dr. Rubinstein’s
extensive, formal education in mineral processing and metallurgical engineering, coupled with his
training and experience in mineral processing, which includes work at plants that use BFPs and
develop pilot BFPs, demonstrate that he is qualified. [R. 300, p. 9]. Second, as testified, Dr.
Rubinstein does have experience with BFPs:
I tell you, I have experience with production belt filter presses in Progress in
Berdychiv. Next, produce belt filter presses in my institute, pilot. Next we produce,
manufacture design for belt filter presses. But, unfortunately, broken Soviet Union
and we cannot produce — and we cannot produce this equipment. We stop this
area. But in this case I familiar with pilot plant, which I have in my institute, and
which manufacture drawing for belt presses … That is my experience about belt
filter presses. And plus, maybe not less than 10, or maybe 12, coal –– sample from
coal, we check in our belt filter presses lab. In this case it is enough experience for
them to understand how to organize and check the dewatering technology and what
is better condition for belt filer presses.
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[R. 263–1, Ex. A, p. 72, 284: 5–14, 18–24]. Third, Dr. Rubinstein testified that he has reversed
engineered other machines in the mining industry, like the “Flotation” machine. Id. at 12, 41:4–
13; see also [R. 300, p. 9]. Phoenix’s Motion and the arguments espoused in its Reply essentially
attempt to discount Dr. Rubinstein’s experience by pointing to very nuanced and specific
experiences that Dr. Rubinstein does not have with BFPs. However, this argumentative strategy
has been rejected by courts in this district on multiple occasions. For example, in Faughn v.
Upright, Inc., the movants argued that the expert at issue was “not qualified to testify to the
adequacy of the [aerial] lift’s design without specialized experience with aerial lifts outside of his
testimony in lawsuits and general experience in mechanical engineering.” No. 5:03-CV-000237TBR, 2007 WL 854259, at *2 (W.D. Ky. Mar. 15, 2007). The court, however, rejected this
argument and denied the requested exclusion, explaining that “[t]he law does not require that [the
expert] be the most qualified expert conceivable, only that he will ‘assist the trier of fact in
understanding and disposing of issues relevant to the case.’” Id. (citation omitted). The court in
Commins took the exact same approach when rejecting the defendant’s efforts to disqualify an
expert “by pointing to very nuance[d] and specific experiences that [the expert did] not have with”
the devices at issue. 2020 WL 1189937, at *4. For all the reason explained above, this Court has
no reason to act differently here. Accordingly, Phoenix’s argument that Dr. Rubenstein is not
qualified to testify as to BFPs is rejected.
2. Competitiveness of the Russian Economic Market
With regard to Dr. Rubinstein’s opinions concerning the competitiveness of the Russian
economic market for BFPs, the Court believes Dr. Rubinstein is not qualified to provide such
testimony. Admissible expert testimony relies on “scientific, technical, or other specialized
knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in
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issue.” FED. R. EVID. 702(a). However, as Dr. Rubinstein admits, he is not an economist and fails
to point to other experience that would otherwise qualify him to offer opinions in this area. See [R.
263–1, Ex. A, p. 53, 205:16–22]. He has no specialized knowledge in the field, but rather bases
his economic opinions on the fact that he is a Russian citizen. Id. at 55, 214:22–215:8. Certainly,
citizenship is not sufficient to produce expertise. Nor is citizenship a valid “reasoning or
methodology underlying the testimony.” Daubert, 509 U.S. at 592–93. Rather, Dr. Rubinstein’s
opinion mirrors “subjective belief or unsupported speculation,” which is not enough. Id. at 590.
Thus, Dr. Rubinstein is unqualified to offer an opinion on the competitiveness of the Russian
economic market.
B. Reliability – Conclusory Ipse Dixit
Phoenix offers a second reason as to why Dr. Rubinstein’s testimony that “Phoenix’s BFPs
and its parts can be reserved engineered” should be excluded. [R. 261, p. 14]. Specifically, Phoenix
argues that “[w]hile the Daubert analysis is a flexible one, that inquiry nevertheless requires an
expert offering similar opinions either to have performed hands-on testing or to have extensive
experience related to the machinery at issue.” Id. According to Phoenix, Dr. Rubinstein has not
met this standard, as he is “not qualified to opine about the engineering of belt filter presses” and
“has merely offered his unverified word — his ipse dixit — that something is so.” Id. at 16.
As mentioned, the Court’s “gatekeeping inquiry must be ‘tied to the facts of a particular
case.’” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). However, the Court is not
“required to admit expert testimony ‘that is connected to existing data only by the ipse dixit of the
expert. A court may conclude that there is simply too great an analytical gap between the data and
the opinion proffered.’” Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 254 (6th Cir. 2001)
(quoting GE v. Joiner, 522 U.S. 136, 146 (1997)). That said, “although ‘nothing in either Daubert

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or the Federal Rules of Evidence requires a district court to admit opinion evidence which is
connected to existing data only by the ipse dixit of the expert,’ Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997), a court must be sure not ‘to exclude an expert’s testimony on the ground that the
court believes one version of the facts and not the other.’” In re Scrap Metal Antitrust Litig., 527
F.3d at 529. In general, “[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.
Phoenix believes Johnson v. Manitowoc, Boom Trucks, Inc., 484 F.3d 426 (6th Cir. 2007)
supports it position. Johnson is a products liability case where “expert testimony about the
prudence of the decision to market” was essential to the plaintiff’s case in chief. Id. at 429. The
magistrate judge’s opinion, which was adopted by the district court, excluded the expert’s
testimony because “he had entirely failed to test his theory” even though the expert “had drawn up
a schematic for how . . . [the] interlocking outrigger system might be integrated into the” crane at
issue. Id. at 430. The magistrate judge reasoned that “at least a modicum of empirical testing should
have been performed.” Id. at 431. On appeal, the Sixth Circuit upheld the district court’s decision
to adopt the magistrate judge’s opinion, acknowledging the “‘broad latitude’ both in selecting
appropriate reliability factors for a given case as well as in applying each of those factors to the
case’s facts.” Id. at 436 (quoting Kumho, 526 U.S. at 152–53).
Notwithstanding Johnson, the Court does not believe Dr. Rubinstein’s testimony should be
excluded because it is “conclusory ipse dixit.” First, as Johnson acknowledges, it is “not always
. . . clear how an expert is to ‘test’ an expensive mechanical or electrical system[.]” Id. at 432.
Second, and most importantly, Dr. Rubinstein’s theory that Phoenix’s BFPs can be reverse
engineered does not have to be tested to be admissible. See Davis Elecs. Co. v. Springer Capital,

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LLC, 558 F. Supp.3d 443, 449 (W.D. Ky. 2021) (“[E]xpert testimony can be reliable without the
expert performing tests to support his or her theory.”); Clay v. Ford Motor Co., 215 F.3d 663, 668
(6th Cir. 2000) (stating that “the district court in its discretion, could have decided that [the
expert’s] failure to test his theories went to the weight of this testimony . . . not to its
admissibility”). Stated differently:
The motion to exclude [the expert’s] testimony relies on the implicit premise that
no expert can testify without having conducted testing. Neither Daubert nor its
Sixth Circuit progeny support such a premise. I[n] fact, the foundations for the
respective experts' opinions in the three cases discussed above are very similar to
[the expert’s]: they all observed the physical evidence and applied their scientific
and engineering knowledge to reach certain conclusions. When this occurs, the
proffered testimony is admissible. Jacobs v. Tricam Indus., 816 F. Supp.2d 487,
493 (E.D. Mich. 2011) (“Furthermore, testing is not required in every case,
particularly where, as here, the expert conducted an examination of the physical
evidence.”).
Crouch v. John Jewell Aircraft, Inc., No. 3:07–CV–638-DJH, 2016 WL 157464, at *4 (W.D. Ky.
Jan. 12, 2016).
Here, it is clear that experience and knowledge establish a foundation of reliability.
Moreover, even though Dr. Rubinstein has not tested his theory, his testimony is the product of
observations and the application of scientific and engineering knowledge to said observations. See
id. As the Defendants note:
Dr. Rubinstein’s reverse engineering opinions are the product of a thorough review
of Phoenix’s BFP designs, drawings, procedures, and manuals paired with Dr.
Rubinstein’s knowledge and observations complied [sic] over his 60 years in the
mining industry, including but not limited to Dr. Rubinstein’s experience reviewing
technical documentation supplied by a number of BFP manufacturers; participating
in the development of technical documentation and design of BFPs; visiting several
coal beneficiation plants in Russia, Ukraine, and the CIS countries, where Dr.
Rubinstein saw BFPs and processes firsthand; previously visiting a BFP
manufacturer in Russia; and successfully reverse engineer a different machine for
the mining industry.

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[R. 300, pp. 12–13; R. 263–1, Ex. A, pp. 12–19, 41:8–11, 51:9–52:3; 64:24–66:17, 67:11–70:9].
As a result, the Court finds that Dr. Rubinstein’s testimony is not conclusory ipse dixit, but rather
expert testimony that “will help the trier of fact to understand the evidence or to determine a fact
in issue.” FED. R. EVID. 702(a).
Lastly, Phoenix argues more generally that Dr. Rubinstein’s testimony is unreliable.
[R. 261, p. 16]. In Kumho, the Supreme Court recognized that the Daubert factors “may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” 526 U.S. at 150. Reliability, therefore, is not
determined exclusively by a checklist or test. Instead, the Court, when determining if Dr.
Rubinstein’s testimony is reliable, must determine whether the offered opinions are “supported by
appropriate validation — i.e., ‘good grounds,’ based on what is known.” Daubert, 509 U.S. at 590.
In other words, “[t]he concept of ‘reliability’ implies that an expert’s opinion must be based on
something ‘more than subjective belief or unsupported speculation.’” Navarro v. P&G, 501 F.
Supp.3d 482, 489 (S.D. Ohio 2020) (quoting Daubert, 509 U.S. at 590); see also In re Scrap Metal
Antitrust Litig., 527 F.3d at 529–30 (“The task for the district court in deciding whether an expert’s
opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests
upon a reliable foundation, as opposed to, say unsupported speculation.”). Nevertheless, “[w]here
the reliability of the evidence is in dispute, it is more appropriate for a judge to admit the evidence
than to keep it from the fact-finder because ‘[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.’” Little Hocking Water Ass'n, Inc. v. E.I. du Pont de
Nemours & Co., 90 F. Supp.3d 746, 752 (S.D. Ohio 2015) (quoting Daubert, 509 U.S. at 596).

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The Court believes Dr. Rubinstein’s testimony is sufficiently reliable. Dr. Rubinstein bases
his analysis on his “knowledge, education, training and experience.” [R. 261–3, Ex. C, p. 4]; see
generally [R. 261–3, Ex. C]. Dr. Rubinstein has “well over 50 years of experience in the mining
industry or in academic and governmental positions related to the mining industry.” [R. 261–3,
Ex. C, p. 3]. His opinions are a product of his educational background, his “knowledge of coal
sludge filtration/dewatering” and “[his] personal experience in various BFPs in operation in Russia
and neighboring countries . . . [.]” Id. at 11. Further, as established above, the fact that Dr.
Rubinstein’s opinions on reverse engineering Phoenix’s BFPs have not been tested does not defeat
their admissibility or reliability. See Davis Elecs. Co. v. Springer Cap., LLC, 558 F. Supp. 3d 443,
450 (W.D. Ky. 2021). Dr. Rubenstein highlights the standards, like the GOST State standards of
Russia, used when drafting his analysis and provides a detailed analysis for how he reached his
conclusion. [R. 261–3, Ex. C, pp. 10–16]. Consequently, the Court finds Dr. Rubinstein’s
testimony to be sufficiently reliable. See Ferris v. Tennessee Log Homes, Inc., No. 4:06–CV–35–
M, 2009 WL 1506724, at *10 (W.D. Ky. May 27, 2009) (quoting Zerega Ave. Realty Corp. v.
Hanover Ins. Co., No. 04 CIV. 9651(KNF), 2006 WL 1343643 (S.D.N.Y. May 17, 2006))
(“Drawing upon one’s education background and practical experience is a reliable methodology
through which to develop opinions and reach conclusions about scientific, technical, or other areas
of specialized knowledge.”).
C. Relevance – Fit Test
Finally, Phoenix takes aim at Dr. Rubinstein’s testimony by arguing it does not “fit” the
evidence. [R. 261, pp. 16–17]. “In terms of relevancy, the trial court should consider ‘whether that
reasoning and methodology properly can be applied to the facts at issue.’” Asad v. Cont’l Airlines,
Inc., 314 F. Supp.2d 726, 732 (N.D. Ohio 2004) (quoting Kumho, 526 U.S. at 150). The “trial court

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must ensure that the proposed expert testimony is relevant to the task at hand and that there is a
proper fit between the inquiry in the case and the testimony.” Id. “[E]xpert testimony that does not
relate to any issue in the case is not relevant and therefore not helpful.” United States v. Bonds, 12
F.3d 540, 555 (6th Cir. 1993). Thus, the issue is whether Dr. Rubinstein’s testimony relates to any
issue in the case.
First, Phoenix argues that Dr. Rubinstein’s opinions that “Phoenix’s belt filter press and
accompanying processes have no independent economic value do not fit the evidence in this case.”
[R. 261, p. 17]. However, such opinion is clearly relevant to Phoenix’s trade secret claims, where
Phoenix seeks to “recover from the Defendants ‘both the actual loss caused by misappropriation
and the unjust enrichment caused by misappropriation that is not taken into account in computing
actual loss.’” [R. 40, p. 10, ¶ 44].
Second, Phoenix argues Dr. Rubinstein’s opinion that “Phoenix’s process is readily
observable and widely known and is similar to that of most other BFP manufacturers” fails the fit
test. [R. 261, p. 18 (internal quotation marks omitted)]. In support of its argument, Phoenix asserts
that: Dr. Rubinstein failed to review and consider necessary evidence required to reach his
position; Dr. Rubinstein failed to compare Phoenix’s drawing that it provided to Technology Corp.
to the drawings of Coralina; and “Rubinstein also failed to compare . . . many of the manuals and
documents provided by Phoenix to the Defendants.” Id. at 18–19. The Court, however, is not
convinced by Phoenix’s argument. Phoenix seeks to attack the weight of the evidence. However,
that is not appropriate at this stage of the litigation. Rather, “comparing two pieces of evidence
and determining which is more credible should be left for the finder of fact and should not be
considered when ruling on Rule 702 admissibility.” Jahn Equine Servs., PSC, 233 F.3d 382, 391
(6th Cir. 2000). Accordingly, the Court will maintain its gatekeeper role and not “supplant the

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adversary system or the role of the jury.” L.S. v. Scarano, No. 2:10-CV-51, 2011 WL 4948099, at
*3 (S.D. Ohio Oct. 18, 2011). Phoenix may attack admissible evidence at a later time via
“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof[.]” Daubert, 509 U.S. at 596. Dr. Rubinstein’s testimony relates to Phoenix’s
process, techniques, and BFPs. Thus, the Court finds that Dr. Rubinstein’s testimony would be
helpful to the trier of fact, is relevant, and is admissible under Rule 702.
IV.

CONCLUSION
The Court believes Dr. Rubinstein possesses the “scientific, technical, or other specialized

knowledge” to offer an opinion on Phoenix’s BFPs and whether they can be reversed engineered.
FED. R. EVID. 702. However, the Court does not believe Dr. Rubinstein is qualified to provide an
opinion on the competitiveness of the Russian economy simply because he is a citizen of Russia.
Finally, the Court believes that Dr. Rubinstein’s opinion is reliable and fits the evidence.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiff’s Motion to Exclude Testimony of Yuliy Rubinstein [R. 261] is
GRANTED in part and DENIED in part.
a. The Motion is GRANTED to the extent it seeks to exclude Dr. Rubinstein’s
testimony on the competitiveness of the Russian economic market.
b. The Motion is DENIED to the extent it seeks to exclude Dr. Rubinstein’s
testimony on reverse engineering Phoenix’s BFPs and whether Phoenix
BFPs are readily observable and readily known in the market.
This the 30th day of August, 2022.

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