United States District Court, S.D. Texas, Houston Division
S. HANEN UNITED STATES DISTRICT JUDGE
the Court is the Plaintiffs' Motion to Exclude the Expert
Report and Testimony of Thomas Varner (Doc. Nos. 99
[redacted], 100 [sealed]), the Defendants' Opposition
(Doc. No. 112) and Plaintiffs' Reply (Doc. Nos. 130
[redacted], 131 [sealed], 133 [corrected]). The Court grants
in part and denies in part Plaintiffs' Motion.
as a matter of course, this Court reiterates its position
that it will not allow the introduction of any expert report
into evidence absent the agreement of the parties. Reports
are a discovery tool designed to inform the opposing party of
the expert's background, opinions, and reasoning
underlying those opinions. They are not a party's
business records nor do they qualify under any other
exception to the hearsay rule.
the law concerning Daubert motions is
well-established and well-briefed by the parties.
Consequently, the Court sees no reason to set out a lengthy
legal dissertation on this issue. See Daubert v. Merrill
Dow Pharms., Inc., 509 U.S. 579 (1993); Kumho Tire
Co, Ltd. v. Carmichael, 526 U.S. 137(1999).
Motion to Exclude Varner and Defendants' Motion to
Exclude Britven share an overarching theme-both motions
highlight an essential disagreement to the facts that each
expert assumes as a starting point of his opinion. Like its
ruling on Defendants' Motion to Exclude Britven, this
Court finds that Varner has no training or expertise that
makes him an expert in the flange business. As such, the
Court hereby grants Plaintiffs' objections to the extent
they seek to prevent Varner from offering testimony as an
expert in that field. Further, as with Britven, this Court is
unable to discern in Varner's background any training or
experience that qualifies him as an expert on flange consumer
behavior, and he is likewise prohibited from proffering
testimony on such.
like Britven, these limitations do not preclude Varner's
ability to analyze financial records concerning costs, sales
and profits, and opinion on such. These limitations also do
not prohibit Varner from relying on evidence of industry
behavior introduced by an expert in that area or from using
this evidence as a basis for testimony in his field. Again,
as with its ruling concerning Britven, this Court will not
and cannot pre-judge the facts that might be admitted and
that might ultimately undergird or undermine Varner's
opinions. Obviously, if the "fact" he relies upon
turn out to be fallacy, it will destroy his opinion as well.
Court uses this Order as a reminder to counsel for both
sides. Rule 703 states:
Rule 703. Bases of an Expert's Opinion Testimony An
expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed.
If experts in the particular field would reasonably rely
on those kinds of facts or data in forming an opinion on the
subject, they need not be admissible for the opinion to be
admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them
to the jury only if their probative value in helping the jury
evaluate the opinion substantially outweighs their
(Emphasis added). As a broad proposition, once a witness
qualifies as an expert under Rule 702(a) and his or her
opinion complies with the requirements of Rule 702(b), (c),
and (d), his or her opinion is admissible. Flaws, inaccurate
conclusions, omissions and/or exaggerations-while perfect
fodder for a strenuous cross-examination-are not generally
grounds for prohibiting the witness' testimony.
having been said, both Britven and Varner have at least
partially based their opinions on discussions with the
principals of the parties (and perhaps their lawyers) who
hired them to review the case. This Court is quite skeptical
as to the proposition that these "conversations"
qualify as the "kinds of facts or data . . . that
experts in the particular field would reasonably rely."
As such, to the extent that both sides expect to prove that
competition exists between these companies or their products,
neither side should expect this testimony to come through
Britven or Varner, except as those facts can be derived from
financial data. While both experts may be capable of
comparing sales figures or analyzing related financial data,
neither is qualified outside of that analysis to expound upon
the flange manufacturing business, its distribution industry,
or upon the flange-buying criteria and manner in which
flanges are perceived/used by consumers.
while this Court is not issuing an advisory opinion or
pre-judging the purported testimony upon which it would allow
either damage expert to opine, evidence concerning the flange
industry must come from someone who is an expert in the
field. Once it is actually ...