`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:15-CV-512-WCB
`
`Case No. 2:16-CV-198-WCB
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`§§§§§§§§§§§§§
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`§§§§§§§§§§§§§
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`ROBROY INDUSTRIES – TEXAS, LLC, a
`Texas corporation, and ROBROY
`INDUSTRIES, INC., a Pennsylvania
`corporation,
`
`Plaintiffs,
`
`v.
`
`THOMAS & BETTS CORPORATION, a
`Tennessee corporation,
`
`Defendant.
`
`THOMAS & BETTS CORPORATION, a
`Tennessee corporation,
`
`Plaintiff,
`
`v.
`
`ROBROY INDUSTRIES – TEXAS, LLC, a
`Texas corporation, and ROBROY
`INDUSTRIES, INC., a Pennsylvania
`corporation,
`
`Defendants.
`
`MEMORANDUM OPINION AND ORDER
`
`Before the Court are Plaintiffs’ Motion to Exclude the Testimony and Report of Ambreen
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`Salters, Dkt. No. 133 (“Robroy’s Motion to Exclude”), and Thomas and Betts’ Motion to
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`Exclude Opinions of Chase A. Perry Regarding Damages, Dkt. No. 136 (“T&B’s Motion to
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`Exclude”). The plaintiffs’ motion is GRANTED IN PART and DENIED IN PART. Thomas &
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`Betts’ motion is DENIED.
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`1
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`
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 2 of 25 PageID #: 8060
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`BACKGROUND
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`Both the plaintiffs (“Robroy”) and the defendant (“T&B”) propose to call an expert
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`witness to testify about damages. In addition, T&B’s expert witness intends to testify about the
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`absence of a causal link between the allegedly improper conduct of T&B representatives and any
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`losses suffered by Robroy. Both proposed expert witnesses are “professional witnesses,” as
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`opposed to “industry witnesses,” in that neither has expertise in the industry at issue in this case,
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`and both are associated with consulting groups that offer analysis and expert testimony on
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`economic and financial issues to parties in legal proceedings.
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`1. Robroy’s expert witness, Chase A. Perry, proposes to testify in support of Robroy’s
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`claim for damages. He has a law degree and an M.B.A., and he is employed by a consulting
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`group where he has provided economic analysis and testimony in numerous commercial
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`disputes, including unfair competition cases. In his expert report, Mr. Perry explains (1) that he
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`assumes T&B will be held liable for one or more of Robroy’s claims; (2) that he does not offer
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`an opinion on the liability issue; and (3) that he addresses only the issue of the damages resulting
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`from T&B’s allegedly unlawful acts. Expert Report of Chase A. Perry Regarding Damages, Dkt.
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`No. 136-4, at 3 (“Perry Report”). Based on his analysis of the evidence from T&B, Mr. Perry
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`concludes in his supplemental report that Robroy is due damages in the form of disgorgement of
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`T&B’s profits in the amount of no less than $8.1 million, and as much as $22.9 million.
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`Supplemental Expert Report of Chase A. Perry Regarding Damages, Dkt. No. 136-1, at 9 (“Perry
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`Supplemental Report”). In the alternative, he testifies, Robroy is due lost profits damages of no
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`less than $6.6 million and as much as $18.7 million. Perry Supplemental Report, Dkt. No. 136-
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`1, at 10.
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`2
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 3 of 25 PageID #: 8061
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`
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`Mr. Perry proposes to testify about those projects for which data is available and in
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`which, according to Robroy, T&B won the conduit contract as a result of false statements to
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`customers. He proposes to testify that he derived his estimate of the profits T&B earned on those
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`projects by subtracting the expenses T&B incurred from the dollar value of the sales, and that he
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`derived the profits that Robroy would have earned on those projects by estimating the expenses
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`that Robroy would have incurred and subtracting them from the gross revenue Robroy would
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`have obtained from the projects in question.
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`
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`T&B has moved to exclude Mr. Perry’s testimony for three reasons: (1) because Mr.
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`Perry “presents no reliable link between the alleged false statements” and the projects that he
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`uses to calculate damages, T&B’s Motion to Exclude, at 1, 8; (2) because Mr. Perry “relied on
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`speculative and unreliable data to assign an ‘estimated minimum and maximum sales value’ of
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`potentially lost sales for each . . . project,” id. at 11; and (3) because Mr. Perry describes only
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`“speculative and attenuated harm that the statements-at-issue merely enabled T&B to potentially
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`make conduit sales to a customer,” id. at 14.
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`
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`2. T&B intends to call Ambreen Salters as an expert witness at trial. She has a
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`background as an economist, with a B.A. in business administration and an M.S. in economics.
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`She is employed by a firm that, among other things, provides expert witnesses in legal
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`proceedings. Like Mr. Perry, she does not purport to be an expert in the electrical conduit
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`industry or any related industry.
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`
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`From Ms. Salters’ report, Rule 26 Expert Report of Ambreen Salters on Behalf of
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`Defendant Thomas & Betts Corporation, Dkt. No. 133-1 (“Salters Report”), it appears that T&B
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`intends to offer Ms. Salters’ testimony for several purposes: (1) to show that Robroy has not
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`established a causal nexus between the defendants’ allegedly wrongful conduct and the resulting
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`3
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 4 of 25 PageID #: 8062
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`harm to Robroy, id. at ¶¶ 41-44; (2) to testify as to the considerations that influence purchasing
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`decisions by customers of PVC-coated conduit, id. at ¶¶ 45-57; (3) to establish that customers
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`can readily verify whether a particular product complies with applicable standards for PVC-
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`coated conduit, id. at ¶¶ 58-60; and (4) to respond to Robroy’s evidence regarding damages, id.
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`at ¶¶ 61-82. The first three categories all go to the question whether the alleged false statements
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`made by T&B caused actionable injury to Robroy.1 The Court will therefore deal with those
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`portions of Ms. Salters’ testimony collectively under the rubric of “causation.”
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`Robroy has moved to exclude Ms. Salters’ testimony on the ground that her opinion
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`testimony and report “are based on unreliable principles and methodology [and] would not be
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`helpful to the jury.” In its motion to exclude, Robroy argues: (1) Ms. Salters’ conclusions as to
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`the issue of causation are inadmissible, both because Mr. Perry will not be testifying as to
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`causation and because Ms. Salters’ opinions as to causation constitute impermissible attempts to
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`offer testimony as to a legal conclusion; (2) her opinions on the issue of damages are based only
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`1 In her report, Ms. Salters states that she has “assumed solely for purposes of responding
`to the Robroy damages report that T&B is liable for the wrongful acts alleged by Robroy. Even
`assuming liability, however, Robroy is not entitled to damages unless it can establish that such
`acts caused damages, computed to a reasonable certainty. Based on my review of the documents
`produced and deposition testimony given in this matter, there is not an apparent nexus between
`T&B’s allegedly wrongful statements and Robroy’s purported damages.” Salters Report, Dkt.
`No. 133-1, at ¶ 39. That characterization incorrectly conflates causation and damages. Under
`the Lanham Act, causation is an element of liability. IQ Prods. Co. v. Pennzoil Prods. Co., 305
`F.3d 368, 375 (5th Cir. 2002) (“The plaintiff must establish five elements to make out a prima
`facie case of false advertising under the Lanham Act: . . . (5) the plaintiff has been or is likely to
`be injured as a result of the statement at issue.”). If the plaintiff fails to prove that the
`defendant’s false advertising caused or is likely to cause injury to the plaintiff, the defendant is
`not liable for a Lanham Act violation. Causation is thus an element of the tort. Proof of
`damages is then necessary to determine whether the plaintiff is entitled to a legal remedy for the
`tort, and in what amount. See Schlotzsky’s, Ltd. v. Sterling Purchasing & Nat’l Distrib. Co.,
`Inc., 520 F.3d 393, 401 (5th Cir. 2008) (after establishing liability under the Lanham Act, the
`“plaintiff is entitled, ‘under the principles of equity,’ to recover the profits a defendant gained
`from its violation of the Act, ‘any damages’ the plaintiff suffered, and costs.”) (quoting remedial
`provision, 15 U.S.C. § 1117(a)).
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`4
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 5 of 25 PageID #: 8063
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`on her review of particular information provided to her by counsel and are therefore unreliable;
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`(3) her “regurgitation of facts” from depositions and other sources does not qualify as expert
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`testimony; (4) her opinions as to the reasons that consumers make purchasing decisions in the
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`PVC-coated conduit market are not based on an adequate foundation; and (5) because she is not
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`an expert in the PVC-coated conduit market, her opinions on that subject would not be helpful to
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`the jury.
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`DISCUSSION
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`
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`At the outset, four points need to be made. First, even though Robroy’s motion purports
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`to be directed to the exclusion of both Ms. Salters’ report and her testimony, it is clear that her
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`report (like Mr. Perry’s report) is inadmissible. See Hunt v. City of Portland, 599 F. App’x 620,
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`621 (9th Cir. 2013) (expert’s written report “is hearsay to which no hearsay exception applies”);
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`Worldwide Sorbent Prods., Inc. v. Invensys Sys., Inc., Civil Action No. 1:13-cv-252, 2014 WL
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`12596585, at *4 (E.D. Tex. Oct. 29, 2014); Bianco v. Globus Med., Inc., 30 F. Supp. 3d 565, 570
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`(E.D. Tex. 2014) (citing cases); Sommerfield v. City of Chicago, 254 F.R.D. 317, 329 (N.D. Ill.
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`2008) (citing cases). Other than in the caption of Robroy’s Motion to Exclude, neither party has
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`indicated that it intends to offer its expert’s report into evidence, but just for clarity, the reports
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`themselves are plainly hearsay and will not be admitted into evidence absent stipulation by the
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`parties; all that is at issue here is the question of the admissibility of the opinion testimony that
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`the parties intend to offer through their expert witnesses.
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`Second, both experts’ reports are divided into a background section and a section
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`summarizing their opinions. The background sections contain some material that seems
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`uncontroversial, such as Ms. Salters’ summary of the allegations of the complaint and of the
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`contents of Mr. Perry’s expert report, which are found in paragraphs 34-38 of Ms. Salters’ report.
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`5
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 6 of 25 PageID #: 8064
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`Some of that material may be admissible through the experts’ testimony as necessary
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`introductory information explaining the basis for their opinions. For example, Ms. Salters’
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`description of Mr. Perry’s opinions on damages in paragraphs 36-38 may be necessary in order
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`to introduce Ms. Salters’ critique of Mr. Perry’s opinions.
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`Other material in the background sections and in the curriculum vitae of the experts
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`seems to be fertile ground for the parties to agree upon, either by stipulating to the information
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`itself, or by stipulating to the admission of those portions of the reports, or by agreeing to permit
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`the experts to testify as to that information. The Court would permit—and indeed welcome—
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`any such procedure that the parties can agree upon as a way of more expeditiously laying out the
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`factual background of the case and the experts’ qualifications for the jury. See Mahnke v. Wash.
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`Metro. Area Transit Auth., 821 F. Supp. 2d 125, 154 (D.D.C. 2011) (“[P]arties may stipulate to
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`admission of certain reports and CVs.”); Wilson v. Hartford Ins. Co. of the Midwest, No. 10-993,
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`2011 WL 2670199, at *2-3 (W.D. Wash. July 7, 2011) (“The Court notes that parties often, for
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`ease of presentation of evidence, mutually agree that expert reports are admissible. The court
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`will not, however, force parties to reach such an agreement.”).
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`Third, certain portions of the background sections of the experts’ opinions are more
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`tendentious and will not be admitted absent a stipulation by the parties. For example, the
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`background section of Ms. Salters’ report contains what amounts to a summary of the
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`defendant’s theory of the case, supported by citations to witness depositions. See Salters Report,
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`Dkt. No. 133-1, at ¶¶ 7-33. It is not clear from the parties’ papers whether Ms. Salters intends to
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`testify regarding the assertions in those portions of the background section of her report.
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`However, to the extent that T&B intends to offer testimony from Ms. Salters that tracks the
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`contents of those portions of the Background section of her report and Robroy objects, that
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`6
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 7 of 25 PageID #: 8065
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`evidence will be excluded. As to that evidence, she is not serving as an expert, but is simply
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`passing along information provided by others and laying out the defendant’s theory of the case.
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`Whether viewed as a second opening statement for the defense or as the defendant’s first
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`summation, that use of expert testimony is improper. Orthoflex, Inc. v. Thermotek, Inc., 986 F.
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`Supp. 2d 776, 798 (N.D. Tex. 2013) (Fitzwater, J.) (it is impermissible for an expert witness to
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`be called “merely to present [a party’s] trial arguments as expert opinions”). The statements in
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`that portion of Ms. Salters’ report are clearly outside the scope of her competence as an expert
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`witness and do not reflect the application of expertise to particular subject matter within the
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`scope of her expertise. Any testimony by Ms. Salters based on that portion of her report will be
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`excluded. This issue is discussed in more detail in section II-A, below.
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`While there is less material in Mr. Perry’s report that is objectionable on this ground,
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`there is some. In particular, his summary of Robroy’s complaints about the false statements
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`allegedly made by T&B about Robroy’s products, found at page 10 of his report constitutes, in
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`effect, a summary of Robroy’s position on the issue of liability and is not admissible as expert
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`testimony absent agreement of the parties.
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`Fourth, to be clear, the Court’s ruling as to the inadmissibility of certain testimony by the
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`expert witnesses does not mean that the underlying evidence on which the experts rely in their
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`reports is inadmissible. Some of the statements alluded to in the experts’ reports may well be
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`otherwise admissible. But those statements may not be introduced through the testimony of an
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`expert witness who purports to have acquired expertise regarding the industry as applied to the
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`facts of this case simply by reading witness depositions and reviewing exhibits provided by
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`counsel. See Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 372 (5th Cir. 2000); Lyman v. St.
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`Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 726 (E.D. Wis. 2008).
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`7
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 8 of 25 PageID #: 8066
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`The Court will now turn to the specific issues of admissibility of evidence from each of
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`the expert witnesses.
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`I. T&B’s Motion to Exclude the Testimony of Chase A. Perry
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`A. Mr. Perry’s Failure to Offer Evidence of Causation
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`Mr. Perry’s proposed damages testimony is inadmissible, according to T&B, because “he
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`
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`offers no basis for showing a causal link between the 55 projects he lists as the foundation for his
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`false-advertising damages analysis to the ‘only Ocal’ statements-at-issue.” T&B’s Motion to
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`Exclude, at 8. According to T&B, the Fifth Circuit has “refused to allow damages testimony in
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`false-advertising cases that failed to rely on sufficient data showing a causal link between the
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`false advertising-at-issue and the alleged damages.” Id. at 1.
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`
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`The Court rejects T&B’s argument that a damages expert in a false advertising case may
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`not limit his testimony to damages, but also must testify regarding causation. Contrary to T&B’s
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`submission, it is perfectly permissible for an expert to assume liability (of which causation is an
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`element) and simply focus on the issue of damages. For example, in U.S. Gypsum Co. v.
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`Lafarge North America Inc., 670 F. Supp. 2d 737 (N.D. Ill. 2009), the defendants sought to
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`exclude the plaintiff’s damages witness on grounds similar to those raised by T&B against Mr.
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`Perry in this case. As the court explained, the defendants took issue not with the expert witness’s
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`calculations, but with her initial assumptions regarding the defendant’s hypothetical commercial
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`viability and the scope of the defendants’ reliance on the plaintiff’s information. The defendants
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`argued that those assumptions were “inconsistent with the evidence, unreliable, and outside of
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`[the witness’s] expertise.” Id. at 741. The court rejected that argument, noting that the witness
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`“does not seek to opine that the assumptions underlying her analysis are true in fact. [The
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`8
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 9 of 25 PageID #: 8067
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`witness] is an expert on damages, not liability, and she seeks to opine only on what the damages
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`should be if the jury separately finds the facts she assumes to be true.” Id.
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`The same analysis applies to Mr. Perry. He is a damages witness. As such, he is allowed
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`to assume liability and address only the issue of damages. To prove causation, Robroy will be
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`required—and will be permitted—to look to evidence other than the testimony of Mr. Perry.
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`This principle has been expressed in numerous cases, and it is beyond serious challenge.
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`See Orthofix, Inc. v. Gordon, Case No. 1:13-cv-1463, 2016 WL 1273160, at *3 (C.D. Ill. Mar.
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`31, 2016) (“It is entirely appropriate for a damages expert to assume liability for the purpose of
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`his or her opinion. To hold otherwise would be illogical.”) (quoting Sys. Dev. Integration, LLC
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`v. Computer Scis. Corp., 886 F. Supp. 2d 873, 882 (N.D. Ill. 2012)); Luitpold Pharms., Inc. v.
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`Ed. Geistlich Sohne A.G. für Chemische Industrie, No. 11-cv-681, 2015 WL 5459662, at *10
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`(S.D.N.Y. Sept. 16, 2015) (“[A] damages expert does not need to perform her own causation
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`analysis to offer useful expert testimony.”); Gaedeke Holdings VII, Ltd. v. Baker, Case No. CIV-
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`11-649, 2015 WL 11570978, at *3 (W.D. Okla. Nov. 30, 2015) (“Proof of causation often comes
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`from fact witnesses, and it is appropriate for expert witnesses to assume causation will be
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`established and then proceed to calculate the damages.”); Williams v. Bridgeport Music, Inc.,
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`Case No. LA CV 13-6004, 2015 WL 4479500, at *24 (C.D. Cal. July 14, 2015) (“A damages
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`expert may assume as a fact, for purpose of fashioning an opinion, that the technical conclusions
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`of infringement experts are correct and reasonable.”); Orthoflex, Inc. v. Thermotek, Inc., 986 F.
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`Supp. 2d at 792 (“Experts are permitted to assume the fact of liability and opine about the extent
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`of damages.”); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 986 F. Supp. 2d 574, 656
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`(W.D. Pa. 2013) (“It is entirely appropriate for a damages expert to assume liability for the
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`purposes of his or her opinion.”); Lloyd’s Acceptance Corp. v. Affiliated FM Ins. Co., No. 4:05
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`9
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 10 of 25 PageID #: 8068
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`CV 1934, 2013 WL 4776277, at *8 (E.D. Wis. Sept. 6, 2013) (“damages experts are permitted to
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`‘assume that the defendant’s alleged misdeeds caused the plaintiff’s loss’”); U.S. Accu-
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`Measurements, LLC v. Ruby Tuesday, Inc., Civ. No. 2:10-5011, 2013 WL 1792463, at *8
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`(D.N.J. Apr. 26, 2013) (“Expert opinions on damages commonly assume liability, which must be
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`established independently.”); RMD, LLC v. Nitto Ams., Inc., No. 09-2056, 2012 WL 5398345,
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`at *10 (D. Kan. Nov. 5, 2012) (“Vianello is not a causation expert. His expert testimony relates
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`only to damage calculation, not to causation. . . . For purposes of presenting his damage
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`calculation methods . . . Vianello is permitted to presume causation, which is a prerequisite to
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`recovery that will have to be established at trial by evidence other than Vianello’s testimony.”);
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`Sancom v. Qwest Commc’ns Corp., 683 F. Supp. 2d 1043, 1068 (D.S.D. 2010) (“It is well
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`settled that a damages expert . . . can testify as to damages while assuming the underlying
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`liability.”), aff’d in relevant part, 807 F.3d 1283 (Fed. Cir. 2015); CRST Van Expedited, Inc. v.
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`J.B. Hunt Transport, Inc., No. CIV-04-651, 2006 WL 2054646, at *4 (W.D. Okla. July 24, 2006)
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`(“For the purposes of presenting his damage calculation methods, Mr. Swanson is entitled to
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`presume causation (a prerequisite to recovery which will have to be established by evidence
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`other than Mr. Swanson’s testimony).”); Children’s Med. Ctr. of Dallas v. Columbia Hosp. at
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`Med. City Dallas Subsidiary, No. 3-04-cv-2436, 2006 WL 616000, at *7 (N.D. Tex. Mar. 10,
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`2006) (“It is not necessary for Jacobs, or any other damages expert, to establish the requisite
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`causal connection between liability and damages. Rather, plaintiff may establish causation by
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`other means.”).
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`T&B cites three cases in support of its contrary submission—the Fifth Circuit’s decision
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`in IQ Products Co. v. Pennzoil Products Co., 305 F.3d 368 (5th Cir. 2002), and two district court
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`cases, Snac Lite, LLC v. Nuts ’N More, LLC, Case No. 2:14-cv-1695, 2016 WL 6778268 (N.D.
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`10
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 11 of 25 PageID #: 8069
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`Ala. Nov. 16, 2016), and 3M Innovative Properties Co. v. DuPont Dow Elastomers LLC, 361 F.
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`Supp. 2d 958 (D. Minn. 2005). None of those cases provides any support for T&B’s position on
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`this issue, as none of them stands for the proposition that damages testimony is inadmissible if
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`the expert does not point to a causal link between false advertising and the alleged damages.
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`It is true, of course, that if an expert purports to testify as to the causal link between false
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`advertising and damages, the expert must base his opinion on reliable evidence. But that is a
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`very different proposition from T&B’s suggestion that an expert who testifies about damages
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`may not assume liability and limit his testimony to the damages issues. The cases on which
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`T&B relies do not stand for the proposition that a damages expert may not testify in a false
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`advertising case unless his testimony establishes a “reliable link” between the alleged false
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`statements and the damages the plaintiff claims to have suffered. Instead, those cases deal with
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`experts who were offered to testify as to causation and whose testimony was found to fall short
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`of satisfying that element. Mr. Perry is not being offered as a witness on causation; the cited
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`cases therefore do not support T&B’s argument that Mr. Perry’s testimony should be barred
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`because of his failure to establish a causal link between T&B’s false statements and Robroy’s
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`losses.
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`In the IQ Products case, the plaintiff, IQ, sought to prove through two expert witnesses
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`that the company suffered harm from the false statements at issue in the case. As the Fifth
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`Circuit explained, the witnesses sought to testify as to “the effect on the buying decisions of
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`consumers” and “the damage to IQ as a result.” 305 F.3d at 376. The district court excluded the
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`witnesses’ testimony, and the court of appeals affirmed, holding that neither expert conducted
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`reliable survey or market research, commonly employed by market analysts, to support their
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`conclusions” that consumers would have purchased the plaintiff’s products were it not for the
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`11
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 12 of 25 PageID #: 8070
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`defendants’ allegedly misleading statements about the [competing] product.” Id. The Fifth
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`Circuit’s opinion makes clear that the court sustained the exclusion of the expert witnesses’
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`testimony because the witnesses purported to testify about causation and failed to present
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`sufficiently reliable evidence on that issue. Mr. Perry does not purport to testify about causation,
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`and he has expressly limited his testimony to damages. IQ Products therefore does not support
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`T&B’s motion to exclude his testimony.
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`
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`The same is true of the two district court cases cited by T&B. In both cases, the expert
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`offered testimony on causation, testimony that the courts found unreliable. See Snac Lite, 2016
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`WL 6778268, at *6-7; 3M Innovative Properties, 361 F. Supp. 2d at 971-73. Mr. Perry is not
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`being offered as a witness on causation, so those cases are inapplicable here.
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`
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`Much of T&B’s motion, which focuses almost entirely on the issue of causation, is
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`therefore beside the point. Even when T&B purports to address the issue of damages, its
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`arguments frequently bleed over into quarrels with Robroy’s proof of causation. See, e.g., T&B
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`Motion to Exclude, Dkt. No. 136, at 4 (“Nor does Mr. Perry cite or rely on any evidence showing
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`that the statements-at-issue caused Robroy to lose sales to T&B, or caused T&B to obtain such
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`sales and profits.”); id. at 5 (“Mr. Perry also ignores Robroy’s own consumer-survey data,
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`deposition testimony, and other data showing that customers in this area did not rely on T&B’s
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`alleged statements-at-issue, or that its advertising played any role in customers’ purchasing
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`decisions.”).
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`T&B argues at one point that, unlike in patent law, “there is no corresponding assumption
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`of infringement and validity in false-advertising law,” thus seemingly contending that a damages
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`expert in a false advertising case cannot assume liability, but must testify as to causation as well
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`as damages. T&B’s Motion to Exclude, at 11. T&B cites no support for that proposition, and
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`12
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`Case 2:15-cv-00512-WCB Document 198 Filed 04/10/17 Page 13 of 25 PageID #: 8071
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`the Court is unaware of authority in any area of the law that would prohibit a damages expert
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`from confining his or her testimony to the issue of damages, while assuming that liability has
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`been established. The numerous cases cited above come from a wide range of legal fields,
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`including contract disputes and many different types of business torts. All of them support the
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`proposition that damages experts may, and often do, testify only about damages while assuming
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`liability, which is proved through other evidence. If T&B wished to persuade this Court that a
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`different and special rule applies in Lanham Act cases, it would have been expected to come up
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`with some statutory language or case law to that effect, or at least with an explanation for why
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`such a rule would make sense. It has not done so.
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`B. Mr. Perry’s Reliance on Insufficient and Unreliable Speculation
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`T&B next argues that Mr. Perry has impermissibly relied on “speculative and unreliable
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`data” to support his opinions regarding the ranges of possible damages, i.e., the “estimated
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`minimum and maximum sales values” for the projects that are the subjects of Robroy’s claims.
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`T&B’s Motion to Exclude, at 11. T&B complains that Robroy has relied on evidence such as
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`“speculative e-mails and deposition testimony, mere bids and sales quotes, internal T&B
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`forecasts, and—on some occasions but not others—the TOPS report that T&B provided at
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`Robroy’s request to construct the ‘estimated value’ of the 55 alleged implicated projects.” Id.
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`Mr. Perry’s reliance on varied sources of information as to the value of the projects at
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`issue in this case was required in large part because T&B was unable to provide complete
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`information in discovery regarding those projects. Accordingly, Mr. Perry was required to use
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`information from other sources, in particular information produced by T&B and its
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`representatives in discovery, to derive financial data regarding the projects.2
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`T&B has not challenged the reliability of the financial information in each of the
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`documents on which Mr. Perry relied. Accordingly, the Court will not review Mr. Perry’s report
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`on a document-by-document basis. Instead, T&B focuses on two examples (presumably extreme
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`examples) that in T&B’s view show that some of the evidence Mr. Perry uses in his analysis is
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`unreliable. In the first example, Mr. Perry relies on an email from a T&B project manager
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`stating the expected sales of Ocal (T&B’s PVC-coated conduit product) from the project,
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`although internal T&B records showed much smaller actual sales to that party. In the second
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`example, Mr. Perry relied on deposition testimony by a T&B product specification specialist,
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`who estimated the amount of Ocal that T&B sold to that purchaser. T&B notes that the project
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`manager characterized his estimate as “a guess.” T&B’s Motion to Exclude, at 12.
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`Mr. Perry’s use of different measures of the amounts of T&B’s sales on different projects
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`is permissible, particularly in light of T&B’s inability to provide such information from its own
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`files. Mr. Perry relies on evidence obtained from T&B to set the minimum sales value for many
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`of the subject projects. His use of T&B’s information for that purpose is permissible. In several
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`instances, Mr. Perry relied on other evidence, such as testimony from T&B representatives, to set
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`the maximum sales values for certain projects. Mr. Perry’s reliance on such evidence does not
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`require that his testimony be excluded, even though the resulting range between the minimum
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`2 T&B faults Robroy for not obtaining that information from T&B’s distributors. The
`Court need not make a finding as to whether the distributors would have had such information—
`something that one T&B witness said they would not, see Dkt. No. 195-2, at 42-43. Nor will the
`Court speculate on whether obtaining the information in question from T&B’s distributors would
`have been easier for T&B than for Robroy. Even if more reliable evidence could have been
`obtained from T&B’s distributors, the Court will not exclude Mr. Perry’s testimony on the
`ground that he relied on other sources of information regarding T&B’s sales on particular
`projects in addition to the information T&B produced in discovery relating to those projects.
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`and maximum estimated sales values is, in some cases, quite large, and the data on which Mr.
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`Perry relies for some of the maximum values is only an estimate.
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`T&B’s challenge goes to the weight to be assigned to Mr. Perry’s opinions, not their
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`admissibility. “As a general rule, questions relating to the bases and sources of an expert’s
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`opinion affect the weight to be assigned to that opinion rather than its admissibility and should be
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`left for the jury’s consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987);
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`see also Fair v. Allen, 669 F.3d 601, 607 (5th Cir. 2012) (noting that an expert’s opinion will be
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`excluded on this ground only when, for example, it is “completely unsupported,” and “the
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`opposing party must expose that lack of reliability.”). Some of the sales value numbers recited
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`by Mr. Perry are likely to be less reliable (and certainly less precise) than others, and T&B has
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`pointed to several of them. But Mr. Perry’s reliance on those numbers will be subject to
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`challenge at trial. Robroy’s position is that those numbers were the most precise available given
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`T&B’s failure to provide more complete data, including exact sales values for certain projects.
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`T&B’s position is that those numbers are unreliable even though they may have originated with
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`T&B. But it is not unreasonable to place the burden on T&B to show that sales values that
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`originated with its employees and its documentary productions are inaccurate. For that reason,
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`the Court will not exclude Mr. Perry’s testimony on the ground that the evidence on which he
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`bases his sales value estimates is unreliable.
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`C. Robroy’s “Attenuated” and “Speculative” Evidence of Injury
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`Finally, T&B argues that “Mr. Perry’s opinions are not relevant or a fit to the task at hand
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`of determining a party’s false-advertising damages” because the injuries that Mr. Perry describes
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`are “the speculative and attenuated harm that the statements-at-issue merely enabled T&B to
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`potentially make conduit sales to a customer.” T&B’s Motion to Exclude, Dkt. No. 196, at 13.
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`Case 2:15-cv-00512-WCB Document