Hefter Impact Technologies, LLC vs. Sport Maska, Inc.
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Motions for Summary Judgment 90 96 and Defendant's Motion to Strike the Testimony of Roger Ball 135 (Zaleski, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HEFTER IMPACT TECHNOLOGIES, LLC,
SPORT MASKA, INC., d/b/a REEBOK – CCM )
Civil Action No.
MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND
DEFENDANT’S MOTION TO STRIKE THE TESTIMONY OF ROGER BALL
This is a contract dispute. In 2005, plaintiff Hefter Impact Technologies, LLC, entered
into an agreement with defendant Sport Maska, Inc., d/b/a Reebok – CCM Hockey, for the sale
and assignment of a design for an ice-hockey helmet. The agreement provided for a lump-sum
payment as well as the payment of royalties on the sale of certain helmets. In substance, the
complaint alleges that defendant has failed to pay plaintiff royalties it is owed under the
Pending before the court are motions for summary judgment filed by both parties and a
motion to strike the testimony of Roger Ball filed by defendant. For the following reasons, the
motions will be denied.
The background in this case has been described in the Court’s memorandum and order on
plaintiff’s motion for sanctions for spoliation of evidence filed contemporaneously with this
memorandum and order. Accordingly, the Court will proceed directly to the parties’ legal
Motions for Summary Judgment
Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
Summary judgment is appropriate when the moving party shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A genuine issue is “one that must be decided at trial because the evidence,
viewed in the light most flattering to the nonmovant, would permit a rational fact finder to
resolve the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court
indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves,
994 F.2d 905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The
nonmoving party may not simply “rest upon mere allegation or denials of his pleading,” but
instead must “present affirmative evidence.” Id. at 256–57.
Defendant has moved for summary judgment on all counts, arguing in substance that the
Resistance line of helmets, the FitLite line of helmets, and the HT11K helmet (the “disputed
helmets”) are not “Products” as that term is defined by the Agreement. Plaintiff has moved for
summary judgment seeking a declaratory ruling that (1) the term “Product,” as defined by the
Agreement, includes a hockey helmet even if only 30% of the design of the shell of that helmet
is based on the Hefter Shell Design, and (2) the contract is to be interpreted by resorting to
standard principles of contract interpretation under Massachusetts law.
Motions Concerning Contract Interpretation
Defendant’s motion for summary judgment and the first part of plaintiff’s motion for
summary judgment turn on whether the Court accepts each party’s preferred interpretation of the
term “Product” under the contract. As to both motions, there is a threshold question of whether
the interpretation of that term is properly left to the Court or the jury.
“Contract interpretation questions, under Massachusetts law, are ordinarily questions of
law for a court.” Nadherny v. Roseland Prop. Co., Inc., 390 F.3d 44, 48 (1st Cir. 2004).
However, where a contract presents an ambiguous term, the meaning of that term “often, but not
always, presents a question of fact for a jury.” Id.1
“Contract language is ambiguous ‘where the phraseology can support a reasonable
difference of opinion as to the meaning of the words employed and the obligations undertaken.’”
President & Fellows of Harvard Coll. v. PECO Energy Co., 57 Mass. App. Ct. 888, 896 (2003)
(quoting Suffolk Const. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999)). The
determination as to whether a contract term is ambiguous is a question of law for the court. Bank
v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008). In making that determination, courts must
first look to the language of the agreement without regard to extrinsic evidence. Id. If an
ambiguity is found, “the meaning of the uncertain provision becomes a question of fact for the
trier.” Browning-Ferris Indus., Inc. v. Casella Waste Mgmt. of Massachusetts, Inc., 79 Mass.
Among other exceptions, a court may find against a party that advances an interpretation of an ambiguous
term under a motion for summary judgment if “no reasonable person could interpret the contract” as the moving
party does. Id. at 48–49.
App. Ct. 300, 307 (2011). The fact-finder may consult extrinsic evidence to determine the intent
of the parties in using a particular term. Id.
The parties’ Agreement provides for royalties on the sale of any “Product.” As relevant
here, “Product” is defined under the Agreement to mean, “a hockey helmet that incorporates the
Shell Design.” (Agreement § 2.14). “Shell Design,” in turn, is defined to mean “the design
shown in [a schematic attached to the Agreement], including the ornamental design and technical
features of the design, or any shell derived therefrom and substantially similar thereto.” (Id. §
The central question of this case then is whether the shell designs of the disputed helmets
are “derived from and substantially similar to” the Hefter Shell Design. That language
provides a less-than-precise standard for determining whether royalties are owed on the sale of a
helmet. In light of the uncertainty inherent in that language, it is not possible to conclude that the
contract language unambiguously dictates whether defendant is obligated to pay royalties on the
disputed helmets. Plaintiff asks the Court to read a bright-line rule into the standard based on the
parties’ course of performance. However, nothing in the unambiguous language of the
Agreement itself requires the imposition of such a rule. Accordingly, the Court finds that the
term “Products” in the Agreement is ambiguous, and defendant’s obligation to pay royalties on
the disputed helmets presents a disputed question of fact for the jury.
Accordingly, defendant’s motion for summary judgment will be denied and plaintiff’s
motion for summary judgment seeking a declaratory judgment ruling as to the definition of
“Product” under the contract will be denied.
Plaintiff’s Motion Concerning the Law Governing the Contract
Plaintiff has also moved for summary judgment seeking a declaratory ruling that “the
contract is to be construed by resorting to standard principles of contract interpretation under
Massachusetts law, without regard to principles of patent, copyright, trademark, or trade dress
law.” Although the Court does not take issue with plaintiff’s claim in substance—that a contract
must be read in accordance with principles of contract law—it does not appear to be appropriate
at this juncture to issue summary judgment as to whether the principles of patent, copyright,
trademark, or trade-dress law are irrelevant.
Under Fed. R. Civ. P. 56, a party “may move for summary judgment, identifying each
claim or defense—or the part of each claim or defense—on which summary judgment is sought.”
Defendant has not argued that patent, copyright, trademark, or trade-dress law should apply to
any claim in this case.2 Plaintiff has not shown how the declaratory ruling that it seeks would
influence the outcome of any substantive claim at issue in this case, and does not seek entry of
judgment on any claim or part of a claim in this case.
Accordingly, plaintiff’s motion for summary judgment concerning the law governing the
contract will be denied without prejudice.
Motion to Strike Testimony of Roger Ball
Defendant has moved to strike the testimony of Roger Ball, who has been retained as an
expert witness by plaintiff in this case. Under Fed. R. Evid. 702, courts considering the
admissibility of scientific testimony must “act as gatekeepers, ensuring that an expert's proffered
testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’” Samaan v. St.
Joseph Hosp., 670 F.3d 21, 31 (1st Cir. 2012) (quoting Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 597 (1993)). Pursuant to that gatekeeping function, a court may admit expert
testimony only if three conditions are satisfied: (1) the proposed expert is qualified by
Defendant opposes plaintiff’s motion for summary judgment on the ground that its own motion for
summary judgment should be granted, thereby mooting plaintiff’s motion.
knowledge, skill, experience, training, or education; (2) the subject matter of the proposed
testimony properly concerns scientific, technical, or other specialized knowledge; and (3) “the
testimony [will be] helpful to the trier of fact, i.e., . . . it rests on a reliable foundation and is
relevant to the facts of the case.” Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 476
(1st Cir. 1996). A court may exclude an expert's opinion when it is “based on conjecture or
speculation from an insufficient evidentiary foundation.” Damon v. Sun Co. 87 F.3d 1467, 1474
(1st Cir. 1996)
Defendant argues that Ball’s testimony should be struck because it would not be
admissible at trial, as it does not rest on a reliable foundation. Specifically, it contends that
Ball’s methodology is flawed because he did not rule out the possibility that the disputed helmets
were derived from shell designs other than the Hefter Shell Design or that they were designed
independently. However, those arguments do not undermine the reliability of Ball’s methods.
Instead, they go to the weight that should be afforded to his testimony, which is a determination
left for the fact-finder. See Packgen v. Berry Plastics Corp., 847 F.3d 80, 87 (1st Cir. 2017).
Accordingly, the motion to strike the testimony of Roger Ball will be denied.
For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED.
Defendant’s motions for summary judgment and to strike the testimony of Roger Ball are
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: August 3, 2017
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