IceMOS Technology Corporation v. Omron Corporation

• Court: District Court, D. Arizona
• Decided: September 30, 2019
• Docket: 2:17-cv-02575
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 IceMOS Technology Corporation, No. CV-17-02575-PHX-JAT

10 Plaintiff/Counter-defendant, ORDER

11 v.

12 Omron Corporation,

13 Defendant/Counterclaimant. 14 15 Pending before the Court are IceMOS Technology Corporation’s (“Plaintiff”) 16 Daubert motions to exclude Allan Morrison (Doc. 227), Charles Malek (Doc. 238), Randy 17 Cavaiani (Doc. 241), Robert Vincent (Doc. 244), and Kenneth Malek (Doc. 247) as experts 18 (collectively, “Plaintiff’s Daubert Motions”).1 The Court now rules on the motions.2 19 I. BACKGROUND 20 Plaintiff has filed motions to exclude each of Omron Corporation’s (“Defendant”) 21 experts. Defendant opposes each motion. 22

23 1 Omron Corporation’s motions to preclude testimony of Plaintiff’s experts Walter Bratic (Doc. 293), Greg Mischou (Doc. 296), and Uzi Sasson (Doc. 299) are also pending before 24 the Court. However, these motions would be rendered moot if the Court grants Omron Corporation’s Motion for Partial Summary Judgment (Doc. 229) as to the unavailability of 25 lost business value damages and lost profit damages; thus, the Court will not rule on these motions at this time. 26 2 Although Plaintiff requests oral argument, the request for oral argument is denied because the issues have been fully briefed and oral argument would not have aided the Court’s 27 decisional process. Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas Inv’rs Grp. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991); Prison 28 Legal News v. Ryan, No. CV-15-02245-PHX-ROS, 2019 WL 1099882, at *1 n.1 (D. Ariz. Mar. 8, 2019). 1 On August 5, 2019, Plaintiff filed Daubert Motion to Exclude Allan Morrison as an 2 Expert (Doc. 227). Defendant responded on August 19, 2019 (Doc. 255), and Plaintiff filed 3 its Reply on August 29, 2019 (Doc. 275). 4 On August 6, 2019, Plaintiff filed Daubert Motion to Exclude Charles Malek as an 5 Expert (Doc. 238). Defendant responded on August 20, 2019 (Doc. 267), and Plaintiff filed 6 its Reply on August 30, 2019 (Doc. 283). 7 On August 6, 2019, Plaintiff filed Daubert Motion to Exclude Randy Cavaiani as 8 an Expert (Doc. 241). Defendant responded on August 20, 2019 (Doc. 264), and Plaintiff 9 filed its Reply on August 30, 2019 (Doc. 282). 10 On August 6, 2019, Plaintiff filed Daubert Motion to Exclude Robert Vincent as an 11 Expert (Doc. 244). Defendant responded on August 20, 2019 (Doc. 261), and Plaintiff filed 12 its Reply on August 30, 2019 (Doc. 283). 13 On August 6, 2019, Plaintiff filed Daubert Motion to Exclude Kenneth Malek as an 14 Expert (Doc. 247). Defendant responded on August 20, 2019 (Doc. 270), and Defendant 15 filed its Reply on August 30, 2019 (Doc. 279). 16 The parties filed various motions to seal relating to each of Plaintiff’s Daubert 17 Motions. 18 a. Facts 19 Plaintiff offers super junction metal oxide semiconductor field-effect transistors 20 (“MOSFETs”), microelectromechanical systems solutions, and advanced engineering 21 substrates to third parties. (Doc. 25 at 2). To produce these products, Plaintiff needs 22 fabrication services. (Id.). In 2007, Defendant purchased a fabrication facility and began 23 fabricating “complementary metal-oxide semiconductor” products. (Id.). Around this time, 24 Defendant approached Plaintiff to suggest that Defendant and Plaintiff enter into business 25 together. (Id.). 26 Plaintiff and Defendant came to an agreement (“Supply Agreement”) on February 27 28, 2011 after negotiations. (See id.). Their agreement included, inter alia, that Defendant 28 would “perform the fabrication requested by Plaintiff” and that Defendant would “fully 1 resource the development of all generations of” Plaintiff’s super junction MOSFET (“SJ 2 MOSFET”) for the duration of the Supply Agreement. (Id.; see also Doc. 59 at 10; Doc. 3 60 at 15). Defendant asserts that Plaintiff represented that “[d]emand for Plaintiff’s Super 4 Junction MOSFETs is estimated to reach a volume of up to three thousand and five hundred 5 (3,500) wafers per month by year 2014.” (See Doc. 28 at 42 (alteration in original) (quoting 6 Doc. 14-1 at 2)). Defendant also alleges that the parties forecasted, based on Plaintiff’s 7 representations regarding expected demand for its product, that “monthly demand would 8 reach 3,850 wafers per month by the fourth quarter of 2012.” (Id. (citing Doc. 14-1 at 14)). 9 On March 6, 2018, the Supply Agreement terminated. (Doc. 60 at 37). 10 Plaintiff alleges breach of contract and fraud and seeks actual damages. (Doc. 59 at 11 33–38). Defendant has counterclaimed and alleges breach of the implied covenant of good 12 faith and fair dealing, two counts of breach of contract, and fraud in the inducement 13 (relating to the alleged projections by Plaintiff) and also seeks damages. (Doc. 28 at 52– 14 64). 15 b. Plaintiff’s Motions to Exclude Defendant’s Experts 16 Plaintiff moves to exclude all five of Defendant’s experts. Because Plaintiff makes 17 similar challenges to each expert, the Court will analyze Plaintiff’s motions issue by issue 18 as it relates to each expert rather than expert by expert. The Court also organizes each issue 19 in the order that Plaintiff challenged each expert. 20 There is no dispute as to Defendant’s articulation of the expert opinions of Charles 21 Malek (“C. Malek”), Randy Cavaiani (“Cavaiani”), Robert Vincent (“Vincent”), and 22 Kenneth Malek (“K. Malek”) or what Defendant is offering them to show; thus, the Court 23 incorporates by reference Defendant’s articulation of their opinions. (See Doc. 267 at 4–5 24 (C. Malek); Doc. 261 at 6–8 (Vincent); Doc. 264 at 5–6 (Cavaiani); Doc. 270 at 5–8 (K. 25 Malek)). When the Court’s analysis depends on a specific portion of an expert’s opinion, 26 the Court will indicate what portion of the opinion it is discussing. 27 There is some dispute as to Defendant’s articulation of one of the opinions of Allan 28 Morrison (“Morrison”). (See Doc. 275 at 3 (“[Defendant] tries to mislead the Court by 1 stating ‘Morrison offered the opinion that low yield was not exclusively Defendant’s 2 fault. . . .’” (ellipsis in original) (quoting Doc. 255 at 11))). Plaintiff asserts that Morrison’s 3 opinion was that “[Defendant] was not liable for any yield issues.” (See id. (quoting Doc. 4 227-1 at 12)). However, Plaintiff leaves out a portion of Morrison’s opinion. Morrison’s 5 opinion continued, “it was [Plaintiff]’s issues with manufacturability, including process 6 design and test design, as well as the constant process changes themselves, that caused 7 most of the yield issues.” (Doc. 227-1 at 12 (emphasis added)). That opinion is consistent 8 with what Defendant articulated in its Response (Doc. 255 at 11). Morrison’s opinion is 9 that most of the yield issues were caused by Plaintiff and other yield issues were caused by 10 others, possibly including Defendant. In any event, the asserted distinction that Plaintiff 11 draws between how Defendant characterizes Morrison’s opinion and his actual opinion is 12 irrelevant to the Court’s analysis. It appears there is no other dispute to Defendant’s 13 presentation of Morrison’s opinions, so the Court adopts by reference Defendant’s 14 articulation of Morrison’s opinions, which is copied verbatim from Morrison’s expert 15 report. (See id. at 5–6 (quoting Doc. 227-1 at 12)). 16 II. LEGAL STANDARD 17 A party seeking to offer an expert opinion must show that the opinion satisfies the 18 requirements set forth by Federal Rule of Evidence 702 (“Rule 702”). Rule 702 provides: 19 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: 20 (a) the expert’s scientific, technical, or other specialized knowledge 21 will help the trier of fact to understand the evidence or to determine a fact in issue; 22 (b) the testimony is based on sufficient facts or data; 23 (c) the testimony is the product of reliable principles and methods; and 24 (d) the expert has reliably applied the principles and methods to the 25 facts of the case. 26 Fed. R. Evid. 702. Rule 702 requires that trial judges act as gatekeepers. See Daubert v. 27 Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 597 (1993). Trial judges fill this role by 28 making a preliminary assessment on the admissibility of expert testimony. See id. at 589. 1 Specifically, “the trial judge must ensure that any and all scientific testimony or evidence 2 admitted is not only relevant, but reliable.” Id. The court’s gatekeeping role requires it to 3 determine that an expert is qualified, that the expert’s opinion is reliable in that it is based 4 on sufficient facts or data and is the product of reliable principles and methods, and that 5 the expert’s testimony fits the case such that the testimony is relevant. See id. The inquiry 6 established by Rule 702 is “a flexible one” and its “focus, of course, must be solely on 7 principles and methodology, not on the conclusions that they generate.” Id. at 594–95. 8 The party offering expert testimony must show that the testimony is admissible 9 under Rule 702. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 10 Because Rule 702’s requirements are conditions for determining whether expert testimony 11 is admissible, Federal Rule of Evidence 104(a) requires that the party offering the expert 12 testimony show by a preponderance of the evidence that the expert testimony is admissible 13 under Rule 702. See Fed. R. Evid. 104(a); Daubert, 509 U.S. at 592–93 & n.10; Bourjaily 14 v. United States, 483 U.S. 171, 175–76 (1987). 15 Plaintiff argues that all five of Defendant’s experts should be precluded from 16 testifying for various reasons. The Court will evaluate each argument in turn. 17 III. ANALYSIS 18 a. Qualifications 19 Plaintiff asserts that Morrison, C. Malek, Cavaiani, and Vincent are not qualified to 20 offer the expert opinions they rendered in their expert reports. See Fed. R. Evid. 702; (Doc. 21 227 at 19 (Morrison); Doc. 238 at 8–12 (C. Malek); Doc. 241 at 9–12 (Cavaiani); Doc. 244 22 at 7–12 (Vincent)). 23 Under Rule 702, the trial court must analyze whether the proffered witness is 24 qualified as an expert by “knowledge, skill, experience, training, or education.” Fed. R. 25 Evid. 702. “The qualification standard is meant to be broad and to seek a ‘minimal 26 foundation’ justifying the expert’s role as an expert.” Allen v. Am. Capital Ltd., 287 27 F. Supp. 3d 763, 776 (D. Ariz. 2017) (quoting Hangarter v. Provident Life & Accident Ins., 28 373 F.3d 998, 1015–16 (9th Cir. 2004)). Criticisms leveled against an expert that are 1 “specific objections” as to an expert’s qualifications go to the weight of the expert’s 2 testimony, not its admissibility. In re Apollo Grp. Inc. Sec. Litig., 527 F. Supp. 2d 957, 3 963–64 (D. Ariz. 2007) (finding expert was qualified to opine on a topic despite lack of 4 knowledge as to a particular specialty within his field because it was a “specific 5 objection[]”). In other words, “differing areas of expertise are perhaps germane to the 6 weight and allowed scope of [an expert]’s testimony, [but] they do not bar admissibility.” 7 Erickson v. City of Phoenix, No. CV-14-01942-PHX-JAT, 2016 WL 6522805, at *4 (D. 8 Ariz. Nov. 3, 2016) (citing Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n.5 (9th Cir. 9 1987)). Rather, “[d]isputes as to the strength of [an expert’s] credentials . . . go to the 10 weight, not the admissibility, of his testimony.’” Kennedy v. Collagen Corp., 161 F.3d 11 1226, 1231 (9th Cir. 1998) (alteration in original) (quoting McCullock v. H.B. Fuller Co., 12 61 F.3d 1038, 1044 (2d Cir. 1995)). Indeed, Rule 702 was not meant to supplant “the 13 traditional and appropriate means of attacking shaky but admissible evidence,” including 14 “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction 15 on the burden of proof.” Daubert, 509 U.S. at 596. As such, Rule 702 sets a “relatively low 16 bar” to satisfy its requirement that an expert be qualified. GDC Technics, Ltd. v. Grace, 17 No. SA-15-CV-488-RP, 2017 WL 11025769, at *2 (W.D. Tex. Feb. 17, 2017). 18 An expert’s qualifications can be based solely on experience. Kumho Tire Co. v. 19 Carmichael, 526 U.S. 137, 156 (1999) (stating that “no one denies that an expert might 20 draw a conclusion from a set of observations based on extensive and specialized 21 experience”). That is, an expert does not need scientific or other technical training to speak 22 on a particular topic if the expert’s experience qualifies the expert to speak on that topic. 23 See id. As the Notes of the Advisory Committee point out, expert testimony can be offered 24 by “‘skilled’ witnesses, such as bankers or landowners testifying to land values.” See Fed. 25 R. Evid. 702 Notes of Advisory Committee on Proposed Rules. In short, the relevant 26 inquiry is whether the expert has the minimal foundation of skill, developed by experience 27 in the relevant field, or other technical or scientific training necessary to offer an opinion 28 as to a particular topic. See Fed. R. Evid. 702; Allen, 287 F. Supp. 3d at 776. 1 1. Morrison 2 Plaintiff argues that Morrison was unqualified to render the following opinion: 3 “[a]bsent issues of manufacturability and constant process changes that are the 4 responsibility of [Plaintiff], [Plaintiff] should have had a new foundry or foundries running 5 long ago . . . .” (See Doc. at 227 at 18–20 (quoting Doc. 227-1 at 12)). This opinion was 6 offered to rebut the opinion of Plaintiff’s expert, Walter Bratic, which suggested that 7 Plaintiff’s damages from the Defendant’s alleged breach includes lost profits through 2026. 8 (See Doc. 255 at 5–6; Doc. 255-3 at 37–38). 9 The Court rejects Plaintiff’s challenges to Morrison’s qualifications to render an 10 opinion on how long it takes to establish a semiconductor operation. Morrison has over 11 thirty-six years of experience in the semiconductor industry and approximately thirteen 12 years of experience with foundry consulting. (See Doc. 227-1 at 3–4, 13). The fact that 13 Morrison does not have experience with an SJ MOSFET operation is a specific objection 14 to the strength of his qualifications, and thus, must be probed at trial and not on a motion 15 to exclude his testimony under Daubert. 16 2. C. Malek 17 Plaintiff asserts C. Malek is not qualified to render the expert opinions he came to 18 in his report. (Doc. 238 at 8–12). In essence, Plaintiff’s claim is that C. Malek does not 19 have experience fabricating SJ MOSFETs or MOSFETs in general. (Id. at 8–9). Defendant 20 responds that C. Malek is offering an expert opinion “to rebut the damages analysis of 21 [Plaintiff]’s experts, who (incorrectly) adopted a[ Plaintiff] forecast of 5% market share 22 within two years” and to show “[Defendant]’s losses were caused by (misplaced) reliance 23 on [Plaintiff],” which is part of Defendant’s breach of the covenant of good faith and fair 24 dealing and fraudulent inducement claims. (See Doc. 267 at 5). Thus, Defendant argues 25 that C. Malek does not need to have any understanding on how to fabricate SJ MOSFETs 26 or any type of MOSFET to render the expert opinions he has articulated in his reports. (See 27 id. at 6–9). 28 1 The Court finds that C. Malek is qualified to offer opinions as to how a purchaser 2 of MOSFETs would select a MOSFET (SJ or otherwise), which is relevant to the issue of 3 whether Plaintiff could ever reach five percent market share. C. Malek has extensive 4 experience in original equipment manufacturing product design, and thus, is familiar with 5 how such a product designer would select a MOSFET. (Doc. 238-1 at 2–3, 17). Product 6 design is a skill that C. Malek has honed through this extensive experience. See Fed. R. 7 Evid. 702 Notes of Advisory Committee on Proposed Rules. Contrary to Plaintiff’s claims, 8 knowing how to manufacture a MOSFET is not necessary to understanding what makes a 9 MOSFET attractive to a product designer. For example, an individual need not know how 10 to build a computer to compare which computer the individual should purchase. Whether 11 C. Malek is sufficiently familiar with the science behind SJ MOSFETs or MOSFETs in 12 general is a matter that goes to the strength of his credentials and thus the weight of his 13 expert testimony—not admissibility. Defendant has shown by a preponderance of the 14 evidence the minimal foundation required for C. Malek to testify as an expert on the issues 15 Defendant seeks to offer his opinions.3 16 3. Cavaiani 17 Plaintiff makes the same challenge to Cavaiani’s qualifications as it did to C. Malek. 18 Essentially Plaintiff asserts that Cavaiani’s lack of “any particular training or specialized 19 experience with SJ MOSFETS, or even power MOSFETs in general, and the sales of those 20 products” render him unqualified. (Doc. 241 at 9–10; see also id. at 11 (stating Cavaiani is 21 unqualified because “he has no experience in the sales and marketing of SJ MOSFETs, or 22 even power MOSFETs in general”)). Defendant responds Cavaiani’s “background 23 3 It seems Plaintiff also argues that C. Malek’s experience is outdated, and thus, he is 24 unqualified to testify. (See Doc. 238 at 9 (“C. Malek last worked for a semiconductor company more than twenty years ago in 1998—thirteen years prior to the Supply 25 Agreement at issue in this case and before SJ MOSFETs even existed.”)). Yet, Plaintiff offers no reason why a thirteen-year absence from product design would make C. Malek 26 unqualified to testify as to how a product designer would evaluate a product like the SJ MOSFET, especially in light of his extensive experience in this field. Cf. Hinkle v. White, 27 No. 12-CV-0133-MJR-SCW, 2014 WL 12787977, at *3 (S.D. Ill. Jan. 10, 2014). Without any indication that product design has changed over the past thirteen years, the Court 28 cannot say that C. Malek’s recent absence from product design renders him unqualified to offer the opinions he has come to. 1 comprising ‘20+ yrs [sic] of experience in sales, application engineering, and marketing 2 experience with thousands of commodity semiconductor products’” is sufficient to offer 3 an opinion as to “the many ways in which [Plaintiff]’s projections were speculative, 4 unrealistic and false.” (Doc. 264 at 7–8 (quoting Doc. 241-2 at 5)). Defendant states that 5 this opinion is relevant to Plaintiff’s alleged damages and Defendant’s counterclaims 6 relating to breach of the covenant of good faith and fair dealing as well as fraudulent 7 inducement. (Id. at 6). 8 Plaintiff’s argument fails for the same reason the Court rejected its challenge as to 9 C. Malek’s qualifications. Defendant has shown the minimal foundation necessary for 10 Cavaiani to testify as an expert on the issue of whether Plaintiff’s projections were 11 speculative, unrealistic, or false. As Defendant points out, Cavaiani has had more than 12 twenty years of experience with semiconductor products, and an SJ MOSFET relies, in 13 part, on semiconductor technology.4 (See Doc. 264 at 7–8; see also Doc. 241-2 at 5). As 14 such, Cavaiani’s experience allows him to speak on how Plaintiff’s projections that its SJ 15 MOSFET, a semiconductor product, would reach a five percent market share were 16 speculative, unrealistic, or false. As with C. Malek, a lack of any particularized knowledge 17 relating to the particular science behind SJ MOSFETs is a specific criticism that goes to 18 the overall strength of his credentials and thus the weight of Cavaiani’s testimony, not its 19 admissibility. 20 The Court further rejects Plaintiff’s argument that Cavaiani is not qualified because 21 he has not worked in the field since 2002. (Doc. 241 at 11). Plaintiff does not explain why 22 Cavaiani’s lack of work in the field since 2002 makes him unqualified to testify on the 23 issue of its alleged speculative, unrealistic, or false projections. Cf. Hinkle v. White, No. 24 12-CV-0133-MJR-SCW, 2014 WL 12787977, at *3 (S.D. Ill. Jan. 10, 2014) (concluding 25 expert was qualified despite absence from the field of five years because expert had 26 extensive past experience on the topic he was discussing and there was no evidence of any 27 change in the field). The Court will not hypothesize arguments for Plaintiff as to why

28 4 Indeed, MOSFET stands for “metal-oxide semiconductor field-effect transistor.” (See Doc. 59 at 5 (emphasis added) (Plaintiff’s Second Amended Complaint)). 1 Cavaiani’s absence from the field since 2002 might affect his ability to testify on whether 2 Plaintiff’s projections relating to a semiconductor product were speculative, unrealistic, or 3 false in light of his extensive experience on this topic. 4 Finally, Plaintiff contends that Cavaiani is unqualified to offer an expert opinion in 5 this case because he “lacks knowledge and experience in the relevant market” of Beijing 6 and Shenzhen. (See Doc. 241 at 12). The Court disagrees. First, Plaintiff has not established 7 in any way how Cavaiani’s lack of experience with these markets would affect his opinion 8 on the “many ways in which [Plaintiff]’s projections were speculative, unrealistic and 9 false.” (Doc. 264 at 7–8). Second, again, this argument goes to the strength of Cavaiani’s 10 credentials. Thus, any lack of experience in the Beijing and Shenzhen markets is an issue 11 of credibility not admissibility. 12 The Court finds that Defendant has shown by the preponderance of the evidence 13 that Cavaiani is sufficiently qualified to offer an opinion as to whether Plaintiff’s 14 projections for its SJ MOSFET product were speculative, unrealistic, or false. 15 4. Vincent 16 Plaintiff makes two primary challenges to the qualifications of Vincent. First, 17 Plaintiff asks the Court to exclude Vincent because he “lied” about his qualifications. (See 18 Doc. 244 at 7–9). Defendant responds that Vincent did not lie, and even if he did, he is 19 sufficiently qualified to offer the opinions he rendered in his report and any inaccuracies 20 Vincent articulated relating to his credentials can be probed on cross-examination. (See 21 Doc. 261 at 9–10). Second, Plaintiff argues that Vincent should be excluded because he “is 22 not an expert on the valuation of semiconductor companies.” (Doc. 244 at 7, 9–12). 23 Defendant contends that Vincent’s expert testimony is intended to rebut Mischou’s 24 “projected financial value of IceMOS.” (Doc. 261 at 5). As such, Defendant suggests that 25 Vincent’s background in investment banking, financial transactions, and valuing 26 companies is sufficient to qualify him to rebut Mischou’s financial valuation of IceMOS. 27 (See id. at 11–12). 28 1 Plaintiff asserts Vincent included “inaccurate and highly misleading” entries in his 2 professional resume. (See Doc. 244 at 7). That issue relates to Vincent’s credibility not his 3 qualifications as an expert.5 See Nunn v. State Farm Mut. Auto. Ins., No. 3:08-CV-1486- 4 D, 2010 WL 2540754, at *7 (N.D. Tex. June 22, 2010) (rejecting argument by party that 5 expert was unqualified under Rule 702 because there were inaccuracies in expert’s resume 6 and asserting that party was free to explore purported inaccuracies on cross-examination). 7 The Court will review Vincent’s professional resume for itself without the gloss that 8 Plaintiff seeks to place over it. See id. (reviewing expert’s qualifications based on the 9 record despite potential inaccuracies pointed out by party seeking exclusion of expert 10 testimony). 11 The Court disagrees with Plaintiff that Vincent is not qualified to offer the expert 12 opinions in his report. As with C. Malek and Cavaiani, Plaintiff only asserts specific 13 criticisms about Vincent’s lack of understanding of SJ MOSFET technology that go to the 14 strength of his credentials, which speaks to the weight of Vincent’s expert testimony, not 15 its admissibility. In short, Vincent is qualified to render an opinion as to whether there were 16 flaws in Mischou’s financial valuation. Indeed, Vincent has played a role in “over 250 17 corporate and project finance transactions” in his twenty-five-year career and has 18 experience as an investment banker. (Doc. 251-1 at 16). The Court finds Defendant has 19 shown by the preponderance of the evidence that Vincent has the minimal foundation of 20 knowledge, skill, and experience to rebut Mischou’s financial valuation of IceMOS. 21 22 23 24 25

26 5 Of course if all of an expert’s qualifications were false or inaccurate, then that might be a ground to exclude the expert because the expert would then have no qualifications. 27 However, the relevant inquiry under Rule 702 is whether the expert is qualified not whether the expert is full of virtue. Therefore, the Court rejects Plaintiff’s argument that the Court 28 must strike all of Vincent’s experience because Plaintiff believes Vincent has provided inaccuracies in his professional resume. (See Doc. 244 at 9). 1 b. Reliable Principles and Methods 2 Expert opinions must be “the product of reliable principles and methods.” Fed. R. 3 Evid. 702(c). “Rule 702 grants the district judge the discretionary authority, reviewable for 4 its abuse, to determine reliability in light of the particular facts and circumstances of the 5 particular case.” Kumho Tire Co., 526 U.S. at 158. 6 1. C. Malek 7 Plaintiff asserts C. Malek’s opinions are not based on reliable principles and 8 methods because he used a “figure of merit” that Plaintiff claims is unreliable. (See Doc. 9 238 at 12–14). Defendant responds that C. Malek simply used math and that Plaintiff 10 mischaracterizes his testimony. (See Doc. 267 at 9–12). Defendant explains that the “figure 11 of merit” that C. Malek describes is simply a calculation based on his expertise of what a 12 product designer, like himself, would look for. (See id.). 13 “[T]he relevant factors for determining reliability will vary from expertise to 14 expertise . . . .” See Fed. R. Evid. 702 Committee Notes on Rules—2000 Amendment. “The 15 trial judge in all cases of proffered expert testimony must find that it is properly grounded, 16 well-reasoned, and not speculative before it can be admitted.” Id. An expert’s opinion can 17 be based on the “application of extensive experience,” which satisfies Rule 702(c)’s 18 requirement that an expert opinion be based upon reliable principles and methods. See id. 19 When an expert’s opinion is based on the application of extensive experience, the lack of 20 peer review, publication, and general acceptance is not fatal as the expert’s opinion is the 21 product of the expert’s experience, not science. See Aloe Vera of Am. Inc. v. United States, 22 No. CV-99-01794-PHX-JAT, 2014 WL 3072981, at *11 (D. Ariz. July 7, 2014); see also 23 United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007) (“Experiential expert 24 testimony . . . does not ‘rely on anything like a scientific method.’” (quoting Fed. R. Evid. 25 702 Committee Notes on Rules—2000 Amendment)). 26 C. Malek’s opinions are based on reliable principles and methods. As Defendant 27 notes, C. Malek simply applied math, which is certainly reliable. See, e.g., Lapsley v. Xtek, 28 Inc., 689 F.3d 802, 810 (7th Cir. 2012). What Defendant challenges is why C. Malek chose 1 the parameters he did and why he used certain values for his calculations. C. Malek’s 2 opinions are based on extensive experience in the field of original equipment 3 manufacturing (“OEM”) product design, which includes comparing the performance and 4 capabilities of different MOSFETs and ultimately how these factors would affect a 5 consumer’s decision to select Plaintiff’s SJ MOSFET over its competitors’ products. As 6 noted above, the Court finds that C. Malek is qualified to offer opinions related to this topic 7 based on his extensive experience in OEM product design. See supra Section III(a)(2). 8 That includes determining what factors would be relevant to an OEM product designer and 9 how an OEM product designer would make the calculations to quantify these factors. 10 Plaintiff raises no specific challenge to C. Malek’s choice of parameters from an 11 OEM product designer standpoint, and it indicates no errors with C. Malek’s calculations 12 or any of the assumptions he made. See Lapsley, 689 F.3d at 809–11 (noting, in finding 13 expert’s mathematical calculations reliable, that challenging party did not indicate any 14 error in the expert’s mathematical calculations or his underlying assumptions). Plaintiff 15 does assert C. Malek manufactured his formula for this litigation, which does, as a general 16 matter, affect the reliability determination. (See Doc. 238 at 13–14). But here, C. Malek 17 specifically testified that he had used figures of merit on previous occasions, and Plaintiff 18 points to nothing that indicates the parameters and factors C. Malek used for his 19 calculations here were faulty. (See id. at 14; see also Doc. 238-2 at 58–59). Plaintiff also 20 criticizes C. Malek’s calculations as not being published, peer reviewed, or generally 21 accepted in the field. (See Doc. 238 at 13–14). As noted above, C. Malek applied math, a 22 field that there has been extensive publication in, peer review of, and general acceptance 23 of throughout the world for hundreds of years. See Uta C. Merzbach & Carl B. Boyer, A 24 History of Mathematics (3d ed. 2011). From there, C. Malek made certain decisions as to 25 what numbers to use for his mathematical calculations based on his extensive experience, 26 which need not have publication, peer review, or general acceptance in the field to satisfy 27 Rule 702(c). Contrary to Plaintiff’s protestations, an expert may “draw a conclusion from 28 1 a set of observations based on extensive and specialized experience.” Kumho Tire Co., 526 2 U.S. at 156. 3 At bottom, Plaintiff’s true challenge is to the values that C. Malek chose for 4 purposes of his calculations. Plaintiff’s alleged “faults in [C. Malek’s] use of [a particular] 5 methodology . . . go to the weight, not the admissibility, of his testimony.” Kennedy, 161 6 F.3d at 1231 (second alteration in original) (quoting McCullock, 61 F.3d at 1044). 7 Consequently, cross-examination and the adversarial process is the proper vehicle to make 8 such a challenge. See Lapsley, 689 F.3d at 810 (concluding that a challenge to an expert’s 9 mathematical calculations, and the underlying assumptions that went into them, are 10 generally a matter for trial). The Court finds, by a preponderance of the evidence, that C. 11 Malek’s opinions are based on reliable principles and methods. 12 2. Cavaiani 13 Plaintiff challenges Cavaiani’s opinions as unreliable because it asserts they are the 14 product of “ipse dixit guesswork.” (Doc. 241 at 12–15 (citing Domingo ex rel. Domingo v. 15 T.K., 289 F.3d 600, 607 (9th Cir. 2002))). Like C. Malek, in coming to his conclusions, 16 Cavaiani applied his extensive experience to the facts of this case. Consequently, the Court 17 finds Defendant has shown by a preponderance of the evidence that Cavaiani’s opinions 18 are the product of reliable principles and methods. 19 3. Vincent 20 Plaintiff also suggests that Vincent’s opinions are only based on “ipse dixit 21 guesswork,” and thus, not the product of reliable principles and methods. (Doc. 244 at 13– 22 16 (citing Domingo, 289 F.3d at 607)). Again, the Court finds, as it did with C. Malek and 23 Cavaiani, that an expert’s application of extensive experience to the particular facts of a 24 case illustrate that the expert’s opinion is the product of reliable principles and methods 25 under Rule 702(c). As such, the Court finds, by a preponderance of the evidence, that 26 Vincent’s opinions are the product of reliable principles and methods. 27 28 1 4. K. Malek 2 Plaintiff argues K. Malek’s opinions are not based on reliable principles and 3 methods because it asserts he has a conflict of interest. (See Doc. 247 at 13–16). The thrust 4 of its argument is that K. Malek’s opinions are based, at least in part, on the opinions of C. 5 Malek, Cavaiani, and Vincent and that K. Malek is receiving a portion of their fees; 6 therefore, Plaintiff claims he has a stake in the litigation. (See id.). Defendant responds that 7 K. Malek does not have a conflict of interest, and any bias that results from K. Malek’s 8 receipt of these fees in this matter go to credibility not admissibility. (See Doc. 270 at 12– 9 14). 10 The fact that a party pays an expert witness an hourly fee goes to the expert’s 11 credibility not reliability. See United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 12 2001) (“Generally, evidence of bias goes toward the credibility of a witness, not his 13 competency to testify, and credibility is an issue for the jury.”); Jewell v. Life Ins. Co. of 14 N. Am., 508 F.3d 1303, 1312 (10th Cir. 2007) (distinguishing between the credibility of an 15 expert versus the reliability of the principles and methods the expert applied and concluding 16 that payment of the expert’s fee goes to credibility); see Hall v. Baxter Healthcare Corp., 17 947 F. Supp. 1387, 1396 n.24 (D. Or. 1996). However, an expert generally must be 18 disqualified where the expert has a direct financial interest in the case beyond simply 19 getting paid for rendering an expert opinion and testifying about it. Perfect 10, Inc. v. 20 Giganews, Inc., No. CV 11-07098-AB (SHX), 2014 WL 10894452, at *4–6 (C.D. Cal. 21 Oct. 31, 2014) (noting a direct financial interest in a case could establish a disqualifying 22 conflict of interest but that simply being paid a fee for expert testimony does not establish 23 a direct financial interest). 24 The Court rejects Plaintiff’s argument that K. Malek somehow has a direct financial 25 interest in the case because the Defendant’s other experts are affiliated with his firm, and 26 thus, he receives a portion of their expert fee. Plaintiff points to no evidence to establish 27 that K. Malek had a conflict of interest beyond the unremarkable proposition that the more 28 hours the Defendant’s experts worked, the more money they (and K. Malek based on the 1 fee agreement the experts had with Defendant) would make. Nor does Plaintiff explain 2 why this situation—where it asserts K. Malek received a portion of the fee charged by the 3 other experts Defendant retained—is any different than K. Malek himself being paid for 4 his expert testimony. In short, Plaintiff does not cite any evidence that K. Malek has a direct 5 financial interest in the litigation. Consequently, Plaintiff has not established that K. Malek 6 has a disqualifying direct interest in this case. 7 c. Sufficient Facts and Data 8 Plaintiff seeks to exclude the expert opinions of Morrison, C. Malek, Cavaiani, 9 Vincent, and K. Malek as not “based on sufficient facts or data.” See Fed. R. Evid. 702(b); 10 (Doc. 227 at 8 (Morrison); Doc. 238 at 14–17 (C. Malek); Doc. 241 at 15–18 (Cavaiani); 11 Doc. 244 at 14–16 (Vincent); Doc. 247 at 18–21 (K. Malek)). 12 First, Plaintiff contends that the testimony by each expert must be excluded because 13 each expert failed to give the proper weight to certain facts. The Committee Notes to Rule 14 702 state: 15 When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment 16 on “sufficient facts or data” is not intended to authorize a trial court to 17 exclude an expert’s testimony on the ground that the court believes one version of the facts and not the other. 18 19 Fed. R. Evid. 702 Committee Notes on Rules—2000 Amendment. Plaintiff’s position 20 appears to be that the Court should accept Plaintiff’s version of the facts and exclude the 21 testimony of Defendant’s experts because, in Plaintiff’s view, they did not accord the 22 proper weight to certain facts or that their conclusions are simply incorrect.6 As the 23 6 For example, Plaintiff argues, “An expert cannot narrow the scope of data considered in 24 reaching his opinion merely because that is what they ‘wish’ to consider. . . . An expert must provide a reasoned basis for why they did not consider some data if their findings are 25 to amount to ‘good science’ and be ‘derived by scientific method.’” (Doc. 238 at 16 (quoting In re Apollo Grp. Inc. Sec. Litig., 527 F. Supp. 2d at 959); see also Doc. 244 at 16 26 (same)). Plaintiff offers no legal support for such an assertion beyond merely snipping some language from a case articulating the legal standard applied in Daubert cases that is 27 not relevant to the proposition Plaintiff asserts. As will be discussed, criticism of an expert’s decision to base an opinion on some facts but not others should be challenged 28 through the traditional means at trial, not through a Daubert motion. See Daubert, 509 U.S. at 596. 1 Committee Notes to Rule 702 suggest, that is not the correct analysis. Plaintiff’s argument 2 is for trial; it is not an appropriate ground for exclusion of expert testimony on a Daubert 3 motion. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of 4 contrary evidence, and careful instruction on the burden of proof are the traditional and 5 appropriate means of attacking shaky but admissible evidence.”); Erickson, 2016 WL 6 6522805, at *6; see also Romero By and Through Ramos v. S. Schwab Co., No. 15-CV- 7 815-GPC-MDD, 2017 WL 5885543, at *17 (S.D. Cal. Nov. 29, 2017) (rejecting similar 8 argument); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & 9 Prod. Liab. Litig., 978 F. Supp. 2d 1053, 1070 (C.D. Cal. 2013) (same). 10 Additionally, Plaintiff argues that the opinions of K. Malek should be excluded 11 because he relied on the opinions of Defendant’s other experts in forming his expert 12 opinions.7 (Doc. 247 at 11–13). But, “[t]he term ‘data’ in Rule 702 is intended to 13 encompass the reliable opinions of other experts.” Fed. R. Evid. 702 Committee Notes on 14 Rules—2000 Amendment. Thus, the Court rejects this argument as well.8 15 Morrison, C. Malek, Cavaiani, Vincent,9 and K. Malek based their opinions on 16 sufficient facts and data. Each expert reviewed documents and testimony elicited during

17 7 Plaintiff also makes a reference to the bar on using expert testimony to circumvent the hearsay rules in its Daubert Motion to Exclude Kenneth Malek as an Expert. (Doc. 247 at 18 12). The Court will not rule on any hearsay objections that are not appropriately presented to it. A Daubert motion is not the proper vehicle to challenge hearsay. 19 8 Plaintiff challenges some of Defendant’s experts for relying on expert opinions it asserts should be excluded. Plaintiff contends that Cavaiani’s expert opinion should be excluded 20 because, according to Plaintiff, he relied on other experts whose opinions must be excluded, particularly C. Malek’s expert testimony. (Doc. 241 at 12–13). Plaintiff also 21 argues that Vincent relied on expert opinions that, in Plaintiff’s view, must be excluded, specifically the expert opinions of Cavaiani and C. Malek. (Doc. 244 at 17–19). And 22 Plaintiff finally argues that K. Malek’s opinion must be excluded because it relies on the expert opinions of C. Malek, Morrison, and Vincent, which Plaintiff suggests should be 23 excluded as well. (Doc. 247 at 11–13). The Court disagrees that any expert testimony by Defendant’s experts should be excluded, and thus, rejects this argument. 24 9 The Court notes that, in evaluating whether Vincent relied on sufficient facts and data, it considers Vincent as a rebuttal expert. Defendant offers his expert opinion to challenge 25 Plaintiff’s expert Greg Mischou (“Mischou”). (Doc. 244 at 4–5). Rebuttal experts “expose flaws” in other expert’s methodology. United States v. 4.0 Acres of Land, 175 F.3d 1133, 26 1141 (9th Cir. 1999). It is for this reason that a rebuttal expert “may rely largely on other expert reports . . . and point out flaws in their methodologies or conclusions.” In re Toyota 27 Motor Corp., 978 F. Supp. 2d at 1069 (citing 4.0 Acres of Land, 175 F.3d at 1141) (allowing rebuttal witness to base expert opinion on other expert reports and a review of the record). 28 In fact, a rebuttal expert need not conduct an “independent analysis.” See Rover Pipeline, LLC v. 1.23 Acres of Land, More or Less, Permanent Easement (Pipeline Right-of-Way 1 discovery. (See, e.g., Doc 227-1 at 4–5 (Morrison); Doc. 238-1 at 3–4 (C. Malek); Doc. 2 241-1 at 3–4 (Cavaiani); Doc. 251-1 at 3–4 (Vincent); Doc. 247-1 at 3–4 (K. Malek)). 3 Courts have routinely determined that an expert’s opinion is based on sufficient facts or 4 data when the expert has undertaken the type of review the experts did here. See, e.g., 5 United States v. Finley, 301 F.3d 1000, 1009 (9th Cir. 2002); Wilke v. Transp. Ins., No. 6 CV-16-04055-PHX-JJT, 2019 WL 2611026, at *3 (D. Ariz. June 26, 2019); Romero By 7 and Through Ramos, 2017 WL 5885543, at *17. Additionally, the Committee Notes for 8 the 2000 Amendment to Rule 702 indicate that Rule 702’s requirement that expert 9 testimony be based on sufficient facts and data “calls for a quantitative rather than 10 qualitative analysis.” Fed. R. Evid. 702 Committee Notes on Rules—2000 Amendment. 11 Morrison, C. Malek, Cavaiani, Vincent, and K. Malek each did an extensive review of the 12 record that looked at a voluminous amount of material, satisfying Rule 702’s quantitative 13 requirement that an expert base testimony on sufficient facts or data. Plaintiff’s challenges 14 are to the quality of the expert’s review; an argument that is simply not appropriate for the 15 Court to determine on a Daubert motion. 16 As such, the Court finds that Defendant has established by a preponderance of the 17 evidence that Morrison, C. Malek, Cavaiani, Vincent, and K. Malek each relied on 18 sufficient facts and data in coming to their conclusions and preparing their expert reports. 19 The Court rejects each of Plaintiff’s arguments to the contrary. 20 d. Relevance 21 Rule 702 requires that “the expert’s scientific, technical, or other specialized 22 knowledge will help the trier of fact to understand the evidence or to determine a fact in 23 issue.” Fed. R. Evid. 702(a). Therefore, a party offering expert testimony must show a valid 24 connection, or “fit,” between the evidence and any issue in the case. See Daubert, 509 U.S. 25 26 Servitude), No. 17-CV-10365, 2018 WL 3322995, at *15 (E.D. Mich. July 6, 2018). As a 27 rebuttal witness, Vincent can rely on Mischou’s report to point out flaws in Mischou’s analysis or conclusion. Moreover, as in In re Toyota Motor Corp., Vincent has done an 28 extensive review of the record. Vincent relied on sufficient facts and data in rebutting Mischou’s opinion. 1 at 591. Proffered expert testimony must be “sufficiently tied to the facts of the case that it 2 will aid the jury in resolving a factual dispute.” Id. (citation omitted). 3 1. Ultimate Issue 4 Plaintiff challenges some of the expert opinions of Morrison, C. Malek, and 5 Cavaiani as improper because it contends that these opinions are on an ultimate issue of 6 law. (See Doc. 227 at 8–9 (Morrison); Doc. 238 at 20–21 (C. Malek); Doc. 241 at 17–18 7 (Cavaiani)). 8 An expert cannot state “an opinion as to her legal conclusion, i.e., an opinion on an 9 ultimate issue of law.” Hangarter, 373 F.3d at 1016. The rationale behind this rule is that 10 an opinion as to an ultimate issue of law is not helpful to the jury because it does not help 11 the jury resolve any factual issue in dispute. See Nationwide Transp. Fin. v. Cass Info. Sys., 12 Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (citing Fed. R. Evid. 702(a) (2000)). On the other 13 hand, “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed. 14 R. Evid 704(a); see also Hangarter, 373 F.3d at 1016 (“It is well-established . . . that expert 15 testimony concerning an ultimate issue is not per se improper.” (citation omitted)). 16 The line between an opinion that is a legal conclusion that addresses an ultimate 17 issue of law and one that merely embraces a legal conclusion is not always a clear one. 18 But, the Ninth Circuit Court of Appeals has said that an expert may not address whether 19 certain facts mean a party has satisfied an element of the party’s claim. See Hangarter, 373 20 F.3d at 1016–17; see also Nationwide Transp. Fin., 523 F.3d at 1058–59 (concluding that 21 district court did not abuse its discretion in excluding portions of expert testimony that 22 “label the parties’ actions as ‘wrongful’ or ‘intentional’ under the law” because district 23 court found that testimony stated a legal conclusion). For example, in Hangarter, the Ninth 24 Circuit Court of Appeals held that an expert’s testimony did not address an ultimate issue 25 of law because the expert “never testified that he had reached a legal conclusion that 26 [d]efendants actually acted in bad faith (i.e., an ultimate issue of law).” See 373 F.3d at 27 1016–17. The expert’s testimony in Hangarter appropriately embraced an ultimate issue 28 1 because the expert only opined that the defendants had “deviated from industry standards,” 2 a factual question—not that they acted in bad faith, a legal conclusion. See id. 3 A. Morrison 4 Plaintiff asserts that Morrison rendered an improper legal conclusion on whether 5 there was a yield agreement between Plaintiff and Defendant. (Doc. 227 at 8). Defendant 6 responds that Morrison’s testimony is instead “explaining that an 80% Target Yield across 7 the board for all [of Plaintiff’s] devices,” under the circumstances, “is not in line with 8 industry standards (again contrary to [Plaintiff]’s experts) and is not realistic in view of the 9 differing characteristics and manufacturability of different parts.” (Doc. 225 at 5). Thus, 10 Defendant contends that this testimony would be offered to show it is unlikely there was 11 an agreement given these circumstances. (Id.) The Court will not rule on this issue at this 12 time. It is unclear exactly what testimony would be elicited at trial, and the parties disagree 13 as to whether Morrison’s past testimony was that there was no agreement or that it was 14 unlikely, based on the facts and industry practice, that there was an agreement. Plaintiff 15 may object during trial if it believes Morrison is offering an opinion as to an ultimate 16 issue.10 17 B. C. Malek 18 Plaintiff challenges C. Malek’s references to the developmental progress of the 19 “GEN2” and “GEN3” SJ MOSFET products as “improper fact assertions” that “tell[] the 20 jury what result to reach.” (Doc. 238 at 20–21 (quoting Apollo Grp., 527 F. Supp. 2d at 21 962)). The Court disagrees. Nothing about these references tell the jury what result to reach 22 on any claim or any fact at issue.

23 10 It appears that Plaintiff also seeks to exclude Morrison’s opinion that “[t]he [Plaintiff] experts’ analysis of alleged late deliveries by [Defendant] is flawed [because] [Plaintiff]’s 24 deliveries averaged 13 weeks, well below its competitors lead times for customers in the comparable tiers” as an opinion that is a conclusion of law. (Doc. 227-1 at 12; Doc. 275 at 25 6). Defendant suggests it offers this testimony to rebut Plaintiff’s expert Lihong Wu, who suggested that Defendant’s alleged failure to satisfy the ten-week lead time in the Supply 26 Agreement was “a death nell to [Plaintiff] in the power management industry.” (See Doc. 255 at 15 (citation omitted)). The Court will not review Plaintiff’s ultimate issue argument 27 as to this opinion (to the extent it actually raised such an argument) as it was first raised in Plaintiff’s Reply Brief (Doc. 275 at 6), and thus, Defendant has not had the opportunity to 28 respond to it. Larson v. Johnson, No. CIV07-0063-PCT-SMM, 2007 WL 2023485, at *4 (D. Ariz. July 12, 2007). However, Plaintiff may raise this objection at trial, if appropriate. 1 C. Cavaiani 2 Plaintiff makes two principal challenges as to the relevance of some of Cavaiani’s 3 opinions. First, Plaintiff contends that a portion of Cavaiani’s report states an ultimate 4 issue. (Doc. 241 at 17–18). Second, Plaintiff asserts that Cavaiani’s testimony invades the 5 province of the jury by offering “improper fact assertions.” (See id. at 18). 6 It appears Cavaiani’s report states an ultimate issue of law. Cavaiani opined in his 7 report that certain of Plaintiff’s projections were made “false[ly] or in reckless disregard 8 of the truth.” (Doc. 241-1 at 36). The Court finds that, like the expert in Nationwide 9 Transport Finance who labeled the defendant’s actions as wrongful or intentional which 10 stated an improper legal conclusion, here too, an opinion stating that Plaintiff’s projections 11 were made falsely or in reckless disregard of the truth states an improper legal conclusion. 12 523 F.3d at 1058–59. Indeed, unlike the expert in Hangarter, who “never testified that he 13 had reached a legal conclusion that [d]efendants actually acted in bad faith (i.e., an ultimate 14 issue of law),” 373 F.3d at 1016, here it appears Cavaiani opines that Plaintiff actually 15 made false statements in reckless disregard of the truth. To the extent Defendant attempts 16 to elicit this type of testimony at trial, Plaintiff may make an objection under the appropriate 17 circumstances. 18 Plaintiff also asserts that Cavaiani improperly discusses issues relating to Plaintiff’s 19 SJ MOSFET’s “performance, competitiveness, and developmental status, [which] are 20 improper fact assertions beyond the scope of offering opinions regarding ‘the marketing 21 and sales activity issues relating to [Plaintiff]’s [SJ] MOSFET products, as well as the 22 business practices, viability, and business plan execution risk associated with those 23 products.’” (Doc. 241 at 18 (third alteration in original) (quoting Doc. 241-1 at 2)). It is 24 unclear how such testimony would improperly “usurp the function of the trier of fact,” as 25 Plaintiff claims. (Id. at 18). In any event, an expert can testify to issues of fact that the 26 expert is familiar with so long as the testimony helps the jury. See In re Apollo Grp. Inc. 27 Sec. Litig., 527 F. Supp. 2d at 962; Bourdon v. Mountain W. Farm Bureau Mut. Ins., No. 28 CV 12-97-M-DWM, 2013 WL 4446968, at *6 (D. Mont. Aug. 15, 2013). The Court finds 1 Cavaiani’s discussion of the performance, competitiveness, and developmental status of 2 Plaintiff’s SJ MOSFET will help the jury to determine whether Plaintiff’s projections were 3 faulty, and if so, whether Plaintiff knew that they were faulty or that Plaintiff presented 4 Defendant with projections that were likely to have been made in reckless disregard for the 5 truth. 6 Thus, at this time, the Court does not exclude Cavaiani from offering any specific 7 expert testimony at trial. However, should Defendant attempt to elicit testimony from 8 Cavaiani on an ultimate issue at trial, Plaintiff may make an appropriate objection. 9 2. Alleged Repudiation of Expert Opinions 10 Plaintiff suggests Morrison, C. Malek, and K. Malek must be excluded from 11 testifying on opinions that they “repudiated” during their depositions because those 12 opinions would not be helpful to the jury. (See, e.g., Doc. 227 at 4 (Morrison); Doc. 238 at 13 5 (C. Malek); Doc. 247 at 5 (K. Malek)). It is unclear what legal authority Plaintiff rests 14 this argument on, but any assertion that an expert repudiated his opinion during Plaintiff’s 15 cross-examination goes to weight not admissibility, an issue Plaintiff can explore during 16 trial. 17 IV. MOTIONS TO SEAL 18 Plaintiff and Defendant have filed various motions to seal in connection with 19 Plaintiff’s Daubert Motions. (See Docs. 237; 240; 243; 246; 249; 258; 262; 265; 276; 280; 20 289; 291; 292). Because review of the unredacted materials was unnecessary to the Court’s 21 resolution of Plaintiff’s Daubert Motions, the requests to file unredacted versions of these 22 documents into the record are denied as unnecessary. See Maui Elec. Co. v. Chromalloy 23 Gas Turbine, LLC, No. CIV. 12-00486 SOM, 2015 WL 1442961, at *16 (D. Haw. Mar. 24 27, 2015). All documents filed lodged under seal will thus remain lodged under seal. 25 V. CONCLUSION 26 Based on the foregoing, 27 IT IS ORDERED that Plaintiff’s Daubert Motion to Exclude Allan Morrison as an 28 Expert (Doc. 227) is DENIED. 1 IT IS FURTHER ORDERED that Plaintiff's Daubert Motion to Exclude Charles 2 || Malek as an Expert (Doc. 238) is DENIED. 3 IT IS FURTHER ORDERED that Plaintiff's Daubert Motion to Exclude Randy 4|| Cavaiani as an Expert (Doc. 241) is DENIED. 5 IT IS FURTHER ORDERED that Plaintiff's Daubert Motion to Exclude Robert || Vincent as an Expert (Doc. 244) is DENIED. 7 IT IS FURTHER ORDERED that Plaintiff's Daubert Motion to Exclude Kenneth 8 || Malek as an Expert (Doc. 247) is DENIED. 9 IT IS FURTHER ORDERED that the following motions to seal relating to Plaintiff's Daubert Motions (Docs. 237; 240; 243; 246; 258; 262; 265; 276; 280; 289; 291; 11 |} 292) are DENIED for the reason indicated above. The Clerk of Court shall not unseal the 12 || related documents and shall instead leave Docs. 239; 242; 245; 248; 257; 259; 263; 266; 13 || 269; 272; 277; 281 lodged under seal. 14 IT IS FURTHER ORDERED that Plaintiff's Motion to Seal Doc. 244-1 (Doc. 15 || 249) is DENIED for the reason indicated above. The sealed, lodged exhibit (Doc. 244-1) shall be stricken but remain under seal. 17 Dated this 30th day of September, 2019. 18 19 2 20 James A. Teilborg 21 Senior United States District Judge 22 23 24 25 26 27 28

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