Wolff Shoe Company v. Mosinger Company, LLC

Filing 284

MEMORANDUM AND ORDER re: 261 150 189 157 177 The Motions for Attorneys Fees, [Doc. No.s 150 and 171] are denied. Defendants' Alternative Cross-Motion to Exclude the Testimony of Arthur Levine,[Doc. No. 157], is denied, as moot. Defendants' Motion for Reconsideration, [Doc. No. 189], isdenied. Plaintiff's Motion to Strike Defendants' Supplemental Memorandum insupport of its Motion for Reconsideration Submitting the Declaration of Christina Solomon, [Doc. No. 261], is denied. It is So Ordered.. Signed by District Judge Henry E. Autrey on 9/19/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WOLFF SHOE COMPANY,
Plaintiff,
v.
MOSINGER COMPANY, LLC, d/b/a
MARK LEMP FOOTWEAR and JACK
MOSINGER,
Defendants,

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Case No. 4:11CV601 HEA

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Attorney Fees
and Expenses because of Plaintiff’s Failure to Attend and Proceed with
Deposition, [Doc. No. 150], Defendants’ Alternative Cross-Motion to Exclude the
Testimony of Arthur Levine, [Doc. No. 157], Plaintiff’s Motion for Attorney Fees
and Expenses Relating to the Deposition of John Faulhaber, [Doc. No. 177],
Defendants’ Motion for Reconsideration of the Court’s Order Excluding Portions
of the Testimony of Christina Solomon or in the Alternative, Motion to Continue
the Trial, [Doc. No. 189], and Plaintiff’s Motion to Strike Defendants’
Supplemental Memorandum in support of its Motion for Reconsideration
Submitting the Declaration of Christina Solomon, [Doc. No. 261]. The Court
makes the following rulings with respect to the pending Motions.

The Motions for Attorneys’ Fees, [Doc. No.’s 150 and 171] are denied.
Defendants’ Alternative Cross-Motion to Exclude the Testimony of Arthur
Levine,[Doc. No. 157], is denied, as moot. Plaintiff advised the Court that it
would withdraw Levine as an expert if the Court struck the testimony of Ralph
Oman. On May 22, 2013, the Court entered its order striking the testimony of
Oman. Thus, Levine is withdrawn by Plaintiff as an expert and Defendants’
Cross-Motion is moot.
Defendants’ Motion for Reconsideration regarding Christina Solomon’s
testimony is denied. In its May 22, 2013 Order, the Court articulated its reasons
for excluding portions of Ms. Solomon’s testimony. Defendants seek
reconsideration based on the Court’s finding that Ms. Solomon failed to satisfy the
requirements of a “rebuttal” expert and further, that Ms. Solomon’s testimony did
not satisfy the Daubert standards. Although Defendants take great strides in
attempting to argue that Ms. Solomon was not limited to rebutting Plaintiff’s
expert, Mark Hoffman, Ms. Solomon herself states that she was engaged to
provide a rebuttal to the calculations and opinions expressed in the February 27,
2012 Preliminary report of Mark Hoffman. Likewise, the representations of
counsel that all rebuttal reports should be submitted by May 30 detracts from
Defendants’ position that it had until February 9, 2013 to disclose their expert

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witnesses and that no separate deadline was given for rebuttal experts.
Moreover, as the Court has previously held, Ms. Solomon’s opinions are
rooted not in a methodology which has been tested through peer review, as
required under the standards for expert opinion, but rather, her opinions appear to
be based on a methodology created specifically for this litigation. Such
methodology fails to satisfy the Daubert standard of sound methodology.
Although Defendants seek the Court’s consideration of Ms. Solomon testimony,
Defendants, while given the opportunity at the hearing to call her as a witness,
failed to do so. Defendants’ Motion for Reconsideration, [Doc. No. 189], is
denied.
Plaintiff’s Motion to Strike Defendants’ Supplemental Memorandum in
support of its Motion for Reconsideration Submitting the Declaration of Christina
Solomon, [Doc. No. 261], is denied.
It is so Ordered.
Dated this 19th day of September, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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