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Zykronix Inc. v. Conexant Systems, Inc.

United States District Court, D. Colorado

March 22, 2018

ZYKRONIX, INC., a Colorado corporation, Plaintiff,
v.
CONEXANT SYSTEMS, INC., a Delaware corporation, Defendant.

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This 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][1] (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.

         I. Summary

         Plaintiff 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.

         Plaintiff 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.

         II. Legal Standards

         “Admission 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         The 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).

         ”[B]efore 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 must ...


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