The United States District Court for the District of New Jersey recently issued a decision upholding and illustrating the liberal standard for qualifying experts under the Federal Rules of Evidence (FRE). In Floorgraphics, Inc. v. News America Marketing In-Store Services, Inc., plaintiff asserted claims of tortious interference and unfair practices against defendants, competitors in the in-store marketing industry. Plaintiff offered six expert witnesses to prove its case and defendants filed motions to exclude all six from testifying at trial. In denying four of the six motions to exclude, Magistrate Judge John Hughes reviewed the standards for admissibility of experts under FRE 702 and reinforced the principle that “the rejection of expert testimony is the exception rather than the rule.”
Defendants argued that plaintiff’s first expert witness was not qualified because, among other things, he lacked relevant work experience, had limited experience with store audits and surveys, and had recently been found not qualified to serve as an expert by another federal court. Judge Hughes found him to be qualified under FRE 702, explaining that an expert cannot be excluded merely because he is not the “most qualified.” Rather, “if the expert meets the liberal minimum qualifications then the level of the expert’s expertise goes to credibility and weight, not admissibility.” The expert was offered to opine on the general subject of audit methodology and not specifically as an in-store marketing expert, and he was not required to have experience that was narrowly tailored to the specific industry in question. The expert’s failure to be recognized as an expert in an unrelated subject area by another federal court also had no bearing whether he could qualify as an expert in the Floorgraphics case.
Plaintiff offered a computer expert to determine whether defendants had gained unauthorized access to plaintiff’s password-protected website containing pictures of plaintiff’s past and future advertisements for in-store placement. The computer expert relied upon a compact disk of files provided to him by plaintiff. While the expert performed a comparison of the files on the CD with the files on plaintiff’s network and determined that the CD was a “complete and accurate copy” of the network files, he did not ensure that the data on the network was itself unaltered and complete. Defendants moved to exclude his testimony, claiming that it was unreliable because he failed to ensure that the data upon which he relied (the CD) had not been altered before it was provided to him. The court found that whether the computer expert had researched the underlying facts was “a question of weight, not admissibility.”
Defendants also objected to plaintiff’s two damages experts, claiming that they used improper methodology, failed to account for all factors that could have affected plaintiff’s revenue and compared plaintiff’s closely-held corporation to non-comparable publicly traded companies. Judge Hughes held that each of these objections were questions of weight, not admissibility. The court cited the Reference Manual on Scientific Evidence as a standard, noting that it calls for an adjustment, rather than exclusion, if an expert relies upon a methodology that omits a relevant factor. An expert’s failure to consider all possible factors in calculating damages in his report can be critiqued by another expert, but does not provide grounds for striking his testimony. And even if an expert’s calculations must be adjusted, his underlying report need not be excluded. Similarly, while defendants criticized one of the experts for failing to compare the plaintiff to similar companies, the court found that defendants could effectively expose that alleged deficiency when cross-examining the expert.
While the court found that plaintiff’s first four experts met the liberal standard for admissibility under FRE 702, it held that two of its experts, both offered to provide testimony on the industry’s standard operations and practices, did not. The court found the first expert’s data collection methodology faulty because of both his failure to conduct a random survey and his failure to observe verbatim reporting protocol by not recording the questions asked and the answers received from interviewees. The court also found that the expert’s conclusions were contradicted by the very statements made by his interviewees and thus were “entirely speculative.” The plaintiff’s second expert on the subject merely interpreted and praised the first expert’s work. Since he did not provide an independent analysis, his conclusions were unreliable. The court not only found that these experts’ conclusions were unsupported by appropriate methodology, but also that they would unfairly prejudice and confuse the issues for the jury.