United States District Court, D. Arizona
ORDER
James
A. Teilborg Senior United States District Judge.
Pending
before the Court are IceMOS Technology Corporation's
(“Plaintiff”) Daubert motions to exclude
Allan Morrison (Doc. 227), Charles Malek (Doc. 238), Randy
Cavaiani (Doc. 241), Robert Vincent (Doc. 244), and Kenneth
Malek (Doc. 247) as experts (collectively,
“Plaintiff's Daubert
Motions”).[1] The Court now rules on the
motions.[2]
I.
BACKGROUND
Plaintiff
has filed motions to exclude each of Omron Corporation's
(“Defendant”) experts. Defendant opposes each
motion.
On
August 5, 2019, Plaintiff filed Daubert Motion to
Exclude Allan Morrison as an Expert (Doc. 227). Defendant
responded on August 19, 2019 (Doc. 255), and Plaintiff filed
its Reply on August 29, 2019 (Doc. 275).
On
August 6, 2019, Plaintiff filed Daubert Motion to
Exclude Charles Malek as an Expert (Doc. 238). Defendant
responded on August 20, 2019 (Doc. 267), and Plaintiff filed
its Reply on August 30, 2019 (Doc. 283).
On
August 6, 2019, Plaintiff filed Daubert Motion to
Exclude Randy Cavaiani as an Expert (Doc. 241). Defendant
responded on August 20, 2019 (Doc. 264), and Plaintiff filed
its Reply on August 30, 2019 (Doc. 282).
On
August 6, 2019, Plaintiff filed Daubert Motion to
Exclude Robert Vincent as an Expert (Doc. 244). Defendant
responded on August 20, 2019 (Doc. 261), and Plaintiff filed
its Reply on August 30, 2019 (Doc. 283).
On
August 6, 2019, Plaintiff filed Daubert Motion to
Exclude Kenneth Malek as an Expert (Doc. 247). Defendant
responded on August 20, 2019 (Doc. 270), and Defendant filed
its Reply on August 30, 2019 (Doc. 279).
The
parties filed various motions to seal relating to each of
Plaintiff's Daubert Motions.
a.
Facts
Plaintiff
offers super junction metal oxide semiconductor field-effect
transistors (“MOSFETs”), microelectromechanical
systems solutions, and advanced engineering substrates to
third parties. (Doc. 25 at 2). To produce these products,
Plaintiff needs fabrication services. (Id.). In
2007, Defendant purchased a fabrication facility and began
fabricating “complementary metal-oxide
semiconductor” products. (Id.). Around this
time, Defendant approached Plaintiff to suggest that
Defendant and Plaintiff enter into business together.
(Id.).
Plaintiff
and Defendant came to an agreement (“Supply
Agreement”) on February 28, 2011 after negotiations.
(See id.). Their agreement included, inter
alia, that Defendant would “perform the
fabrication requested by Plaintiff” and that Defendant
would “fully resource the development of all
generations of” Plaintiff's super junction MOSFET
(“SJ MOSFET”) for the duration of the Supply
Agreement. (Id.; see also Doc. 59 at 10;
Doc. 60 at 15). Defendant asserts that Plaintiff represented
that “[d]emand for Plaintiff's Super Junction
MOSFETs is estimated to reach a volume of up to three
thousand and five hundred (3, 500) wafers per month by year
2014.” (See Doc. 28 at 42 (alteration in
original) (quoting Doc. 14-1 at 2)). Defendant also alleges
that the parties forecasted, based on Plaintiff's
representations regarding expected demand for its product,
that “monthly demand would reach 3, 850 wafers per
month by the fourth quarter of 2012.” (Id.
(citing Doc. 14-1 at 14)). On March 6, 2018, the Supply
Agreement terminated. (Doc. 60 at 37).
Plaintiff
alleges breach of contract and fraud and seeks actual
damages. (Doc. 59 at 33-38). Defendant has counterclaimed and
alleges breach of the implied covenant of good faith and fair
dealing, two counts of breach of contract, and fraud in the
inducement (relating to the alleged projections by Plaintiff)
and also seeks damages. (Doc. 28 at 52- 64).
b.
Plaintiff's Motions to Exclude Defendant's
Experts
Plaintiff
moves to exclude all five of Defendant's experts. Because
Plaintiff makes similar challenges to each expert, the Court
will analyze Plaintiff's motions issue by issue as it
relates to each expert rather than expert by expert. The
Court also organizes each issue in the order that Plaintiff
challenged each expert.
There
is no dispute as to Defendant's articulation of the
expert opinions of Charles Malek (“C. Malek”),
Randy Cavaiani (“Cavaiani”), Robert Vincent
(“Vincent”), and Kenneth Malek (“K.
Malek”) or what Defendant is offering them to show;
thus, the Court incorporates by reference Defendant's
articulation of their opinions. (See Doc. 267 at 4-5
(C. Malek); Doc. 261 at 6-8 (Vincent); Doc. 264 at 5-6
(Cavaiani); Doc. 270 at 5-8 (K. Malek)). When the Court's
analysis depends on a specific portion of an expert's
opinion, the Court will indicate what portion of the opinion
it is discussing.
There
is some dispute as to Defendant's articulation of one of
the opinions of Allan Morrison (“Morrison”).
(See Doc. 275 at 3 (“[Defendant] tries to
mislead the Court by stating ‘Morrison offered the
opinion that low yield was not
exclusively Defendant's fault.
. . .'” (ellipsis in original) (quoting Doc. 255 at
11))). Plaintiff asserts that Morrison's opinion was that
“[Defendant] was not liable for
any yield issues.” (See
Id. (quoting Doc. 227-1 at 12)). However, Plaintiff
leaves out a portion of Morrison's opinion.
Morrison's opinion continued, “it was
[Plaintiff]'s issues with manufacturability, including
process design and test design, as well as the constant
process changes themselves, that caused most of the
yield issues.” (Doc. 227-1 at 12 (emphasis added)).
That opinion is consistent with what Defendant articulated in
its Response (Doc. 255 at 11). Morrison's opinion is that
most of the yield issues were caused by Plaintiff and other
yield issues were caused by others, possibly including
Defendant. In any event, the asserted distinction that
Plaintiff draws between how Defendant characterizes
Morrison's opinion and his actual opinion is irrelevant
to the Court's analysis. It appears there is no other
dispute to Defendant's presentation of Morrison's
opinions, so the Court adopts by reference Defendant's
articulation of Morrison's opinions, which is copied
verbatim from Morrison's expert report. (See Id.
at 5-6 (quoting Doc. 227-1 at 12)).
II.
LEGAL STANDARD
A party
seeking to offer an expert opinion must show that the opinion
satisfies the requirements set forth by Federal Rule of
Evidence 702 (“Rule 702”). Rule 702 provides:
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.
Fed. R. Evid. 702. Rule 702 requires that trial judges act as
gatekeepers. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 589, 597 (1993). Trial judges fill
this role by making a preliminary assessment on the
admissibility of expert testimony. See Id. at 589.
Specifically, “the trial judge must ensure that any and
all scientific testimony or evidence admitted is not only
relevant, but reliable.” Id. The court's
gatekeeping role requires it to determine that an expert is
qualified, that the expert's opinion is reliable in that
it is based on sufficient facts or data and is the product of
reliable principles and methods, and that the expert's
testimony fits the case such that the testimony is relevant.
See Id. The inquiry established by Rule 702 is
“a flexible one” and its “focus, of course,
must be solely on principles and methodology, not on the
conclusions that they generate.” Id. at
594-95.
The
party offering expert testimony must show that the testimony
is admissible under Rule 702. Lust v. Merrell Dow Pharm.,
Inc., 89 F.3d 594, 598 (9th Cir. 1996). Because Rule
702's requirements are conditions for determining whether
expert testimony is admissible, Federal Rule of Evidence
104(a) requires that the party offering the expert testimony
show by a preponderance of the evidence that the expert
testimony is admissible under Rule 702. See Fed. R.
Evid. 104(a); Daubert, 509 U.S. at 592-93 &
n.10; Bourjaily v. United States, 483 U.S. 171,
175-76 (1987).
Plaintiff
argues that all five of Defendant's experts should be
precluded from testifying for various reasons. The Court will
evaluate each argument in turn.
III.
ANALYSIS
a.
Qualifications
Plaintiff
asserts that Morrison, C. Malek, Cavaiani, and Vincent are
not qualified to offer the expert opinions they rendered in
their expert reports. See Fed. R. Evid. 702; (Doc.
227 at 19 (Morrison); Doc. 238 at 8-12 (C. Malek); Doc. 241
at 9-12 (Cavaiani); Doc. 244 at 7-12 (Vincent)).
Under
Rule 702, the trial court must analyze whether the proffered
witness is qualified as an expert by “knowledge, skill,
experience, training, or education.” Fed.R.Evid. 702.
“The qualification standard is meant to be broad and to
seek a ‘minimal foundation' justifying the
expert's role as an expert.” Allen v. Am.
Capital Ltd., 287 F.Supp.3d 763, 776 (D. Ariz. 2017)
(quoting Hangarter v. Provident Life & Accident
Ins., 373 F.3d 998, 1015-16 (9th Cir. 2004)). Criticisms
leveled against an expert that are “specific
objections” as to an expert's qualifications go to
the weight of the expert's testimony, not its
admissibility. In re Apollo Grp. Inc. Sec. Litig.,
527 F.Supp.2d 957, 963-64 (D. Ariz. 2007) (finding expert was
qualified to opine on a topic despite lack of knowledge as to
a particular specialty within his field because it was a
“specific objection[]”). In other words,
“differing areas of expertise are perhaps germane to
the weight and allowed scope of [an expert]'s testimony,
[but] they do not bar admissibility.” Erickson v.
City of Phoenix, No. CV-14-01942-PHX-JAT, 2016 WL
6522805, at *4 (D. Ariz. Nov. 3, 2016) (citing Bergen v.
F/V St. Patrick, 816 F.2d 1345, 1352 n.5 (9th Cir.
1987)). Rather, “[d]isputes as to the strength of [an
expert's] credentials . . . go to the weight, not the
admissibility, of his testimony.'” Kennedy v.
Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998)
(alteration in original) (quoting McCullock v. H.B.
Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)). Indeed,
Rule 702 was not meant to supplant “the traditional and
appropriate means of attacking shaky but admissible evidence,
” including “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof.” Daubert, 509 U.S. at
596. As such, Rule 702 sets a “relatively low
bar” to satisfy its requirement that an expert be
qualified. GDC Technics, Ltd. v. Grace, No.
SA-15-CV-488-RP, 2017 WL 11025769, at *2 (W.D. Tex. Feb. 17,
2017).
An
expert's qualifications can be based solely on
experience. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 156 (1999) (stating that “no one denies that an
expert might draw a conclusion from a set of observations
based on extensive and specialized experience”). That
is, an expert does not need scientific or other technical
training to speak on a particular topic if the expert's
experience qualifies the expert to speak on that topic.
See Id. As the Notes of the Advisory Committee point
out, expert testimony can be offered by
“‘skilled' witnesses, such as bankers or
landowners testifying to land values.” See
Fed. R. Evid. 702 Notes of Advisory Committee on Proposed
Rules. In short, the relevant inquiry is whether the expert
has the minimal ...