IceMOS Technology Corp. v. Omron Corp.

          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 ...