Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`)
`MAKOR ISSUES & RIGHTS, LTD.,
`CHRIS BROHOLM, RICHARD LEBRUN, )
`et al.,
`)
`
`Plaintiffs,
`
`)
`
`))
`
`)
`
`v.
`
`TELLABS, INC., MICHAEL J. BIRCK,
`RICHARD C. NOTEBAERT, et al.,
`
`Defendants.
`
`Case No. 02 C 4356
`
`Honorable Judge Amy J. St. Eve
`
`))
`
`))
`
`MEMORANDUM OPINION AND ORDER
`
`AMY J. ST. EVE, District Court Judge:
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`Before the Court is Defendants’ motion to exclude the expert testimony of Dr. Arthur
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`Brody. Specifically, Defendants have moved to strike Dr. Brody’s testimony regarding what
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`conclusions Tellabs should have drawn from publicly available information regarding its sales
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`forecasts and guidance because 1) he is not qualified to render such opinions; 2) he did not
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`follow an appropriate methodology in reaching his opinions; and 3) he did not follow or apply
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`his methodology in any reliable or scientific manner. As discussed in detail below, Defendants’
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`motion is granted in significant part.
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`I.
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`Background of Dr. Brody
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`BACKGROUND
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`Dr. Brody has a Ph.D. in physics from Stony Brook University in 1978. From 1981 to
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`1985, Dr. Brody worked at AT&T Bell Laboratories as a Technical Manager where he was “lead
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`engineer in R&D area where he was responsible for network Operations, Administration,
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`Maintenance and Provisioning products and procedures for leased line service assurance.” (R.
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`ZIPIT EX. 2002, pg. 1
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 2 of 14
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`304-2, Curriculum Vitae (“CV”), at 11.) From 1985 to 1988, Dr. Brody worked at Technicom
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`Systems, Inc. as Vice President of Marketing and Sales. (Id.) Technicom was a subsidiary of
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`TIE/communications and provided network monitoring, cable pressurization and loop test
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`products. From 1988 to 1990, he was the Director, New Products at ADK Pressure Equipment
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`Corp., where he directed development and release of four new products resulting in several large
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`contracts and entrance into new markets. (Id.) Starting in 1990 through the present, Dr. Brody
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`was the Principal Consultant at A.T. Brody & Associates, Inc. (“A.T. Brody”), a “high tech
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`consulting firm specializing in telecommunications, networking and multimedia issues, business
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`and engineering management, and market analysis.” (Id.) Dr. Brody is the sole owner and
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`employee of A.T. Brody. (R. 310-2, Deposition of Dr. Brody (“Dep.”) at 6-7.) Approximately
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`80%-90% of Dr. Brody’s income over the past year has come from testifying and consulting in
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`intellectual property cases.
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`In addition, Dr. Brody is a member of the Institute for Electrical and Electronics
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`Engineers (“IEEE”), the IEEE Communications Society, the Product Development &
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`Management Association, the American Physical Society, the American Association for the
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`Advancement of Science, and the Sigma Chi Scientific Research Society. (R. 304-2, CV.)
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`Dr. Brody is not an expert in economics, did not train in economics, and has not taken
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`any courses in company forecasting. (Dep. at 345.) While he has served as an expert witness in
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`other cases, in each of these cases he was an expert in intellectual property issues. He has never
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`served as an expert in the area of forecasting, and no court has qualified him as such. In
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`addition, Dr. Brody has never rendered an opinion on the subject matter of company forecasting.
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`(Dep. at 128-29.) Dr. Brody also conceded that he has never been involved in giving guidance
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`2
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`ZIPIT EX. 2002, pg. 2
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 3 of 14
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`for a public company. (Dep. at 279.).
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`From approximately 2002 to 2005, Dr. Brody, along with another individual, taught
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`classes at Sequent Learning Networks, a private training and consulting firm. Dr. Brody taught
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`an introductory course to product management at Sequent Learning that lasted approximately
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`three days. (Transcript of Hearing on Motion to Exclude Expert Testimony of Dr. Brody (“Tr.”).
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`at 16-20) He taught this course three or four times during the 2002 to 2005 time period. (Tr. at
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`52.) During this introductory course, he taught product forecasting for approximately two or
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`three hours. (Tr. at 155.) Dr. Brody prepared the materials for this course based on his
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`background. (Tr. at 156.)
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`II.
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`Dr. Brody’s Opinions In this Case
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`Plaintiffs have disclosed Dr. Arthur Brody as their expert witness to opine on the
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`reasonableness of Tellabs’ financial forecasts given the publicly available information during the
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`time Tellabs issued its forecasts. Plaintiffs contacted Dr. Brody on approximately May 18, 2009
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`to issue his report by June 30, 2009. Dr. Brody issued his report on June 30, 2009. As he
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`testified, he had approximately six weeks to familiarize himself with the case, research his
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`opinions, and issue his report. He also issued a supplement report on September 11, 20091.
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`As Dr. Brody notes in his report:
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`I have been asked to provide in this report a description of the overall
`telecommunications market conditions that Tellabs, its customers and its competitors
`were subject to for the relevant time frame and I have also been asked to identify
`information publicly available to Tellabs during the relevant time frame, and to opine
`on what conclusions Tellabs should have drawn from this information with respect
`to its sales forecasts and guidance to the investing public.
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`1 On October 6, 2009, the Court struck portions of Dr. Brody’s rebuttal report.
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`3
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`ZIPIT EX. 2002, pg. 3
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 4 of 14
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`(R. 304-1 at 1.) In his report, Dr. Brody summarized his conclusions as follows:
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`Summary of Conclusions:
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`As early as the third quarter of calendar year 2000, telecommunications market
`analysts were warning investors that CAPEX spending by TSPs and dot.com
`companies could not continue. The return on investment did not justify the
`continued expenditures. Moreover, the telecommunications regulatory environment
`of the late 1990s in the United States had increased competition in many market
`segments resulting in pricing pressures that would moderate revenue growth. In the
`second half of calendar year 2000 and continuing into 2001, many of Tellabs’ TSP
`customers warned of slower revenue growth, shrinking earnings and reduced
`CAPEX spending. Tellabs’ competitors, competing for the same customers with
`similar products, also issued downward guidance, many revising revenue and
`earnings estimates downward during this period, or missing analyst estimates in their
`quarterly reports. Tellabs was subject to the same deteriorating market conditions
`that were adversely affecting its competition (and its customers) in 2000 and 2001
`despite Tellabs’ statements to the contrary.
`
`On December 11, 2000, Tellabs reconfirmed its objectives of 30 percent revenue
`growth and 30 percent earnings per share (“EPS”) growth (30/30) for 2001. From
`December through March 2001, Tellabs maintained its 30/30 guidance to the public
`as the telecommunications market collapse accelerated. On April 6, 2001, Tellabs
`lowered both its revenue and EPS guidance for the first quarter of 2001, but provided
`no guidance for the remainder of 2001. Following the first quarter, sales plummeted
`sequentially in the second and third quarters of 2001. On July 18, 2001, Tellabs
`reported a sequential quarterly revenue decrease of over 30 percent and a quarterly
`loss per share, while not providing any guidance for third quarter 2001.
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`Based on the information publicly available, Tellabs should have known throughout
`the Class Period that revenue and earnings growth of 30 percent for 2001 were not
`achievable and had no realistic basis.
`
`(R. 304-2 at 6.)
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`On May 20, 2010, the Court held a hearing on Defendants’ motion. During that hearing,
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`Dr. Brody testified for over three hours.
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`4
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`ZIPIT EX. 2002, pg. 4
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 5 of 14
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`III.
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`Rule 702 and Daubert Standards
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`Federal Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized
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`knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
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`witness qualified as an expert by knowledge, skill, experience, training or education, may testify
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`thereto in the form of opinion or otherwise.” Fed. R. Evid. 702. Rule 702 “also requires that: (1)
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`the testimony must be based upon sufficient facts or data; (2) it must be the product of reliable
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`principles and methods; and (3) the witness must have applied the principles and methods
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`reliably to the facts of the case.” Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir.
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`2010). It requires that the district court serve as a “‘gate-keeper’ who determines whether
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`proffered expert testimony is reliable and relevant before accepting a witness as an expert.”
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`Winters v. Fru-Con Inc., 498 F.3d 734, 741-42 (7th Cir. 2007) (quoting Autotech Tech. Ltd.
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`P’ship v. Automationdirect.com, 471 F.3d 745, 749 (7th Cir. 2006)). The purpose of the court’s
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`gate-keeping function is “to make certain that an expert, whether basing testimony upon
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`professional studies or personal experience, employs in the courtroom the same level of
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`intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire
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`Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
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`The parties dispute the appropriate standard to apply to experts whose opinions are non-
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`scientific. Plaintiffs suggest that the Court’s “admissibility analysis is more liberal when
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`proposed expert testimony, such as Dr. Brody’s proposed testimony, is based on judgments and
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`assessments derived from professional experience and knowledge” rather than well-recognized
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`scientific discipline. (R. 322, Pls.’ Mem. at 4.) To the contrary, non-scientific expert testimony
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`does not alter the Court’s gatekeeping function. “Daubert, as extended to all expert testimony
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`5
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`ZIPIT EX. 2002, pg. 5
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 6 of 14
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`including non-scientific expert testimony, requires the district court to perform the role of
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`gatekeeper and to ‘ensure the reliability and relevancy of expert testimony.’” Naeem v.
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`McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006), quoting Kumho, 526 U.S. at 152, 119 S.
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`Ct. 1167. Indeed, an expert’s testimony must rest “on a reliable foundation” and be “relevant to
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`the task at hand.” Kumho, 526 U.S. at 141, 119 S. Ct. 1167 (citations and quotations omitted).
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`In assessing whether an expert’s testimony is reliable, Daubert lists a number of
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`considerations — including testing, peer review, error rates, and acceptability in the relevant
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`scientific community. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593-94, 113 S. Ct. 2786,
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`125 L. Ed. 2d 469 (1993). The Supreme Court, however, has clearly stated that “the test of
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`reliability is flexible, and Daubert’s list of specific factors neither necessarily nor exclusively
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`applies to all experts or in every case.” Kumho, 526 U.S. at 141, 119 S. Ct. 1167 (internal
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`quotation omitted). This is especially true when the expert’s opinions are non-scientific in
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`nature and do not follow traditional scientific testing. “[T]he test for reliability for nonscientific
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`experts is ‘flexible’ and ... Daubert’s list of specific factors neither necessarily nor exclusively
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`applies to all experts or in every case.” United States v. Romero, 189 F.3d 576, 584 (7th Cir.
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`1999), quoting Kumho Tire, 536 U.S. at 141. “Rather the law grants a district court the same
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`broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate
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`reliability determination.” Id. at 142, 119 S. Ct. 1167 (emphasis in original).
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`In addition, the 2000 Advisory Committee’s Notes to Rule 702 suggest additional criteria
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`for gauging expert reliability, including whether: (1) “maintenance standards and controls” exist;
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`(2) the testimony relates to “matters growing naturally and directly out of research they have
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`conducted independent of the litigation,” or developed “expressly for purposes of testifying”; (3)
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`6
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`ZIPIT EX. 2002, pg. 6
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`“the expert has unjustifiably extrapolated from an accepted premise to an unfounded
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`conclusion”; (4) “the expert has adequately accounted for obvious alternative explanations”; (5)
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`“the expert is being as careful as he would be in his regular professional work outside his paid
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`litigation consulting”; and (6) “the field of expertise claimed by the expert is known to reach
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`reliable results for the type of opinion the expert would give.” Fuesting v. Zimmer, Inc., 421
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`F.3d 528, 535 (7th Cir. 2005) (citations omitted), vacated in part on other grounds, 448 F.3d 936
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`(7th Cir. 2000) (quoting Fed. R. Evid. 702 advisory committee’s note (2000)). See also
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`American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010). “The proponent of
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`the expert bears the burden of demonstrating that the expert’s testimony would satisfy the
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`Daubert standard” by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561
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`F.3d 698, 705 (7th Cir. 2009).
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`An expert may be qualified to render opinions based on experience alone. “In certain
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`fields, experience is the predominant, if not the sole basis for a great deal of reliable expert
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`testimony.” Advisory Committee Notes to Rule 702. The Seventh Circuit has repeatedly stated
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`that “genuine expertise may be based on experience or training.” United States v. Conn, 297
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`F.3d 548, 556 (7th Cir. 2002), quoting Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir.
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`1996). “[W]hile extensive academic and practical expertise in an area is certainly sufficient to
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`qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of
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`testimony by experts whose knowledge is based on experience.” Trustees of Chicago Painters
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`and Decorators Pension, Health and Welfare, and Deferred Sav. Plan Trust Funds v. Royal
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`Intern. Drywall and Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (citations and
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`quotations omitted). As such, courts “consider a proposed expert’s full range of practical
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`7
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`ZIPIT EX. 2002, pg. 7
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 8 of 14
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`experience as well as academic or technical training when determining whether that expert is
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`qualified to render an opinion in a given area.” Id., quoting Smith v. Ford Motor Co., 215 F.3d
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`713, 718 (7th Cir. 2000).
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`Furthermore, “possessing requisite credentials alone is not enough to render expert
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`testimony admissible.” Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005) (citations
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`omitted), vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2006). A district court must
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`“assess the reliability of the methodology the expert has employed in arriving at his opinion.”
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`Id.
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`I.
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`Dr. Brody’s Methodology Was Unreliable
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`ANALYSIS
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`Defendants contend that Dr. Brody’s methodology is flawed.2 The Court agrees. In
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`reaching his opinions, Dr. Brody relied on his “background and experience-based knowledge.”
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`(R. 304-2 at 6.) In order to determine the reasonableness of Tellabs’ forecasts, Dr. Brody
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`“searched the Internet using ‘Google’ and ‘Bing’ search engines for background articles on the
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`state of the telecommunications and related dot.com industries to determine what information
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`was publicly available during the relevant time period.” (Tr. at 25-26.) His search focused on
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`the second half of 2000 and the first half of 2001. In addition, he “searched for similar publicly
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`available information from Tellabs’ customers and competitors, and relied on publicly available
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`information regarding them in reaching his opinions.” (R. 304-2 at 7.) While Dr. Brody had
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`access to “all documents and discovery obtained in discovery,” (id. at 6), he made clear during
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`2 Because the Court is striking Dr. Brody’s opinions based on his unreliable methodology, the Court need
`not address whether Dr. Brody is qualified to render such opinions in this case.
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`8
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`ZIPIT EX. 2002, pg. 8
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`his deposition and the Daubert hearing that he did not review the majority of the documents
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`provided to him from the discovery materials. (R. 310-2 at 47.) He only “scanned through” the
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`depositions of Mr. Notebaert and Ms. Ryan (Tellabs’ CFO), and conceded that he did not read
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`them. (Id. at 49.) He did not look at the other 21 depositions in this case to which he had access.
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`(Tr. at 46-47.) Significantly, Dr. Brody testified that he did not find anything Mr. Notebaert or
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`Ms. Ryan had to say relevant to his opinions. In addition, Dr. Brody did not even read the
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`deposition transcript of Chris Pfefferle, the head of Tellabs’ Global Forecasting Organization.
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`(Id. at 52.) He conceded that he did not read any testimony about how Tellabs prepared its
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`forecast. (Tr. at 124.) Furthermore, Dr. Brody did not read any of the deposition exhibits from
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`the discovery in this case in reaching his opinions. (Dep. at 52.)
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`Dr. Brody admitted during his deposition that he “frankly didn’t have time to read most”
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`of the documents produced from the Brieger case, a related ERISA case, which raised issues
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`regarding the reasonableness of Tellabs’ projections. (Id.; Tr. at 103.) He did not read the
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`analysts reports provided during discovery, and could not recall if he read the newspaper articles
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`regarding Tellabs provided during discovery, although he may have found the articles
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`independently. (Id. at 58-59.)
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`During his deposition, Dr. Brody explained that he “was looking for articles that showed
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`that there was turmoil both in the dot-com and telecom industries, even as early as the beginning
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`of 2000.” (R. 310-2 at 70.) Significantly, he conceded that while he may have reviewed articles
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`that contained positive statements about the industry at the time, he did not cite to any such
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`articles in his report. (Id. at 70-71.) Dr. Brody only relied on articles with some negative
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`component regarding the industry. (Tr. at 124.) During the Daubert hearing, Dr. Brody
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`9
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`ZIPIT EX. 2002, pg. 9
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 10 of 14
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`conceded that he did not cite any positive articles from one of Tellabs’ closest competitors,
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`Alcatel. (Tr. at 129-31.) During the same time period, Alcatel officials said its telecom units
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`would post sales growth of 35 to 40 percent in 2000 and 25 percent in 2001. (Tr. at 132-36.)
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`Yet, Dr. Brody did not include this positive information in reaching his opinions. Neither did he
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`include other positive information from the telecom industry. (Tr. at 161-62.) Dr. Brody failed
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`to adequately explain why he ignored these positive articles and press release. Cummins v. Lyle
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`Indus., 93 F.3d 362, 368 (7th Cir. 1996) (“An expert scientific opinion ... must consist of more
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`than simply subjective belief or unsupported speculation.”) (citations and quotations omitted).
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`He admitted that he was looking simply for articles to support his opinion – which included only
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`negative articles about the industry.
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`Furthermore, although he opined on the reasonableness of Tellabs’ financial forecasts,
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`Dr. Brody neither knew the process that Tellabs followed in making its forecasts, nor reviewed
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`any aspects of that process in connection with his opinions. (Dep. at 152-54, 302-03.) He is not
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`aware of what information Ms. Pfefferle had, what she looked at in the public marketplace, or
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`how she rendered the forecasts. (Dep. at 302.) In reaching his opinions, Dr. Brody also did not
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`rely on any internal Tellabs’ documents describing how Tellabs put its forecasts together. (Dep.
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`at 154.)
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`In addition, Dr. Brody offered nothing to support this methodology, other than his rather
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`limited experience and training in the area.3 Yet as addressed below, even Dr. Brody did not
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`follow the methodology that he employs when teaching forecasting and creating his own
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`3 As Defendants point out, Dr. Brody did not record what articles he reviewed or what search terms he
`used during his review. He failed to keep track of the documentation that he reviewed and could not
`remember precisely what he looked at. As a result, Defendants cannot replicate his methodology. Lang
`v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000).
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`10
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`ZIPIT EX. 2002, pg. 10
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 11 of 14
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`forecasts. In essence, there is nothing to support Dr. Brody’s methodology of looking only to
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`publicly-available information to determine the reasonableness of a company’s public guidance.
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`Plaintiffs – who bear the burden of establishing the admissibility of Dr. Brody’s testimony –
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`have not identified any evidence that Dr. Brody’s methodology of looking only to publicly-
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`available information to determine the reasonableness of a company’s public guidance is
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`generally accepted and employed by experts in the field. See Deimer v. Cincinnati Sub-Zero
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`Prods., 58 F.3d 341, 344-345 (7th Cir. 1995) (district court properly held that expert’s opinion
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`was unreliable where there was “no supporting methodology or protocol of any kind to render
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`his opinion reasonable or credible”). Even Dr. Brody did not know whether market participants
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`used similar sources in preparing their forecasts. (Dep. at 75-76.) Plaintiffs also failed to submit
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`any evidence to support simply focusing on negative publicly available information when
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`applying this methodology.
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`Furthermore, Plaintiffs have not offered any articles, texts, studies, literature, or other
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`published writings to support this one-sided methodology. Dr. Brody conceded that he is not
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`aware of any literature or treatises in the field of forecasting that recommend evaluating the
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`reasonableness of a company’s sales forecasts for existing products based solely on public
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`information, much less only negative publicly available information. (Tr. at 109.) There is no
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`evidence that Dr. Brody’s methodology has ever been used, much less recognized as appropriate.
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`Plaintiffs contend that the Court should let the jury assess Dr. Brody’s credibility and his
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`potential bias. This argument, however, ignores the gatekeeper function of the Court under
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`Daubert. Dr. Brody’s one-sided methodology does not meet the mandates of Daubert. Because
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`Dr. Brody’s methodology is fundamentally flawed and his opinions in this area are inherently
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`11
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`ZIPIT EX. 2002, pg. 11
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`unreliable, he may not opine at trial regarding the state of the telecom industry during the 2000-
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`2001 time period or the reasonableness of Tellabs’ forecasts during that period.
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`II.
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`Dr. Brody Did Not Follow His Own Methodology
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`Significantly, Dr. Brody relied solely on his experience and knowledge in giving his
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`opinions in this case. He testified about his teaching experience at Sequent Learning. Dr.
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`Brody, however, did not even follow the methodology in this case that he teaches. Dr. Brody
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`testified that he teaches a “best of breed” methodology for developing and evaluating company-
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`specific forecasts at Sequent Learning Networks. The best of breed methodology relies on an
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`overall assessment of numerous data points, including market data as well as internal sales data.
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`Dr. Brody teaches “several different approaches to sizing a market and determining your sales.
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`So that’s bottom up where you take your forecast from your salespeople and then you’re top
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`down when you look at the market as a whole and try to derive sales for products based on
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`general economic factors, technology factors and other issues.” (Dep. at 141-42.) Dr. Brody has
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`never recommended to his class that they perform only top down sales forecasts without
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`conducting a “bottoms-up” forecast. Instead, he “said that you should be relying on what’s
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`called a cross-functional team approach where marketing has a dual function. Marketing should
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`both be looking at the market information in general, providing you – and this is inbound
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`marketing - providing you information in general from the marketplace, and going in and
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`actually talking to customers themselves, separate from the salespeople, asking them about what
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`their problems are and what issues can be solved as opposed to trying to sell them products.”
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`(Dep. at 147-48). As he explained, he teaches that proper sales forecasting techniques rely “on
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`the quality of the data you’re getting in and the ability of the product manager themselves to put
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`12
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`ZIPIT EX. 2002, pg. 12
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 13 of 14
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`it together properly.” (Dep. at 151.) Furthermore, Dr. Brody admitted that he would never tell
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`one of his students to just look at publicly available market data when putting together sales
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`forecasts. (Id.) It is important, according to Dr. Brody, to take all available information into
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`account. (Tr. at 136-37.) Yet, he failed to follow that process here.
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`Similarly, when at Technicom and at ADK in the 1980s, Dr. Brody prepared some
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`forecasts for specific products. He did not prepare or evaluate these forecasts, however, using
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`the method he employed here. When he reviewed the business plan for MSI in 2002, including
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`the forecasts, he did not employ the methodology he used here. In fact, Dr. Brody did not
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`identify a single instance where he followed the methodology he applied in this case, even
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`though he claims that the methodology he employed here is based on his experience. Dr. Brody
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`admitted that he has never written an objective report for a client that only contained negative
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`market information. (Tr. at 71-72.)
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`Dr. Brody further admitted that he has never taught his students that forecasts can be
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`challenged solely on the basis of publicly available information. (Tr. at 137.) Nonetheless, Dr.
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`Brody did precisely that in reaching his opinions on Tellabs’ forecasting. He simply looked at
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`publicly available information – almost exclusively negative information – and rendered his
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`opinions. He did not look at or rely on any data from Tellabs’ salespeople or any other internal
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`Tellabs’ data, even though he testified that Tellabs should have taken its internal information
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`into account when making its forecasts. (Tr. at 138.) Dr. Brody did not rely on any internal
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`documents that described how Tellabs put its forecasts together. (Dep. at 154.) In sum, he
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`certainly has not “employed in the courtroom the same level of intellectual rigor that
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`characterizes the practice of an expert in the relevant field.” Kumho Tire Cov., 526 U.S. at 152.
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`13
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`ZIPIT EX. 2002, pg. 13
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`Case 1:02-cv-04356 Document 373 Filed 06/23/10 Page 14 of 14
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`See Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007). See also In re Fosamax
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`Products Liability Litig., 645 F.Supp.2d 164, 187-88 (S.D.N.Y. 2009) (excluding expert opinions
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`on causation where expert failed to apply “the same level of intellectual rigor that characterizes
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`his work ... in the field”). Indeed, “[t]he Daubert standard and Rule 702 are designed to ensure
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`that, when expert witnesses testify in court, they adhere to the same standards of intellectual
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`rigor that are demanded in their professional work.” Chapman v. Maytag Corp., 297 F.3d 682,
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`688 (7th Cir. 2002). Accordingly, the Court excludes his opinions.
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`III.
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`Dr. Brody’s “Other” Opinions
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`Plaintiffs claim that Dr. Brody should be permitted to testify about his remaining
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`opinions. These opinions amount to general background information regarding how the
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`telecommunications industry works. Plaintiffs, however, have failed to identify precisely what
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`disclosed opinions fall within this category. Plaintiffs must submit their proposal as to these
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`disclosed opinions with the final pre-trial order in this case.
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`CONCLUSION
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`For the foregoing reasons, the Court grants in significant part Defendants’ motion to
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`strike the expert report of Dr. Brody.
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`Dated: June 23, 2010
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`______________________
`AMY J. ST. EVE
`U.S. District Court Judge
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`14
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`ZIPIT EX. 2002, pg. 14
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