Opinion
18-CV-1266 (LEK/DJS)
09-18-2023
TOMRA OF NORTH AMERICA, INC., Plaintiff, v. COUNT & CRUSH, LLC d/b/a/ CLYNK, and COUNT & CRUSH NY, LLC, Defendants.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Attorneys for Plaintiff PETER A. LAURICELLA, ESQ. NICOLE HAIMSON, ESQ. ANDREW S. HOLLAND, ESQ. CHRISTOPHER PRIORE, ESQ. OLIVIA ORLANDO, ESQ. NIXON PEABODY LLP Attorneys for Defendants ANDREW C. ROSE, ESQ. MARCUS, CLEGG, BALS & ROSENTHAL, P.A. Attorneys for Defendants GEORGE J. MARCUS, ESQ. DANIEL L. ROSENTHAL, ESQ.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Attorneys for Plaintiff PETER A. LAURICELLA, ESQ. NICOLE HAIMSON, ESQ. ANDREW S. HOLLAND, ESQ. CHRISTOPHER PRIORE, ESQ. OLIVIA ORLANDO, ESQ.
NIXON PEABODY LLP Attorneys for Defendants ANDREW C. ROSE, ESQ.
MARCUS, CLEGG, BALS & ROSENTHAL, P.A. Attorneys for Defendants GEORGE J. MARCUS, ESQ. DANIEL L. ROSENTHAL, ESQ.
ORDER
DANIEL J. STEWART, UNITED STATES MAGISTRATE JUDGE
Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), district courts have a “gatekeeping responsibility” to preclude, when necessary, irrelevant and unreliable expert testimony. United States v. Brown, 152 Fed.Appx. 59, 62 (2d Cir. 2005); Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002). Plaintiff seeks to preclude Ross Andersen, an expert proffered by Defendants, from testifying at trial. Dkt. No. 117. In Plaintiff's view, Andersen's “expected testimony is likely to be irrelevant to the underlying claims, and to intrude upon the province of the Court.” Dkt. No. 117-9 at p. 2. Defendants oppose the Motion. Dkt. No. 123.
The Court sees no need to resolve this issue before trial. This matter is scheduled to be tried before the Court, not a jury. “[W]here a bench trial is in prospect, resolving Daubert questions at a pretrial stage is generally less efficient than simply hearing the evidence.” Victoria's Secret Stores Brand Mgmt., Inc. v. Sexy Hair Concepts, LLC, 2009 WL 959775, at *6 n.3 (S.D.N.Y. Apr. 8, 2009). “In the context of a bench trial where there is not a concern for juror confusion or potential prejudice, the court has considerable discretion in admitting the proffered testimony at the trial and then deciding after the evidence is presented whether it deserves to be credited by meeting the requirements of Daubert and its progeny.” Tiffany (NJ) Inc. v. eBay, Inc., 576 F.Supp.2d 457 n.1 (S.D.N.Y. 2007). “[I]n a bench trial, a party's attempt to exclude an expert's testimony under Daubert is tantamount to asking the Court to gate-keep expert testimony from itself.” Van Natta v. Great Lakes Reinsurance (UK) SE, 2021 WL 2454445, at *3 (D. Conn. June 16, 2021). At this stage of the proceedings, this is not warranted.
Plaintiff's Reply objects that Defendants have misunderstood the basis for seeking preclusion and seeks to clarify by stating that Andersen should not be permitted to testify because he “intends to offer testimony that is inadmissible as a matter of law.” Dkt. No. 130 at p. 1 (emphasis in original). That argument only highlights that this Motion is premature. The relevance and admissibility of Andersen's purported testimony is “as with most evidentiary questions . . . better left for determination at the time of trial.” Atl. City Elec. Co. v. Gen. Elec. Co., 207 F.Supp. 620, 631 n.21 (S.D.N.Y. 1962).
The Motion to Preclude is denied. Plaintiff may renew its objections to Andersen's testimony if and when he is called as a witness.
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff's Motion to Preclude Expert Testimony (Dkt. No. 117) is DENIED; and is further
ORDERED, the Clerk serve a copy of this Order upon the parties.