-DEA FLOORGRAPHICS, INC. v. NEWS AMERICA MARKETING IN-STORE SERVICES, INC. et al

Filing 247

MEMORANDUM OPINION Signed by Judge John J. Hughes on 2/4/2008. (ss, )

-DEA FLOORGRAPHICS, INC. v. NEWS AMERICA MARKETING IN-STORE SERVICES, INC. et al

Doc. 247

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FLOORGRAPHICS, INC., : : Plaintiff, : : v. : : NEWS AMERICA MARKETING : IN-STORE SERVICES, INC., et al., : : Defendants. : ____________________________________: HUGHES, U.S.M.J. I. INTRODUCTION These matters have come before the Court by Defendants' News America Marketing InStore Services, Inc., et al. ("Defendants") for Motions in Limine to exclude the trial testimony of Floorgraphics, Inc.'s ("Plaintiff") proposed Experts Willard Bishop [dkt. entry no. 148]; William Carrington [dkt. entry no. 149]; Luke Cats [dkt. entry no. 150]; Edward McLaughlin [dkt. entry no. 151]; John Wills [dkt. entry no. 152]; and Paul Farris [dkt. entry no. 152], returnable October 15, 2007. Plaintiff filed opposition to all of these motions on September 17, 2007. Defendants replied on October 1, 2007. The Court conducted oral argument on November 16, 2007.1 For the reasons stated herein, Defendants' motions with regard to Edward McLaughlin and Willard Bishop are granted. Defendants' motions with regard to Luke Cats, William Carrington, John Wills, and Paul Farris are denied.
1

Civil Action No. 04-3500 (AET)

MEMORANDUM OPINION

The parties agreed that in-court testimony from any of the proposed experts was unnecessary. See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999) (an in limine hearing is not required whenever a Daubert objection is raised to a proffer of expert evidence. . . [w]hether to hold a hearing "rests in the sound discretion of the district court"). 1

Dockets.Justia.com

II.

BACKGROUND AND PROCEDURAL HISTORY Plaintiff and Defendants compete in the in-store marketing industry. They both enter into

exclusive contracts with retail and wholesale grocery stores, drug stores, and mass merchandisers ("retailers") to install ads on the shelves and floor of the retailers' stores. Both Plaintiff and Defendants then sell and place ads on the shelves and floor of their stores. They also sell and place ads for consumer packaged goods manufacturers (CPGs) in those retailers' stores. In this lawsuit, Plaintiff alleges that Defendants engaged in a variety of illegal and tortious practices designed to oust Plaintiff from its retailer contracts, poison Plaintiff's relationships with CPG advertising clients, and run Plaintiff out of business. Defendants' conduct allegedly includes providing false and misleading information about Plaintiff's business and products to clients. Plaintiff also alleges Defendants unfairly structured its bids to retailers in order to falsely portray Defendants' bids as more attractive than Plaintiff's. Plaintiff also alleges tortious interference because Defendants "allegedly hacked into" its password-protected website. Defendants dispute each of Plaintiff's allegations. In order to prove its case, Plaintiff has attempted to offer these six witnesses as experts pursuant to Federal Rule of Evidence 702. Defendants objected to every one of Plaintiff's proposed experts with these five in limine motions. Each expert will be discussed in turn. A. William Carrington

Dr. Carrington is being offered as an expert to discredit Defendants' 2002 audit that measured placement compliance of Plaintiffs, specifically by comparing Plaintiff's contractual obligations to place floor advertisements in supermarkets and other retail stores against Plaintiff's actual performance in doing what it was contracted to do. Here, Defendants argue that 2

Dr. Carrington is not qualified pursuant to Federal Rule of Evidence 702. Dr. Carrington is an accomplished economist and statistician with a plethora of professional and academic experiences. He received his doctorate degree in economics from the University of Chicago and his Bachelor of Arts degree in economics from Duke University. (Carrington Rep. at ¶ 4.) In addition, he has taught economics and statistics at both the graduate and undergraduate levels at both the University of Chicago and Johns Hopkins University. (Pl.'s Carrington Opp. Br. at 3.) Dr. Carrington also worked for two years as an economist for the Bureau of Labor Statistics, where he developed questionnaires and other survey methodology for the Bureau's data collection programs. (Carrington Rep. at ¶ 4.) Dr. Carrington has published widely on economic analysis in various journals on a variety of industries, principally applying economic and statistical principles to the context of labor economics. (Pl.'s Carrington Opp. Br. at 4.) B. Luke Cats

Mr. Cats is being offered as an expert to determine whether Defendants "gained unauthorized access to the content of a password-protected website owned by Plaintiff that contained pictures of floor ads that Plaintiff either had placed in past advertising cycles or intended to place in future cycles. (See Cats Rep. at 1.) Plaintiff provided Mr. Cats with a CD containing four files that purported to be copies of the original data that resided on Plaintiff's computer network. Id. at 3. The first file is a compressed archive of Plaintiff's web server logs for the period from September 8, 2003 to September 8, 2004. Id. at 3. Mr. Cats, relying on this data, concluded that Defendants accessed Plaintiff's password-protected website eleven (11) times on seven (7) days 3

from October 6, 2003 through January 13, 2004 and viewed images of the floor ads. Id. at 7-8; 12. Furthermore, Mr. Cats concluded that Plaintiff's website must have been passwordprotected. Id. at 5; 7-8; 12. Mr. Cats further opined that the investigation that Defendant conducted after it learned of from Plaintiff about the access to Plaintiff's website was deficient. Id. Mr. Cats did not create the CD that was provided to him by Plaintiff. Mr. Cats marked the CD "for identification purposes with the client property number 0203-0004; CP000001," made an "exact copy" of the CD, "downloaded the CD to a server," and stored the Plaintiff's provided original in a safe. (See Cats Rep. at 3-4.) Cats relied solely upon the deposition testimony of Michael Povoski, a former employee of Plaintiff. (See Def.s' Cats Br. at 3.) Mr. Cats did not discuss with Mr. Povoski the steps that Mr. Povoski took to create the CD. Id. In Mr. Cats' report, he ran a program to compare the data in the "apache-logs-040908all.tar.gz" file with the data that Mr. Povoski had saved to the Plaintiff's network in September of 2004. (Cats Rep. at 4.) The data matched, which led Mr. Cats to believe that the file on the CD "is a complete and accurate copy of the compressed log file saved to the network." Id. Mr. Cats did nothing, however, to ensure or confirm that the data on the network was itself unaltered and complete. (See Cats Dep. at 56-57.) Mr. Cats conceded that the logs could have been altered before he received them. Id. at 54-55. The second file is called "illegal-access.txt." It purports to be an excerpt from the apache-logs file that contained all of the "logs files showing access to Plaintiff's password protected site" from an IP address that Mr. Cats links to Defendant. (Def.s' Cats Br. at 4.) He submitted this program without running a program to compare the data in the "illegal-access.ext" 4

file with the data that Mr. Povoski previously saved to the Plaintiff's network. (Cats Dep. at 64.) After Mr. Cats read the report of Defendants' computer expert, he did perform the comparison. Mr. Cats did not conduct "any analysis to determine whether there had been any alteration or modification to the data on that log prior to it being saved." Id. at 64-65. Mr. Cats also noted that the data on the file could have been manipulated "fairly easily". Id. at 65. The third and fourth files are (1) a file called "login-screen.jpg" that purports to be a screen capture of a web browser requesting the website www.floorgraphics.com/clients and (2) a file called "old-clients-website.tar.gz," which Mr. Cats identified as a compressed archive of the entire contents of the www.floorgraphics.com/clients website. (Cats Rep. at 3.) Mr. Cats did not run a comparison program on these files to confirm that the underlying data from the network was both unaltered and complete. (Def.s' Cats Br. at 5.) Mr. Cats opines that Defendants "could have downloaded and saved files in a short period of time, and subsequently printed or e-mailed the files to others while offline." (Cats Rep. at 9.) He could not, however, determine from the logs what the user did with the information. (Cats Dep. at 74.) Mr. Cats also conceded that he did not have "any idea" of the types of images that Defendant allegedly viewed on the website, but rather he simply "reconstructed" his conclusions from the admittedly unverified logs, instead of actually viewing the web pages that formed the basis of those conclusions. (Def.s' Cats Br. at 6.) Mr. Cats also concludes that Plaintiff's website was password-protected because the data on the CD reflected a "pop-up box requesting a user name and password" to enter Plaintiff's website. (Cats Rep. at 5.) Mr. Cats, however, did not determine the adequacy of the password protection of Plaintiff's website and did not independently conclude that the alleged access by 5

Defendants was "unauthorized". (Def.s' Cats Br. at 6; Cats Dep. at 48-50; 74-75.) Mr. Cats also criticized the internal investigation that Defendants conducted after their management was informed that someone with Defendants had allegedly accessed Plaintiff's website. (Cats Rep. at 11-12.) Mr. Cats conceded, however, that he did not know much about the circumstances surrounding Defendants' investigation and that his initial conclusions about the investigation were inaccurate because Defendants had actually completed at least one of the investigatory steps that Mr. Cats faulted them for not taking. (Cats Dep. at 126-28.) Although Mr. Cats did not assess the reliability of four underlying files that were provided to him from Plaintiff, there is uncontradicted evidence from Plaintiff's head of information technology, Mr. Povoski, that shows that Plaintiff's computer logs were unaltered and entirely reliable. (Pl.'s Cats Opp. Br. at 1.) Also, Defendants' own computer expert, Mr. Brill, admitted that there was no evidence that the server logs and files were altered or manipulated. Id. Defendants' expert further opines that, assuming the evidence is authentic, Defendants accessed Plaintiff's password-protected website on the dates and times that Mr. Cats identified. Id. Furthermore, in response to requests for admissions, (1) Defendants admits the it was never given permission to access Plaintiff's computers, (2) admits that the internet address of the computer that accessed Plaintiff's password-protected site was owned by Defendants, and (3) claims that despite an internal investigation, Defendants cannot admit or deny whether Defendants' computers accessed the password-protected areas of Plaintiff's website. Id. at 2. C. John Wills

Mr. Wills was retained by Plaintiff's counsel and asked to review relevant information pertaining to the claims in the case and quantify damages, if any, related to such claims. (Wills 6

Rep. at 1.) Moreover, Mr. Wills was asked to compute an estimate of such losses if his analyses demonstrated lost profits attributable to the Defendants. Id. at 1-2. Mr. Wills, who assumed that Defendants were found liable on every count in the Complaint, concluded that the combined effect of the improper conduct by Defendant alleged in those counts "negatively impacted the sales of Plaintiff" between 2003 and 2007 by $180.2 million, resulting in lost profits, after interest was accounted for, of $55.64 million. (See Wills Rep. at 3.) Mr. Wills is a managing director in the consulting firm of Dispute Analytics LLC. Id. at 1. He is a Certified Public Accountant, a Certified Valuation Analyst, and a former partner of Pricewaterhouse Coopers with over thirty years of experience. (Pl.'s Wills Opp. Br. at 8.) He has spent the last thirteen years providing services to law firms, corporate counsel, government, and non-profit organizations. Id. Mr. Wills currently serves as an adjunct professor at Georgetown University where he has taught courses at the undergraduate and graduate level at the McDonough School of Business. Id. He has testified as a witness on over thirty-five occasions. Id. D. Paul Farris

Dr. Farris was retained by Plaintiff to opine as to whether Defendants' alleged improper actions caused Plaintiff to lose value as a business concern. (Farris Rep. at 44-49.) Dr. Farris is the Managing Director of Dispute Analytics, a former partner of PricewaterhouseCoopers, and a member of the adjunct account faculty at the Darden School of Business at the University of Virginia. (Pl.'s Wills Opp Br. at 1.) He concluded that the combined result of Defendants' action, specifically the alleged unauthorized access to Plaintiff's computer information and misleading statements about 7

Plaintiff's compliance rates and financial stability, caused Plaintiff's base of retailed and CPG customers to significantly deteriorate in the amount of $178,000,000. Id. at 4. Dr. Farris relied on Mr. Wills 2006 estimates of lost revenue and earning before interest, taxes, depreciation, and amortization ("EBITDA") as the basis for his own damage analysis. (Def.s' Wills Br. at 5.) Mr. Farris arrived at his damage estimate by multiplying Mr. Wills' estimates of lost revenue at three (3) percent and lost EBITDA for 2006 at eleven point five (11.5) percent, and choosing the midpoint of the resulting figures. (Farris Rep. at 47.) He based those multiples on the ratios of enterprise value to revenue for Catalina Marketing ("Catalina") and Insignia Systems ("Insignia") and EBITDA for only Catalina as of March 31, 2007. (Def.s' Wills Br. at 5.) Dr. Farris used those companies as benchmarks for estimating an appropriate value of a revenue earnings multiple for Plaintiff. Id. At his deposition, Dr. Farris stated that he selected both Catalina and Insignia because the investment banking firm CIBC use those two companies as comparables in its valuation of Plaintiff when CIBC was trying to sell Plaintiff "in or about 2001". (See Farris Rep. at 46-47.) Dr. Farris also stated that "[i]n their 2001 valuation, CIBC used guideline companies that operated in the in-store marketing segment or which had similar growth prospects and valued [Plaintiff] based on multiples of revenue and of earnings before [EBITDA]." Id. at 47. CIBC, in its 2001 valuation, used three comparables: Catalina, Insignia, and Lamar Advertising ("Lamar"), all of which are publicly traded companies. Id. Dr. Farris did not include Lamar because he felt that "it was less comparable as it does not rely on any major retailers for advertising space." Id. Dr. Farris stated in his deposition that Catalina and Insignia were in many respects different from Plaintiff. (Farris Dep. at 288-91; 294-99; 302.) For 8

instance, Plaintiff's sales, which were $25,000,000 in 1999, were significantly lower than Catalina's sales, which totaled $264,000,000 in 1999. (Def.s' Wills Br. at 6.) Dr. Farris does not know whether Plaintiff and Catalina were similar in regard to debt-to-equity rations, value of fixed assets, organizational structures, number of employees, cash flows, levels of external funding required to fund future growth, dividend payouts, debt service obligations, or EBITDA to relative sales. (See Farris Dep. at 288-91; 294-303.) E. Edward McLaughlin

Dr. McLaughlin was retained by Plaintiff to provide background on industry standard operations and practices and to analyze the impact of Defendants' alleged misconduct. (Pl.'s McLaughlin Opp. Br. at 5.) Specifically, he opined that Defendants' conduct, if true, "would have substantially impaired [Plaintiff's] ability to conduct business successfully and indeed could have led to the ruination of [Plaintiff's] business." Id. Furthermore, he opined that, if the allegations were true, "it was [his] opinion that the impact of Plaintiff's business [from false and misleading audits] is likely to have been detrimental, or even ruinous." Id. In addition, "it was [his] opinion that these written communications [from NAM to Retailers] would have received a great deal of written attention among retailers and would have likely created a very negative impression of [Plaintiff]." Id. at 6. Lastly, Dr. McLaughlin concluded that "such negative information [about Plaintiff's insolvency] is likely to have caused considerable damage to [Plaintiff's] reputation and thus their ability to conduct business." Id. Dr. McLaughlin has his masters and doctorate degrees in Agricultural Economics from the University of Vermont and Michigan State University, respectively. Dr. McLaughlin specializes in food marketing economics and policy analysis. Id. at 3. He has published over one 9

hundred peer-reviewed books, articles, research reports and other papers pertaining specifically to food retailers, wholesalers, manufacturers, and food industry marketing and decision-making. Id. at 3-4. At Cornell University, he is the Robert Tobin Professor of Marketing University, the Director of the Undergraduate Business Program, the Director of the Food Industry Management Program, and the Director of the Food Executive program. Id. In reaching his conclusions, Dr. McLaughlin developed an "industry survey instrument" which he used in interviewing twenty-eight (28) individuals. (McLaughlin Rep. at 7.) Of these twenty-eight (28) individuals, fourteen (14) were employees of retailers, nine (9) were employees of CPGs, and the other five (5) interviewees were from entities that Dr. McLaughlin described as "adjacent companies that provide support to or are involved with in-store-like promotion material." Id.; McLaughlin Dep. at 153-54. Of these interviewees, Dr. McLaughlin identified one person who was responsible for deciding whether to contract with Plaintiff or Defendant. See McLaughlin Dep. at 168. Dr. McLaughlin either knew the interviewees personally or they were recommended to him by people whom he knew personally. Id. at 144-45; 147-48. Defendants argue that Dr. McLaughlin did not use a standard questionnaire in conducting his interviews, did not record verbatim either the questions that he asked or the answers that he received, did not retain his notes from the interviews, failed to interview people from companies that were geographically representative, and used an unreasonably small sample of people from whom to interview. (See Def.s' McLaughlin Br. at 3-8.) Specifically, although Dr. McLaughlin concludes that "although a limited sample, every person interviewed . . . that had had previous personal knowledge of the dealings and performance of [Plaintiff] and [Defendants] confirmed that their opinions of the financial and operating soundness of [Plaintiff] had been negatively 10

influenced by information provided by [Defendants'] agents," (McLaughlin Rep. at 16), he was not able to identify a single interviewee who supported that "conclusion" or had that reaction. (Def.s' McLaughlin Br. at 6.) Defendants contends that there is no explanation in Dr. McLaughlin's Report as to why none of the interviewees led Dr. McLaughlin to the conclusion that the interviewees' opinions were influenced by the alleged business disparagement. Id. Indeed, the only interviewee that Dr. McLaughlin identified who indicated that he was familiar with both of Plaintiff and Defendant was Dan Dmochowski of Safeway. Id. at 6-7. Mr. Dmochowski apparently did not tell Dr. McLaughlin that his opinions about Plaintiff had been negatively influenced by Defendant. Id. at 7. Rather, he said that "his opinion of [Plaintiff] was based on other completely different factors ­ namely that the owner and senior executives of [Plaintiff] were "bizarre to deal with". Id.; McLaughlin Dep. at 167; 257; 346-47. Moreover, Dr. McLaughlin's interview notes expressly stated that the interviewees would not likely be influenced by negative comments that one marketing services company made about another, and would not terminate a contract based on hearing such comments unless there was substantial evidence that a vendor had failed to comply with its contractual obligations. (Def.s' McLaughlin Br. at 7.)2 Plaintiff argues that Dr. McLaughlin's expert testimony was not a "public opinion poll"
2

See Exhibit 1063 at FGI 220973, 220992-93 (Ed Porter of Stop and Shop stating that "Ed would check negative info himself but this doesn't happen too much. Would question first vendor integrity"); FGI 220988 (notes from interview of Joe Sheridan of Wakefern, stating that "[v]endors rarely offer negative information about a supplier. Such practice would only look unprofessional for the vendor"); FGI 220991-92 (notes from interview of Ken Shields of Procter and Gamble, stating that "`[n]egative sell' doesn't work"); FGI 220985-85 (notes from interview with Tim LeBeau of Drug Fair, stating that "bashing is uncommon . . . plus risky strategy for basher . . ."); and FGI 220990 (notes from interview of Chris Linskey of ADVO, stating that "disseminating strictly negative information is very rare in most sales and marketing channels"). 11

or "survey" that was meant to be quantified. (Pl.'s McLaughlin Opp. Br. 8-9.) Moreover, Plaintiff stresses that Dr. McLaughlin's opinions are based upon his vast experience in the industry. Id. at 6. F. Willard Bishop

Plaintiff retained Dr. Bishop in July 2007 to "provide an opinion on the May 7, 2007 report of Dr. McLaughlin and the June 28, 2007 report of Dr. Ericksen, Defendants' comparable expert, that criticized Dr. McLaughlin's report." (Bishop Rep. at 1.) Plaintiff named Dr. Bishop pursuant to the Court's Order allowing Plaintiff the option of naming an additional expert to respond to Defendants' additional expert. (Pl.'s Bishop Opp. Br. at 2.) Dr. Bishop reviewed Dr. McLaughlin's report, Dr. Ericksen's report, and Dr. McLaughlin's deposition in undertaking his analysis. (Bishop Rep. at 3.) Based on those three documents, Dr. Bishop opined that Dr. McLaughlin's work reflected his specialized knowledge of the grocery industry. Id. at 3-5. He also opined that Dr. McLaughlin properly conducted "executive interviewing," which, according to him, is a method that "is accepted as reliable by academics, consultants, and executives in the U.S. grocery industry" to "gather information about trade practices." Id. at 3-4, 6. Dr. Bishop asserts that "executive interviewing" differs from survey research in several ways. First, he asserts that "executive interviewing" does not require random selection, but instead may be conducted with an intentionally defined population." (Def.s' Bishop Br. at 3.) He contends that Dr. McLaughlin's selection of interviewees accord with "principles relied upon by most practitioners of executive interviewing in the grocery business." (Bishop Rep. at 7.) Dr. Bishop also justifies Dr. McLaughlin's decision to include interviewees with whom he had prior personal or business relationships. (Def.s' Bishop Br. at 3.) He states that this approach 12

"involves principles that are relied upon by others doing executive interviewing in the grocery business." (Bishop Rep. at 7-8.) He opines that Dr. McLaughlin is "uniquely well-positioned" to conduct the interviews because executives are typically "very busy" and "not motivated" to speak with executive interviewers. Id. at 8. He further opines that Dr. McLaughlin's work as director of the Food Executive Program at Cornell University "gives him the access and the ability to personally interview an unparalleled number of individuals." Id. Moreover, he states that the "mix of companies" from which Dr. McLaughlin interviewed people is "similar to that which would be relied upon by executive interviewers doing this type of work in the grocery industry." Id. Lastly, Dr. Bishop opines that there is "no evidence of bias in Dr. McLaughlin's report and/or his deposition." Id. at 9. III. DISCUSSION A. Federal Rule of Evidence 702

Pursuant to Federal Rule of Evidence 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto 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." In 2000, the Supreme Court provided guidance to the federal district courts applying Federal Rule of Evidence 702. The Court stated that "district courts serve as the gatekeepers and must determine the reliability of the proffered testimony." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (2000). The objective of the district court's 13

gatekeeping role "is to ensure the reliability and relevancy of expert testimony" and "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). In Daubert, the Supreme Court set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. 509 U.S. 579. These factors include (1) whether the expert's technique or theory can be or has been tested ­ that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. Daubert, 509 U.S. at 590-92; see also Simmons v. Ford Motor Co., 132 Fed. Appx. 950, 952 (3d Cir. 2005). At a minimum, "[a]n expert opinion is reliable when it is based on sound methodology and `good grounds'." Kumho, 526 U.S. 137; D & D Associates v. Bd. of Educ. of N. Plainfield, 411 F. Supp. 2d 483 (D.N.J. 2006). In Kumho, the Supreme Court addressed the applicability of the Daubert standards beyond "scientific" expert testimony. The Court stated that in non-scientific cases, the Daubert factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's expertise, and the subject of his testimony." Kumho, 526 U.S. at 150. The Court further stated that "the relevant reliability concerns may focus upon personal knowledge or 14

experience." Id., see also United States v. Ford, 481 F.3d 215, 219 (3d Cir. 2007) (the Third Circuit reiterated that reliability may turn on the proposed expert's "personal knowledge or experience"). For witnesses relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for an opinion, and how that experience is reliably applied to the facts. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995). Furthermore, the court must still determine whether there are "good grounds" for the proffered opinion. See Poust v. Huntleigh Healthcare, 998 F. Supp. 478 (D.N.J. 1998). Moreover, an expert may be allowed to testify about an area in which he does not have extensive training; specifically, when the expert has experience employing the same principles at issue, he is entitled to a "liberal standard" under Federal Rule of Evidence 702. See Tormenia v. First Investors Realty Co., Inc., 251 F.3d 128 (3d Cir. 2000). In addition to offering reliable expert testimony, the trial court must also determine whether the expert has adequate "specialized knowledge" such that he is qualified to testify as an expert. The basis of "specialized knowledge" can be from "practical experience as well as academic training and credentials." Kane Builders, Inc. v. Southern New Jersey Building Laborers Dist. Council, 2007 WL 2416470, at *6 (D.N.J. 2007) (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)). The Third Circuit has interpreted the "specialized knowledge" requirement liberally, finding that "Rule 702's liberal policy of admissibility extends to the substantive as well as the formal qualifications of experts." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). "The permissible scope of expert testimony is quite broad, and district courts are vested 15

broad discretion in making admissibility determinations." Hill v. Reederei F. Laeisz G.M.B.H. Rostock, 435 F.3d 404, 423 (3d Cir. 2006). It is important to note that "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho, 526 U.S. at 152. With that said, "the rejection of expert testimony is the exception rather than the rule." Fed. R. Evid. 702, 2000 Amendments. "Daubert did not work as a `seachange over federal evidence law', and `the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system'." United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1995). Put another way, "vigorous 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 595. The standard of review for a district court's decision to admit or exclude scientific evidence is abuse of discretion. General Electric v. Joiner, 522 U.S. 136, 146 (1997). A district court specifically abuses its discretion when "it excludes testimony simply because [the court] does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers the most appropriate." Lauria v. Natl. R.R. Passenger Corp., 145 F.3d 593, 598-99 (3d Cir. 1998) (citing Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) (citing In re Paoli, 916 F.2d 829, 856)). B. William Carrington

William Carrington is a qualified expert pursuant to Federal Rule of Evidence 702. His testimony rests on sound methodology and will assist the trier of fact. Defendants' arguments essentially equate to questions of weight as opposed to admissibility. 16

Defendants argue that Dr. Carrington is not an expert because (1) he admits his lack of relevant qualifications or expertise; (2) he lacks relevant work experience; (3) he has not published anything in the pertinent subject area; (4) he has very limited experience with audits and surveys; (5) and another federal court recently found him unqualified to give expert testimony on memory sciences. (See Def.s' Carrington Br. at 9-12.) Defendants also argue that Dr. Carrington's testimony will not assist the trier of fact. Specifically, Defendants' argue that Dr. Carrington's admissions that "he is not an expert in in-store marketing" or an "industry expert" preclude him from testifying as an expert. Id. at 9. Defendants point out that "prior to this project, [Dr. Carrington] was unfamiliar with a single company that conducted audits for CPG products or programs or . . .any other in-store advertisers." Id. Defendants argue that Dr. Carrington was unfamiliar with the industry standards as well as the published authorities involved with in-store marketing. Id. at 10. Defendants also argue that Dr. Carrington's admission of his lack of relevant work experience in in-store marketing should preclude him from testifying. Id. at 10-11. In addition, Defendants argue that Dr. Carrington has only one publication, which was based off of his dissertation, and "has not published a single article since 2002." Id. at 11. Defendants concede that "[Dr.] Carrington has some experience with audits and surveys", but that he has not met his burden of establishing that he is an expert in the field. Id. Defendants further argue this Court must exclude Dr. Carrington's testimony because the Eastern District Court of Virginia recently excluded Dr. Carrington as an expert in "memory sciences" by relying on "unidentified `academic literature.'" Id. at 12. The court held that "[w]hile a qualified expert in the field of economics and statistics, nothing in Dr. Carrington's 17

credentials indicates knowledge, skill, experience, training, or education in the field of memory sciences." See Sharer v. Tandberg, 2007 WL 983849 (E.D. Va. March 27, 2007). Lastly, Defendants argue that Dr. Carrington's testimony will not assist the trier of fact. Defendants state that "[n]o expertise is required to compare the guidelines that [Defendants] applied in its 2002 audit of [Plaintiff] with the guidelines [Defendants] drafted in 2003 and list the differences." (Def.s' Carrington Br. at 13.) Plaintiff argues that Dr. Carrington is qualified to testify about standard audit methodology. Plaintiff further argues that Defendants frame Dr. Carrington's expertise as an instore marketing expert too narrowly. Specifically, Plaintiff argues that "[Defendants'] emphasis on [Dr.] Carrington's lack of in-store marketing experience is a red herring and an attempt to misguide the Court about the nature and scope of Dr. Carrington's testimony." (Pl.'s Carrington Opp. Br. at 7.) Plaintiff argues that "Dr. Carrington's opinion is being offered for his expertise in the applicable generally accepted audit methodology, and the application of those principles to [Defendants'] own guidelines and its audit of [Plaintiff's] installation." Id. The Court finds that Dr. Carrington is an expert under Rule 702. As previously noted, the Third Circuit has repeatedly professed the use of a liberal standard of qualifying experts. See Tormenia, 252 F.3d at 128; Elcock v. K-Mart Corp., 233 F.3d 734, 741 (3d Cir. 2000). It is well settled that an expert cannot be excluded because the trial court does not deem the proposed expert to be the most qualified or because the proposed expert does not have the specialization the Court considers to be the most appropriate. See Holbrook, 80 F.3d at 782. Rather, if the expert meets the liberal minimum qualifications then the level of the expert's expertise goes to credibility and weight, not admissibility." Kannankeril v. Terminix Int'l Inc., 128 F.3d 802, 809 18

(3d Cir. 1997). Here, Dr. Carrington is an expert in audit methodology. More specifically, Dr. Carrington's academic training and experience qualify him as an expert in the specific area of labor economics and econometrics; however, because of that, he is well versed in the more general subject of audit and survey methodology. Thus, Defendants' arguments that Dr. Carrington admissions that he was not an expert and that he did not have the relevant work experience are unpersuasive. Dr. Carrington is not being offered as an in-store marketing expert. He is, however, being offered as an expert in audit methodology. Numerous cases within our circuit have held that an expert opining on a general matter is not required to have experience that is narrowly tailored to the specific industry in question. See, e.g., Kannankeril, 128 F. 3d at 809 ("we reject Terminix's suggestion that Dr. Gerson must be a specialist in Dursban to provide expert testimony on the causation of [Plaintiff's] injury); Holbrook, 80 F.3d at 782 (the appellate court stating that "the [trial] court's mistaken approach restricted Dr. Carpenter's testimony based on a requirement that the witness practice a particular specialty to testify concerning certain matters"); Hammond v. Int'l Harvester Co., 691 F.2d 646 (3d Cir. 1982) (holding that engineer whose only qualifications were sales experience in the field of automotive and agricultural equipment and teaching high school automobile repair was nevertheless permitted to testify in a products liability action involving tractors); Smolow v. Hafer, 513 F. Supp. 2d 418, 425-28 (E.D. Pa. June 25, 2007) (the court rejected the argument that expert's "general business and accounting background" were insufficient because he lacked experience or training specifically in the area of government accounting); and Main Street Mortgage, Inc. v. Main Street Bancorp., Inc., 158 F. Supp. 2d 510 (E.D. Pa. 2001). 19

Moreover, the fact that Dr. Carrington was not qualified as an expert in "memory sciences" has no bearing whatsoever on whether he is qualified to be an expert on audit methodology. In fact, if anything, the Sharer court guided our analysis by concluding that Dr. Carrington was an expert in economics and statistical analysis. Indeed, Plaintiff is offering Dr. Carrington's opinion precisely because of his expertise in that area. Furthermore, the Court disagrees with Defendants' argument that Dr. Carrington's testimony merely rehashes the evidence. (See Def.s' Carrington Reply Br. at 9-10.) Rather, Dr. Carrington's testimony will assist the trier of fact because it is relevant and will aid the jurors' understanding on whether Defendants' president's letter to all major CPGs contained unreliable and deceptive information. Dr. Carrington's opinion will help the jury understand why the 49% compliance rate that Defendants' reported is unreliable and misleading. His opinion will link each of the methodological flaws in Defendants' audit to the consequences on the generated compliance ratio. Despite Defendants' arguments to the contrary, this testimony is not easily comprehendible. Thus, Dr. Carrington's testimony will aid the jury in their quest for justice. Because Dr. Carrington is an expert in audit methodology and his testimony will assist the trier of fact, Defendants' Motion to preclude his trial testimony is denied. C. Luke Cats

Luke Cats is an expert pursuant to Federal Rule of Evidence 702. His testimony rests on sound methodology and will assist the trier of fact. Defendants' arguments, again, are questions of weight, not admissibility. Defendants argue that Mr. Cats' testimony is unreliable because it is based on unreliable facts and data. As stated by the Third Circuit Court of Appeals, an expert's opinion is reliable if 20

it is based on the methods and procedures of science rather than on subjective belief or unsupported speculation. See In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742 (internal citations omitted). Defendants rely on a case that held "where an expert fails to verify the accuracy of data upon which the expert creates a statistical analysis or renders an opinion, the resultant analysis and opinion are inherently unscientific requiring exclusion . . . under Daubert." Dreyer v. Ryder Automotive Carrier Group, Inc., 367 F. Supp. 2d 413 (W.D.N.Y. 2005). Defendants further state that an "analysis is only as good as the data upon which it rest[s]" and "it is important to verify the accuracy of the data collection." Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2003 WL 22124991, at *4 (S.D.N.Y. Sept. 15, 2003). Here, Defendants argue that Mr. Cats analysis was flawed from the outset because he failed to ensure or confirm the accuracy of the data on which he relied in forming his opinions. (Def.s' Cats Br. at 10.) They argue that Mr. Cats emphasized the manner in which he handled the evidence after he received it. Id. (emphasis in original). Defendants argue that "[n]either [Mr.] Cats nor [Plaintiff] can explain how the data was first saved to Plaintiff's network, or, later, to the CD that [Plaintiff] provided to [Mr.] Cats." Id. Defendants insinuate that because Mr. Povoski could not recall exactly when he burned the CD that he gave Mr. Cats and that he did not recall copying it himself, in conjunction with Mr. Cats not even inquiring as to whether the CD was reliable, then the CD ­ and Mr. Cats' testimony ­ are unreliable. The Court disagrees. While Defendants' arguments focus on the possibility that the underlying facts on which Mr. Cats basis his opinion have not been authenticated, it fails to take in to account that the facts are indeed reliable. Whether Mr. Cats should have more diligently researched the underlying facts given to him by Plaintiff, in the Court's view, is a question of weight, not admissibility. See 21

Kannakeril, 128 F.3d at 809. Indeed, an "expert opinion is reliable if it is based on good grounds or methods and procedures of science rather than on subjective belief or unsupported speculation." Daubert, 509 U.S. at 590 (emphasis added). Here, Mr. Cats' expert opinion is based on good grounds that could hardly be considered unsupported speculation. Mr. Cats' testimony involves the analysis of the web server logs and the meaning of the technical data logs. (Pl.'s Cats Opp. Br. at 13.) Mr. Cats reviewed the deposition transcript of Mr. Povoski, who testified from personal knowledge that Plaintiff's web server automatically generated logs of the accesses to the Old Site and that those logs remained on the server "untouched". Id. Moreover, Mr. Povoski excerpted those logs in April 2004 and saved the results in a file called "illegal-access.txt". Id. In addition, Mr. Povoski compressed those "untouched" log files in September 2004 and saved them to a separate location on Plaintiff's computers. Id. Although Mr. Cats later ran a forensic comparison between the compressed log files on the CD he was provided and the compressed log files that Mr. Povoski has saved in September 2004 on Plaintiff's system, the results illustrated one thing: both files were identical. Despite Defendants argument that it cannot determine if Mr. Povoski's April 2004 excerpt and September 2004 compressed files are the same, the Court finds that Mr. Povoski's repeated sworn testimony that the web logs remained "untouched" in addition to the files being identical are enough to establish the reliability of Mr. Cats' testimony. Moreover, Mr. Brill, Defendants' own expert, testified that he was not aware of any evidence to the contrary or that the files were unaltered. Id. at 14. In fact, Mr. Brill stated that he has no reason to question Mr. Cats or his colleagues forensic comparison of the files on Plaintiff's server as compared to the files on the CD produced in discovery. Id. Perhaps more telling, Defendant has not 22

identified any facts that the web server logs were intentionally or inadvertently manipulated or not properly saved despite several years of discovery. Id. Although it is not Defendants' burden to prove that the files were not tampered with, the Court believes that given the evidence presented, Plaintiff has met its burden of proof establishing the Mr. Cats' testimony is reliable. As previously noted, the standard for reliability is "not that high." See In re TMI Litig., 193 F.3d at 697 (3d Cir. 1999). Indeed, even if Mr. Povoski had not testified, the Court nonetheless finds Mr. Cats' testimony reliable. "The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness." United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988). Here, Defendants are attempting to discredit Mr. Cats based on the possibility that the underlying data could be altered. Since there is not a shred of evidence to indicate the files were in any way manipulated, the Court finds that the documents are reliable; therefore, Mr. Cats' testimony is clearly not "unsupported speculation." See Daubert, 509 U.S. at 590. The Court also finds that Mr. Cats' testimony will assist the trier of fact. There can be no question that a jury would need assistance understanding the computer files, how an Apache server generates them, what they record, and what the information contained within them actually means. (See Pl.'s Cats Opp. Br. at 15.) Defendants also challenge Mr. Cats' testimony by asserting that he speculates that Defendants could have downloaded and saved files in a short period of time, and subsequently printed or e-mailed the files to others while offline. (See Def.s' Cats Br. at 14) (emphasis in original). However, Defendants' own expert, Mr. Brill, testified that someone could have downloaded and saved the files, could have printed the files, and could have e-mailed them. (See Pl.'s Cats Opp. Br. at 15.) 23

Moreover, Defendants argue that Mr. Cats did not conduct any independent research that the alleged access was "unauthorized" (Def.s' Cats Br. at 6.) On the contrary, however, the Court finds that Mr. Cats did not need to undertake any independent research because (1) Defendants admitted that Plaintiff did not grant Defendants' permission for access to any Plaintiff website, (Def.s' Resp. to Req. for Admis. No. 2, 10), and (2) Mr. Povoski testified that he would have known if Plaintiff had granted Defendants access to the Old Site. (Povoski Dep. at 192:10-193:3.) Based on the foregoing, Mr. Cats need not reach an independent conclusion on whether Defendants' actions were unauthorized. Lastly, Defendants argue that Mr. Cats' testimony is not helpful to the trier of fact because he "incorrectly concluded that the website must have been password-protected." (See Def.s' Cats Br. at 1.) However, Mr. Cats correctly opined that the Old Site was password protected. (Pl.'s Cats Opp. Br. at 16.)3 Defendants' arguments that Mr. Cats' testimony will not help the trier of fact because he relies upon "unreliable facts" are unpersuasive. As noted above, the Court finds that the underlying facts are reliable. (See Def.s' Cats Reply Br. at 11.) In their reply brief, Defendants point out that Mr. Cats filed an "impermissible and entirely new expert report that is hidden under the guise of a `Supplemental Affidavit'". (Def.s' Cats Reply Br. at 1.) The Court decided that Mr. Cats' Supplemental Affidavit was permissible and was not a "entirely new expert report." At oral argument, the Court stated that it did not

Plaintiff's website could be accessed by a "common username and password shared by retailers" and during Cycle 9 and 10 of 202 Plaintiff distributed the relevant username and password that defendant used to access this site. (Pl. Ans. to Interrog. No. 14.) 24

3

consider the second report to be a supplemental report. (See Transcript dated November 16, 2007, at 17.) With that said, the Court granted Defendants' motion to re-depose Mr. Cats as well as have Defendants' own expert prepare a supplemental report to respond to Mr. Cats' original report. Id. at 18. Because Mr. Cats' testimony is based on good grounds and will assist the fact finder, his expert testimony is permitted and Defendants' motion to preclude his testimony is denied. D. John Wills

John Wills is an expert pursuant to Federal Rule of Evidence 702. His testimony rests on sound methodology and will assist the trier of fact. Defendants' arguments, once more, are questions of weight, not admissibility. Defendants argue that Mr. Wills testimony is unreliable and fails to fit the facts of the case. (See Def.s' Wills Br. at 8, 17.) They argue that Mr. Wills testimony, specifically his use of the "before and after" methodology, was fatally flawed because it omitted "a fundamental step that courts across the country, and leading treatises, have recognized as critical to any proper assessment of damages." Id. at 9. "Where a plaintiff complains of a wide range of alleged misconduct and a defendant insists that some of its conduct was lawful and that plaintiff's losses were caused by other parties or events, the law requires plaintiff's experts to calculate for the jury an estimate of the damages that resulted from the wrongful conduct and to prove . . . those damages; . . . [d]eviation from that cardinal rule results in speculative awards that cannot be sustained." See the Federal Judicial Center's REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (explaining that "[i]f a damages analysis includes the effects not caused by the defendant, it is a defective analysis"). 25

Defendants argue that Mr. Wills deviated from the cardinal rule because he failed to take into account other factors that could have affected the Plaintiff's level of revenues. (Def.s' Wills Br. at 9; Def.s' Wills Rep. Br. at 10.) Defendants argue that Mr. Wills made only two minor adjustments ­ to account for a decrease in the number of K-Mart stores and a decline in Plaintiff's revenues per store ­ both in the "after" period of his analysis. (Def.s' Wills Br. at 910.) Defendants illustrate that at least some significant portion of the decline in Plaintiff's revenues and profits resulted from actions and events that were completely unrelated to Defendants' alleged conduct. (Def.s' Wills Br. at 11.) Mr. Wills nonetheless clung to his opinions that (1) all of Plaintiff's lost revenues and profits were caused by Defendants' alleged misconduct, (2) no adjustments to its total damage estimate would be necessary even if Plaintiff did not prevail on one or more of its liability claims, and (3) any liability on Defendants' part for any of the alleged misconduct should result in an award of the total amount of damages that he estimated. Id. at 11-12; see also Wills Dep. at 50, 198-99, 141-43. Defendants argue that the Third Circuit has consistently excluded expert testimony regarding profits or other measures of damages where the testimony rests on fundamentally flawed assumptions that do not reflect real world conditions. Elcock v. K-Mart Corp., 233 F.3d at 755. Defendants assert that Mr. Wills refusal to examine or factor into his analysis undisputed testimony of retailers or CPG representatives or the undisputed evidence regarding Plaintiff's own board of directors meetings is evidence of his failure to consider real world conditions. Therefore, Defendants argue that his methodology is flawed and insufficient. Defendants point to In re Aluminum Phosphide Antitrust Litig., 893 F. Supp. 1497, 150205 (D. Kan. 1995), a case that involved the "before and after model". There, the court rejected 26

proposed expert testimony observing that "[o]ne of the basic principles of economics, as applied to the `before and after' model, is that changes in supply, demand, and competition affect prices, and one cannot properly assume the sole cause of any price difference between the conspiracy period and the normative period is the conspiracy itself." Id. at 1504 (emphasis added). Defendants further argue that Mr. Wills testimony suffers from the same fatal flaw: his failure to account for other changes in the market and other undisputed evidence renders his opinions invalid. The Court disagrees. As Judge Posner stated, "people who want damages have to prove them, using methodologies that need not be intellectually sophisticated but must not insult the intelligence." Schiller and Schmidt, Inc. v. Nordisco, Corp., 969 F.2d 410, 415 (7th Cir. 1992). Mr. Wills has proven damages and, more importantly, has satisfied the criteria of Federal Rule of Evidence 702. At the outset, it must be noted that the "before and after" method is recognized by experts in the field as an acceptable method to calculate lost profits. See, e.g., Pratt, Shannon P., Robert F. Reilly and Robert P. Schweihs, Valuing a Business, Fourth Edition, 2000 at 829; American Institute of Certified Public Accountants, Business Valuation and Forensic & Litigation Services Section, Practice Aid 06-4 "Calculating Lost Profits" at 25; Litigation Services Handbook: The Role of the Financial Expert at 38. Furthermore, the Reference Manual on Scientific Evidence, upon which Defendants rely, describes a damages study that projects earnings into the future at the rate of growth of the previous three years. (Pl.'s Wills Opp. Br. at 10-11.) It also references that defendants in such a case may dispute this with their own study that projects that earnings would have declined even without a breach. Id. Most importantly, though, the Manual itself 27

states that the difference between the two studies "is a factual dispute". See Manual at 25 (emphasis added). The Manual, like Daubert, does not call for exclusion but rather an adjustment if there is reliance on a standard methodology that omits a relevant factor. (Pl.'s Wills Opp. Br. at 11.) Therefore, the dispute is a question of fact for the jury to decide. Plaintiff points out that the thrust of Defendants' argument is that Mr. Wills "fail[s] to distinguish between lawful and unlawful conduct in their damage estimates." Id. at 12. Such argument, according to Plaintiff, misstates the law with respect to damages as well as the damages analysis conducted by Mr. Wills. First, Plaintiff asserts that to the extent Mr. Wills did not take other real world factors in to consideration, Defendants must nonetheless demonstrate that those factors mattered. Id. When challenging the admissibility of Plaintiff's expert testimony, a party must move beyond empty criticisms and demonstrate that a proposed alternative approach would yield different results. Bazemore v. Friday, 478 U.S. 385, 403 n. 14 (1986); see also Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1416 (D.C. Cir. 1988) ("mere conjecture or general assertions of inadequacies in the opponent's statistical case, without demonstrating their effect on the results, will not suffice"). The Court finds that Defendant, despite illustrating that Mr. Wills did not take in to account certain factors, has made no showing to quantify how those factors, such as "legal competition", mattered. Moreover, the Court finds that damages may be awarded where illegal and legal conduct are intertwined. In Spray-Rite v. Monsanto, the court stated that "[w]e will not deprive [Petitioner] of this recovery merely because the jury may have found that Monsanto combined lawful conduct with unlawful conduct making it impossible to determine which portion of the total damages was caused by the unlawful conduct." 684 F.2d 1226, 1242-43 (7th Cir. 1982). 28

Similarly, Mr. Wills did not calculate the amount of damages attributable to lawful conduct versus unlawful conduct. However, it is likely impossible to separate lawful conduct from unlawful conduct and come up with a precise amount. Thus, the issue is one of weight, not admissibility. Similar to the holding in Spray-Rite, this Court will not deprive Plaintiff the opportunity to present damages through Mr. Wills' report. The Court also finds that Mr. Wills did take other material factors in to consideration when issuing his report. Thus, the Report's methodology is permissible. Specifically, Mr. Wills factored in the unit price of floor and shelf ads, which are prices charged by Plaintiff. (Pl.'s Wills Opp. Br. at 15.) This is not, as Defendants characterize it, a "minor factor", but rather a fundamental one. In addition, Mr. Wills factored the decline in K-Mart stores as a result of its bankruptcy filing. (See Wills Rep. at 12.) Mr. Wills concluded that lawful competition could not explain the abrupt drop off in Plaintiff's revenues beginning in 2003 after numerous years of consistent growth. (Wills Dep. at 78-79.) Moreover, Mr. Wills accounted for other factors by making assumptions that accounted for such competition and tended to suppress his estimate of damages. Plaintiff argues that the effect of these assumptions would have been tantamount to Mr. Wills factoring in lawful competition in the first place. For example, Mr. Wills assumed flat economic growth during the damages period relative to the benchmark year of 2002. (Pl.'s Wills Opp. Br. at 16.) In fact, Mr. Wills did not assume that growth would occur even at the rate of inflation, the result of which would equate to a restrained damage estimate as opposed to an inflated one. See id. He also limited his before and after model to Plaintiff's customers in the baseline year of 2002. Therefore, he assumed that Plaintiff would have won no new customers, the result of which 29

would underestimate damages. See id. at 17. Furthermore, Mr. Wills offset damages caused to Plaintiff by the CPGs who did reduce their purchases with revenues from other CPGs who increased purchases from Plaintiff. Id. In addition, Mr. Wills used the actual revenues of Plaintiff in the benchmark year of 2002 to determine if there were damages in 2003 and thereafter; thus, lawful or unlawful competition by Defendants in 2002 and before suppressed Plaintiff's revenues in 2002 and limited the damages estimated by Mr. Wills from 2003 to 2007. This limits Mr. Wills damages calculation because the Complaint stated that Defendants were engaged in unlawful competition from 2002 and before. Id. (emphasis added). At most, assuming all of Defendants' objections are material and valid, Mr. Wills testimony can be critiqued by another expert, not stricken. If, for example, there was a slowing of the economy is any quarter, then Defendants' expert can measure it and adjust the damages downward. Likewise, if there are specific CPGs who are required to be excluded from the damages estimate, Defendants' expert can exclude them and adjust the damages downward. If a store reduction of four hundred stores were required to be accounted for, as Defendants assert, Defendants' expert could make that calculation. (See Pl.'s Wills Opp. Br. at 23-24.) This point is especially telling since Defendants, in their own brief, quote Dr. Farris stating that "Wills' damages calculations would have to be adjusted if any of [his] key assumptions are wrong" (See Def.s' Wills Br. at 12.) Similarly, Defendant quotes the Manual to the same effect. Id. at 9. The cases cited by Defendants, chiefly Elcock and Mercedes-Benz U.S.A. LLC v. Coast Automotive Group, Ltd., 2006 WL 2830962 (D.N.J. Sept. 29, 2006) are both distinguishable from this case. In Elcock, the Court excluded damages testimony of a vocational rehabilitation expert with "thin" qualifications. See Elcock, 233 F.3d at 755. Here, Mr. Wills clearly does not 30

have "thin" qualifications. On the contrary, Mr. Wills qualifications should not even be at issue. Similarly, in Mercedes-Benz, an expert estimated damages based on the average growth of retail sales in the New York area as opposed to actual sales. See Mercedes-Benz, 2006 WL 2830962, at * 12. The expert report contained "no analysis and consisted entirely of profit schedules based on factual assumptions that the report does not explain or analyze in any significant way." Id. Here, however, Mr. Wills analysis is based upon the actual change in Plaintiff's sales. Further, Mr. Wills explains and analyzed his methodology which was based on facts as opposed to assumptions. In sum, Mr. Wills relied upon a sound methodology: the "before and after" approach. His calculations, to the extent that some of his key assumptions are wrong, may be adjusted. However, making adjustments is not analogous to unreliable. Although Mr. Wills may be taken to task during cross-examination, his expert testimony meets the requirements of Rule 702 and Daubert.4 In the end, the Court finds that Mr. Wills' testimony will assist the trier of fact and fit the facts of the case. In order to "be fit", expert testimony "must have a traceable and analytical basis in objective fact." Bragdon v. Abbott, 524 U.S. 624, 653 (1998). Mr. Wills' testimony is based upon the actual sales of Plaintiff. Without his testimony, the jury will have a difficult time in measuring Plaintiff's damages. Since this is a complex matter that requires a detailed economic analysis, Mr. Wills' testimony will be helpful. Under Rule 702, it is not the Court's province to determine who is the best expert or the most qualified. Defendants will have the
4

It is more appropriate for Defendant to cross-examine Mr. Wills with regard to why he selected the dates from which he measures damages, as this is a factual dispute. (See Def.s' Wills Reply Br. at 1-2.) 31

opportunity to vigorously cross-exam Mr. Wills in addition to presenting their own expert witness at trial.5 Therefore, Defendants' motion to preclude Mr. Wills' testimony is denied. E. Paul Farris

Paul Farris is an expert pursuant to Rule 702. His testimony rests on sound methodology and will assist the trier of fact. Defendants' arguments are questions of weight, not admissibility. Defendants argue that Dr. Farris' expert testimony should be precluded because (1) since his work relies on Mr. Wills' work and Mr. Wills' work is unreliable then Dr. Farris' work is similarly unreliable; (2) Dr. Farris' testimony is unreliable regardless of Mr. Wills' testimony; and (3) Dr. Farris' work does not fit the facts of the case or assist the trier of fact. First, Defendants argue that since Dr. Farris' opinions are based upon Mr. Wills' work that those opinions are unreliable and inadmissible. (Def.s' Wills Br. at 21.) Defendants correctly argue that if "Wills' calculations require revision, Farris' calculations must also be revised." Id. Of course, even if the calculations need to be revised, the underlying reports are still admissible. The Manual, as previously noted, instructs an adjustment of the calculations, not an exclusion of evidence. (See, e.g., Manual at 25 (the difference between the two studies "is a factual dispute")). Defendants further assert that Dr. Farris' testimony must be precluded because "[i]t is an abuse of discretion to admit expert testimony which is based on assumptions lacking any factual

Defendants argue that Mr. Wills' "stubborn insistence" that all of the losses were caused solely by Defendants' alleged conduct and his refusal to consider other factors makes his analysis unreliable. The Court, noting that while Mr. Wills' testimony is not perfect, it admissible since, at most, his testimony would need to be adjusted as opposed to excluded, and he, in fact, did consider other factors in his analysis (as previously discussed above). (See Def.s' Wills Br. at 17-21.) 32

5

foundation in the record." Elcock, 233 F.3d at 756 n. 13. The Court disagrees with Defendants' position because Mr. Wills' calculations are promulgated from the facts of the case; specifically, the actual financial losses that Plaintiff suffered that was attributable to Defendants' alleged illegal conduct. Therefore, it would be an abuse of discretion to preclude Dr. Farris' testimony simply because Mr. Wills' testimony needs to be adjusted. As previously noted, Mr. Wills' testimony is admissible pursuant to Rule 702. Thus, given the Court's decision with respect to Mr. Wills, it would be illogical to exclude Dr. Farris' testimony. As such, the Court rejects Defendants' argument. Defendants further argue that Dr. Farris' testimony is unreliable because he "assumed that all of [Plaintiff's] lost revenues and profits resulted from [Defendants'] alleged wrongful conduct" and blindly accepted Mr. Wills' calculations without (1) understanding them or (2) conducting any independent analysis or investigation of his own. (Def.s' Wills Br. at 22-23.) Further, Defendants argue that Dr. Farris has not shown an "adequate link between the alleged misconduct and the damages claimed." See Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 60 (2d Cir. 2002). Defendants argue that Plaintiff has failed to provide evidence that any CPGs or retailers were influenced by the alleged disparagement. (Def.s' Wills Br. at 23.) Defendants also contend that Dr. Farris's report suffers from two methodological flaws: (1) Dr. Farris failed to use an adequate quantity or quality of comparable companies and (2) he failed to discount the claimed damages in a matter that reflects the lack of marketability of a closely held corporation like [Plaintiff]. Id. at 24. First, Defendant argues that Dr. Farris did not conduct a proper benchmark analysis. 33

Defendants cite a leading treatise which "stresses the importance of an `exhaustive search' for similar companies and sets forth a list of factors `to consider in determining comparability.'" Id. (citing Shannon P. Pratt, Valuing a Business: The Analysis and Appraisal of Closely Held Companies 214-15, 220 (2d ed. 1989)). Those factors include (1) capital structure, (2) credit status, (3) depth of management, (4) personnel experience, (5) nature of competition, and (6) maturity of the business. Id. at 220. Pratt's work also states that "in many valuation situations, the subject company is so unique that it is difficult to find a set of good guideline companies." Id. at 231. "In these cases, the analyst may find a group of companies that can shed some light on the valuation questions but may consider one or a few more directly comparable to the subject company than the rest." Id. (emphasis added). Defendants argue that since Dr. Farris gave greater weight to Insignia and Catalina, his testimony is unreliable. (Def.s' Wills Br. at 25.) However, Dr. Farris permissibly gave greater weight to two of the companies and no weight to Lamar, which he believed to be less similar than Plaintiff. (See Pl.'s Wills Opp. Br. at 25.) As Pratt's work indicates, Dr. Farris was permitted to consider some companies more dir