United States District Court, W.D. Arkansas, Fayetteville Division
WAL-MART STORES, INC. PLAINTIFF/ COUNTER-DEFENDANT
CUKER INTERACTIVE, LLC DEFENDANT/ COUNTER-CLAIMANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff Wal-Mart Stores, Inc.'s
("Walmart") Motion to Disqualify Dr. Patrick
Kennedy as an Expert and to Exclude His Testimony (Doc. 137)
and Brief in Support (Doc. 138-1), Defendant Cuker
Interactive, LLC's ("Cuker") Response in
Opposition (Doc. 152-3), and Walmart's Reply (Doc. 160).
For the reasons given below, Walmart's Motion is DENIED.
January 2014, Walmart and Cuker signed a contract under which
Walmart agreed to pay Cuker a fixed fee of $577, 719, in
exchange for Cuker's provision of certain services to
help make the website for Walmart's "ASDA
Groceries" business responsive irrespective of the
device on which it is being viewed, such as a desktop or a
mobile phone. See Doc. 124-7, pp. 8, 17. The
relationship between Walmart and Cuker quickly soured, with
recriminations being exchanged, and ultimately the instant
lawsuit was filed. Among the claims at issue in this case are
counterclaims by Cuker against Walmart for breach of
contract, fraudulent inducement, and unjust enrichment.
Essentially, Cuker seeks to recover damages from Walmart for
work it provided Walmart that Cuker contends is outside the
contract's scope of work. Cuker has retained Dr. Kennedy,
an economist, to provide expert opinions in support of its
claims for damages. Walmart has moved to disqualify Dr.
Kennedy as an expert in this case; this motion has been fully
briefed and is now ripe for decision.
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: (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 has reliably applied the
principles and methods to the facts of the case.
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)).
proponent of expert testimony bears the burden of showing by
a preponderance of the evidence that these requirements are
satisfied, but "[c]ourts should resolve doubts regarding
the usefulness of an expert's testimony in favor of
admissibility." See Marmo v. Tyson Fresh Meats,
Inc., 457 F.3d 748, 757-58 (8th Cir. 2006).
Nevertheless, "a court should not admit opinion evidence
that 'is connected to existing data only by the ipse
dixit of the expert.'" Id. at 758
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136,
contends that Dr. Kennedy should be disqualified as an expert
because his report is (1) not based on any scientific,
technical, or other specialized knowledge, (2) based on
unfounded assumptions and speculation, and (3) not relevant
or useful to any ultimate issue of fact. As to the absence of
specialized knowledge, Walmart argues that Dr. Kennedy
"does not have any expertise in the field of software
development, " and that he has "no specialized
knowledge . .. regarding the pricing of responsive website
development services." (Doc. 138-1, p. 7). This would be
a fine argument against permitting an economist to provide
opinion testimony about software. Cf. Hartford Fire Ins.
Co. v. Harris Co. of Ft. Smith, Inc., 2015 WL 7067806,
at *3 (W.D. Ark. Nov. 12 2015) (holding that an architect was
not competent to provide expert testimony on certain
structural engineering matters). But software is not
the subject on which Dr. Kennedy would opine; his opinion is
being offered on damages, which is obviously a
matter for which economic expertise can be useful. Walmart
also argues that "[n]one of Dr. Kennedy's analysis
relies on his economic background, " but that rather he
has simply "performed a series of simple arithmetic
calculations." (Doc. 138-1, p. 7). However, the Eighth
Circuit has explicitly held that "[t]here is not... an
implicit requirement in Fed.R.Evid. 702 for the proffered
expert to make complicated mathematical
calculations." WWP, Inc. v. Wounded Warriors Family
Support, Inc., 628 F.3d 1032, 1040 (8th Cir. 2011)
(emphasis in original).
the issue of unfounded assumptions and speculation, Walmart
makes two specific arguments: first, that Dr. Kennedy made an
unfounded assumption of how much time Cuker spent working on
the project at issue in this case, (Doc. 138-1, pp. 8-13),
and second, that Dr. Kennedy unreasonably relied on only one
comparator contract when forming his opinion on the value of
Cuker's work for Walmart, see Id. at 13-14. The
first of these arguments is easily disposed of. While Walmart
contends Dr. Kennedy failed to consider Cuker's internal
records of how many hours were spent on the project, it is
perfectly clear from Dr. Kennedy's report and his
deposition testimony that he did consider them and
concluded they were unreliable because they had been
incompletely and lackadaisically compiled (due to the instant
contract being a fixed-fee arrangement rather than one for
hourly compensation), and accordingly grounded his
calculations instead ...