United States District Court, District of Columbia
UNITED STATES OF AMERICA, ex rel, AARON J. WESTRICK, Ph.D., Plaintiffs,
SECOND CHANCE BODY ARMOR, INC., et al., Defendants.
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.
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
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
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)).
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
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).
EXPERTS PROFFERED BY THE UNITED STATES
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.
Dr. S. Leigh Phoenix
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.
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. 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
Opinions Regarding Ballistics
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.
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.
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.
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.
Opinions Regarding Toyobo's Disclosures
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.
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
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.
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).
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
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.
Opinions in Response to Dr. Kazuyuki Yabuki
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
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.
Dr. Alan J. Lesser
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.
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.
Opinions Regarding Ballistics and Vest Performance
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
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
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
Opinions Regarding Toyobo's Disclosures
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.
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.").
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
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.
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.
Dr. David S. Brookstein
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.
Brookstein has submitted one affirmative expert report dated
March 15, 2012. 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
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.
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.
Dr. Michael A. Riley
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).
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 ...