Earley Info. Sci., Inc. v. Omega Eng'g, Inc.

575 F.Supp.3d 242

EARLEY INFORMATION SCIENCE, INC., Plaintiff,

v.OMEGA ENGINEERING, INC., Defendant.

Civil Action No. 19-10364-FDS

United States District Court, D. Massachusetts.

Signed December 10, 2021

Evans Huber, Jeremiah W. Doyle, V., Frieze Cramer Rosen & Huber LLP, Wellesley, MA, for Plaintiff.

Joseph C. Merschman, Laura Ann Froning, Wiggin and Dana, New Haven, CT, for Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO EXCLUDE OPINIONS AND TESTIMONY OF JOSEPH J. SHEPLEY, III, PH.D.

SAYLOR, C.J.

This is a lawsuit arising out of a contract for data-organization services. In 2017, Omega Engineering, Inc., retained Earley Information Science, Inc., to organize and migrate product data to modernize Omega's e-commerce platform. For reasons disputed by the parties, that effort was largely unsuccessful. Earley has sued Omega for breach of contract and several related claims. Omega has asserted counterclaims arising out of the same contract.

Earley has filed a motion to exclude the testimony of Omega's expert, Joseph J. Shepley, III, Ph.D. For the reasons set forth below, that motion will be granted.

I. Standard of Review

Federal Rule of Evidence 702 provides as follows:

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.

Fed. R. Evid. 702. The adoption of Rule 702 in its present form codified the standard of admissibility for expert testimony that was set forth in Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). United States v. Diaz , 300 F.3d 66, 73 (1st Cir. 2002).

Under Rule 702, district courts considering the admissibility of expert testimony must "act as gatekeepers, ensuring that an expert's proffered testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’ " Samaan v. St. Joseph Hosp. , 670 F.3d 21, 31 (1st Cir. 2012) (quoting Daubert , 509 U.S. at 597, 113 S.Ct. 2786 ). That gatekeeping function requires that the court consider three sets of issues: (1) whether the proposed expert is qualified by "knowledge, skill, experience, training or education"; (2) whether the subject matter of the proposed testimony properly concerns "scientific, technical, or other specialized knowledge"; and (3) "whether the testimony [will be] helpful to the trier of fact, i.e. , whether it rests on a reliable foundation and is relevant to the facts of the case." Bogosian v. Mercedes-Benz of N. Am., Inc. , 104 F.3d 472, 476 (1st Cir. 1997) (quoting Fed. R. Evid. 702 ) (internal quotation marks omitted). "These two requirements—a reliable foundation and an adequate fit—are separate and distinct." Samaan , 670 F.3d at 31.

The requirement that an expert's testimony must be based on reliable methods is often the "central focus of a Daubert inquiry." Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co. , 161 F.3d 77, 81 (1st Cir. 1998). In Daubert , the Supreme Court enumerated a non-exhaustive list of factors that a court may consider in undertaking its reliability analysis: (1) whether the scientific theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a known rate of error; (4) whether there are standards controlling its application or operation; and (5) whether it is generally accepted in the relevant scientific community. Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786 ; see also Samaan , 670 F.3d at 31-32.

Less centrally, but importantly, Rule 702 also requires the court to examine whether those methods have been reliably applied. In other words, the court must "ensure that there is an adequate fit between the expert's methods and his conclusions."

Samaan , 670 F.3d at 32 (citing Daubert , 509 U.S. at 591, 113 S.Ct. 2786 ). "This prong of the Daubert inquiry addresses the problem that arises when an expert's methods, though impeccable, yield results that bear a dubious relationship to the questions on which he proposes to opine." Id. (citing Daubert , 509 U.S. at 591-92, 113 S.Ct. 2786 ).

In evaluating whether expert testimony will be helpful to the trier of fact, the court must determine whether it is relevant, "not only in the sense that all evidence must be relevant, but also in the incremental sense that the expert's proposed opinion, if admitted, likely would assist the trier of fact to understand or determine a fact in issue." Ruiz-Troche , 161 F.3d at 81 (citations omitted); see also Cipollone v. Yale Indus. Prods., Inc. , 202 F.3d 376, 380 (1st Cir. 2000) ("The ultimate purpose of the Daubert inquiry is to determine whether the testimony of the expert would be helpful to the jury in resolving a fact in issue.").

The focus of the inquiry is on the principles and methodology employed by the expert, not the ultimate conclusions. Daubert , 509 U.S. at 595, 113 S.Ct. 2786. The court may not subvert the role of the factfinder in assessing credibility or in weighing conflicting expert opinions. Rather, "[v]igorous 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." Id. at 596, 113 S.Ct. 2786 ; see also Ruiz-Troche , 161 F.3d at 85 (admitting testimony notwithstanding a lack of peer-reviewed publications because the opinion rested upon good grounds generally and should be tested by the "adversary process").

Expert testimony that is admissible under Rule 702 may nonetheless be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403 ; see also Daubert , 509 U.S. at 595, 113 S.Ct. 2786. Thus, expert testimony that is relevant and that passes muster from a scientific or technical standpoint may nonetheless be excluded if it is likely to be misinterpreted or misused by the jury.

II. Analysis

Plaintiff seeks to exclude the testimony of defendant's expert, Dr. Joseph Shepley. Plaintiff challenges both Dr. Shepley's qualifications, an issue that the Court does not reach, and his methods.

Dr. Shepley is the Managing Director of Data and Technology at Ankura Consulting Group. According to defendant, he is a "subject matter expert in developing and deploying data models and other electronic data management tools." (Defendant Opp. at 1). Dr. Shepley was engaged by defendant to provide an expert opinion as to whether Earley's work met the specifications required by Phase 2 of Omega's Product Information Management (PIM) project.

Dr. Shepley concluded that four out of twelve deliverables that Earley was to provide during Phase 2 of the PIM project did not meet 50% of the specifications, and therefore "likely would not serve the purpose for which [each deliverable] was intended." (Shepley Report ¶ 15). The four deliverables were Deliverable 3.5 (SKU Classification Data); Deliverable 3.6 (Data Migration Plan); Deliverable 3.8 (Migrated Data); and Deliverable 3.9 (QA Plan and Results).

Overall, Dr. Shepley concluded that 42.4% of the specifications in the Statement of Work were not met, making it unlikely, in his experience, "that the project would have enabled the successful launch of an e-commerce website such as the one Omega hired [Earley] to assist with." (Shepley Report ¶ 94).

A. Reliable Methods

The central dispute is whether Dr. Shepley's expert testimony is based on reliable methods.

Dr. Shepley's general methodology was as follows. First, he reviewed the descriptions of deliverables listed in the Statement of Work. Second, he "collated the details about each deliverable and created a specification list that enumerates the characteristics agreed to in the [Statement of Work] for each deliverable and organized them in a table." (Shepley Report ¶ 34(b)). Third, he classified and reviewed the subset of documents that could be considered deliverables and matched them to deliverables in the Statement of Work. Finally, he formed an opinion as to whether each specification was out of scope; not met by the documents received; met by the documents received; or "could not be evaluated" in relation to the documents reviewed. (Shepley Report ¶ 34(e)).

There are five principal flaws in Dr. Shepley's methodology that, taken together, require exclusion of his opinion under Fed. R. Evid. 702.

First, Dr. Shepley's methods for creating a specification list appear to be arbitrary. Dr. Shepley parsed each narrative description from the Statement of Work into sentences or sentence fragments, and then deemed them as "specifications" that were to be met as part of each deliverable. For example, Deliverable 3.6 was one of the four deliverables that exceeded Dr. Shepley's 50% test. One of the portions of Deliverable 3.6 in the Statement of Work provided as follows:

EIS will craft a detailed document which outlines the approach it will take to migrating the legacy product information into the new PIM environment. The process document will be based on the results of the POC, the selected loading methods for the selected PIM platform, and the project plan.

From that portion of Deliverable 3.6, Dr. Shepley parsed out four specifications:

3.6.6: be a detailed document (not met)

3.6.7: outline the approach EIS would use to migrate the legacy product information into the new PIM environment based on results of the Proof of Concepts ("POC") (met)

3.6.8: include the selected loading methods for the selected PIM

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