United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
Penske moves to exclude testimony from plaintiff Level
One's expert witnesses, Dr. Craig S. Rosenberg and Robert
A. Taylor. [Nos. 178 and 182]. I find that Penske's many
legitimate arguments pertain to issues of credibility that
are better evaluated by a jury with the benefit of
cross-examination. As a result, I will deny Penske's
motions to exclude Dr. Rosenberg's and Taylor's
Level One Technologies, Inc., (“Level One”) and
Defendant Penske Logistics LLC (“Penske”) entered
into a Services Agreement, pursuant to which Penske processed
a portion of its freight transactions through Level One's
proprietary online payment system known as Epay. While the
Services Agreement was in effect, Penske developed and began
using its own online payment system known as
“POPS.” Penske stopped entering transactions into
Epay and began using POPS exclusively by December 31, 2013.
Level One filed this suit in June 2014, alleging that Penske
breached the Services Agreement by using Epay source code to
develop POPS, among other claims. I granted, in part,
Penske's motion for summary judgment. [Nos. 197 and 268].
Penske now moves to exclude Dr. Rosenberg and Taylor's
expert testimony on the basis that their methods do not meet
the standards for reliability established by Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
to Federal Rule of Evidence 702 and Daubert, I must
“ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.”
509 U.S. at 589. Expert testimony must be excluded if its
reasoning or methodology is either unreliable or unreliably
applied to the facts of the case. Id. 592-93. The
party offering the expert testimony has the burden of proving
that it is reliable. Wagner v. Hesston Corp., 450
F.3d 756, 758 (8th Cir. 2006). However, that party need not
demonstrate the credibility of their expert testimony at this
stage. Instead, where an opponent's objections primarily
concern the underlying facts, rather than the expert's
methods, those objections “are more appropriately
directed to the weight of the testimony, not its
admissibility.” Minnesota Supply Co. v.
Raymond Corp., 472 F.3d 524, 544 (8th Cir. 2006).
Rosenberg offers two opinions in his expert report. Opinion 1
states that Penske used information from Epay “to
develop a similar version of Epay Manager called Penske
Online Payment System (POPS).” (ECF No. 181-1 at 15).
Opinion 2 states that, if Penske had not used Epay source
code, it would have taken five years longer to complete POPS
development. Taylor relies on Dr. Rosenberg's Opinion 2
to quantify the amount of profits Level One would have
accrued had Penske not developed POPS with Epay source code.
Taylor reasons that Penske likely would have renewed the
Services Agreement for another five years had it not
allegedly used the Epay source code to develop
seeks to exclude these opinions. It primarily argues Dr.
Rosenberg should not have used a particular spreadsheet
estimating the time Level One spent Developing Epay.
Specifically, Penske argues that the spreadsheet contains
hours unrelated to the development of Epay and that Dr.
Rosenberg failed to verify the underlying data. Penske also
argues that Taylor does not explain certain cost estimates,
inappropriately assumes that Penske would renew the contract,
and disregards Level One's lack of company-wide profits,
among other arguments.
raises many legitimate arguments about the credibility of Dr.
Rosenberg's and Taylor's opinions and assumptions.
However, in borderline circumstances of reliability,
“[i]t is far better … to allow the expert
opinion[, ] and if the court remains unconvinced, allow the
jury to pass on the evidence.” Lauzon v. Senco
Prod., Inc., 270 F.3d 681, 695 (8th Cir. 2001). Further,
when objections concern the underlying facts, rather than the
expert's methods, they “are more appropriately
directed to the weight of the testimony, not its
admissibility.” Minnesota Supply Co. v. Raymond
Corp., 472 F.3d 524, 544. Many of Penske's arguments
pertain to the facts underlying Dr. Rosenberg's and
Taylor's methods rather than their methods. As a result,
despite Penske's legitimate arguments, Dr.
Rosenberg's and Taylor's methods narrowly meet the
Daubert reliability standard.
IT IS HEREBY ORDERED that Penske's
motion to exclude Dr. Rosenberg's testimony, [No. 178],
IS FURTHER ORDERED that Penske's motion to
exclude Taylor's testimony, [No. 182], is
GRANTED in part and DENIED
in part. Taylor's Opinion 1 and Opinion 3 shall be
excluded from trial because they pertain to the dismissed
lost volume and unjust enrichment claims, respectively.
Penske's motion to exclude, [No. 182], is denied to the
extent that it seeks to exclude Taylor's Opinion 2.
IS FURTHER ORDERED that Level One's consent
motion to dismiss Count V, [No. 265], is
GRANTED. Penske's motion to dismiss
Count V with prejudice, [No. 254], and Level One's ...