United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendant's Motion
to Exclude Opinions and Testimony of Kyle Jacobson and Frank
Muscolino Under Fed.R.Evid. 702 and Daubert
[#69] (the “Motion”). Plaintiff
filed a Response [#87] in opposition to the Motion, and
Defendant filed a Reply [#99]. The Court has reviewed the
briefing, the exhibits, the entire case file and the
applicable law, and is fully advised in the premises. For the
reasons set forth below, the Motion [#69] is GRANTED
in part and DENIED in part.
Zykronix, Inc. (“Plaintiff”) is a Colorado
corporation doing business in Colorado and Taiwan. Joint
Amendment to Section 4 of the Scheduling Order [#46].
Defendant Conexant Systems, Inc. (“Defendant”) is
a Delaware corporation doing business in California whose
registered agent is in Colorado. Id. Defendant was
authorized to do business in Colorado until June 30, 2015.
Id. In early 2012, Plaintiff entered into an
agreement with a third-party named Home Automation, Inc.
(“HAI”), pursuant to which Plaintiff agreed to
design and manufacture for HAI a home automation product
later called the OmniTouch 7. Motion [#69] at 2-3.
HAI was later acquired by Leviton Manufacturing, Co. Ltd.
(“Leviton”). Id. at 2 n.2. Plaintiff met
with Defendant because it needed an audio chip for the
OmniTouch 7. Id. at 2-3. In March 2013, Plaintiff
ordered approximately 10, 000 chips. Id. Plaintiff
delivered the OmniTouch 7 devices, including the chips, to
Leviton for sale to customers. Id. Eventually, a
loud buzzing noise was discovered in some of the devices.
Id. Plaintiff alleges that the noise originates from
the chips, and that, as of May 8, 2017, Leviton had returned
540 devices that emitted the noise. Id. at 6;
Pl. Am. Responses to Def. First Set of Interrogatories to
Pl. [#70-8] at 3.
offers the expert opinions of Frank Muscolino
(“Muscolino”) and Kyle Jacobson
(“Jacobson”). Mr. Muscolino states that he is a
semi-conductor industry veteran, and Defendant seeks to
exclude Mr. Muscolino's anticipated testimony that the
chip “is defective and failed in the OmniTouch
7.” Mr. Jacobson is a Certified Public Accountant
(“CPA”), who intends to testify regarding the
reasonableness of certain damage calculations, as well as
inflation and discount rates with respect to future lost
profits. Defendant raises a number of arguments regarding why
Mr. Jacobson's testimony should be excluded, which will
be discussed below.
at trial of expert testimony is governed by Fed.R.Evid. 702,
which imposes on the district court a gatekeeper function to
‘ensure that any and all scientific testimony or
evidence admitted is not only relevant, but
reliable.'” United States v. Gabaldon, 389
F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 589 (1993)). Rule 702 provides the foundational
requirements for admission of expert opinions:
A witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
district court's discretion in admitting or excluding
expert testimony under Daubert is broad, “both
in deciding how to assess an expert's reliability,
including what procedures to utilize in making that
assessment, as well as in making the ultimate determination
of reliability.” Dodge v. Cotter Corp., 328
F.3d 1212, 1223 (10th Cir. 2003).
admitting expert testimony, the trial court must make certain
findings to fulfill its gatekeeper role under Rule
702.” United States v. Yeley-Davis, 632 F.3d
673, 684 (10th Cir. 2011). In deciding whether an expert
opinion is admissible, the district court conducts a two-step
analysis: (1) the court must determine whether the expert is
qualified to give the proffered opinion, and (2) the Court