United States District Court, E.D. Texas, Marshall Division
ROBROY INDUSTRIES - TEXAS, LLC, a Texas corporation, and ROBROY INDUSTRIES, INC., a Pennsylvania corporation, Plaintiffs,
THOMAS & BETTS CORPORATION, a Tennessee corporation, Defendant. THOMAS & BETTS CORPORATION, a Tennessee corporation, Plaintiff,
ROBROY INDUSTRIES - TEXAS, LLC, a Texas corporation, and ROBROY INDUSTRIES, INC., a Pennsylvania corporation, Defendants.
MEMORANDUM OPINION AND ORDER
WILLIAM C. BRYSON UNITED STATES CIRCUIT JUDGE.
the Court are Plaintiffs' Motion to Exclude the
Testimony and Report of Ambreen Salters, Dkt. No. 133
(“Robroy's Motion to Exclude”), and
Thomas and Betts' Motion to Exclude Opinions of Chase
A. Perry Regarding Damages, Dkt. No. 136
(“T&B's Motion to Exclude”). The
plaintiffs' motion is GRANTED IN PART and DENIED IN PART.
Thomas & Betts' motion is DENIED.
the plaintiffs (“Robroy”) and the defendant
(“T&B”) propose to call an expert witness to
testify about damages. In addition, T&B's expert
witness intends to testify about the absence of a causal link
between the allegedly improper conduct of T&B
representatives and any losses suffered by Robroy. Both
proposed expert witnesses are “professional witnesses,
” as opposed to “industry witnesses, ” in
that neither has expertise in the industry at issue in this
case, and both are associated with consulting groups that
offer analysis and expert testimony on economic and financial
issues to parties in legal proceedings.
Robroy's expert witness, Chase A. Perry, proposes to
testify in support of Robroy's claim for damages. He has
a law degree and an M.B.A., and he is employed by a
consulting group where he has provided economic analysis and
testimony in numerous commercial disputes, including unfair
competition cases. In his expert report, Mr. Perry explains
(1) that he assumes T&B will be held liable for one or
more of Robroy's claims; (2) that he does not offer an
opinion on the liability issue; and (3) that he addresses
only the issue of the damages resulting from T&B's
allegedly unlawful acts. Expert Report of Chase A. Perry
Regarding Damages, Dkt. No. 136-4, at 3
(“Perry Report”). Based on his analysis
of the evidence from T&B, Mr. Perry concludes in his
supplemental report that Robroy is due damages in the form of
disgorgement of T&B's profits in the amount of no
less than $8.1 million, and as much as $22.9 million.
Supplemental Expert Report of Chase A. Perry Regarding
Damages, Dkt. No. 136-1, at 9 (“Perry
Supplemental Report”). In the alternative, he
testifies, Robroy is due lost profits damages of no less than
$6.6 million and as much as $18.7 million. Perry
Supplemental Report, Dkt. No. 136-1, at 10.
Perry proposes to testify about those projects for which data
is available and in which, according to Robroy, T&B won
the conduit contract as a result of false statements to
customers. He proposes to testify that he derived his
estimate of the profits T&B earned on those projects by
subtracting the expenses T&B incurred from the dollar
value of the sales, and that he derived the profits that
Robroy would have earned on those projects by estimating the
expenses that Robroy would have incurred and subtracting them
from the gross revenue Robroy would have obtained from the
projects in question.
has moved to exclude Mr. Perry's testimony for three
reasons: (1) because Mr. Perry “presents no reliable
link between the alleged false statements” and the
projects that he uses to calculate damages, T&B's
Motion to Exclude, at 1, 8; (2) because Mr. Perry
“relied on speculative and unreliable data to assign an
‘estimated minimum and maximum sales value' of
potentially lost sales for each . . . project, ”
id. at 11; and (3) because Mr. Perry describes only
“speculative and attenuated harm that the
statements-at-issue merely enabled T&B to potentially
make conduit sales to a customer, ” id. at 14.
T&B intends to call Ambreen Salters as an expert witness
at trial. She has a background as an economist, with a B.A.
in business administration and an M.S. in economics. She is
employed by a firm that, among other things, provides expert
witnesses in legal proceedings. Like Mr. Perry, she does not
purport to be an expert in the electrical conduit industry or
any related industry.
Ms. Salters' report, Rule 26 Expert Report of Ambreen
Salters on Behalf of Defendant Thomas & Betts
Corporation, Dkt. No. 133-1 (“Salters
Report”), it appears that T&B intends to offer
Ms. Salters' testimony for several purposes: (1) to show
that Robroy has not established a causal nexus between the
defendants' allegedly wrongful conduct and the resulting
harm to Robroy, id. at ¶¶ 41-44; (2) to
testify as to the considerations that influence purchasing
decisions by customers of PVC-coated conduit, id. at
¶¶ 45-57; (3) to establish that customers can
readily verify whether a particular product complies with
applicable standards for PVC-coated conduit, id. at
¶¶ 58-60; and (4) to respond to Robroy's
evidence regarding damages, id. at ¶¶
61-82. The first three categories all go to the question
whether the alleged false statements made by T&B caused
actionable injury to Robroy. The Court will therefore deal
with those portions of Ms. Salters' testimony
collectively under the rubric of “causation.”
has moved to exclude Ms. Salters' testimony on the ground
that her opinion testimony and report “are based on
unreliable principles and methodology [and] would not be
helpful to the jury.” In its motion to exclude, Robroy
argues: (1) Ms. Salters' conclusions as to the issue of
causation are inadmissible, both because Mr. Perry will not
be testifying as to causation and because Ms. Salters'
opinions as to causation constitute impermissible attempts to
offer testimony as to a legal conclusion; (2) her opinions on
the issue of damages are based only on her review of
particular information provided to her by counsel and are
therefore unreliable; (3) her “regurgitation of
facts” from depositions and other sources does not
qualify as expert testimony; (4) her opinions as to the
reasons that consumers make purchasing decisions in the
PVC-coated conduit market are not based on an adequate
foundation; and (5) because she is not an expert in the
PVC-coated conduit market, her opinions on that subject would
not be helpful to the jury.
outset, four points need to be made. First, even though
Robroy's motion purports to be directed to the exclusion
of both Ms. Salters' report and her testimony, it is
clear that her report (like Mr. Perry's report) is
inadmissible. See Hunt v. City of Portland, 599 F.
App'x 620, 621 (9th Cir. 2013) (expert's written
report “is hearsay to which no hearsay exception
applies”); Worldwide Sorbent Prods., Inc. v.
Invensys Sys., Inc., Civil Action No. 1:13-cv-252, 2014
WL 12596585, at *4 (E.D. Tex. Oct. 29, 2014); Bianco v.
Globus Med., Inc., 30 F.Supp.3d 565, 570 (E.D. Tex.
2014) (citing cases); Sommerfield v. City of
Chicago, 254 F.R.D. 317, 329 (N.D. Ill. 2008) (citing
cases). Other than in the caption of Robroy's Motion
to Exclude, neither party has indicated that it intends
to offer its expert's report into evidence, but just for
clarity, the reports themselves are plainly hearsay and will
not be admitted into evidence absent stipulation by the
parties; all that is at issue here is the question of the
admissibility of the opinion testimony that the parties
intend to offer through their expert witnesses.
both experts' reports are divided into a background
section and a section summarizing their opinions. The
background sections contain some material that seems
uncontroversial, such as Ms. Salters' summary of the
allegations of the complaint and of the contents of Mr.
Perry's expert report, which are found in paragraphs
34-38 of Ms. Salters' report. Some of that material may
be admissible through the experts' testimony as necessary
introductory information explaining the basis for their
opinions. For example, Ms. Salters' description of Mr.
Perry's opinions on damages in paragraphs 36-38 may be
necessary in order to introduce Ms. Salters' critique of
Mr. Perry's opinions.
material in the background sections and in the curriculum
vitae of the experts seems to be fertile ground for the
parties to agree upon, either by stipulating to the
information itself, or by stipulating to the admission of
those portions of the reports, or by agreeing to permit the
experts to testify as to that information. The Court would
permit-and indeed welcome- any such procedure that the
parties can agree upon as a way of more expeditiously laying
out the factual background of the case and the experts'
qualifications for the jury. See Mahnke v. Wash. Metro.
Area Transit Auth., 821 F.Supp.2d 125, 154 (D.D.C. 2011)
(“[P]arties may stipulate to admission of certain
reports and CVs.”); Wilson v. Hartford Ins. Co. of
the Midwest, No. 10-993, 2011 WL 2670199, at *2-3 (W.D.
Wash. July 7, 2011) (“The Court notes that parties
often, for ease of presentation of evidence, mutually agree
that expert reports are admissible. The court will not,
however, force parties to reach such an agreement.”).
certain portions of the background sections of the
experts' opinions are more tendentious and will not be
admitted absent a stipulation by the parties. For example,
the background section of Ms. Salters' report contains
what amounts to a summary of the defendant's theory of
the case, supported by citations to witness depositions.
See Salters Report, Dkt. No. 133-1, at ¶¶
7-33. It is not clear from the parties' papers whether
Ms. Salters intends to testify regarding the assertions in
those portions of the background section of her report.
However, to the extent that T&B intends to offer
testimony from Ms. Salters that tracks the contents of those
portions of the Background section of her report and Robroy
objects, that evidence will be excluded. As to that evidence,
she is not serving as an expert, but is simply passing along
information provided by others and laying out the
defendant's theory of the case. Whether viewed as a
second opening statement for the defense or as the
defendant's first summation, that use of expert testimony
is improper. Orthoflex, Inc. v. Thermotek, Inc., 986
F.Supp.2d 776, 798 (N.D. Tex. 2013) (Fitzwater, J.) (it is
impermissible for an expert witness to be called
“merely to present [a party's] trial arguments as
expert opinions”). The statements in that portion of
Ms. Salters' report are clearly outside the scope of her
competence as an expert witness and do not reflect the
application of expertise to particular subject matter within
the scope of her expertise. Any testimony by Ms. Salters
based on that portion of her report will be excluded. This
issue is discussed in more detail in section II-A, below.
there is less material in Mr. Perry's report that is
objectionable on this ground, there is some. In particular,
his summary of Robroy's complaints about the false
statements allegedly made by T&B about Robroy's
products, found at page 10 of his report constitutes, in
effect, a summary of Robroy's position on the issue of
liability and is not admissible as expert testimony absent
agreement of the parties.
to be clear, the Court's ruling as to the inadmissibility
of certain testimony by the expert witnesses does not mean
that the underlying evidence on which the experts rely in
their reports is inadmissible. Some of the statements alluded
to in the experts' reports may well be otherwise
admissible. But those statements may not be introduced
through the testimony of an expert witness who purports to
have acquired expertise regarding the industry as applied to
the facts of this case simply by reading witness depositions
and reviewing exhibits provided by counsel. See Seatrax,
Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 372 (5th
Cir. 2000); Lyman v. St. Jude Med. S.C., Inc., 580
F.Supp.2d 719, 726 (E.D. Wis. 2008).
Court will now turn to the specific issues of admissibility
of evidence from each of the expert witnesses.
T&B's Motion to Exclude the Testimony of
Perry A. Mr. Perry's Failure to Offer Evidence of
Perry's proposed damages testimony is inadmissible,
according to T&B, because “he offers no basis for
showing a causal link between the 55 projects he lists as the
foundation for his false-advertising damages analysis to the
‘only Ocal' statements-at-issue.”
T&B's Motion to Exclude, at 8. According to
T&B, the Fifth Circuit has “refused to allow
damages testimony in false-advertising cases that failed to
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