CellMark, Inc. v. Robert Webster, et al.

Summary

The United States District Court for the Eastern District of Kentucky addresses CellMark, Inc.’s motion to exclude portions of rebuttal expert testimony concerning economic damages. The court excludes legal conclusions and opinions concerning the credibility or reliability of CellMark’s damages expert, while permitting limited critiques of the expert’s assumptions, damages calculations, and consideration of an industry decline. The motion is granted in part and denied in part, and certain opinions in one expert’s report are excluded as irrelevant.

Holdings

1. Rebuttal experts may not testify that Cunningham's opinions are speculative, unreliable, unsupported by sufficient data, or not credible, and may not tell the jury what weight or credibility to assign to Cunningham's testimony. They may explain the analytical reasons for their criticisms and provide information from which the jury may draw its own conclusions.
2. Shilts and Kester may critique Cunningham's assumption that CellMark would have renewed its exclusivity agreement and explain how that assumption affected his damages calculation. They may not testify that the agreement would or would not have been renewed, that a particular underlying fact is true, or that Cunningham's opinions are unsupported by truthful or objective evidence.
3. Shilts may critique Cunningham's assumption concerning the volume of business CellMark would have continued to receive from Duro-Last and explain the effect of that assumption on the damages model. He may not testify that Duro-Last actually wanted to consolidate suppliers, that Webster's conduct caused no damages, or that Cunningham's opinions are not based on truthful or objective evidence.
4. Shilts and Kester may testify about their critiques of Cunningham's damages calculations, including quantified examples showing how particular aspects of his calculations may overstate damages, even though they did not provide an alternative total damages calculation. The quantified examples must be properly contextualized so the jury does not mistakenly add or subtract them to create an alternative damages figure.
5. Shilts may testify about the decline in the alcohol industry and its potential effect on Cunningham's damages analysis because, in the context of business and economic expert testimony, the article appeared to provide the type of facts and data experts reasonably rely upon. CellMark may challenge the source and reliability at trial, and the testimony may be excluded or limited if its underlying reliability is not established.

Questions Presented

1. Whether defendants' rebuttal experts could testify to legal conclusions that Cunningham's damages opinions were speculative, unreliable, unsupported by sufficient data, or lacking credibility.
2. Whether defendants' rebuttal experts could critique Cunningham's assumptions concerning renewal of an exclusivity agreement without testifying to the ultimate truth of those assumptions.
3. Whether Shilts could critique Cunningham's assumptions concerning continued business with Duro-Last without testifying to the truth of the underlying facts or the ultimate absence of causation.
4. Whether Shilts and Kester could offer piecemeal, quantified critiques of Cunningham's damages calculations without providing an alternative total damages model.
5. Whether Shilts could rely on an online news article and testify about a decline in the distilled-spirits industry as a factor Cunningham should have considered.

Disposition

other