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United States ex rel. Westrick v. Second Chance Body Armor, Inc.

United States District Court, District of Columbia

February 2, 2018

UNITED STATES OF AMERICA, ex rel, AARON J. WESTRICK, Ph.D., Plaintiffs,
v.
SECOND CHANCE BODY ARMOR, INC., et al., Defendants.

          OPINION

          PAUL L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.

         This False Claims Act case is scheduled for trial before a jury beginning on March 5, 2018. Currently pending before the Court are ten motions in limine to exclude the opinions and testimony of seven experts proffered by the United States and three experts proffered by defendants Toyobo Co. Ltd. And Toyobo America, Inc. (collectively, "Toyobo"). At the request of the parties, the Court held a Daubert hearing with respect to one of Toyobo's proffered experts, Dr. Kazuyki Yabuki, on January 23, 2018. The parties agreed to rest on then-papers with respect to the remaining motions. See Joint Report re: Daubert Hearings [Dkt. No. 503]. The Court has carefully reviewed the expert reports and supplemental reports of each expert; the testimony of Dr. Yabuki at the Daubert hearing and the arguments presented by counsel with respect to Dr. Yabuki; and the motions in limine filed by the parties and the oppositions and replies thereto with respect to why the proponent believes the testimony should be admitted and why the opponent believes it should be excluded. The Court's rulings with respect to these ten proffered experts follow.[1]

         I. LEGAL STANDARD

         Rule 702 of the Federal Rules of Evidence effectively codifies the Supreme Court's decisions in Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the Court charged trial judges with the responsibility of acting as "gatekeepers" to shield unreliable or irrelevant expert testimony and evidence from the jury. In Kumho, the Court made clear that the gatekeeper function applies to all expert testimony, not just scientifically-based testimony.

         Rule 702 provides that if the Court finds that "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, " and if the Court finds that the witness "is qualified as an expert by knowledge, skill, experience, training, or education, " then the Court may permit the witness to testify - so long as the witness's "testimony is based on sufficient facts or data, " "the testimony is the product of reliable principles and methods, " and the witness has "reliably applied the principles and methods to the facts of the case." Fed.R. Evid. 702. The party seeking to introduce the expert testimony must demonstrate its admissibility under Rule 702 by a preponderance of the evidence. See Meister v. Med. Eng'r Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001) (citing Daubert v. Merrell Dow Pharm, Inc., 509 U.S. at 592 n.10); Rothe Dev., Inc. v. Dep't of Defense, 107 F.Supp.3d 183, 197 (D.D.C. 2015). The Court has "broad discretion in determining whether to admit or exclude expert testimony." U.S. ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 895 (D.C. Cir. 2010) (quoting United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996)).

         "[T]he twin requirements for the admissibility of expert testimony are evidentiary reliability and relevance." FTC v. Whole Foods Mkt, Inc., No. 07-1021, 2007 WL 7632283, at *1 (D.D.C. July 27, 2007). "With respect to evidentiary reliability, the Court's focus must be on the methodology or reasoning employed by application of the factors in Rule 702 and the non-exhaustive list of factors set forth in Daubert and Kumho." Id.; see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 595 (holding that the "focus, of course, must be solely on principles and methodology, not on the conclusions they generate"); Ambrosini v. LaBarraque, 101 F.3d 129, 140 (D.C. Cir. 1996) ("[T]he admissibility inquiry focuses not on conclusions but on approaches . .. ."). These factors include: "(1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the method's known or potential rate of error; and (4) whether the theory or technique finds general acceptance in the relevant scientific community." Ambrosini v. Labarraque, 101 F.3d at 134 (citing Daubert v. Merrell Dow Pharm, Inc., 509 U.S. at 593-94). The Court is not bound by only these factors when considering reliability. As the D.C. Circuit has noted, "[t]he test of reliability is 'flexible' and 'the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys [with] respect to its ultimate reliability determination.'" Gilmore v. Palestinian Interim Self-Gov't Auth., 843 F.3d 958, 972 (D.C. Cir. 2016) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. at 142).

         "With respect to relevance, the Court must determine whether the proffered testimony is sufficiently tied to the facts of the case and whether it will aid the factfinder in resolving a factual dispute." FTC v. Whole Foods Mkt, Inc., 2007 WL 7632283, at*l (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 592-93). This is a consideration of "fit." Ambrosini v. Labarraque, 101 F.3d at 134 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591). "'Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Id. (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 591).

         II. EXPERTS PROFFERED BY THE UNITED STATES

         Toyobo moves to exclude the opinions and testimony of seven experts proffered by the United States: (1) Dr. S. Leigh Phoenix; (2) Dr. Alan J. Lesser; (3) Dr. David S. Brookstein; (4) Dr. Michael A. Riley; (5) Kirk Rice; (6) Joseph T. Anastasi; and (7) Dr. A.S. Abhiraman. The Court notes at the outset that the rulings set forth in this Opinion pertain to the expert reports filed in this action, United States ex rel. Westrick v. Second Chance Body Armor, Inc. (Civil Action No. 04-0280), and not the related action, United States v. Toyobo Co., Ltd. (Civil Action No. 07-1144). In addition, the portions of the pending motions relating to Dr. Allen L. Price and Dr. Bradley S. Field are now moot, as Toyobo has withdrawn its designations of those two proffered experts. See Joint Report re: Daubert Hearings [Dkt. No. 503]. Separately, in response to the Court's summary judgment rulings on September 4, 2015, see United States ex rel. Westrick v. Second Chance Body Armor, Inc., 128 F.Supp.3d 1 (D.D.C. 2015), the parties have withdrawn their arguments related to the commercial warranty provided by Second Chance Body Armor, Inc. ("Second Chance"). See Joint Submission Regarding Previously Filed Daubert Motions [Dkt. No. 456].

         A. Dr. S. Leigh Phoenix

         Dr. S. Leigh Phoenix is a tenured professor of mechanical and aerospace engineering at Cornell University proffered by the United States to opine on the relationship between fiber properties and ballistic performance. Dr. Phoenix holds a Doctorate in Theoretical and Applied Mechanics from Cornell University. See March 2012 Report, Phoenix Mot. Ex. 1 at 1 ("Phoenix Report") [Dkt. No. 382-3]. His primary areas of re search include the ballistic impact of fibrous structures, statistical and micromechanical modeling, and fracture mechanics and fatigue modeling in metals. Id. Dr. Phoenix has authored over one hundred peer-reviewed articles, including four articles on ballistic modeling. See Phoenix Opp. at 3.

         Dr. Phoenix has submitted three expert reports in this case: (i) an affirmative report dated March 15, 2012; (if) a supplemental report dated October 3, 2012, submitted in response to one of Toyobo's proffered experts, Dr. Kazuyuki Yabuki; and (iii) a declaration dated May 15, 2013.[2] Toyobo has filed a motion [Dkt. No. 382] to exclude Dr. Phoenix's opinions in their entirety, a motion which the United States opposes. While the parties agree that Dr. Phoenix is qualified to opine on properties of Zylon fiber, they disagree over whether Dr. Phoenix may reliably opine on fiber properties as they relate to ballistic applications and Toyobo's disclosures to body armor manufacturers. The Court therefore will focus its analysis on the reliability and fit of Dr. Phoenix's proffered opinions.

         1. Opinions Regarding Ballistics

         Dr. Phoenix opines that fiber tensile strength is a critical factor in determining the ballistic performance of body armor: if fiber tensile strength decreases by a significant amount, so too will the ballistic performance of that fiber. See Phoenix Report at 5-6. Toyobo seeks to exclude this opinion and Dr. Phoenix's other opinions regarding ballistics on the grounds that they are not reliable, will not assist the jury in deciding the issues in this case, and would invade the province of the jury. Phoenix Mot. at 10.

         Toyobo argues that Dr. Phoenix relied solely on mathematical models and did not conduct any tests using "real bullets" to ensure that his models accurately predict the real-life performance of Zylon fiber incorporated into a bulletproof vest. Phoenix Mot. at 4. Toyobo further asserts that Dr. Phoenix's ballistic models apply to only a subset of the bulletproof vests at issue, ignore the effects of vest design and construction, are not used to design or test body armor, and do not accurately predict the results of ballistic testing done by Second Chance on its used Zylon vests. Id. at 10-14. In addition, Toyobo contends that Dr. Phoenix has neither designed nor manufactured bulletproof vests and thus lacks relevant professional experience to support his conclusions regarding ballistic performance. Id. at 14. Permitting Dr. Phoenix's testimony under these circumstances, Toyobo argues, would be unfairly prejudicial to Toyobo. Id.

         The Court disagrees. Dr. Phoenix's opinions regarding ballistics and ballistic performance are based on a sound methodology and would aid the jury in evaluating the suitability of Zylon for use in bulletproof vests. Dr. Phoenix used his expertise in fiber properties and ballistic modeling to analyze Toyobo's testing data measuring the tensile strength of Zylon fiber over time. See, e.g., Phoenix Report at 6-10. Dr. Phoenix's ballistic impact modeling is generally accepted science that has been cited forty-nine times in peer-reviewed articles. Phoenix Opp. at 13. Dr. Phoenix need not have experience designing or manufacturing bulletproof vests to reliably assess the behavior of Zylon fiber incorporated into bulletproof vests using peer-reviewed ballistic modeling. Furthermore, Toyobo's concerns over the lack of ballistic testing using "real bullets" or the limits of Dr. Phoenix's ballistic models go to the weight to be accorded to his testimony and not its admissibility under Daubert or Rule 702. See Robinson v. District of Columbia, 75 F.Supp.3d 190, 200 (D.D.C. 2014). The Court therefore will admit Dr. Phoenix's proffered opinions regarding ballistics and ballistic performance.

         Separately, Toyobo seeks to exclude Dr. Phoenix's opinion that Second Chance's used-vest testing showed that some Zylon vests would fall below the standards set by the National Institute of Justice ("NIJ") before five years. Phoenix Mot. at 15-16; Phoenix Report at 42. Toyobo characterizes this opinion as pertaining to "the durability of Second Chance's Zylon vests." Phoenix Mot. at 15. The United States responds that Dr. Phoenix does not offer an opinion on the durability of Second Chance vests, but rather questions Second Chance's interpretation of its used-vest testing data. Phoenix Opp. at 29-30. Based on Dr. Phoenix's report and his deposition testimony, however, it appears that Dr. Phoenix does indeed offer an opinion that "one can crudely estimate [that] some vests would likely fall below the NIJ standard well before 5 years" See Phoenix Report at 42; 01/17/13 Phoenix Dep. at 913:16-915:8 [Dkt. No. 382-15]. Because this opinion is admittedly based on a "crude" estimate, the Court will exclude it.

         2. Opinions Regarding Toyobo's Disclosures

         In 2001, Toyobo periodically tested the strength retention of thirteen spools of Zylon fiber that had been continuously exposed to conditions of 40°C and 80% relative humidity. Toyobo then disclosed the results of that testing to body armor manufacturers and others in the body armor industry. Dr. Phoenix opines that Toyobo's disclosures were improper for several reasons: (i) Toyobo "suppressed" the fact that each spool had a different level of strength retention by disclosing averaged data rather than raw data for each spool; (ii) Toyobo selected spools with higher "Na/P ratios" in order to boost the results of the fiber strength testing; (iii) Toyobo deleted outlier data points; and (iv) Toyobo delayed the disclosure of its testing data.

         Toyobo seeks to exclude Dr. Phoenix's opinions about Toyobo's disclosures for two main reasons. First, Toyobo asserts that Dr. Phoenix's opinions about the impact of the disclosures on the body armor industry are based on speculation rather than on reliable principles or accepted data-reporting standards in the fiber and ballistics industries. Phoenix Mot. at 18-20. Toyobo argues that Dr. Phoenix does not know what body armor manufacturers did with the information from Toyobo, whether they were misled, what expectations they had of Toyobo, whether they asked to receive raw data for each spool of Zylon, or what information they found important. Id. Toyobo further argues that Dr. Phoenix has not worked for a fiber supplier, has not designed a bulletproof vest, and is not familiar with the data reporting methods of fiber suppliers. Id. Second, Toyobo contends that Dr. Phoenix's opinions about Toyobo's internal knowledge and motives are speculative and would invade the province of the jury. Id. at 20-21. Toyobo asserts that Dr. Phoenix has no reliable basis to proffer opinions about what Toyobo knew or intended when it conducted its testing and disclosed data to the body armor industry. Id.

         The Court will admit certain portions of Dr. Phoenix's proffered opinions and exclude others. Dr. Phoenix's methodology is reliable insofar as he used his expertise in fiber properties to compare Toyobo's internal testing data to the representations made in its disclosures. Dr. Phoenix need not have experience as a fiber supplier or in bulletproof vest design to reliably interpret Toyobo's data generated from testing Zylon fiber. Due to the technical nature of Toyobo's data and disclosures, Dr. Phoenix's opinions would aid the jury in evaluating whether Toyobo's disclosures were misleading. The Court therefore will admit Dr. Phoenix's opinions comparing Toyobo's testing data to the data presented in its disclosures and explaining how a reasonable person would have interpreted the disclosures. See In re Rail Freight Fuel Surcharge Antitrust Litig., No. 07-mc-0489, 2017 WL 5311533, at *40 n.25 (D.D.C. Nov. 13, 2017) (admitting expert's opinion that defendants' behavior was consistent with collusion but excluding his opinion that defendants intended to collude). For instance, Dr. Phoenix may explain the results of Toyobo's testing, describe what information Toyobo did or did not disclose (e.g., reporting averaged data rather than raw data and removing certain data points), opine on whether and why certain spools of Zylon fiber performed better than others, and describe the amount of time between disclosures.

         The Court will exclude, however, opinions regarding Toyobo's knowledge or intentions with respect to its disclosures to body armor manufacturers. Such testimony would be too speculative to satisfy the reliability threshold of Rule 702 and would touch upon the ultimate issue for the jury of whether Toyobo's disclosures were misleading. See SEC v. Johnson, 525 F.Supp.2d 70, 78-79 (D.D.C. 2007) (excluding expert's opinion that employees intended to deceive auditors and that defendants misled auditors). Specifically, Dr. Phoenix will not be permitted to opine on what Toyobo knew about Zylon degradation, why Toyobo made the decision to test certain spools over others, why Toyobo chose to disclose or withhold certain data, why Toyobo chose to present certain data in the manner that it did, or whether Toyobo was motivated by business or other concerns. See Sykes v. Napolitano, 634 F.Supp.2d 1, 9 (D.D.C. 2009) (excluding expert's conclusion that a party was motivated by "self promotion and a fervent quest to discredit the Plaintiff); see also In re Chantix (Varenicline) Prod. Liab. Litig., 889 F.Supp.2d 1272, 1287 (N.D. Ala. 2012) (excluding expert testimony as to what defendant "knew" or that defendant "misled" the FDA, but admitting testimony as to what information defendant provided to the FDA).

         Relatedly, the Court will exclude bald assertions based on the documentary record regarding Toyobo's intent or motivations. Dr. Phoenix includes these statements in some of his discussion of the documentary record and Toyobo's testing. See, e.g., Phoenix Report at 12 ("Documents show . .. [that] there was marketing pressure to increase the production speed [of spools of Zylon fiber]."). The jury is competent to read and interpret the evidence without Dr. Phoenix's proffered opinions. See In re Rail Freight Fuel Surcharge Antitrust Litig., 2017 WL 5311533, at *21 (holding that "an economist's testimony is not admissible where he or she simply reads and interprets evidence of collusion as any juror might, or where an economist infers intent to collude from mere documentary evidence, unrelated to his or her economic expertise").

         For similar reasons, the Court will exclude portions of Dr. Phoenix's opinions regarding whether body armor manufacturers were misled by Toyobo's disclosures, what information should have been conveyed to body armor manufacturers, and what information was important to body armor manufacturers. Dr. Phoenix's expertise in fiber properties and ballistic modeling does not support his opinions on norms governing the disclosure of testing data within the body armor industry.

         3. Opinions in Response to Dr. Kazuyuki Yabuki

         Toyobo seeks to exclude Dr. Phoenix's opinions provided in response to one of Toyobo's proffered experts, Dr. Kazuyuki Yabuki. Dr. Phoenix and Dr. Yabuki disagree over the relationship between "Na/P ratio" and the strength retention of Zylon. In Dr. Phoenix's opinion, Na/P ratio is an important indicator of how quickly Zylon fiber will degrade due to exposure to heat and humidity. See October 2012 Report, Phoenix Mot. Ex. 3 at 5-6 [Dkt. No. 382-5]. Dr. Phoenix opines that Dr. Yabuki incorrectly concludes that there is a weak correlation between Na/P ratio and Zylon degradation. Toyobo argues that Dr. Phoenix is not a polymer chemist and thus lacks relevant experience, training, or education to reliably opine on the relationship between Na/P ratio and strength retention. Phoenix Mot. at 23-24.

         The Court is not persuaded that Dr. Phoenix's opinion and testimony on this topic should be excluded. Dr. Phoenix employed a reliable methodology by using his expertise in mathematical modeling to compare Toyobo's testing data tracking the Na/P ratio and strength retention of various samples of Zylon fiber tested under conditions of 40°C and 80% relative humidity. Dr. Phoenix need not be a polymer chemist to perform this type of data analysis. Dr. Phoenix's opinions proffered in response to Dr. Yabuki therefore will be admitted for the jury's consideration.

         B. Dr. Alan J. Lesser

         Dr. Alan J. Lesser is a tenured professor of polymer science at the University of Massachusetts, Amherst proffered by the United States as an expert in fiber properties and ballistic performance. Dr. Lesser holds a Doctorate in Civil Engineering from Case Western Reserve University and worked as a research scientist in the Polymeric Materials Department for Shell Development Company prior to entering academia. March 2012 Report, Lesser Mot. Ex. 1 at 1 and Appendix A ("Lesser Report") [Dkt. No. 374]. His research interests include fracture and adhesion of fibers and environmental stress cracking and chemical degradation of polymer-based materials. Id. at 1. Dr. Lesser has significant research experience in polymer chemistry and fiber properties and has authored ninety-four peer-reviewed papers, including ten papers detailing the impacts of environmental effects on the behavior of polymers and polymer-based fibers. Lesser Report at 5.

         Dr. Lesser has submitted an affirmative report dated March 15, 2012 in this case. Toyobo has filed a motion [Dkt. No. 374] to exclude portions of Dr. Lesser's opinions, a motion which the United States opposes. The Court will address each of Toyobo's objections in turn.

         1. Opinions Regarding Ballistics and Vest Performance

         Dr. Lesser opines that various properties of Zylon fiber render Zylon "so mechanically and chemically fragile" that it is not suitable for use in bulletproof vests. Lesser Report at 19. According to Toyobo, this opinion and Dr. Lesser's other opinions related to ballistic performance are unreliable because he lacks relevant ballistics experience - including designing, manufacturing, or testing bulletproof vests - and did not conduct ballistic testing to confirm that his opinions accurately reflect the behavior of Zylon fiber incorporated into a bulletproof vest. Lesser Mot. at 7. Toyobo also contends that Dr. Lesser merely parrots a model of ballistic performance developed by another United States expert, Phillip M. Cunniff, that is intended to be used in conjunction with ballistic testing. Id. at 7-9.

         The Court will admit Dr. Lesser's opinions regarding ballistic performance and the suitability of Zylon for use in bulletproof vests. Dr. Lesser is qualified to offer opinions on these topics based on his experience studying and working with fibers and ballistic impact models. He reached his opinions through a reliable methodology, in which he applied his knowledge of fiber properties to assess Toyobo's degradation data using the Cunniff model of ballistic performance. See, e.g., Lesser Report at 7-9. The Cunniff model -which predicts the performance of soft body armor based on alterations in various fiber properties - has been peer-reviewed and is generally accepted in the scientific community. Id. at 8. Dr. Lesser's opinions on the properties of fibers and their impact on ballistic performance would assist the jury in assessing the suitability of Zylon fiber for use in bulletproof vests.

         Contrary to Toyobo's assertion, Dr. Lesser does not merely parrot the Cunniff model, but rather applies his own expertise to compare the results of the Cunniff model against other ballistic models to measure ballistic performance. See Lesser Report at 7-9; McReynolds v. Sodexho Marriott Servs., Inc., 349 F.Supp.2d 30, 36 (D.D.C. 2004) ("An expert witness is permitted to use assistants in formulating his expert opinion." (quoting Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002)); see also Lee Valley Tools, Ltd. v. Indus. Blade Co., 288 F.R.D. 254, 266 (W.D.N.Y. 2013) ("Where the expert was directly involved in the research, analysis or drafting of the report, even with substantial assistance from a colleague or associate, his involvement in and knowledge of the report are matters of weight, not admissibility."). Dr. Lesser's lack of experience designing or manufacturing bulletproof vests does not render his opinions regarding ballistic performance and the suitability of Zylon in bulletproof vests unreliable. Furthermore, Toyobo's objections regarding the lack of ballistic testing and the purported limitations of the Cunniff model go to weight and not admissibility. See Robinson v. District of Columbia, 75 F.Supp.3d at 200. The Court therefore will admit Dr. Lesser's opinions on ballistic performance and Zylon's suitability for use in bulletproof vests.

         2. Opinions Regarding Toyobo's Disclosures

         Toyobo seeks to exclude Dr. Lesser's opinion that Toyobo communicated "misleading" disclosures to body armor manufacturers. Lesser Mot. at 15-19. Dr. Lesser opines that Toyobo presented data that overestimated Zylon's strength retention, made inappropriate predictions about service life, continually altered the manner in which it presented data, used metrics that misled customers with respect to durability, and misrepresented data by removing data points from graphs sent to manufacturers. Lesser Report at 20-28. Toyobo argues that these opinions are speculative because Dr. Lesser does not know what information body armor manufacturers sought or expected from Toyobo or how they interpreted the disclosures. Lesser Mot. at 15-19. In addition, Toyobo asserts that opining on the effect of the disclosures on the body armor industry is speculative and would invade the province of the jury. Lesser Reply at 10-12.

         For the same reasons discussed in connection with Dr. Phoenix, the Court will admit certain portions of Dr. Lesser's proffered opinion and exclude others. Dr. Lesser's methodology is reliable insofar as he uses his expertise in polymer science and fiber properties to compare Toyobo's internal testing data to the representations made in its disclosures. Dr. Lesser need not have experience as a fiber supplier or in bulletproof vest design to reliably interpret Toyobo's data generated from testing Zylon fiber. Dr. Lesser's comparisons would assist the jury in evaluating, inter alia, whether Toyobo's disclosures regarding its fiber testing results were misleading. The Court therefore will admit Dr. Lesser's opinions comparing Toyobo's testing data to the data presented in its disclosures and explaining how a reasonable person would have interpreted the disclosures. For instance, Dr. Lesser may describe the results of Toyobo's testing, the information that Toyobo did or did not disclose, and the manner in which the data was presented. See, e.g., Lesser Report at 28 ("Each of these [alterations in the way the data was presented] make it difficult for customers to independently evaluate appropriate service life of products based on strength retention.").

         The Court will exclude, however, opinions regarding Toyobo's knowledge or intentions with respect to its disclosures to body armor manufacturers. Such testimony would be based on unsupported speculation and would invade the province of the jury. In particular, Dr. Lesser will not be permitted to opine on what Toyobo knew about Zylon degradation at a given time, why Toyobo chose to disclose or withhold certain data, why Toyobo chose to present certain data in the manner that it did, or whether Toyobo was motivated by business or other interests.

         The Court will also exclude bald conclusions based on the documentary record regarding Toyobo's intent or motivations or other topics beyond the scope of Dr. Lesser's expertise. For example, Dr. Lesser opines that "[t]he pressure from the business and sales part of. .. Toyobo's organization over this period of time caused considerable tension between the various individuals and groups in the company" and that "numerous internal documents from Toyobo support the immense difficulty they incurred while trying to neutralize the residual PPA in Zylon AS fiber." Lesser Report at 17. This will not be permitted. The jury is competent to read and interpret the evidence relevant to these topics without Dr. Lesser's proffered opinions. As another example, Dr. Lesser provides opinions on Toyobo's quality control procedures, but has not established any specialized expertise in quality control procedures beyond reading internal Toyobo documents: "[S]ince Toyobo has no methods in place to control this concentration at the time of delivery to their customers, they have no way to insure that any of their products meet their own specifications." Id. at 13; see Id. at 17 ("This becomes particularly critical since simply identifying a product as 'red' is too subjective and cannot be used as a criterion for quality control."). The Court therefore will exclude this type of proffered testimony.

         For similar reasons, the Court will exclude Dr. Lesser's opinions regarding whether body armor manufacturers were misled by Toyobo's disclosures, what information should have been conveyed to body armor manufacturers, and what information was important to body armor manufacturers. See, e.g., Lesser Report at 20 ("Toyobo communicated misleading results to customers."). Dr. Lesser's expertise in polymer science and fiber properties does not support his opinions on norms applicable to the disclosure of testing data within the fiber and ballistics industries.

         C. Dr. David S. Brookstein

         Dr. David S. Brookstein has a Bachelor's Degree in Textile Engineering from the Georgia Institute of Technology, and both a Master of Science Degree in Textile Technology and a Doctorate in Mechanical Engineering from the Massachusetts Institute of Technology. Brookstein Opp. at 4. From 1994 to 2010, he served as the Dean of the School of Engineering and Textiles at Philadelphia University and a professor of engineering. Id. Prior to that time, Dr. Brookstein spent fourteen years as the Associate Director of the Albany International Research Company, a commercial research laboratory where he conducted a wide range of research and development projects involving high-performance fibers such as Kevlar. See March 15, 2012 Report, Brookstein Mot. Ex. 1 at 1 ("Brookstein Report") [Dkt. No. 384-3].

         Dr. Brookstein has submitted one affirmative expert report dated March 15, 2012.[3] Toyobo seeks to exclude Dr. Brookstein's testimony that Zylon is unsuitable for use in ballistic applications. Brookstein Mot. at 8. According to Toyobo, Dr. Brookstein's methodology is not reliable because he lacks expertise in ballistics - including vest design, construction, or manufacturing - and has not conducted ballistic testing to confirm how Zylon fiber behaves once it is incorporated into a bulletproof vest. Id. at 9; Brookstein Reply at 4-7. In addition, Toyobo asserts that Dr. Brookstein could not pinpoint what makes Zylon defective or explain why other fibers that have kink bands and undergo hydrolysis are not similarly defective. Brookstein Mot. at 12-13. Toyobo also urges the Court to exclude Dr. Brookstein's opinions about Toyobo's manufacturing, quality assurance, and quality control processes, Brookstein Mot. at 14-18, and his opinion that Toyobo misled the body armor industry. Id. at 19-21.

         After reviewing his expert report, the Court has questions about Dr. Brookstein's methodology and the bases for many of his opinions and conclusions. Beyond that, many of his observations are conclusory or speculative, clearly are not proper for testimony by an expert, intrude upon the function of the jury, attribute motives to Toyobo that are beyond his ken, or are pejorative in tone (e.g., that "Toyobo was derelict" and the manufacturing process "was out of control"). His chart of "what Toyobo knew and when it first knew it regarding the strength retention of Zylon fiber used in the ballistics industry, " Brookstein Report at 54-56, clearly is beyond the pale. Furthermore, many of Dr. Brookstein's opinions regarding Toyobo's disclosures are not admissible for the same reasons explained with respect to Dr. Phoenix and Dr. Lesser.

         Should the United States still wish to offer Dr. Brookstein as an expert witness for limited purposes, it should indicate in writing which opinions it still seeks to offer at trial, after which the Court will hear testimony from Dr. Brookstein at a further Daubert hearing in advance of trial.

         D. Dr. Michael A. Riley

         Dr. Michael A. Riley is a body armor researcher proffered by the United States as an expert in ballistic testing and ballistic performance of Zylon body armor. Because Dr. Riley is neither a retained expert nor an individual whose duties regularly involve giving expert testimony, he did not provide an expert report but rather provided a letter summarizing his qualifications and affirmative expert opinions. See FED. R. CIV. P. 26(a)(2)(C).

         Dr. Riley holds a Doctorate in Civil Engineering from the State University of New York at Buffalo. Riley Opp. at 4. He joined the National Institute of Standards and Technology ("NIST") in 1997 and currently serves as the Program Manager for Test and Evaluation in the Protective Systems Research Group of the Office of Law Enforcement Standards. Id. at 3-4. In that capacity, Dr. Riley oversees ballistic testing of body armor, develops proficiency tests for ballistic armor testing laboratories, and assesses commercial laboratories' abilities to perform body armor testing. Id. at 3. He also advises the NIJ on the development of new body ...


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