The opinion of the court was delivered by: The Honorable David O. Carter, Judge
Kathy Peterson Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): AMENDED*fn1 ORDER RE MOTIONS TO EXCLUDE EXPERT OPINION OF MICHAEL J. WAGNER
Before the Court are MGA and Machado's motions to exclude the expert opinion of Mattel expert Michael J. Wagner.
Federal Rule of Evidence 702 provides that a witness qualified as an expert may render an opinion if "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702. The rule imposes a "gatekeeping" obligation upon trial courts to exclude "expertise that is fausse and science that is junky," though courts have "discretion to choose reasonable means of excluding" such expertise. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167 (1999) (Scalia, J., concurring) (emphasis in original).
In performing this gatekeeping function, the district court must determine whether an expert's testimony "rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786 (1993). The court may consider the following non-exclusive list of factors to determine the reliability of the expert's theory or technique: (1) whether it "can be (and has been) tested"; (2) whether it "has been subjected to peer review and publication"; (3) whether it poses a high "known or potential rate of error" when applied;
(4) whether there are "standards controlling [its] operation"; and (5) whether it enjoys "general acceptance" within a "relevant scientific community." Id. at 592-94. Ultimately, "[t]he inquiry envisioned by Rule 702 is . . . a flexible one," id. at 594, and trial courts should not mechanically apply Daubert factor to expert testimony whose reliability does not depend upon the integrity of a particular theory or technique. Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) ("Concerning the reliability of non-scientific testimony such as Carlin's, the 'Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology behind it.'") (emphasis added) (quoting Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1069 (9th Cir. 2002)). In all events, a trial court is expected to "make some kind of reliability determination to fulfill its gatekeeping function." Mukhtar, 299 F.3d at 1066.
Mr. Wagner purports to calculate Mattel's lost profits and MGA and Machado's unjust enrichment from the disclosure, acquisition, and use of Mattel's claimed trade secrets - some of the documents, information, and materials allegedly appropriated by certain former Mattel (including subsidiaries) employees, including Carter Bryant. He also purports to calculate Mattel's actual damages and MGA's profits from the alleged infringement of Mattel's copyrights in the Bratz concept ...