United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE THE EXPERT TESTIMONY OF DANA A. BASNEY
CYNTHIA BASHANT, District Judge.
Before the Court is Plaintiff Edu-Science (USA) Inc. ("Edu-USA") and Cross-Defendant Edu-Science (HK) Ltd. ("Edu-HK") (collectively, "Edu-Science") motion to exclude the expert testimony of Dana A. Basney. ECF 129. Defendant and Counter-Claimant IntuBrite LLC's ("IntuBrite") opposed the motion. ECF 135. Edu-Science replied. ECF 139.
On June 22, 2015, the Court heard oral argument on the motion. For the following reasons, the Court DENIES Edu-Science's motion to exclude Basney's testimony. ECF 129.
I. LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014). Rule 702 provides that a witness "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. Under Rule 702, expert testimony must be both relevant and reliable. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir. 2014). Relevancy simply requires that "[t]he evidence... logically advance a material aspect of the party's case." Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007). Reliability requires that an expert's testimony "have a reliable basis in the knowledge and experience of his discipline." Estate of Barabin, 740 F.3d at 462 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999)).
The courts are not concerned with the "correctness of the expert's conclusions but the soundness of his [or her] methodology." Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995)); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (A court is not required "to admit or to exclude evidence based on its persuasiveness;" but rather "to admit or exclude evidence based on its scientific reliability and relevance."). "For scientific opinion, the court must assess the reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance, but the inquiry is a flexible one." Primiano, 598 F.3d at 564. "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion." Id .; see also Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 595-96 (1993).
The duty falls upon the district court to act "in a gatekeeping role, to assess whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue." Ollier, 768 F.3d at 860 (quoting Daubert, 509 U.S. at 592-93) (internal quotation marks omitted); see also Ellis, 657 F.3d at 982 ("[T]he trial court must act as a "gatekeeper" to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards by making a preliminary determination that the expert's testimony is reliable."). The party seeking to offer the testimony bears the burden of establishing its admissibility. In re ConAgra Foods, Inc., 302 F.R.D. 537, 549 (C.D. Cal. 2014) (citations omitted).
Edu-Science have challenged Dana A. Basney's expert testimony regarding the damages IntuBrite reportedly sustained based upon inaccuracies in his Expert Report. Basney Report, ECF 129-3. First, they challenge his methodology of employing a Microsoft Excel trendline to extrapolate lost sales and damages because they claim it is contraindicated as inaccurate by Microsoft's own Excel documentation. Second, they argue that IntuBrite continued to sell Edu-Science goods after May 2011. Basney's analysis assumes that in May 2011 IntuBrite had exhausted its Edu-Science inventory. Third, they argue that Basney did not consider alternative causes of IntuBrite's sales reductions, such as IntuBrite's start-up ...