London Luxury LLC v. Walmart Inc.

Opinion

Case 5:22-cv-05059-TLB Document 417 Filed 03/21/24 Page 1 of 19 PageID #: 21147

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION

LONDON LUXURY, LLC PLAINTIFF/COUNTER-DEFENDANT

V. CASE NO. 5:22-CV-5059

WALMART, INC. DEFENDANT/COUNTER-PLAINTIFF

MEMORANDUM OPINION AND ORDER

Before the Court are the following ripe motions:

• London Luxury’s Motion to Exclude the Expert Testimony of Dr. Randy V. Bradley (Doc. 246);

• Walmart, Inc.’s Motion to Exclude the Expert Testimony of Dr. Willy Shih (Doc. 237);

• London Luxury’s Motion to Exclude the Expert Testimony of Mr. Sheshank Kamalapuram (Doc. 260);

• Walmart’s Motion to Exclude the Expert Testimony of Mr. Ryan Siskey (Doc. 229); and

• Walmart’s Motion to Exclude the Expert Testimony of Dr. Robert N. Phalen (Doc. 233).

On March 11, 2024, the Court held a pretrial conference and entertained oral

argument from the parties as to each Motion listed above. After oral argument concluded,

the Court ruled from the bench, DENYING the Motions concerning Dr. Bradley, Mr.

Kamalapuram, Mr. Siskey, and Dr. Phalen, and GRANTING IN PART AND DENYING IN

PART the Motion concerning Dr. Shih. The following Order sets forth the Court’s

reasoning in greater detail. To the extent this Order differs from what was announced

from the bench, this Order will control.

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I. LEGAL STANDARD

The decision whether to exclude expert testimony is committed to a district court’s

discretion—subject, of course, to the Federal Rules of Evidence, including Rule 702.

Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (2014). Rule 702 states that:

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 the proponent demonstrates to the court that it is more likely than not that:

(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's opinion reflects a reliable application of the principles and methods to the facts of the case.

The Eighth Circuit has “boiled down” these requirements into a three-part test:

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Johnson, 754 F.3d at 561 (quoting Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir.

2008)). The proponent of expert testimony bears the burden of showing by a

preponderance of the evidence that these requirements are satisfied. See Marmo v.

Tyson Fresh Meats, Inc., 457 F.3d 748, 757–58 (8th Cir. 2006).

A district court possesses broad discretion in making its reliability determination.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999). When assessing the validity of

expert opinions, the trial court may consider one or more of the following non-exclusive

factors: (1) whether the theory or methodology can be tested; (2) whether the theory or

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methodology has been subjected to peer review and publication; (3) the known or

potential rate of error; and (4) whether the theory has been generally accepted in the

relevant scientific community. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593–

94 (1993). “An expert may base an opinion on facts or data in the case that the expert

has been made aware of or personally observed.” Fed. R. Evid. 702. However, “[e]xpert

testimony that is speculative is not competent proof and contributes nothing to a legally

sufficient evidentiary basis.” J.B. Hunt Transp., Inc. v. Gen. Motors Corp., 243 F.3d 441,

444 (8th Cir. 2001) (internal citations omitted).

“A witness can be qualified as an expert by knowledge, skill, experience, training

or education . . . .” Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254

F.3d 706, 715 (8th Cir. 2001) (internal quotations omitted). And “[t]he relative skill or

knowledge of an expert goes to the weight of that witness’s testimony, not its

admissibility.” Loudermill v. Dow Chem. Co., 863 F.2d 566, 569 (8th Cir. 1988). “[I]t is the

responsibility of the trial judge to determine whether a particular expert has sufficient

specialized knowledge to assist jurors in deciding the specific issues in [a] case.”

Wheeling Pittsburg Steel Corp., 254 F.3d at 715.

To prove useful to a jury, an expert’s opinion should rely on their specialized

knowledge; “[w]here the subject matter is within the knowledge or experience of lay

people, expert testimony is superfluous.” Ellis v. Miller Oil Purchasing Co., 738 F.2d 269,

270 (8th Cir. 1984). Further, an expert should not make unsupported assertions that go

beyond their area of expertise. See Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th

Cir. 2003) (finding the district court did not abuse its discretion where it prohibited an

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expert from testifying on matters admittedly beyond his expertise). To that end, an expert

should not opine on legal conclusions, as they will not assist the jury either. Peterson v.

City of Plymouth, 60 F.3d 469, 475 (8th Cir.1995) (“The legal conclusions were for the

court to make. It was an abuse of discretion to allow the testimony.”).

II. DISCUSSION

A. Dr. Randy V. Bradley (Doc. 246)

Walmart has designated Dr. Randy V. Bradley as an expert witness on supply

chains. London Luxury seeks to exclude his testimony because it is speculative, “divorced

from any of the facts of this case,” and “of no use to the jury.” (Doc. 297, p. 5). London

Luxury criticizes Dr. Bradley because he supposedly “did no work to investigate the facts”

and instead discussed in his expert report only general principles and practices used in

supply chain management. Id. Finally, London Luxury critiques Dr. Bradley’s expert report

for containing impermissible legal conclusions.

Despite these critiques about the substance of Dr. Bradley’s opinions, London

Luxury at least agrees that he is a qualified expert in the field of supply chain

management. Dr. Bradley is Associate Professor of Supply Chain Management at the

University of Tennessee. He has published a number of articles in peer-reviewed

publications on various topics in the field of supply chain management. Therefore, the

Court finds him qualified to offer expert testimony on global supply chains and strategic

sourcing, supply chain management, and risk management.

Next, the Court turns to the question of whether Dr. Bradley’s opinions are reliable

and trustworthy in the evidentiary sense and likely to assist the jury in deciding the

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ultimate issues of fact. He explains in his expert report the effect that supply-chain

disruptions tend to have on the global economy and the importance of transparency in all

aspects of the supply chain. As for the particular challenges supply chains faced during

the COVID-19 pandemic, Dr. Bradley opines that “there were tremors prior to and

unrelated to COVID-19 that could have given organizations reason to fortify ‘weak links’

in their supply chains and supply chain strategies” and mitigate the risk of supply chain

failure. (Doc. 272-1, p. 19). He also opines that high ethical standards are required of

businesses working in each link in the supply chain, since unethical behaviors—like

bribery and lying—negatively impact supply chain efficiency and inhibit “a truly

collaborative relationship between buyers and suppliers.” Id. at p. 20. In the Court’s view,

these opinions are relevant to fact issues that the jury must address in this case.

Therefore, Dr. Bradley’s testimony on these topics is likely to assist the jury.

London Luxury’s objections to Dr. Bradley’s testimony are focused on the last five

pages of his report. See id. at pp. 23–27. He starts off by acknowledging four main factual

disputes the jury must resolve: whether London Luxury failed to deliver goods on time,

whether London Luxury sourced gloves improperly and/or misrepresented its factory

sources, whether London Luxury failed to deliver gloves of adequate quality, and whether

London Luxury bribed a Walmart employee in connection with the glove transaction. Dr.

Bradley does not attempt to resolve any of these factual disputes—which causes London

Luxury to label his report as unhelpful. However, Dr. Bradley does opine as to the negative

effects that would have been likely if London Luxury had done any of these four things.

For example, Dr. Bradley explains in his report how a supplier’s failure to deliver goods

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by an expected deadline impacts the buyer’s operating costs, potential sales, and

relationships with existing customers. See id. at p. 23. In another section of the report, he

explains how a supplier’s failure to disclose its factory sources prohibits the buyer from

verifying whether those sources “are consistent with the buyer’s established standards

for socially responsible practices.” Id. at p. 25. And if the sources violate the buyer’s

standards, news of this could negatively impact the buyer’s image and jeopardize its

ability to fulfill promises to its customers about responsibly sourcing goods. Id. at p. 24.

The Court finds that these opinions of Dr. Bradley’s are not, as London Luxury

contends, unduly speculative and unreliable. They are based on his expertise regarding

supply chains and the suppliers and buyers who navigate within them. His opinions—

which the Court finds are the product of reliable principles and methods that are reliably

applied to the facts of this case—will likely assist the jury in evaluating whether any breach

or partial breach by London Luxury was material and substantially impaired the contract

as a whole, and he offers a fair counter-opinion to London Luxury’s experts on these

matters. Finally, if Dr. Bradley’s predicate assumptions about the facts of this case are

wrong, London Luxury is free to cross-examine him and test the bases for his opinions.

See Bonner v. ISP Tech., Inc., 259 F.3d 924, 929–30 (8th Cir. 2001) (“As a general rule,

the factual basis of an expert opinion goes to the credibility of the testimony, not the

admissibility, and it is up to the opposing party to examine the factual basis for the opinion

in cross-examination. Only if the expert's opinion is so fundamentally unsupported that it

can offer no assistance to the jury must such testimony be excluded.”).

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To the extent Dr. Bradley’s rebuttal report could be interpreted as offering legal

opinions, see, e.g., Doc. 274-1, p. 5 (“[T]hose factors do not absolve parties from agreed

upon contractual obligations.”), he is cautioned that such testimony will not be

countenanced by the Court during trial. Dr. Bradley may generally opine that suppliers

and buyers in a supply chain should adhere to their contractual responsibilities, and he

may offer specific opinions about how the parties’ actions here likely affected the players

in the supply chain. But he may not opine on the ultimate legal question, i.e., whether

either party’s particular acts breached the contract. Subject to that admonishment,

London Luxury’s Motion to Exclude the Testimony of Dr. Bradley is DENIED.

B. Dr. Willy C. Shih (Doc. 237)

London Luxury has designated Dr. Willy C. Shih as an expert witness on supply

chains. His expert report is lengthy and detailed, spanning just under 100 pages in length

(not including appendices), and citing to numerous documents in the record. Walmart

does not dispute Dr. Shih’s academic and professional credentials, and the Court finds

him qualified to offer expert testimony on the functioning of supply chains involving

complex or technical products, the impact of manufacturing problems (generally and with

respect to PPE) on supply chains, and the impact of the COVID-19 pandemic on supply

chains, the prices of medical devices, and the demand for PPE.

Walmart criticizes Dr. Shih’s expert report as relying on a selective set of

documents to support a predetermined conclusion. Having reviewed the report in detail,

the Court disagrees with Walmart’s assessment and finds that, for the most part, Dr. Shih

has reviewed and cited hundreds of documents produced by both parties in the course of

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discovery for the purpose of painting a fair picture of the parties’ business relationship

throughout the course of the pandemic. His opinions are likely to assist the jury in

understanding the context of Walmart’s glove orders and the market forces and structural

and governmental stresses placed on the supply chain at various points in time during

the pandemic. Though Walmart claims Dr. Shih’s testimony about the market price and

demand for gloves changing through the course of the pandemic is not necessary for the

jury to hear, the Court disagrees.

On the other hand, the Court agrees with Walmart that certain portions of Dr. Shih’s

expert report are speculative and improper. In particular, he offers some “ultimate”

opinions as to whether each party did or did not breach the contract, which is for the jury

to decide. For example, he speculates about whether Walmart had just cause to cancel

the contract, whether London Luxury had a good excuse for its delivery delays, whether

delays were out of London Luxury’s control and “not its fault,” and whether Walmart should

have excused London Luxury’s delivery and product-quality failures. See, e.g., Doc. 239-

1, ¶ 126 (speculating that London Luxury’s “ability to immediately supply gloves was

impeded by issues that arose outside of its control)”; id. at ¶ 166 (opining that London

Luxury’s delays “were entirely outside of its control”); id. at ¶ 171 (opining as to the

ultimate issue that Walmart “walked away from its firm commitments”).

At times, Dr. Shih also improperly enters the corporate mind of Walmart and

speculates about its true motivations for cancelling the contract. He will not be allowed to

enter that headspace at trial. Dr. Shih’s expertise in supply chains clearly qualifies him

to testify as to the market-level context to this litigation—including testimony on the key

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concepts in supply chains and Covid-19’s impact on the nitrile glove supply chain that he

details in his report. He may also opine as to how supply chain experts would expect a

sophisticated buyer (like Walmart) or seller to act against that contextual background.

However, Dr. Shih may not speculate as to why Walmart did, in fact, act with respect to

the contract at issue in this case. The following passage from Dr. Shih’s report illustrates

this distinction:

A sophisticated purchaser like Walmart would have known its suppliers would need to rely on certain contractual assurances to assume risk and that in this case the supply chain was gearing up to satisfy the full production schedule Walmart had committed to. As I discuss in Section IV and show in this section, this is because although long-term agreements can be mutually beneficial, they also carry important commercial risks for all parties.

Id. at ¶ 106. The problem with that passage is the word, “would.” Dr. Shih may testify that

“Walmart should have known” or that “a sophisticated market actor in the field of supply

chain management would assume that Walmart knew,” and so on. But the current

composition of Paragraph 106 toes the line between Dr. Shih’s expertise and conjecture

into what may be the central issue for the jury to decide: “Did Walmart, in fact, act as an

expert in supply chain management would expect them to as a sophisticated actor in the

contract at bar.” Other passages toe the same line. Compare, e.g., id. at ¶ 141 (footnote

omitted) (“While the disruptions from COVID-19 were unprecedented, Walmart, as one of

the leading global retail firms and top U.S. importer, should have been aware of the

susceptibility of this supplier relationship to the broader global trade disruptions.’) with id.

at ¶ 153 (“[I]t is clear that, by the Fall of 2021, the market situation had evolved from a

dynamic of shortages to greater supply, As I detail in the next section, Walmart was well

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aware of these changing market dynamics.”). Bearing this distinction in mind, Dr. Shih

must not enter the mind of Walmart in his testimony to the jury—under Anderson he must

testify from his own perspective as an expert. 340 F.3d at 523.

Lastly, some paragraphs in Dr. Shih’s report contain interpretations of the parties’

contract, including his view of the parties’ legal obligations and his assessment of who

was at fault. These are completely improper legal opinions and are not to be presented

to the jury. See, e.g., Doc. 239-1, ¶ 96 (“The Agreement was consistent with the initial

discussions between the two parties for a full upfront commitment from Walmart for the

entirety of the nitrile glove order.”); id. at ¶ 104 (offering a legal opinion for the jury as to

what the February and April Commitment Letters provided and required of each party).

Accordingly, Walmart’s Motion to Exclude the Testimony of Dr. Shih is GRANTED

IN PART AND DENIED IN PART, as set forth above.

C. Mr. Sheshank Kamalapuram (Doc. 260)

Walmart has designated Mr. Sheshank Kamalapuram as an expert witness on

nitrile gloves and the nitrile glove industry. London Luxury seeks to exclude his testimony

as confusing and unhelpful to the jury. In London Luxury’s view, Mr. Kamalapuram applied

no scientific methods in forming his opinions, ignored relevant evidence, and is neither

qualified to speak on glove quality nor quality systems for manufacturing gloves, given

his background as a buyer and seller of gloves.

The Court has reviewed Mr. Kamalapuram’s qualifications and finds he is

competent to offer expert testimony regarding the nitrile glove industry, including during

the COVID-19 pandemic, and to evaluate laboratory testing results of nitrile gloves. He is

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also qualified to testify about the sourcing, shipment, and distribution of PPE products

before, during, and after the pandemic; the manufacturing process of nitrile gloves; the

function and properties of nitrile gloves; the manufacturing capabilities of facilities that

produce nitrile gloves; and the pricing, production, and quality issues that impacted the

PPE industry before, during, and after the pandemic.

London Luxury first objects that Mr. Kamalapuram “regurgitates the test results”

without analyzing them in a helpful way. (Doc. 263, p. 11). The Court disagrees. His

analysis of the test results is likely to assist the jury.

Second, London Luxury objects to Mr. Kamalapuram’s evaluation of MNA glove

testing, as London Luxury believes MNA did not produce a statistically significant number

of gloves for Walmart, so any failing test results for MNA gloves are irrelevant. Again, the

Court disagrees. Test results for MNA Gloves are a hotly disputed fact issue in this case

and therefore relevant.

Third, London Luxury claims that Mr. Kamalapuram’s opinion reveals that he

actually disagrees with Walmart’s reliance on “one set” of failing test results to draw

conclusions about the quality of a manufacturer’s product. Id. at p. 13. If London Luxury

wishes to make this point to the jury, it may do so on cross-examination; forbidding Mr.

Kamalapuram from testifying about the “one set” of failing gloves would be inappropriate,

as this testimony is relevant to the issues before the jury.

Fourth, London Luxury attacks as conclusory and unsupported Mr. Kamalapuram’s

opinion that retesting of failing products should include every performance metric, not

simply the failing one. Upon review of Mr. Kamalapuram’s expert report and rebuttal

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report, the Court finds that his opinions on these matters are not conclusory. For example,

he explains in his rebuttal report that several test reports focused on retesting in only two

categories, though the original third-party testing indicated failures in multiple other

categories. He concludes: “This shows the importance of conducting all ASTM required

testing as opposed to picking specific criteria to test.” (Doc. 262-2, p. 9). If London Luxury

disagrees with Mr. Kamalapuram’s opinion in this regard, it may cross-examine him at

trial. The jury is capable of evaluating whether his opinion is persuasive in light of all other

evidence and testimony. In any event, there is no indication that his opinion is

unsupported by his extensive experience analyzing test results and evaluating product

quality.� See Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir. 2003) (“Vigorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” (quoting Daubert, 509 U.S. at 596)).

Fifth, and finally, London Luxury claims Mr. Kamalapuram evaluated gloves based

on their color and determined that certain gloves that appeared in photographs were not

the same as ones that were tested. As a preliminary matter, the Court finds Mr.

Kamalapuram qualified to opine on the various color codes used by glove manufacturers

due to his extensive experience as a glove buyer and seller. He may therefore testify as

to his opinion that gloves that appeared to be different colors (cobalt, regular blue, or sky

blue) were likely not from the same production lots or factories. Disagreement with an

expert’s opinion is not a valid basis to exclude it. Therefore, London Luxury’s Motion to

Exclude the Testimony of Mr. Kamalapuram is DENIED.

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D. Mr. Ryan Siskey (Doc. 229)

London Luxury has designated Mr. Ryan Siskey as an expert on industry standards

for facilities that produce medical devices, such as nitrile gloves, as well as on regulatory

and compliance issues surrounding medical devices. He has worked with clients and

regulators to design and conduct quality testing on various forms of PPE to determine

whether they conform to industry performance specifications. In particular, he has

conducted glove testing in support of manufacturing clients seeking regulatory approval

for their PPE products. He is also a certified auditor for quality management systems and

has participated in and led standards development for testing methods for medical

devices. His private consulting services focus on assisting medical device manufacturers

with regulatory and compliance hurdles, devising protocols to address failing products,

assessing gaps in quality, and dealing with internal and external audits. The Court finds

Mr. Siskey well qualified to offer expert opinions in these areas.

The Court also finds that Mr. Siskey’s testimony will help the jury understand the

sorts of regulatory standards that glove manufacturers must meet to pass factory audits,

like the ones Walmart required. He will assist the jury in assessing whether London Luxury

and its manufacturing partners followed accepted industry protocols in response to failing

test scores on certain glove samples. He opines that London Luxury and its partners

behaved in a manner typical for the industry when confronted with a report of a non-

conforming product. He further opines that Walmart did not behave according to industry

standards when the company ignored the results of at least one root-cause investigation

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and did not allow London Luxury enough of an opportunity to address the root cause of

the problem and take corrective action.

Walmart first objects to Mr. Siskey’s extensive discussion in his expert report about

ISO 13485, which Walmart contends is not in dispute in this case. “ISO” stands for

“International Organization for Standardization.” (Doc. 231-1, p. 58). London Luxury

contends that Mr. Siskey’s discussion of this international standard is relevant to the jury’s

understanding of the requirements a glove manufacturer must adhere to when producing

medical-grade products, including implementing quality management systems and risk-

management protocols. The Court agrees with London Luxury that Mr. Siskey’s testimony

provides relevant insight into the manufacturing process for medical devices and

highlights for the jury the various quality control procedures that international standards

require.

Next, Walmart contends that Mr. Siskey’s analysis of the manufacturing facilities

at issue is deficient because he did not consider the repackaging facility, MNA Gloves,

which London Luxury used for a period of time and whose products or processing are

accused of testing failures. The Court finds that Mr. Siskey’s analysis of certain factories

and their quality assurance procedures, namely Careglove and Mercator,1 are relevant to

1 Walmart claims Mr. Siskey mislabeled two factory audits as “passing.” Walmart claims they failed inspection. London Luxury responds that the meaning and significance of Walmart’s “passing” rating is in dispute, and there is evidence that Walmart approved manufacturers to continue producing goods despite receiving an “orange” or “halt production” rating. See Doc. 289, p. 13. In light of this factual dispute, the Court finds Mr. Siskey’s reliance on and citation to “passing” factory audits to be reliable or trustworthy in an evidentiary sense and therefore appropriate to present to the jury. Walmart is free to cross-examine Mr. Siskey regarding the factual assumptions on which he based his

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the matters before the jury for decision. The omission of MNA Gloves, whether purposeful

or not, is a proper topic for cross-examination. The fact that Mr. Siskey was not asked by

London Luxury to consider MNA Gloves does not mean he should be prohibited from

testifying about the facilities he did review and consider.

Relatedly, Walmart criticizes Mr. Siskey’s focus on failing test results from 2021

while ignoring the failing test results from 2022. However, in London Luxury’s view,

Walmart canceled the parties’ contract in 2021, so only the 2021 test results are relevant,

and that is why only those results were provided to Mr. Siskey. On the surface, it does

seem problematic that Mr. Siskey was only provided with some failing test results and not

others in performing his analysis. But London Luxury’s reason for doing this is as least

arguable, and Walmart’s objection goes to the opinion’s weight and credibility, rather than

its admissibility. The Court finds that, on balance, Mr. Siskey’s analysis of the test results

he did consider is reliable or trustworthy in an evidentiary sense and will likely assist the

jury in understanding of how failing tests are generally handled in the industry and were

handled by the manufacturers in this case. Walmart is free to cross-examine Mr. Siskey

and point out his failure to consider other failing test results from 2022.

Finally, Walmart objects to Mr. Siskey opining about the unreasonableness of

Walmart’s actions in deciding not to proceed with the London Luxury contract after a

certain number of product failures came to light. Certainly, Mr. Siskey is not an expert in

Walmart’s internal policies and procedures and is not permitted to speculate as to what

opinion.

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factors motivated Walmart’s decision-making with respect to this contract. However, given

Mr. Siskey’s twenty years of consulting experience in the PPE industry and his familiarity

with the development and implementation of medical device manufacturing, testing, and

quality standards, the Court is persuaded that he is competent to provide opinion

testimony as to whether Walmart’s decision to cancel the contract when it did, given the

test results and corrective actions taken up until that point, was generally in line with the

usual practices of buyers in the medical device industry. Mr. Siskey’s opinion is grounded

in his experience and is a plausible one. If Walmart believes the facts he considered in

forming his opinion were incomplete or untrue, Walmart may point those discrepancies

out to the jury to undermine the credibility of his opinions. See Bonner, 259 F.3d at 929–

30. Therefore, Walmart’s Motion to Exclude the Testimony of Mr. Siskey is DENIED.

E. Dr. Robert N. Phalen (Doc. 233)

London Luxury designated Dr. Robert N. Phalen as an expert on the laboratory

testing of nitrile gloves. He runs his own laboratory where he researches the performance

of disposable nitrile gloves for protection against biological and chemical agents. Over

the course of his career, he has conducted “thousands of glove integrity tests, including

tensile strength, elongation at break, and water-leak testing.” (Doc. 235-1, p. 5). The Court

finds that he is experienced in both conducting such testing and interpreting its results,

and Walmart does not disagree that he is qualified to opine on these matters.

Walmart objects to Dr. Phalen’s conclusion that the third-party test results he

analyzed pertained to gloves made in factories that either actually shipped to Walmart or

were intended to ship to Walmart. Dr. Phalen assumed in his product testing that

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Careglove and Mercator actually manufactured the gloves in the test reports that he was

provided; he opined, generally, about the quality of these two factories and their products.

In Walmart’s view, Dr. Phalen improperly assumed as true a disputed fact, namely, the

manufacturing sources of London Luxury’s gloves. On balance, the Court agrees with

London Luxury that if there is credible evidence to suggest that Careglove and Mercator

actually manufactured the gloves, then Dr. Phalen’s testimony should not be excluded.

Instead, the jury should be given an appropriate limiting instruction reminding them that

Dr. Phalen made certain baseline assumptions about the factory origins of the gloves that

were tested, and his analysis of those tests and opinions about those facilities is only

relevant if the jury ends up agreeing with those assumptions—i.e., that the gloves

described in the tests were shipped to Walmart or intended to be shipped to Walmart by

Careglove and Mercator. See Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007)

(“[M]ere disagreement with the assumptions and methodology used does not warrant

exclusion of expert testimony.”).

Next, Walmart objects that Dr. Phalen’s opinions amount to a conclusion that

gloves that fail independent product testing are nonetheless a “quality product.” Having

reviewed Dr. Phalen’s report, the Court does not find that he made such a sweeping

claim. Instead, he explains possible reasons for failing test scores in various categories,

based on his laboratory experience and familiarity with manufacturing and testing

conditions. He did not wave away failing test scores but instead attempted to

contextualize them, which is helpful evidence for the jury as it decides whether London

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Luxury materially breached the contract in a manner that substantially impaired the

performance of the contract as a whole.

Walmart’s last objection to Dr. Phalen’s testimony is that the thirty-five test reports

he lists in a table in his report include some revisions of earlier test reports, rather than

thirty-five unique tests. Walmart therefore contends that the table listing thirty-three out of

thirty-five “passing” reports is misleading. In addition, Walmart complains that Dr. Phalen

failed to mention the fact that some of the test reports he reviewed did not specifically

mention either of the parties by name on the face of the reports or list particular lot

numbers for the gloves that were tested. The Court has reviewed the table at issue and

finds that Dr. Phalen acknowledged that it contained both unique tests and “test-report

revisions that might contain the same test results as a prior version.” (Doc. 235-1, pp. 21–

22). As for whether the table itself is confusing, the Court agrees with Walmart that

viewing the table in isolation, without the benefit of Dr. Phalen’s introductory comments,

could lead jurors to falsely believe that Dr. Phalen evaluated thirty-five unique product

tests. The Court therefore instructs London Luxury’s attorneys to make clear to the jury

the reality of the testing situation and not to suggest that there were thirty-five unique

tests. Further, to the extent London Luxury intends to display this table to the jury, it must

be modified to indicate which of the line-items in the list were unique tests and which were

“test-report revisions.”

Finally, with respect to Walmart’s argument that the test reports are unreliable

because, in some cases, they do not mention Walmart or London Luxury’s names or

identify specific lot numbers, the appropriate remedy is not to exclude the test reports and

18 Case 5:22-cv-05059-TLB Document 417 Filed 03/21/24 Page 19 of 19 PageID #: 21165

Dr. Phalen’s interpretation of them out of hand. Instead, the parties are instructed to

confer about the authenticity and admissibility of each individual test report at issue, and

the Court will reserve ruling until either party attempts to introduce any such report into

evidence at trial. Save and except for the Court’s comments and instructions above

regarding testimony concerning the test results and the demonstrative use of the table

illustrating the same, Walmart’s Motion to Exclude the Testimony of Dr. Phalen is

DENIED.

IT IS SO ORDERED on this 21st day of March, 2024.

TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE