United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO EXCLUDE EXPERT TESTIMONY UNDER RULE 702
WILLIAM J. MARTÍNEZ, District Judge.
Plaintiff SolidFX, LLC ("Plaintiff") brings this breach of contract action against Defendant Jeppesen Sanderson, Inc. ("Defendant"). (Sec. Am. Compl. ("SAC") (ECF No. 158) pp. 20-37.) The case is set for an eight-day trial beginning on April 7, 2014. (ECF No. 220.) Before the Court are four Motions to Exclude filed by Defendant pursuant to Federal Rule of Evidence 702. (ECF Nos. 221-24.) For the reasons set forth below, the Motions are GRANTED IN PART and DENIED IN PART.
I. LEGAL STANDARD
A district court must act as a "gatekeeper" in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
Defendant moves to exclude portions of the expert testimony of five witnesses: (1) Owen Phillips, (2) Jeffrey McDonald, (3) Willy Shih, (4) Dona Flamme, and (5) Melinda Harper. The Court will discuss each in turn below.
A. Dr. Owen Phillips
In addition to the contract claims still at issue in this case, Plaintiff originally brought a number of antitrust claims. ( See ECF No. 158.) During discovery, Plaintiff disclosed Owen Phillips, Ph.D., an economist, as an expert witness. Dr. Phillips's expert reports and deposition testimony show that he was retained primarily to offer opinions on relevant markets, Defendant's market share, and other issues central to an antitrust claim. (ECF No. 223-1 & 223-3.) The Court has since granted summary judgment in favor of Defendant on Plaintiff's antitrust claims. (ECF No. 218.)
Defendant now moves to exclude Dr. Phillips's testimony, arguing that it will not be helpful to the jury since the antitrust claims are no longer at issue in this case. (ECF No. 223.) Whether testimony will be helpful is a question of common sense- i.e., is an average juror "qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Fed.R.Evid. 702 advisory committee's note.
The question here is one of relevance. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. As with all evidence, whether particular testimony is relevant is relational-it depends on the proposed testimony and its relation to the fact to be proved or disproved. See Bitler, 391 F.3d at 1121 (noting that courts must "look at the logical relationship between the evidence proffered and the material issue that evidence is supposed to support to determine if it advances the purpose of aiding the trier of fact").
Plaintiff contends that Dr. Phillips's testimony is relevant because his opinions on the markets for terminal charts and apps, competitive products in those markets, barriers to entering that market, and Defendant's market share will assist the jury on the determination of Plaintiff's damages due to the alleged breach of contract. (ECF No. 226 at 5.) The Court agrees that, although Dr. Phillips was primarily retained to support Plaintiff's antitrust claims, the fact that these claims are no longer at issue does not make his testimony irrelevant per se. Thus, the Court finds that the entirety of Dr. Phillips's testimony should not be excluded as irrelevant.
However, the Court cautions Plaintiff that it will not permit Dr. Phillips to testify at length about issues that are not relevant to the remaining claims. The Court acknowledges that some testimony on Defendant's market share could assist the jury in determining damages, but it will not allow the jury to be confused by testimony whose relevance fairly can be said remains limited to the now-dismissed antitrust claims ( e.g., illegal tying, monopolization, etc.). At some point, market evidence that is relevant to Plaintiff's damages could cross the line such that it is unfairly prejudicial to Defendant and/or misleading to the jury, which would implicate Rule 403.
Additionally, Plaintiff contends that Dr. Phillips's testimony could assist the jury in determining Defendant's motivation for breaching the contract, and whether the breach of contract was willful and wanton. (ECF No. 226 at 9-10.) The Court sees questionable relevance to this testimony. While Dr. Phillips could likely testify about the economic impacts of a certain business decision and the jury may use this evidence to infer a business's motivation for ...