Collision Commc'ns, Inc. v. Nokia Sols. & Networks OY

691 F.Supp.3d 360

2023 DNH 110

COLLISION COMMUNICATIONS, INC. v. NOKIA SOLUTIONS AND NETWORKS OY

Civil No. 20-cv-949-LM

United States District Court, D. New Hampshire

Signed August 31, 2023

Brian Lebow, Cassandra B. Roth, Jolene L. Wang, Kevin J. Post, Matthew R. Shapiro, Steven Pepe, Yenis V. Argueta Guevara, Ropes & Gray LLP, New York, NY, Brooke Lois Lovett Shilo, Upton & Hatfield LLP, Concord, NH, Daniel V. Ward, Samuel L. Brenner, Ropes & Gray LLP, Boston, MA, James R. Batchelder, Ropes & Gray LLP, East Palo Alto, CA, Kathryn C. Thornton, Nicole S. L. Pobre, Ropes & Gray LLP, Washington, DC, Russell F. Hilliard, Upton & Hatfield LLP, Portsmouth, NH, for Collision Communications, Inc.

David Himelfarb, Dean Elwell, John M. Allen, Katarina Overberg, McCarter & English LLP, Boston, MA, Thomas J. Finn, McCarter & English LLP, Hartford, CT, for Nokia Solutions and Networks OY.

ORDER

Landya McCafferty, United States District Judge

Plaintiff Collision Communications, Inc., brings claims against defendant Nokia Solutions and Networks OY for breach of contract and breach of the implied covenant of good faith and fair dealing. The parties' dispute arises out of Collision and Nokia's negotiations toward a commercial technology partnership. In general, Collision asserts that in June 2017 the parties formed a binding, $23 million oral contract for Nokia to use Collision's technology, which Nokia breached. Collision also brings claims for promissory estoppel and quantum meruit based on the same series of events.

Nokia moves to exclude the expert opinions of Justin McLean (doc. no. 161) and Dr. Istvan Jonyer (doc. no. 162), who are, respectively, Collision's designated damages and software engineering experts. Collision moves (doc. no. 157) to exclude portions of opinions proffered by Nokia's designated damages expert, William Scally.

Nokia's motions to exclude Dr. Jonyer's opinions and McLean's opinions are denied in part and denied without prejudice in part. Collision's motion to exclude portions of Scally's opinions is granted.

STANDARD OF REVIEW

Federal Rule of Evidence 702 is "[t]he touchstone for the admission of expert testimony in federal court litigation . . . ." Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007). Under that rule, an expert witness may offer opinion testimony 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.

Fed. R. Evid. 702 (effective until December 1, 2023).¹ The party who is the proponent of the expert opinion bears the burden of showing that it is admissible by a preponderance of the evidence. See Martinez v. United States, 33 F.4th 20, 24 (1st Cir. 2022); United States v. Tetioukhine, 725 F.3d 1, 6 (1st Cir. 2013); see also Fed. R. Evid. 702 advisory committee's note to 2023 amendment (explaining that 2023 changes "clarify and emphasize" that preponderance of the evidence standard applies under Rule 702).

The trial judge serves as a "gatekeeper." See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). When an adverse party lodges an objection to expert testimony under Rule 702, the court must determine whether the testimony satisfies the relevant foundational requirements. See id. "There is an important difference between what is unreliable support and what a trier of fact may conclude is insufficient support for an expert's conclusion." Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S.Ct. 2786.²

BACKGROUND

The background facts of this case are more extensively set out in the court's recent order on Nokia's motion for summary judgment. Doc. no. 208. In short, Collision is a New Hampshire-based company that developed a software algorithm which helps with the processing of cellular signals. Nokia produces, among other products, base stations, which are devices that collect, process, and disseminate cellular signals. This case relates to the alleged formation of a contract between Collision and Nokia to integrate and license Collision's technology for use in Nokia's base station to enhance the base station's performance.

Collision asserts that as part of its performance under the alleged contract it began implementing its software onto the hardware platform used by Nokia's base station. Collision undertook this work over a period of several months until the parties' discussions broke down. Nokia denies that any contract was formed, that it ever made any binding promises, or that it owes Collision any damages. The court granted in part and denied in part a motion for summary judgment filed by Nokia. Collision's remaining claims in this case are for breach of contract; breach of the implied covenant of good faith and fair dealing; promissory estoppel; and quantum meruit.

DISCUSSION

Nokia moves to exclude two of Collision's proffered expert witnesses: its software expert, Dr. Istvan Jonyer, and its damages expert, Justin McLean. Collision moves to exclude testimony from Nokia's damages expert, William Scally. The court first addresses Nokia's separate challenges to Dr. Jonyer's and McLean's opinions, and then considers Collision's challenges to Scally.

I. Nokia's motion to exclude Dr. Jonyer

In support of its claims, Collision retained Dr. Jonyer to opine about the status or progress of Collision's work integrating its technology with Nokia's base stations; the amount of engineer time Collision dedicated to the integration project; and Collision's engineering team and process in relation to industry standards. Nokia moves to exclude these opinions for assorted reasons.

A. Whether Dr. Jonyer's opinion that the integration project was nearing completion should be excluded

To start, Nokia moves to exclude Dr. Jonyer's opinion that the integration project was nearing completion (1) because Dr. Jonyer is unqualified to give such an opinion and (2) because Dr. Jonyer based his opinion "almost exclusively" on information provided to him by Collision's chief technology officer, Joe Farkas. Collision objects and responds that "Dr. Jonyer's education credentials and two-decade career in the field of software development qualify him to provide his expert opinion on the status of Collision's software development project." Doc. no. 173 at 13. Collision observes that "Dr. Jonyer has specific experience with porting and integration projects—at least three separate times—including on cellular technology projects." Id.

1. Dr. Jonyer is qualified to opine about the progress of the integration project.

Nokia's objection is premised on Dr. Jonyer's lack of experience specific to integration (or "porting") of software to base stations. Dr. Jonyer, however, disclosed sufficient education and experience in computer science and software development to qualify him to opine on the status of the integration project. Dr. Jonyer does not require extensive experience with cellular technology to opine about the status of the integration project because such opinion relates to Collision's software development process. This process involves taking the existing algorithm and the accompanying software optimizations and integrating them with the computer hardware used by Nokia's base station. The opinion does not pertain to inventing new cellular technology or the efficacy of Collision's technology. In other words, Dr. Jonyer's opinion about the project's status is based primarily on his experience in software engineering and not the intricacies of cellular technology. Collision has shown by a preponderance of the evidence that Dr. Jonyer is qualified to render an opinion about the project's status. Whether Dr. Jonyer's credibility is affected by the extent or recency of his experience in a particular professional subfield is a matter properly reserved for the jury.

2. Dr. Jonyer's opinion is not inadmissible because he relied in part on information provided to him by Joe Farkas.

Collision has also shown by a preponderance of the evidence that Dr. Jonyer's opinion as to the project's status is sufficiently reliable. An expert may rely on hearsay evidence so long as he "form[s] his own opinions by applying his extensive experience and a reliable methodology to the inadmissible materials." Tr. of Bos. Univ. v. Everlight Elecs. Co., 141 F. Supp. 3d 147, 148-49 (D. Mass. 2015) (quoting United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008), and citing Int'l Adhesive Coating Co., Inc. v. Bolton Emerson Intern., Inc., 851 F.2d 540, 545 (1st Cir. 1988)). An expert thus cannot "parrot" or summarize the out-of-court statements of others. Id. (citing United States v. Brownlee, 744 F.3d 479, 482 (7th Cir. 2014)); United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011) ("[T]he entirety of [the expert's] testimony cannot be the mere repetition of 'the out-of-court statements of others.' "); United States v. Cormier, 468 F.3d 63, 73 (1st Cir. 2006).

Contrary to Nokia's argument, Dr. Jonyer's does not merely repeat or "parrot" Farkas's statements as to the status of the integration project. In his expert report, Dr. Jonyer explained that, in addition to speaking with Farkas, he examined Collision's records about the progress on the project and analyzed the type of modifications that Collision's engineers made to the project's source code as the project progressed. Applying his experience in the field as both a programmer and manager of software engineering projects, Dr. Jonyer's opinion was that the project was nearing completion,...