Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al
Filing
233
ORDER granting in part and denying in part 225 Motion for Reconsideration. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WEATHER UNDERGROUND, INC., a Michigan
corporation,
Plaintiff,
CASE NO. 09-10756
HON. MARIANNE O. BATTANI
v.
NAVIGATION CATAYLST SYSTEMS, INC., a
Delaware corporation; BASIC FUSION, INC., a
Delaware corporation; CONNEXUS CORP., a
Delaware corporation; and FIRSTLOOK, INC., a
Delaware corporation,
Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff Weather Underground’s Motion for
Reconsideration or in the Alternative, Clarification of Order Regarding Defendants’ Motion
to Strike Report of Christopher Schwerzler and Prohibit his Testimony on Same at Trial
(Doc. No. 225). The Court has reviewed the relevant filings, and finds oral argument will
not aid in the resolution of this dispute. See E. D. Mich. LR 7.1(h)(2). For the reasons that
follow, Plaintiff's motion is GRANTED in part and DENIED in part.
I. PROCEDURAL BACKGROUND
In conjunction with dispositive motions filed by the parties, Defendants filed a
motion to strike the report of Plaintiff’s expert, Christopher Schwerzler. Defendants asked
the Court to strike Schwerzler’s opinions about trademarks, Defendant’s intent, and related
testimony. In their motion, Defendants argued that Schwerzler was unqualified as an
expert. In addition to the issue of Schwerzler’s qualifications, Defendants advanced their
request based on bias.
Schwerzler is one of the original founders of Weather
Underground. He has worked for Weather Underground since 1998. He is the Director,
a member of the Board of Directors, and holds almost twenty percent of Plaintiff’s
outstanding shares.
(D0c. No. 204, Exs. D, F, G).
Consequently, Defendants
characterized Schwerzler as a mere proxy for Plaintiff.
At the conclusion of oral argument on the motion, the Court issued its ruling
granting the motion. In its reconsideration request, Plaintiff argues that the Court’s ruling
is ambiguous as to whether Schwerzler can testimony to those matters in his report that
were unchallenged, and seeks clarification as to those areas in which Schwerzler can
testify as a fact witness.
II. STANDARD OF REVIEW
Under the local rules, a motion for reconsideration must be filed within fourteen days
of the entry of the order being challenged. E.D. Mich. L.R. 7.1(h)(1). Under the standards
articulated in E.D. Mich. LR 7.1(h)(3), to obtain the requested relief, Plaintiff must
demonstrate: (1) the Court and the parties have been misled by a palpable defect,
and (2) the correction of that defect will result in a different disposition of the case. A
“palpable defect” is an error which is obvious, clear, unmistakable, manifest or plain.
Fleck v. Titan Tire Corp., 177 F. Supp.2d 605, 624 (E.D. Mich. 2001); Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich. 1997)
(citation omitted).
2
III.
ANALYSIS
In its role as gatekeeper, the trial court may examine the qualifications of an expert
and the methodology employed by the expert. Under Federal Rule of Evidence 702,
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence. . .a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify . . . in the
form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably
to the facts of the case.
The Supreme Court has held that “Federal Rule of Evidence 702 imposes a special
obligation upon a trial judge to ‘ensure that any and all scientific testimony . . . is not only
relevant, but reliable.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). The Court must
not permit subjective belief and unsupported speculation to be admitted as expert
testimony. Daubert, 509 U.S. at 590.
In reaching its decision granting Defendants’ motion, the Court held that
Christopher Schwerzler, Plaintiff’s Chief Technology Officer, had “a bias that is beyond the
subject, it is an interest in the outcome of the case, and because he has an interest in the
outcome of this case,” the Court would not allow him to testify as an expert. (Tr. at 69).
The Court added that it would not bar his testimony as a fact witness. (Id.)
A. Expert Testimony
In its request for reconsideration, Plaintiff asks the Court to reconsider its ruling to
the extent it held that Schwerzler was disqualified from offering any information contained
in his report. The report includes an objective analysis of the primary piece of evidence
3
in this case, the terabyte drive provided by Defendants. Because his report is “testable
and verifiable,” Plaintiff concludes that the issue of bias is irrelevant. (Doc. No. 225 at 5).
Therefore, Plaintiff posits that only the subjective portions of Schwerzler’s report should
be stricken and the remaining matters, which Defendant did not specifically challenge,
should be allowed into evidence.
Contrary to Plaintiff’s position, the Court finds that the entire report must be
excluded based on the extreme bias of Schwerzler. This determination falls within the
sound discretion of the trial court, Finch v. Monumental Life Insurance Co., 820 F.2d 1426,
1432 (6th Cir. 1987); United States v. Green, 548 F.2d 1261, 1268 (6th Cir. 1977), and
here, the Court declines to alter its decision. Plaintiff’s expert not only became an
advocate for the case, he always was an advocate for this litigation. Viterbo v. Dow
Chemical Co., 646 F. Supp. 1420, 1425–26 (E.D. Tex. 1986) (citing Johnston v. United
States, 597 F. Supp. 374 (D. Kan. 1984)). Thus, he has departed “from the ranks of an
objective expert witness, and any resulting testimony would be unfairly prejudicial and
misleading.” Id. Accord In re Air Crash at Detroit Airport, 737 F. Supp. 427, 430 (E.D.
Mich. 1989), aff'd without opinion, 917 F.2d 24 (6th Cir. 1990) (holding that the president
of a national “right to life” organization could not provide expert testimony as to when a
fetus becomes viable because the witness could not be considered objective). Here, as
in the decisions in the cases cited above, the experts had preconceived notions before the
litigation commenced. Schwerzler certainly had a preconceived notion as to Defendants’
motive and business practices before Plaintiff ever filed this case. His bias renders his
opinions wholly unreliable and warrants their exclusion.
4
The Court is cognizant that typically cross-examination sufficiently protects against
witness bias. In this case, however, Schwerzler simply is too “partisan and far too biased
to provide a reliable expert opinion.” In re Commercial Money Center, Inc., 737 F. Supp.
2d 840, 844 (N. D. Ohio 2010).
B. Clarification
Even as it precluded his expert testimony, the Court concluded that Schwerzler
could testify as a fact witness. Plaintiff asks the Court to clarify this ruling, and the Court
agrees that clarification is needed.
The Court finds that Schwerzler can testify as to facts known to him, but may not
offer any opinion testimony. Specifically, he may testify as to the contents of the terabyte
drive produced by Defendants during discovery, including data, queries, and stored
procedures. Because Schwerzler must stick to the facts, Defendants’ assertion that his
testimony violates the distinction between “lay” opinion testimony, governed by Rule 701,
and “expert” testimony, governed by Rule 702, lacks merit. The Court’s ruling does not
allow for evasion--Schwerzler cannot couch his opinions in “lay witness clothing.” JGR,
Inc. v. Thomasville Furniture Indus., Inc., 370 F.3d 519, 525 (6th Cir. 2004) (quoting Fed.
R. Evid. 701, Advisory Committee Notes for 2000 Amendments)).
In sum, Schwerzler may not testify as to his own trademark matching script and its
output as compared to Defendant’s tool or as to the script he prepared to test the domain
portfolio against a database of known third party domain names, which he created for
litigation. His script, which was designed and conducted during the course of litigation,
was intended to support his opinion. Compare Daubert v. Merrell Dow Pharmaceuticals,
5
Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (independent, pre-litigation research “provides
important, objective proof that the research comports with the dictates of good science”
and is less likely “to have been biased by the promise of remuneration”). Consequently,
his testimony may include his review of data from that contained in the terabyte drive, and
his organization of the information into a timeline. In addition, he may use the “Algo” tool
provided by Defendants to show software matches. He may not voice any opinions,
however, on the meaning of the output.
IV. CONCLUSION
For the reasons stated above, the motion is GRANTED in part and DENIED in
part.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Date: December 16, 2011
CERTIFICATE OF SERVICE
Copies of this Order were mailed and/or electronically filed to counsel of record on this
date.
s/Bernadette M. Thebolt
Case Manager
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?