H. Daya International Co., Ltd. v. DO Denim, LLC et al

Filing 265

DECISION AND ORDER granting in part and denying in part 250 MOTION in Limine to Exclude the Expert Testimony of Nancy Marino. For the reasons stated above, it is hereby ORDERED that the motion of defendants R. Siskind & Company, Inc., Vintage Apparel Group, LLC, and Richard Siskind to exclude from trial the expert report and testimony of Nancy Marino (Marino) (Dkt. No. 250) is GRANTED, in part, and DENIED, in part. The testimony and expert report of Marino is excluded. Plaintiff H. Daya International Co., Ltd. may question Marino only generally about her relevant knowledge and experience relating to the apparel industry and its practices that fall within the scope of her personal knowledge and business experience. The Clerk of Court is respectfully directed to terminate the Motion at Dkt. No 250 as resolved. SO ORDERED. (Signed by Judge Victor Marrero on 1/31/2023) (jca)

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

01/31/2023

H. DAYA INTERNATIONAL CO., LTD.,

16 Civ. 8668 (VM)

Plaintiff,

DECISION AND ORDER

- against DO DENIM, LLC, REWARD JEAN, LLC, R.
SISKIND & COMPANY, INC., SALMON
MURCIANO, VINTAGE APPAREL GROUP, LLC,
RICHARD SISKIND, ONLY BRAND, INC.,
COMPANIES 1-100 (fictitious entities),
& JOHN DOES 1-100 (fictitious persons),
Defendants.
VICTOR MARRERO, United States District Judge.

Plaintiff, H. Daya International Co., Ltd., (“H. Daya”)
filed this action against Defendants, Do Denim, LLC (“Do
Denim”), Reward Jean, LLC (“Reward”), R. Siskind & Company,
Inc. (“RSC”), Salomon Murciano (“Murciano”), Vintage Apparel
Group, LLC (“Vintage”), Richard Siskind (“Siskind”), Only
Brand,

Inc.

(“Only

Brand”),

and

fictitious

entities

and

persons (together, “Defendants”). H. Daya seeks to enforce a
judgment it obtained in a prior action against Do Denim and
Reward (together, the “Judgment Debtors”). As pertinent here,
H. Daya asserts that, with a judgment of $1,157,012.23 against
them

imminent

(the

“Judgment”),

the

Judgment

Debtors

consummated a de facto merger with RSC and Vintage to avoid
payment of the judgment. H. Daya seeks to have RSC, Vintage,

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Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 2 of 17

and the Judgment Debtors held jointly and severally liable
for the Judgment.
A one-week jury trial before this Court is set to begin
on February 27, 2023. In connection with trial, RSC, Vintage,
and Siskind (together, the “Siskind Defendants”) filed a
motion in limine to exclude from trial evidence the report
and testimony of Nancy Marino (“Marino”), H. Daya’s proffered
expert on the de facto merger issue. (See “Motion,” Dkt. No.
250; “Brief,” Dkt. No. 251; “Marino Report” or “Report,” Dkt.
No. 252-2.) For the reasons stated below, the Court GRANTS
the Motion in part, and DENIES it in part. Marino’s Report,
and testimony relating to it, shall be excluded as expert
evidence and opinion. H. Daya, however, may offer Marino as
a lay expert witness for the narrow purpose of eliciting her
testimony

generally

practices

to

the

about

extent

the
such

apparel
specific

industry

and

information

its

falls

within the scope of her personal knowledge and experience.
I.

LEGAL STANDARDS

“The purpose of an in limine motion is to aid the trial
process by enabling the Court to rule in advance of trial on
the relevance of certain forecasted evidence, as to issues
that are definitely set for trial, without lengthy argument
at, or interruption of, the trial.” Palmieri v. Defaria, 88
F.3d

136,

141

(2d

Cir.

1996) (internal

2

quotation

marks

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 3 of 17

omitted). Federal Rule of Evidence (“FRE”) 402 provides that
relevant

evidence

is

generally

admissible,

and

FRE

403

provides that evidence that is relevant may nonetheless be
excluded if its probative value is substantially outweighed
by, among other considerations, a danger of misleading the
jury or unfair prejudice to the non-offering party. See Fed.
R. Evid. 402, 403.
FRE 702 governs the admissibility of expert testimony.
Expert witness testimony is appropriate only if “scientific,
technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a
fact in issue.” Fed. R. Evid. 702. In those circumstances, a
person who possesses relevant specialized knowledge by virtue
of certain “skill, experience, training, or education” may be
qualified and testify as an expert witness. Id. “To determine
whether a witness qualifies as an expert, courts compare the
area in which the witness has superior knowledge, education,
experience, or skill with the subject matter of the proffered
testimony.” United States v. Tin Yat Chin, 371 F.3d 31, 40
(2d Cir. 2004).
Once qualified, an expert’s testimony is admissible
under FRE 702 only 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;

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Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 4 of 17

(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. A trial court must decide whether a
qualified expert’s testimony rests on a reliable foundation
or is simply based on “subjective belief or unsupported
speculation.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579,

590

(1993).

If

expert

testimony

is

speculative

or

conjectural, it should be excluded. See Boucher v. U.S. Suzuki
Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996).
In this regard, a court may exclude expert evidence where
it concludes “that there is simply too great an analytical
gap between the data and the opinion proffered.” Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997). Additionally, an
expert

“may

not

give

testimony

stating

ultimate

legal

conclusions” or otherwise usurp the role of the trial judge
or the jury in its fact-finding mission. In re Methyl Tertiary
Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, 2008
WL 1971538, at *13 (S.D.N.Y. May 7, 2008) (quoting United
States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)). In
connection with FRE 704, the advisory committee has made clear
that,

together,

FREs

701,

702,

and

403

“afford

ample

assurances against the admission of opinions which would
merely tell the jury what result to reach.” Fed. R. Evid.

4

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 5 of 17

704, advisory committee notes on proposed rule. “Trial courts
have broad discretion to admit or exclude expert testimony,
provided such decisions are not ‘manifestly erroneous.’”
Trouble v. Wet Seal, Inc., 179 F. Supp. 2d 291, 301 (S.D.N.Y.
2001) (Marrero, J.) (quoting United States v. Aminy, 15 F.3d
258, 261 (2d Cir. 1994)).
II.

DISCUSSION

The Siskind Defendants move to exclude the proposed
expert testimony of Marino and her Report on grounds that she
does not articulate or apply a reliable standard to support
her opinion and that her opinion is not the subject of proper
testimony as it would confuse, rather than help, and/or unduly
prejudice the jury. H. Daya retained Marino to offer testimony
in support of its case on the de facto merger issue. H. Daya
asked

Marino

to

provide

her

“opinion

and

professional

services about the nature and substance of the relationships
for the period of 2011-2012 among” Do Denim, Reward, RSC, and
Vintage. (Marino Report at 5.) Marino’s ultimate conclusion
is that “to a reasonable degree of business certainty, the
four defendants under review operated as a single integrated
business company, without effective separation from each
other, during the period of 2011-2012.” (Id. at 18.) The Court
agrees

with

the

Siskind

Defendants

that

the

report

and

testimony should be excluded from trial evidence and grants

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Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 6 of 17

their Motion, in part, including for the additional threshold
reason that the Court finds that Marino does not possess
specialized knowledge, skill, or experience that qualifies
her to opine on the de facto merger issue.
A.

EXPERT QUALIFICATIONS

To determine whether a witness is qualified to testify
as an expert, the Court “must first ascertain whether the
proffered expert has the educational background or training
in a relevant field.” TC Sys. Inc. v. Town of Colonie, 213 F.
Supp. 2d 171, 174 (N.D.N.Y. 2002). Then the court “‘should
further compare the expert’s area of expertise with the
particular opinion the expert seeks to offer [and permit t]he
expert . . . to

testify

only

if

the

expert’s

particular

expertise . . . enables the expert to give an opinion that is
capable of assisting the trier of fact.’” Zwillinger v.
Garfield Slope Housing Corp., No. 94 Civ. 4009, 1998 WL
623589, at *7 (E.D.N.Y. Aug. 17, 1998) (quoting Federal
Judiciary Center, Reference Manual on Scientific Evidence
55–56 (1994) (alterations in original)).
As a general matter, the Court finds that Marino has
extensive experience in the apparel industry as a business
executive. However, the Court is not persuaded that that
experience makes her qualified for the task of opining on

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Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 7 of 17

corporate

governance

and

the

de

facto

consolidation

of

business activities, which is the key question here.
Marino’s

previous

activities

as

an

expert

witness

illustrate the Court’s skepticism. While it is not clear on
the face of the Report how Marino was offered as an expert in
those cases, a review of the allegations in each establishes
that none of the cases involved the issue of de facto merger
for which she is offered here. See Adidas Am. Inc. v. Forever
21 Inc., No. 17 Civ. 377, 2018 WL 2308315 (D. Or. Mar. 22,
2018) (trademark infringement); PRL USA Holdings, Inc. v.
U.S. Polo Ass’n, Inc., No. 14 Civ. 764, 2015 WL 1442487
(S.D.N.Y. Mar. 27, 2015) (trademark infringement and unfair
competition); Macy’s, Inc. v. J.C. Penney Corp., Inc., 989
N.Y.S.2d 238 (N.Y. Sup. Ct. 2014) (breach of contract and
tortious interference in a brand licensing dispute); CrossComplaint, Ambiance Cosmetics, Inc. v. Eversoft, Inc., No.
BC608801 (Cal. Super. Nov. 21, 2016) (injury from flood in
commercial factory); Complaint, Seena Int’l, Inc. v. One Step
Up, Ltd., No. 15 Civ. 1095 (S.D.N.Y. Feb. 16, 2015), Dkt. No.
1 (trademark infringement); Hartford v. Wal-Mart Stores,
Inc., 765 So.2d 1081 (La. Ct. App. 2000) (slip and fall in
retail store); Complaint, New Rise Brands Holdings, LLC v. IP
Holdings Unltd, LLC, No. 0652278/2016 (N.Y. Sup. Ct. Apr. 28,
2016), Dkt. No. 1 (brand licensing agreement dispute).

7

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 8 of 17

Even insofar as any of these cases touched upon the de
facto merger issue, the Marino Report concedes that Marino’s
qualifications specifically relating to this issue have not
yet been evaluated by any court as gatekeeper, as she has not
served as an expert trial witness regarding de facto merger
disputes. (See Marino Report at 4.)
Although the Court is not persuaded that the de facto
merger

issue

here

is

an

appropriate

subject

for

expert

testimony, even if it were, nothing about Marino’s “skill,
experience, training, or education gives [her] specialized
knowledge”

about

the

operations

of

these

particular

defendants. See R.F.M.A.S., Inc. v. So, 748 F. Supp. 2d 244,
268 (S.D.N.Y. 2010) (Marrero, J.) (adopting Magistrate Judge
Report and Recommendation and excluding expert testimony of
experienced executives who did “not draw on their areas of
actual expertise in arriving at the[ir] conclusion”).
This

finding

is

bolstered

by

a

review

of

Marino’s

background and experience. The Marino Report highlights that
Marino’s “over 30 years” in the apparel industry primarily
involved

“design

and

product

development,

merchandising,

buying, marketing, sourcing, production, quality assurance,
compliance,

international

operations

and

trade.”

(Marino

Report at 1.) And Marino’s leadership roles were focused on
leading “design teams in the development and launching of

8

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 9 of 17

private

and

licensed

brands”

and

working

on

“end-to-end

global supply chains for improved performance and development
of factory platforms.” (Id.) Connecting the dots between
Marino’s background and the cases in which she has previously
served as an expert -- primarily involving trademark and
licensing disputes -- creates a picture of a person with
paramount knowledge of product design, brand development,
marketing, and material sourcing in the apparel industry. But
none of those experiences is relevant to the de facto merger
issue now before this court.
Marino’s

recent

positions

in

the

apparel

industry

confirm that conclusion. Most recently, Marino served as
Executive

Vice

“merchandising,

President
marketing,

for

Gloria

sourcing,

Jeans

overseeing

manufacturing

and

product development.” (Marino Report at 2.) Before that,
Marino was Senior Vice President of Hanes Branded apparel
responsible

for

“international

operations

.

.

.

and

development and launch of an active wear brand.” (Id.) Marino
was also Senior Vice President at Sears “responsible for the
design and development of all Sears’ Private Brand programs”
as well as the President and CEO of a “leading international
marketing design and product development buying office.”
(Id.) While Marino’s experience as an executive in the apparel
industry

is

extensive,

nothing

9

about

it

suggests

any

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 10 of 17

specialized knowledge in corporate governance or mergers and
acquisitions (de facto or otherwise), even pertaining to
businesses in the apparel industry. And the Report discloses
that Marino has not recently published any scholarship, let
alone on apparel industry corporate governance. (See Marino
Report at 4.)
In rebuttal, H. Daya offers this Court’s opinion in Cary
Oil

Co.,

Inv.

v.

MG

Refining

&

Mktg.,

Inc.,

for

the

proposition that Marino’s long experience in the apparel
industry is sufficient to qualify her as an expert on this
issue. (See “Opposition,” Dkt. No. 259.) Cary Oil is distinct.
There, the expert, Jeffrey Bernard (“Bernard”), was offered
specifically “with regard to fuel storage alternatives” in a
contract dispute regarding “the storage capacity to take
delivery of massive quantities of [petroleum] fuel.” No. 99
Civ. 1725, 2003 WL 1878246, at *7 (S.D.N.Y. Apr. 11, 2003)
(Marrero, J.). Bernard’s background as a “fuel marketer and
sales and distribution specialist for Mobil Oil Corporation”
gave him the requisite “specialized knowledge” about “fuel
delivery,” i.e., the specific issue for which he was offered.
Id.
The issue of de facto merger here is more like the other
issue raised in Cary Oil, corporate veil piercing, where the
qualified expert was “a professor of law at one of the

10

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 11 of 17

nation’s most esteemed law schools who t[aught] exclusively
on matters involving corporations and who ha[d] lectured and
published extensively on matters of corporate governance.”
Id. at *6. Marino’s expertise is unlike that of the professor
of

corporate

governance

in

Cary

Oil

and

thus

is

of

no

particular relevance to the issue here.
Further, Marino’s apparel industry expertise is not
required to reach the conclusions for which H. Daya proffers
her testimony. As the Marino Report explains, she assessed
Defendants’

“debts,

income,

financing,

purchase

orders,

vendor identification, invoices, customers, the use of the
‘DO

DENIM’

trademark,

and

[]

overlapping

ownership”

of

Defendants to reach her conclusions. But nowhere in her Report
does she draw on her actual expertise in the apparel industry
to reach them. Instead, the Court finds Marino made only
“logical deductions based on the set of assumptions that [H.
Daya] directed [her] to employ” based on the set of facts
available to her. R.F.M.A.S., 748 F. Supp. 2d at 269. “Any
juror could have employed common sense to perform the same
analysis; no background in marketing or experience in the
[apparel] industry is necessary.” Id. Accordingly, the Court
finds that Marino should not be qualified as an expert to
opine on the de facto merger issue at trial and H. Daya may
not offer her or the Report in support of that issue.

11

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 12 of 17

As noted, Marino may, however, be offered as a lay expert
witness to be questioned about the apparel industry and its
practices, generally, to the extent such specific information
falls

within

the

scope

of

her

personal

knowledge

and

experience.
B.

RELIABLE STANDARDS

Defendants’ primary argument is that Marino failed to
articulate or apply any apparel industry standard or practice
on which she relied in reaching her conclusions. FRE 702
requires that expert testimony be “the product of reliable
principles and methods . . . reliably applied . . . to the
facts of the case.” Fed. R. Evid. 702(c), (d); see also
Daubert, 509 U.S. at 589 & n.7 (trial court’s “gatekeeping
responsibility”
scientific
relevant,
methods,

requires

testimony
but

or

reliable”).

Daubert

directs

“ensur[ing]
evidence
In
trial

the

that

admitted
context

judges

to

any
is
of

and
not

all
only

scientific

assess

if

the

methodology “can be (and has been) tested.” Daubert, 509 U.S.
at 593.1 Whether expert testimony is reliable also extends
beyond the purely scientific “to testimony based on technical
and

other

specialized

knowledge.”

1

MTX

Commc’ns

Corp.

v.

Other considerations used in the context of assessing purely scientific
methods include assessing whether the theory has been “subject to peer
review and publication,” the “known or potential rate of error,” or the
“general acceptance” of the method within the scientific community.
Daubert, 509 U.S. at 593-94.

12

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 13 of 17

LDDS/WorldCom, Inc., 132 F. Supp. 2d 289, 290-91 (S.D.N.Y.
2001) (citing Brooks v. Outboard Marine Corp., 234 F.3d 89,
91 (2d Cir. 2000)). “For methods or theories that are not
purely scientific, the court should follow the same general
approach, adapting the Daubert criteria as needed for the
purpose of assessing reliability.” R.F.M.A.S., 748 F. Supp.
2d at 253 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,
150 (1999)).
The Court is not able to discern any reliable methodology
articulated or employed by Marino to reach her conclusions.
Although

the

“Standards
follows

is

Marino

and
a

Report

Practices
general

in

contains
the

a

Apparel

description

of

section

titled

Industry,”
the

what

multi-tiered

relationship between retail stores and manufacturers, and
manufacturers and factories. (See Marino Report at 5-7.) And
even if Marino’s description of the process for issuing
purchase

orders

and

invoices

are

standardized

--

Marino

concedes they are only “relatively uniform” (id. at 5) -- it
is not clear how the standards are relevant to and being
applied (or if they are applicable) to the facts Marino was
asked to assess.
For example, Marino expresses conclusions about the
“commingling of identities and assets” and how Defendants
“commingled their purchase orders” but refers only obliquely

13

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 14 of 17

to how that fact does or does not fit within any purported
industry standard, or even how to apply that standard. And
the Court is persuaded that H. Daya’s “basic anti-commingling
standard” is a common sense business practice more so than a
standard particular to the apparel industry. In other words,
the Court must trust that what Marino says is true although
she provides no way for the Court to test exactly when
commingling

of

assets

or

invoices

represents

a

set

of

companies operating as a single company and when it does not.
“Nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the
expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 147 (1997).
The Marino Report also fails to rigorously contextualize
the facts Marino reviewed within the standards and practices
it announces. The Court can find only two instances where the
standards Marino announces are applied. First, in the context
of vendor identification, the Marino Report recites that
“larger retailers like Macy’s, Nordstrom and TJ Maxx assign
vendor-identification
“authorize”

“to

numbers

facilitate

to

suppliers”

their

ordering

which
and

they

payment

process.” (Marino Report at 14.) But then the Report concludes
that

RSC

and

process . . . by

Vintage
using

Do

“circumvented
Denim’s

14

this

clearance

vendor-identification

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 15 of 17

number.” (Id.) Even here, the Marino Report neither explains
why the standard for “larger retailers” applies to RSC and
Vintage, nor how to test the conclusion against other facts.
Considering the Marino Report’s concession that the standards
are only “relatively uniform,” the Court finds that such
standards

are

not

reliable

nor

helpful

to

the

jury

in

understanding the facts at issue.
In the other instance, the Marino Report explains that
“[i]n the apparel industry different businesses often operate
from a single address.” (Marino Report at 16.) The Report
then concludes the opposite is true for Defendants here, and
that operating at a single address is evidence of unified
operations. (Id. at 17.) Other than concluding the opposite,
the Report does nothing to explain in what instances operating
from a single address does or does not indicate a company is
operating as a single business unit, making the purported
standard difficult to test. Instead, Marino proclaims that
she

has

“appli[ed]

the

standards

of

trade

and

business

practice in the apparel industry” to reach her conclusion.
(Id. at 18.) On this score as well, Marino’s application is
conclusory and does not pass muster.
Ultimately,
degree

of

Marino

business

concludes

certainty,

the

that
four

to

a

“reasonable

defendants

under

review operated as a single integrated business company,

15

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 16 of 17

without effective separation from each other, during the
period

of

2011-2012.”

conclusion

is

(Id.)

appropriate

H.

Daya

because

contends
it

is

that
couched

this
in

“constituent facts underlying claims” while avoiding any
conclusions of law. (See Opposition at 13-14.) But while true
that the ability of an expert to touch on the ultimate issue
of case has been relaxed, see Fed. R. Evid. 704, the Marino
Report’s

failure

to

apply

a

reliable

standard

and

contextualize its opinions against the standards it declares
veers into the prejudicial; a factual narrative in support of
H. Daya’s case recited with the veneer of expertise. Such
gloss on the facts is far more likely to prejudice and confuse
the jury than it is to help them. See Fed. R. Evid. 403, 702.
The Court takes steps to avoid the “admission of opinions
which would merely tell the jury what result to reach,” and
grants the motion to exclude the Report and Marino’s testimony
about

its

conclusions.

Fed.

R.

Evid.

704

and

advisory

committee notes on proposed rule.
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the motion of defendants R. Siskind &
Company,

Inc.,

Vintage

Apparel

Group,

LLC,

and

Richard

Siskind to exclude from trial the expert report and testimony
of Nancy Marino (“Marino”) (Dkt. No. 250) is GRANTED, in part,

16

Case 1:16-cv-08668-VM-VF Document 265 Filed 01/31/23 Page 17 of 17

and DENIED, in part. The testimony and expert report of Marino
is excluded. Plaintiff H. Daya International Co., Ltd. may
question Marino only generally about her relevant knowledge
and experience relating to the apparel industry and its
practices that fall within the scope of her personal knowledge
and business experience.
The Clerk of Court is respectfully directed to terminate
the Motion at Dkt. No 250 as resolved.

SO ORDERED.
Dated:

31 January 2023
New York, New York

_________________________
Victor Marrero
U.S.D.J.

17