PB Legacy, Inc. v. American Mariculture, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

TB FOOD USA, LLC, a

Delaware Limited Liability

Company,

Plaintiff,

v. Case No: 2:17-cv-9-FtM-29NPM

AMERICAN MARICULTURE, INC.,

a Florida Corporation,

AMERICAN PENAEID, INC., a

Florida Corporation, and

ROBIN PEARL,

Defendants.

AMERICAN MARICULTURE, INC.,

a Florida Corporation,

Counter-Plaintiff,

v.

PB LEGACY, INC., a Texas

Corporation, KENNETH GERVAIS,

and RANDALL AUNGST,

Counter/Third-Party

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of the following

four motions in limine concerning expert witnesses: (1) defendants

American Mariculture, Inc., American Penaeid, Inc., and Robin

Pearl’s Motion to Limit or Exclude Expert Testimony By Dr. Lian

Gan (Doc. #328) filed on October 29, 2020; (2) defendants American

Mariculture, Inc., American Penaeid, Inc., and Robin Pearl’s

Motion to Limit or Exclude Expert Testimony By Carlos F. Massad

(Doc. #329) filed on October 29, 2020; (3) defendant American

Mariculture, Inc.’s Motion to Limit or Exclude Expert Testimony of

Granvil D. Treece (Doc. #330) filed on October 30, 2020; and (4)

plaintiff TB Food USA, LLC’s Motion to Partially Exclude The

Testimony of Experts Dr. Roger W. Doyle and Dr. James Wyban (Doc.

#331) filed on October 30, 2020. Defendants American Mariculture,

Inc., American Penaeid, Inc., and Robin Pearl (collectively, the

Defendants) filed a Response In Opposition to Plaintiff’s motion

(Doc. #341) on December 17, 2020. Plaintiff filed Responses in

Opposition to each motion (Doc. #342; Doc. #343; Doc. #344) on

December 18, 2020.

I.

In brief, Primo Broodstock, Inc. (Primo, nka PB Legacy), the

original plaintiff in this case, operated a commercial shrimp

breeding business and enlisted the assistance of defendant

American Mariculture, Inc. (AMI) and its Chief Executive Officer

Robin Pearl (Mr. Pearl) to provide a large indoor grow-out facility

in Florida. Primo and AMI entered into certain agreements to

effectuate this business relationship, and to ensure Primo’s

breeding techniques were kept confidential. (Doc. #20, ¶¶ 1-3;

Doc. #20-2.) Disputes arose between Primo and AMI. Ultimately,

AMI retained the Primo shrimp, and with the assistance of American

Penaeid, Inc. (API), bred and sold the Primo shrimp on the open

market. (Doc. #20, ¶¶ 40-42.) In 2017, Primo filed this lawsuit

against Defendants asserting breach of contract, misappropriation

of trade secrets, and unfair competition claims, among other

claims. (Doc. #1; Doc. #20.)

Plaintiff TB Food USA, LLC (Plaintiff1) has engaged Dr. Lian

Gan, Carlos F. Massad, and Granvil D. Treece to provide expert

testimony. Defendants seek to exclude some or all of their

testimony on a variety of grounds. Plaintiff in turn seeks to

exclude all or portions of the testimony of Defendants’ expert

witnesses, Dr. Roger W. Doyle and Dr. James Wyban.

II.

The admission of expert testimony is governed by Rule 702 of

the Federal Rules of Evidence. United States v. Perry, No. 16-

11358, 2021 WL 4448600, 2021 U.S. App. LEXIS 29333, at *16 (11th

Cir. Sep. 29, 2021). Rule 702 provides 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:

1 While this litigation was pending, plaintiff TB Food USA,

LLC (TB Food) purchased substantially all of Primo’s assets (Doc.

#253-2. As a result, this Court dismissed Primo as a plaintiff,

and found TB Food was now the proper party in interest. (Doc. #306,

pp. 16-18.)

(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. Rule 702 contemplates that the district court

serve as gatekeeper for the admission of such testimony in order

to ensure that any and all expert testimony is both relevant and

reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589

(1993); Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1183

(11th Cir. 2013). “The Supreme Court did not intend, however,

that the gatekeeper role supplant the adversary system or the role

of the jury: 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.” McDowell v. Brown, 392 F.3d 1283, 1299 (11th

Cir. 2004) (marks and citations omitted).

In determining the admissibility of expert testimony under

Rule 702, the Court applies a “rigorous” three-part inquiry.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en

banc). Expert testimony is admissible if (1) the expert is

qualified to testify on the topic at issue, (2) the methodology

used by the expert is sufficiently reliable, and (3) the testimony

will assist the trier of fact. Perry, 2021 U.S. App. LEXIS 29333,

at *16; Moore v. Intuitive Surgical, Inc., 995 F.3d 839, (11th Cir

2021). The burden of laying the proper foundation for the admission

of expert testimony “is on the party offering the expert, and the

admissibility must be shown by a preponderance of the evidence.”

Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010).

The admission of expert testimony is a matter within the discretion

of the district court, which is accorded considerable leeway in

making its determination. Frazier, 387 F.3d at 1258.

The first requirement for the admissibility of expert

testimony is that the expert is qualified to testify competently

regarding the matters he or she intends to address. Frazier, 387

F.3d at 1269-61). Rule 702 permits a person to qualify as an

expert based upon knowledge, skill, experience, training, or

education. Frazier, 387 F.3d at 1260-61; Perry, 2021 U.S. App.

LEXIS 29333, at *17.

The second inquiry for determining the admissibility of

expert testimony is whether the methodology used by the expert is

sufficiently reliable. Tampa Bay Water, 731 F.3d at 1183. The

reliability prong is distinct from an expert's qualifications;

thus, an expert can be qualified but his opinions unreliable. See

Moore, 995 F.3d at 852; see also Frazier, 387 F.3d at 1261. The

Supreme Court has provided a non-exhaustive list of factors to

guide courts in assessing the reliability of expert opinions: "(1)

whether the expert's theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3)

the known or potential rate of error of the particular scientific

technique; and (4) whether the technique is generally accepted in

the scientific community." Kilpatrick, 613 F.3d at 1335 (citing

Daubert, 509 U.S. at 593-94). Although these criteria are more

applicable to assessing the reliability of scientific opinions,

they "may be used to evaluate the reliability of non-scientific,

experience-based testimony." Frazier, 387 F.3d at 1262 (citing

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)).

"Exactly how reliability is evaluated may vary from case to case,

but what remains constant is the requirement that the trial judge

evaluate the reliability of the testimony before allowing its

admission at trial." Id.

The third requirement for admissibility is that the expert

testimony must assist the trier of fact. “[E]xpert testimony is

admissible if it concerns matters that are beyond the understanding

of the average lay person. Proffered expert testimony generally

will not help the trier of fact when it offers nothing more than

what lawyers for the parties can argue in closing arguments."

Frazier, 387 F.3d at 1262-63; see also Edwards v. Shanley, 580 F.

App'x 816, 823 (11th Cir. 2014). “This condition goes primarily

to relevance.” Daubert, 509 U.S. at 591.

III.

With these standards in mind, the Court will address each of

the proposed experts.

A. Dr. Lian Gan

Plaintiff has proffered the expert testimony of Dr. Lian Gan

(Dr. Gan), who has a “Bachelor of Agriculture, a Master of

Agriculture, and . . . [in 2011 received] a Doctorate in Aquatic

Biology Aquaculture.”2 (Doc. #328-2, p. 3; Doc. 343-1, pp. 10-11.)3

Dr. Gan studied nutrition, reproduction, and immunization

concerning shrimp, fish, and other life forms. (Doc. #343-1, pp.

15-16.) Since 2015, Dr. Gan has worked as an Associate Professor

at Southern China Agriculture University, and he has also been

2 Aquaculture is “the breeding, rearing, and harvesting of

animals and plants in all types of water environments.”

https://www.fisheries.noaa.gov/topic/aquaculture (last visited

Oct. 13, 2021).

3 The page numbers refer to those generated by the Court’s

computer system upon filing (upper left-hand corner) and do not

always correspond with the page number at the bottom of the

document.

employed as a consultant for various corporations involved in

shrimp reproduction. (Doc. #328-1, p. 32; Doc. #328-2, p. 4; Doc.

#343-1, pp. 11-12.) Dr. Gan’s doctoral thesis, along with his other

publications, focus on dietary issues in aquaculture. (Doc. #328-

2, pp. 5-6; Doc. #343-1, p 22.)

There are thirteen topics on which Dr. Gan proposes to offer

an opinion, which can fairly be reduced to the following six

categories: (1) the distinctiveness, value, and reputation of the

Primo name and its shrimp in commerce, including among shrimp

farmers and breeders in China; (2) Defendants’ and/or their agents

Charles Tuan and John Wu’s actions in using, marketing,

advertising, and associating Defendants shrimp with Primo, and the

impact in commerce as to these actions; (3) Defendants’ non-use of

the Primo name, and Defendants and its agents’ bad faith trademark

filing of the literal Mandarin translation of “Primo”; (4) the

confusion and/or deception caused in commerce, including the

Chinese shrimp broodstock market, by Defendants’ use, marketing

of, and association with the Primo name and Primo shrimp; (5)

resulting damages—unjust enrichment obtained by Defendants, as

well as the lost profits suffered by Plaintiff, the amount of

disgorgement to which Plaintiffs are entitled, and the price

erosion in the marketplace of Plaintiff’s shrimp due to Defendants’

sales and actions; and (6) the cost of corrective advertising to

alleviate any confusion Defendants created in the shrimp market.

(Doc. #328-1, p. 3.)

Defendants argue the Court should exclude all of Dr. Gan’s

opinion testimony because (1) he is unqualified to opine on the

designated topics; (2) it is impossible to determine whether his

opinions are based upon reliable methodology, and (3) his testimony

will not be helpful to a jury. (Doc. #328, pp. 15-16.) The Court

agrees with the first argument, and therefore does not reach the

next two.

Defendants argue that Dr. Gan lacks both the education and

work background regarding business, intellectual property, market

surveying, studying market conditions, or determining the value of

a trademark in any market. (Doc. #328, pp. 7, 15.) Thus, Defendants

assert, Dr. Gan has no scientific, technical, or other specialized

knowledge in any of the proposed topics which would allow him to

offer expert testimony. (Id., p. 15.) Plaintiff responds that Dr.

Gan is qualified because his experience in shrimp and fish

nutrition requires “a deep grounding in statistical analysis,” and

that he has conducted extensive research into “operational issues

within the industry,” and is familiar with the “economic context”

underlying the shrimp industry. (Doc. #343, pp. 3-4.)

The record establishes that Dr. Gan does not have the

requisite education or experience to be qualified as an expert on

the designated topics. It is undisputed that Dr. Gan has extensive

scientific background and experience in shrimp reproduction,

immunization, and dietary issues, and that he has served as a

technical consultant for various corporations involved in shrimp

reproduction. (Doc. #343-1, pp. 12, 20-25.) However, there is

no indication that Dr. Gan’s education or work experience

meaningfully goes beyond the scientific or technical aspect of

these areas. While "[a]n expert is not necessarily unqualified

simply because [his] experience does not precisely match the matter

at hand," see City of S. Miami v. DeSantis, No. 19-cv-22927, 2020

U.S. Dist. LEXIS 226867, 2020 WL 7074644, at *4 (S.D. Fla. Dec. 3,

2020), an expert must "have at least some minimum training,

education, experience, knowledge, or skill" pertaining to the

particular subject matter of his proposed testimony. See Bouton v.

Ocean Beach Props., Ltd., No. 16-cv-80502, 2017 U.S. Dist. LEXIS

174989, 2017 WL 4792488, at *15 (S.D. Fla. Oct. 23, 2017); see

also Bowers v Norfolk S. Corp., 537 F. Supp. 2d 1343, 1376 (M.D.

Ga. 2007) ("Rule 702 and Daubert still require that the area of

the witness's competence match the subject matter of the witness's

testimony.").

Here, Dr. Gan testified he was not qualified to provide an

expert opinion as to trademark registration and whether a trademark

was filed in bad faith, and admitted he did not strictly follow

the list of topics on which he was to opine when writing his

report. (Doc. #328-2, p. 36.) The record establishes that the

proposed testimony concerning determination of the market value,

reputation and distinctiveness of a tradename, assessing market

conditions, conducting market surveys4, evaluating validity of

trademark filings and bad faith actions, estimating the costs of

corrective advertising, and determining damages (i.e., loss

profits, unjust enrichment, disgorgement, or price erosion) are

all outside the scope of Dr. Gan’s expertise. See, e.g., Seatrax,

Inc., v. Sonbeck Int'l, Inc., 200 F.3d 358 (5th Cir. 2000) (finding

an expert on marine cranes could not testify to the defendant's

profits from infringing activity in an infringement action); Ancho

v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998) ("Just as a

qualified and board certified heart surgeon does not possess

sufficient knowledge of orthopedic medicine to render an expert

opinion on spine surgery, likewise . . . a mechanical engineer .

. . lacks qualifications to give expert testimony about plant

4 In 2014, Dr. Gan also conducted one survey prior to this

litigation which sought information about issues confronting

“shrimp feeders.” (Doc. #343-1, p. 32.) This experience is not

sufficient for Dr. Gan to be an expert in market surveys. Cf. Louis

Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558,

616 (S.D.N.Y. 2007) (in noting that “[e]xtensive experience can be

a sufficient basis for expert testimony on matters such as consumer

surveys,” the Court found that 40 years of experience in conducting

market research and designing surveys was sufficient to qualify as

an expert in conducting surveys).

reconfiguration . . ..”); Eagleston v. Guido, 41 F.3d 865 (2d Cir.

1994)(sociologist was qualified to testify about effects of

domestic violence, but not about whether a police department

provided sufficient training to its officers responding to

domestic violence reports); Perry v. Schumacher Grp. of La., No.

2:13-cv-36-FtM-29DNF, 2020 U.S. Dist. LEXIS 227942, at *3, 14 (M.D.

Fla. Dec. 4, 2020) (finding that a doctor, who specialized in

emergency medicine and pre-hospital care with a two-year

professional development degree in human resources and finance was

unqualified to determine damages or economic losses).

For these reasons, the Court finds Dr. Gan is not qualified

to testify as an expert about the identified topics. Because the

Court finds Dr. Gan lacks the proper qualifications to address the

identified topics, it does not reach issues pertaining to

reliability or helpfulness to the jury.

B. Carlos F. Massad

Mr. Massad’s education consists of a Master of Science in

marine resources management with a focus on business

administration and aquaculture, a master’s degree in zoology, and

a Bachelor of Science. (Doc. #329-5, pp. 2, 4.) Mr. Massad’s resume

reflects that since 1995 he has worked for various companies in

the aquaculture business as a CEO or managing director, overseeing

the genetic selection of various fish and shrimp, developing

harvesting processes, and establishing sales channels and markets

for such products. (Id., pp. 2-4.) Mr. Massad is the current

Chief Executive Officer of TB Food. (Doc. #329-1, p. 3.)

Defendants object to Mr. Massad offering any opinions about

(1) the development of Primo shrimp and the characteristics which

make Primo shrimp unique and desirable in the world market; (2)

clarification of industry terms and assertions made by witnesses

in proceedings before the Court during consideration of a

preliminary injunction against Defendants; (3) how Primo’s shrimp

were used by AMI and API in creating their broodstock shrimp

program; (4) the genetic make-up of Primo shrimp and if it derives

economic value from not being readily ascertainable by proper means

by other persons who could obtain economic value from their use;

(5) whether PB Legacy took reasonable efforts to maintain the

confidentiality of Primo’s shrimp (including genetic and

biological data) by preventing the use of the genetic make-up of

Primo shrimp; and (6) the advantage gained by AMI/API using Primo

shrimp to found its broodstock program. (Doc. #329, pp. 6-7; Doc.

#329-1, p. 3.)

(1) Qualifications to Render Opinions

In general, Defendants argue that Mr. Massad is not

academically qualified to testify about the matters noted above

since he is not a geneticist. Nor does he have a legal education

in intellectual property, and most of his work history relates to

running a business rather than performing science operations.

(Doc. #329, pp. 4, 14-15.) The Court finds Mr. Massad is qualified

to offer opinions on some but not all of the proposed topics.

There is nothing in the record which would qualify Mr. Massad

to offer opinions concerning the factual details of the development

of Primo shrimp prior to his arrival at TB Foods. Such testimony

appears to simply be a recitation of what others have told him,

which may or may not be admissible, but is not the proper subject

of expert testimony. Similarly, there is nothing in the record

which would establish his knowledge of how AMI or API used Primo

shrimp prior to this arrival at TB Foods.

Mr. Massad has an educational background in science and over

25 years of working in aquaculture, approximately ten of which

were spent managing and directing shrimp hatcheries. (Doc. #329-

5, pp. 2-4.) When overseeing shrimp hatcheries, including those

belonging to TB Food, Mr. Massad implemented “a family based

selective breeding program which uses genomic 5 selection to

accelerate the genetic gains per generation for desirable

characteristics of high resistance to disease and rapid growth.”

5 Genomics is a form of technology that allows a person to

see the whole genome of the shrimp which in turn permits more

particularized selection of traits in a shrimp. (Doc. #342-1, p.

13.)

(Doc. #329-1, p. 3.) While Mr. Massad is not a geneticist or a

technician, the record establishes a sufficient basis for an

understanding of the underlying genetic traits that are vital to

the Primo brand (i.e., rapid growth and disease resistant), how

the genetic traits for shrimp are selected, the time it takes to

develop shrimp broodstock like that of Primo’s, the value and

distinctiveness of the Primo broodstock in worldwide markets as

one of the only brands to be resistant to “White Spot and Early

Mortality Syndrome (EMS),” and why it is vital to protect a genetic

selection program, and the challenges of doing so. (Doc. #342-1,

pp. 8, 11, 13-14, 16-19, 27-28, 31-34, 36-37.) The Court finds

this experience sufficient to meet the "relatively low threshold

for qualification" of expert testimony. StoneEagle Servs., Inc.

v. Pay-Plus Sols., Inc., 2015 U.S. Dist. LEXIS 79955, 2015 WL

3824170, *4 (M.D. Fla. June 19, 2015).

Plaintiff asks Mr. Massad to opine on whether the genetic

make-up of Primo shrimp derives independent economic value by not

being readily ascertainable by proper means by other persons who

could obtain economic value from their use. The Court finds that

Mr. Massad’s background satisfies the qualification requirement.

The Court also finds that Mr. Massad is qualified to discuss

industry terminology.

Plaintiff also asks Mr. Massad to opine whether PB Legacy

took reasonable efforts to maintain the confidentiality of Primo’s

shrimp. Mr. Massad considered such efforts, which are necessary

in determining the existence of a trade secret pursuant to §

688.002(4), Fla. Stat., and concluded that Primo’s shrimp genetic

code is a trade secret. (Doc. #329-1, pp. 10-11; Doc. #342-1, p.

32.)

While the adoption of Rule 704 of the Federal Rules of

Evidence abolished the “ultimate issue rule” which proscribed

opinion testimony that ostensibly invaded the province of the jury,

the Eleventh Circuit has noted that the distinction between an

admissible factual opinion or an inadmissible legal conclusion is

not always easy to perceive. Hanson v. Waller, 888 F.2d 806, 811

(11th Cir. 1989). Thus, while “[a]n expert may testify as to his

opinion on an ultimate issue of fact[,] [a]n expert may not,

however, merely tell the jury what result to reach . . . . A

witness also may not testify to the legal implications of conduct;

the court must be the jury's only source of law.” Montgomery v.

Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.

1990)(quotations omitted). The distinction may turn on the

phrasing of the question. Owen v. Kerr-McGee Corp., 698 F.2d 236,

240 (5th Cir. 1983).

Mr. Massad is qualified to testify as to whether Primo shrimp

derived economic value, the efforts PB Legacy took to maintain

confidentiality, and his view as to the reasonableness of the

efforts. Mr. Massad may not, however, testify that the Primo

shrimp genetics constitute a “trade secret.”

Finally, Mr. Massad’s opinion about the advantages gained by

AMI/API in utilizing Primo shrimp to found its broodstock program

is not admissible because Mr. Massad is neither qualified nor, as

discussed below, is his opinion reliable on this topic.

(2) Reliability of Testimony

Defendants argue that Mr. Massad’s opinions on the topics at

issue are inadmissible because they are based on assumptions of

fact, and provide no data, calculations, or sufficient facts to be

found reliable. (Doc. #239, pp. 7-12, 14-15, 17.) Mr. Massad’s

methodology used to reach his opinions is described in his report

as being:

[B]ased upon [his] knowledge, observations,

experience, education, training, review of the

Aquaculture literature, review of the broodstock

market data, review of Primo’s and TB Food’s internal

records, review of relevant testimony in this matter,

and review of information obtained throughout the

discovery process.

(Doc. #329-1, p. 4.) With one exception, Mr. Massad’s opinions

appear sufficiently reliable to be admissible.

With respect to the sixth topic, Mr. Massad was asked to

provide an opinion about the advantage gained by AMI/API using

Primo shrimp to establish its broodstock program. (Doc. #329, pp.

6-7; Doc. #329-1, p. 3.) Mr. Massad estimated that the cost each

year for research and development of shrimp broodstock is

$1,500,000.00, which demonstrated that Defendants gained an

advantage of approximately $22,500,000.00 ($1.5 million times 15

years) for the 15 required years of research and development, plus

any profits since its founding. (Doc. #329-1, p. 13.) When asked

how he determined this amount, Mr. Massad admitted that he did not

know how much Primo had spent in the years prior to his employment,

but in general he estimated it cost that much to run a well-managed

genetic program based on his seven years of experience running the

shrimp hatchery for Blue Genetics. (Doc. #342-1, pp. 33-34.) Mr.

Massad did not provide any data or computations to show how he

reached this estimation. See Gardner v. Ford Motor Co., 2015 U.S.

Dist. LEXIS 194098, 2015 WL 12841011, *4 (M.D. Fla. June 3, 2015)

("Opinions that are formulated in accordance with an unknown

methodology cannot be tested or evaluated and cannot be deemed

reliable."). Accordingly, Mr. Massad’s opinion on this topic is

not reliable and will not be admissible at trial.

(3) Assistance to the Jury

Defendants further argue that none of Mr. Massad’s opinions

will assist the jury and, therefore, are not admissible. (Doc.

#329, pp. 16-17.) The Court disagrees.

Mr. Massad’s admissible opinions provide background

information about customs and practice in the aquaculture shrimp

business, what makes Primo shrimp distinct and valuable in the

global shrimp market, the breeding practices of other worldwide

shrimp broodstock competitors, and whether or to what extent

Defendants incorporated Primo genetics into its shrimp broodstock.

Such opinions go directly to the breach of contract and trade

secret and unfair competition claims, and are based on knowledge

and experience unlikely to be held by the average citizen. See

Frazier, 387 F.3d at 1262. The Court therefore concludes that

Plaintiff has satisfied the third criteria as to the opinions which

have satisfied the first two requirements.

C. Granvil D. Treece

Mr. Treece’s education consists of a Bachelor of Arts and a

Master of Science in marine biology. (Doc. #330-1, p. 1; Doc. #330-

3, p. 2.) Mr. Treece’s resume reflects that he has taught

aquaculture classes as an adjunct professor at Texas A&M University

for 14 years, and served as one of the universities’ aquaculture

specialist for 30 years. (Doc. #330-3, p. 2.) Mr. Treece also has

considerable experience working as a global consultant in the

mariculture and aquaculture industries since 1978 for shrimp

farming and hatchery, has managed a shrimp hatchery three years,

and has produced several publications concerning Biofloc Systems

for Marine Shrimp and on various topics relating to aquaculture

and shrimp. (Id., pp. 2-27.)

Defendants seek to exclude Mr. Treece from providing opinions

about the following: (1) what was permitted or forbidden under the

Grow-Out Agreement between Primo and AMI/API, and its purpose; (2)

that it would have taken AMI 18 years to develop their own lines

of shrimp for it to be similar to that of Primo; and (3) that some

of Defendants’ activities in China may have been harmful to Primo’s

sales in China. (Doc. #330, pp. 5-9.) Defendants assert that such

opinions do not meet either the qualifications or reliability

factors for admissibility under Rule 702. (Id.)

(1) Qualifications to Render Opinions

Defendants argue that Mr. Treece is not qualified to offer

“legal opinions” concerning the first two opinions identified

above because Mr. Treece has no legal education or background, nor

is he a lawyer. (Doc. #330, pp. 6-7.) Plaintiff responds that

Defendants’ argument lacks merit because many of the legal opinions

Mr. Treece offered relating to the parties’ legal agreements were

solicited by Defendants during Mr. Treece’s deposition, and due to

Mr. Treece’s substantial experience in aquaculture he is well-

familiar with contractual agreements and industry practices to

provide an opinion as to grow-out and non-disclosure agreements.

(Doc. #344, p. 4.)

The Court is unconvinced that Mr. Treece has the requisite

experience to opine on legal implications of the contractual

agreements between Primo and Defendants. It is undisputed that Mr.

Treece is not an expert in the legal area of contacts. Indeed, Mr.

Treece admitted he did not have legal training and was not

qualified to interpret contractual provisions. (Doc. #330-4, pp.

8-9.) While Mr. Treece may have some practical experience involving

contractual agreements and industry practices in the field of

aquaculture, such experience is simply insufficient to constitute

expertise under Daubert as to the agreement in this case.

Moreover, "questions of law are not subject to expert testimony."

Commodores Enter. Corp. v. McClary, 879 F.3d 1114, 1128-29 (11th

Cir. 2018); see also Montgomery, 898 F.2d at 1541 ("A witness . .

. may not testify to the legal implications of conduct; the court

must be the jury's only source of law."). Therefore, the Court

finds Mr. Treece is not qualified to render expert testimony as to

terms or purpose of the Grow-Out Agreement.

(2) Reliability of Testimony

As to the remaining two opinions, Defendants argue Mr.

Treece’s opinions are unreliable. (Doc. #330, pp. 7-9.) First,

Defendants appear to take issue with Mr. Treece’s opinion that “it

would have taken AMI at least 18 years to develop an SPF and SPR

line, similar to Primo, if at all possible.” (Doc. #330-1, p.

18.) The Court finds Mr. Treece’s opinion regarding the time it

could take AMI to develop the disease resistant shrimp is

sufficiently reliable.

The record indicates that in formulating this opinion, Mr.

Treece relied upon various studies, publications, and his own

experience. In his report, Mr. Treece recalls the various shrimp

genetic programs and the difficulties they faced in breeding

disease free shrimp. (Doc. #330-1, pp. 2-10.) Mr. Treece notes

that it generally takes at least 7 to 9 years to develop minimal

level shrimp genetic programs, but that disease resistant shrimp

may only be developed after 15 to 18 years. Mr. (Id., p. 3.) To

further buttress his opinion, Mr. Treece identifies the Oceanic

Institute in Hawaii, which took 18 years to develop fast growing

and disease resistant shrimp. (Id., p. 5.) The Court finds this

foundation sufficient under Daubert. See Am. Gen. Life Ins. Co. v.

Schoenthal Family, LLC, 555 F.3d 1331, 1338 (11th Cir. 2009)

(quoting Kumho Tire Co., 526 U.S. at 150) ("A district court may

decide that nonscientific testimony is reliable based 'upon

personal knowledge or experience.'"); Goines v. Lee Mem'l Health

Sys., 2019 U.S. Dist. LEXIS 37549, 2019 WL 1101878, *6 (M.D. Fla.

Mar. 8, 2019) (finding expert's opinion sufficiently reliable when

it was based on examination of record evidence, including

depositions, and applied against expert's knowledge and

experience).

Finally, regarding the third opinion, Defendants state that

Mr. Treece testified as to some “possible activities by the

Defendants in China” that Mr. Treece believes harmed Primo’s sales

in China. Defendants argue this is not expert testimony, but

instead is argumentative and regurgitation of speculation since

Mr. Treece admitted he has no evidence of Primo or API’s results

in China. (Doc. #330, pp. 8-9; Doc. #330-2, p. 3.) Mr. Treece’s

deposition testimony shows he testified about whether Primo’s lack

of success in the Chinese broodstock market was due to confusion

between the Primo and AMI/API brands because there was “bad

publicity.” (Doc. #330-4, pp. 19-20.) Mr. Treece stated he heard

that the same person who was helping Primo sell its brand in China

was also contracted by API and was essentially “wearing two caps.”

(Id.) Mr. Treece admitted he did not know the whole story, but

heard bad things were going on in China. (Id.)

Rule 702 requires judges to act as the gatekeeper to ensure

that expert testimony "is not only relevant, but reliable."

Daubert, 509 U.S. at 589. For expert testimony to be reliable,

it requires that the testimony be "more than subjective belief or

unsupported speculation." Silcox v. Hunter, 2018 U.S. Dist. LEXIS

127442, 2018 WL 3633251, * 29 (Fla. M.D. July 31, 2018). Here,

Mr. Treece admitted that he did not know all the facts and his

opinion was based on hearsay and speculation. Accordingly, this

portion of Mr. Treece’s opinion is unreliable and inadmissible.

(3) Assistance to the Jury

The Court finds that Mr. Treece’s admissible opinion would

assist the trier of fact. Mr. Treece’s report and testimony

provide sufficient evidence that his overall knowledge and history

of aquaculture and the detailed processes involved in breeding

shrimp are not only relevant to this case, but would assist the

jury in understanding these matters that are beyond that of the

average lay person. McDowell, 392 F.3d 1283, 1299 (11th Cir. 2004);

Frazier, 387 F.3d at 1262.

D. Dr. Roger W. Doyle

Defendants’ have proffered the expert testimony of Dr Doyle.

(Doc. #331-2, p. 1.) Dr. Doyle’s education consists of a Bachelor

of Science in biology and physical chemistry, a master’s degree in

oceanography, and a doctorate in biology. (Doc. #331-1, p. 1.) Dr.

Doyle served as an associate professor of biology at Duke

University for four years, as well as Dalhousie University where

he retired as a full professor of biology and was the founding

director of the Marine Gene Probe Laboratory. (Id.) Dr. Doyle also

served as the president of the International Association for

Aquaculture Genetics, the coordinator of the Aquaculture Genetics

Network in Asia, and as a mentor in genetics and biodiversity for

the Network of Aquaculture Centers in Asia-Pacific. (Id.)

Dr. Doyle also has extensive experience in aquaculture

research, development and commercial experience in the Americas,

Middle East, Africa, and Asia. (Id.) He also assisted in

establishing a tilapia broodstock development in the Philippines,

oversaw students involved in breeding various species, and

consulted with broodstock development companies. (Doc. #331-4, p.

34.) Presently, Dr. Doyle is the president of the Genetic

Computation Ltd., a Canadian consulting company that specializes

in aquaculture and conservation genetics. (Doc. #331-1, p. 1.) Dr.

Doyle has published numerous works about aquaculture, the latest

of which considered “Domestication and genetic improvement:

balancing improved production against increased disease risks from

inbreeding.” (Id.)

Plaintiff objects to Dr. Doyle offering opinions about

thirteen topics which relate to Primo and AMI/API shrimp

broodstock, including the gene pools, the origins of the

broodstock, breeding methods, the performance of each respective

broodstock, and the reason for an increase/decrease of Primo and

AMI/API’s market shares in China. Plaintiff seeks to exclude Dr.

Doyle’s opinions on these matters based on a lack of qualifications

and reliability. (Doc. #331, pp. 2-4.)

(1) Qualifications to Render Opinions

Plaintiff argues that Dr. Doyle’s professional background and

training are almost entirely as a geneticist, with little to no

experience in marketing, administration, legal interpretation, or

working in the Chinese market. (Doc. #331, p. 3.) Plaintiff

therefore asserts that Dr. Doyle’s opinions linking Primo’s market

share to farm management procedures, commentary on what

constitutes a trade secret and customer confusion in the Chinese

market, and why Chinese farmers choose AMI/API broodstock over

that of Primo’s, must be excluded. (Id., p. 10.) The Court

disagrees with the majority of Plaintiff’s arguments.

Dr. Doyle references farm management procedures not from a

business perspective, but rather how the respective parties have

managed their shrimp broodstock and the breeding procedures

utilized. (Doc. #331-1, p. 5.) Dr. Doyle acknowledges that there

are remarkable differences in management — like the procedures

utilized by each party to protect their intellectual property, the

creation and retention of genetic diversity, and minimization of

inbreeding in the Primo and AMI broodstock in the United States.

(Id.) Overall, his opinions are based on the different generation

process of genetics in the broodstock and inbreeding. In other

words, they are science-based, and are well within Dr. Doyle’s

extensive knowledge regarding aquaculture and genetics, and are

admissible.

Likewise, the Court does not find that Dr. Doyle’s opinion

exceeded his qualifications. Dr. Doyle readily admitted he has

no legal training or education, but he opined that from a

geneticist’s (scientific) perspective he does not perceive any way

in which AMI/API received protected information concerning the

creation or maintenance of the shrimp broodstock it inherited from

Primo. (Doc. #331-1, pp. 16-17.) The Court does not find that Dr.

Doyle’s anticipated testimony provides any legal opinion or

conclusion, and he is qualified to address this matter from a

genetics point of view. See Cook ex rel. Estate of Tessier v.

Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1112-13 n.8 (11th

Cir. 2005) (Rule 704(a) provides that an opinion or inference is

not objectionable because it embraces an ultimate issue to be

decided by the trier of fact).

Finally, with respect to customer confusion in the Chinese

market and the Chinese farmers preference for AMI/API shrimp

broodstock, the Court finds that although Dr. Doyle has the unique

personal experience of working within the Asian aquaculture

markets for over 35 years, he is not an expert in marketing or

conducting market surveys. Dr. Doyle confirmed this in his

testimony, stating that has no experience working in the Chinese

market or administering market surveys.6 (Doc. #331-4, pp. 45-

46.) See Lebron v. Sec'y of the Fla. Dep't of Child. & Families,

772 F.3d 1352, 1368 (11th Cir. 2014)(“Expertise in one field does

not qualify a witness to testify about others.”); see also Dura

Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir.

2002) ("A scientist, however well credentialed he may be, is not

permitted to be the mouthpiece of a scientist in a different

specialty."). Thus, Dr. Doyle’s testimony on these topics is

inadmissible.

(2) Reliability of Testimony

Plaintiff argues that Dr. Doyle’s testimony and report are

inherently unreliable because they are based on an insufficient

factual basis or self-serving testimony. (Doc. #331, pp. 11-14.)

6 Dr. Doyle was interviewed and published in a Chinese trade

magazine for the sole purpose of discussing the problem of

misrepresentation and mislabeling in Chinese aquaculture and what

should be done about it. (Doc. #331-1, p. 18.) Dr. Doyle, however,

clarified that it was not confusion about brands such as Primo and

AMI/API, but instead farmers were confused about what the quality

of what they were buying—was it Brand A or a knockoff of Brand A.

(Doc. #331-4, pp. 129-30.)

As such, Plaintiff argues that “garbage in, garbage out” cannot

serve as the foundation for an admissible expert report. (Id., p.

13.)

The record indicates that in formulating his opinions, Dr.

Doyle reviewed affidavits, AMI’s Supplemental Memorandum in

Opposition to Plaintiff’s Alternative Motion for Preliminary

Injunction, Dr. Gan, Mr. Massad and Mr. Treece’s expert reports,

University of Arizona documents, and various Primo documents

(including Primo Challenge Testing). (Doc. #331-4, pp. 29-31.) His

expert report also refers to approximately 40 scientific

publications regarding shrimp reproduction, inbreeding, disease

reduction in aquaculture, survival rates of shrimp, and DNA

fingerprinting, all of which were utilized in supporting his

findings or conclusions. (Doc. #331-1, pp. 19-22.)

The Court finds Dr. Doyle’s opinions are sufficiently

reliable to be admissible.7 The Court disagrees with Plaintiff’s

argument that Dr. Doyle’s opinions do not have the requisite

factual predicates because he failed to review the deposition

transcripts or certain emails of fact witness in this case, or, on

7 Because the Court determined Dr. Doyle was not qualified to

render opinions about customer confusion in the Chinese market and

the Chinese farmers’ preferences for Primo or AMI/API shrimp

broodstock, the Court does not reach issues as to whether Dr. Doyle

employed reliable methodology in reaching such conclusions or

whether his opinion would be helpful to the jury.

the other hand, considered Mr. Robin Pearls’ sworn affidavits.

“These are considerations that may affect the weight a fact finder

accords [Dr. Doyle’s] testimony, but they do not operate to

preclude his testimony.” Kleiman v. Wright, No. 18-cv-80176-

BLOOM/Reinhart, 2020 U.S. Dist. LEXIS 213482, at *27 (S.D. Fla.

Nov. 16, 2020). "So long as an expert's scientific testimony rests

upon 'good grounds, based on what is known,' it should be tested

by the adversarial process." Lawes v. CSA Architects & Eng'rs LLP,

963 F.3d 72, 98 (1st Cir. 2020) (quoting Daubert, 509 U.S. at 590).

"If [Plaintiff] believes that the basis for [Dr. Doyle’s] opinions

is insufficient, [it] can explore that with [him] on cross

examination and argument for the benefit of the trier of fact.".

In re Disposable Contact Lens Antitrust, 329 F.R.D. 336, 372 (M.D.

Fla. 2018). Thus, the Court finds that Defendants have met their

burden of proving Dr. Doyle meets the reliability requirements for

admissibility.

E. Dr. James Wyban

Dr. Wyban received his Bachelor of Science in biology, and a

master’s degree and PhD in zoology. (Doc. #331-5, p. 1.) Dr. Wyban

was founder/chairman of the High Health Aquaculture (HHA), which

was the world’s first Specific Pathogen Free (SPF) shrimp breeding

company. (Id.) In 1994, upon forming HHA, Dr. Wyban developed SPF

technology and bred and exported over 350,000 SPF shrimp broodstock

to over 26 countries worldwide, including China. (Id.) Dr. Wyban

earned the title of “The Father of SPF Shrimp” because he developed

“the core technology, the original SPF shrimp stocks and the first

SPF breeding company.” (Id.) Currently, Dr. Wyban is the Director

of Marine Genetics, LLC, where he provides consulting services in

shrimp breeding and hatchery systems. (Id.)

Plaintiff objects to Dr. Wyban’s opinions concerning (1)

whether Primo allegedly obtained its founding stock from Ecuador

by means of illegal exporting; (2) whether Primo possessed

protectable trade secrets or intellectual property; (3) ownership

of Primo and AMI/API broodstock and germplasm; (4) Primo’s breeding

and selection methods; (5) Chinese farmers inability to duplicate

SPF broodstock; (6) Primo’s allegedly poor reputation in the

aquaculture industry; (7) Dr. Wyban’s disagreement as to the

terminology “locked pairs”; and (8) Dr. Wyban’s assessment of Mr.

Massad’s slot machine metaphor. (Doc. #331, pp. 14-17). Plaintiff

argues Dr. Wyban’s opinions are inadmissible under at least one of

the three various prongs of Daubert. (Id.)

(1) Qualifications to Render Opinions

Plaintiff argues that Dr. Wyban’s qualifications prevent him

from providing admissible testimony about opinions one, two, and

three. (Doc. #331, pp. 15-17.) Plaintiff argues that Dr. Wyban is

not a lawyer or an expert on Ecuadorian law regarding the

illegality of exporting shrimp from Ecuador, nor does he have the

legal training to opine as to whether Primo sufficiently protected

its shrimp broodstock in the global market via its Non-Disclosure

and Growout Agreements, or Term Sheet, i.e., protected its

ownership or had a protectable trade secret. (Id., pp. 15-16.)

With respect to Dr. Wyban’s opinion regarding the legality of

exporting live shrimp from Ecuador, he expressed in his report

that “Primo shrimp founding stock were acquired from Ecuador under

a questionable process. It is illegal to export live shrimp from

Ecuador.” (Doc. #331-5, p. 5.) The Court agrees that to the extent

Dr. Wyban is concluding or inferring that Primo obtained their

shrimp illegally from Ecuador, this is outside his expertise and

is not admissible. See, e.g., Commodores Enter. Corp., 879 F.3d at

1128-29 ("questions of law are not subject to expert testimony.");

see Montgomery, 898 F.2d at 1541 ("A witness . . . may not testify

to the legal implications of conduct; the court must be the jury's

only source of law."). Claussen v. PowerSecure, Inc., No. 3:18-

CV-607, 2019 U.S. Dist. LEXIS 173429, 2019 WL 4941109, at *8 (M.D.

Ala. Oct. 7, 2019) (A non-lawyer expert therefore "cannot testify

. . . about whether someone violated a law.")

Turning to his second and third opinions, Plaintiff argues

that Dr. Wyban’s opinion as to the ownership of Primo broodstock

and whether Plaintiff sufficiently protected it through legal

documents such as the NDA and Growout Agreement is improper based

on Dr. Wyban’s lack of legal training. (Doc. #331, p. 15.)

Specifically, Dr. Wyban stated that “[b]ased on my experience

selling broodstock shrimp into the global industry, I don't think

Primo's rudimentary documents (NDA, Growout Agreement, and Term

Sheet) are sufficient to protect their ownership of their stock if

they freely chose to sell their shrimp to buyers (including API).”

(Doc. #331-5, p. 3.) Plaintiff also objects to Dr. Wyban’s opinion

that Primo’s “trade secret” is only that Primo acquired shrimp

stocks from Ecuador and brought the stocks to the United States,

and that there is no “Primo method.” (Doc. #331, p. 16.)

It does not appear that Dr. Wyban’s testimony exceeds his

expertise. Dr. Wyban does not opine whether there were valid and

enforceable legal agreements between Primo and AMI/API, only that

in his view they were insufficient to protect Primo’s ownership of

its broodstock. Dr. Wyban appears to concede Primo possessed a

protectable trade secret, but disagrees that there is such a thing

as a “Primo method.”

(2) Reliability of Testimony

Defendants argue that Dr. Wyban’s testimony about “Primo’s

breeding and selection methods must also be excluded since he was

not provided with anything more than limited, self-serving

information from Defendants and not given Primo’s records or the

testimony of fact witnesses.” (Doc. #331, p. 16.)

As with Dr. Doyle, the Court finds that Plaintiff’s arguments

about the materials Dr. Wyban considered in reaching his

conclusions go to the weight a fact finder should accord to Dr.

Wyban’s opinion, rather than its admissibility. See Kleiman, 2020

U.S. Dist. LEXIS 213482, at *27. Furthermore, Dr. Wyban provided

his opinions about Primo’s breeding and selection methods upon

consideration of and rebuttal of conclusions reached in the expert

report of Mr. Massad, including genomic selection of shrimp and

what can and cannot be used for a proper breeding program. (Doc.

#331-5, pp. 5-7.) In this situation, where the experts disagree,

it is “precisely the type of dispute that should be decided within

the crucible of cross examination, rather than by a judge at the

Daubert stage.” Moore v. Intuitive Surgical, Inc., 995 F.3d 839,

857 (11th Cir. 2021).

Plaintiff also argues that Dr. Wyban’s opinion about why

Chinese farmers have been unable to replicate or create SPF

broodstock is not reliable based upon Dr. Wyban’s admission that

he has not worked in the Chinese market since 2012. (Doc. #331,

p. 16.) Dr. Wyban’s opinion on this matter has extensive

experience developing SPF technology, and was the first person to

successfully breed SPF shrimp broodstock which was sold in the

global market and included China. See Adams v. Lab. Corp. of Am.,

760 F.3d 1322, 1330 (11th Cir. 2014) (quoting Kilpatrick v. Breg,

Inc., 613 F.3d 1329, 1336 (11th Cir. 2010) ("[T]here are instances

in which a district court may determine the reliability prong under

Daubert based primarily upon an expert's experience and general

knowledge in the field."). The Court finds that Dr. Wyban’s

experience would provide a reliable foundation as to why SPF shrimp

were not successfully bred in China. Plaintiff’s argument goes to

the weight to be accorded to Dr. Wyban’s opinion, not its

admissibility. See Rosenfeld v. Oceania Cruises, Inc., 654 F.3d

1190, 1193 (11th Cir. 2011) ("Quite the contrary, '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.'").

The Court, on the other hand, agrees that Dr. Wyban’s opinion

concerning who is responsible for advertising AMI/API shrimp

broodstock in China is pure speculation since Dr. Wyban has

provided no factual foundation for his conclusion, nor is he

qualified as an expert in advertising in China. In re Abilify

(Aripiprazole) Prods. Liab. Litig., 299 F. Supp. 3d 1291, 1336

(N.D. Fla. 2018)(“the expert must know[] of facts which enable him

to express a reasonably accurate conclusion as opposed to

conjecture or speculation.”)(quotations omitted).

(3) Assistance to the Jury

Finally, Plaintiff argues that several of Dr. Wyban’s

opinions would only serve to confuse the jury and would not assist

the tier of fact, therefore they are not admissible under the third

Daubert factor. (Doc. #331, pp. 14-17.) Plaintiff asserts that

while Dr. Wyban disagrees strongly with the “locked pairs”

terminology, he actually agrees with the “sum and substance of the

concept.” (Doc. #331, p. 14.)

Mr. Wyban explains how the name “locked pairs” is “highly

inaccurate” because there is nothing locked in any way, and he

discusses this issue with respect to Mr. Massad’s expert opinion

in stating that the “locked pair concept that single family cannot

be used to establish a breeding program is a gross misunderstanding

of basic genetics.” (Doc. #331-5, pp. 5-7.) The Court finds Dr.

Wyban’s testimony would be helpful to the jury in explaining this

concept since it is discussed frequently, and it can provide

perspective on how shrimp breeders may protect germplasm. See

McDowell, 392 F.3d at 1298-99 (citing Daubert, 509 U.S. at 591)

(“the expert testimony must be 'relevant to the task at hand,' .

. . i.e., that it logically advances a material aspect of the

case.”) (quotations omitted).

Next, Plaintiff seeks to exclude Dr. Wyban’s discussion of

Mr. Massad’s “slot machine metaphor” because Dr. Wyban’s testimony

agrees with Mr. Massad in sum and substance on this issue and it

would not be helpful to the jurors, or could cause confusion. (Doc.

#331, p. 15.) Defendants respond that Dr. Wyban’s testimony and

report on this matter was not merely an issue of semantics, as Dr.

Wyban substantively criticized Mr. Massad’s knowledge of breeding

and the metaphor because it incorrectly suggests that genetics is

completely up to chance and luck. (Doc. #331-5, p. 6; Doc. #341,

p. 16.) The Court agrees with Defendants, and finds that Dr.

Wyman’s opinion would be helpful to the jury in that it concerns

matters that are beyond the understanding of the average lay

person. See Frazier, 387 F.3d at 1262-63.

Lastly, Plaintiff seeks to exclude Dr. Wyban’s testimony

about Primo’s alleged poor reputation in the broodstock industry

because it is unsubstantiated, unsourced industry gossip, which

would not be helpful since it is well within the capacity of a

juror to understand. (Doc. #331, p. 17.) The Court agrees.

Dr. Wyban copied and pasted a posting from an “online shrimp

list” that sets forth certain opinions about Primo, from which Dr.

Wyban concluded that Primo has a very negative image in the shrimp

industry. (Doc. #331-5, p. 8.) This posting, however, does not

require expert testimony as a jury would be capable of reading the

post and analyzing it without any expert analysis, nor does it

appear to be relevant to the issues of this case. See In re 3M

Combat Arms, 2021 U.S. Dist. LEXIS 47275, at *33 (finding that

expert's recitation of events and internal documents is not helpful

to the trier of fact because they are devoid of any expert

analysis); see also McDowell, 392 F.3d at 1298-99 (citing Daubert,

509 U.S. at 591) (“the expert testimony must be 'relevant to the

task at hand,' … i.e., that it logically advances a material aspect

of the case.”). Therefore, “[s]uch evidence is properly presented

through fact witnesses and documentary evidence, not expert

testimony.” In re 3M Combat Arms, 2021 U.S. Dist. LEXIS 47275, at

*33. The Court therefore finds this portion of Dr. Wyban’s expert

opinion is not admissible.

Accordingly, it is hereby

ORDERED:

1. Defendants American Mariculture, Inc., American Penaeid,

Inc., and Robin Pearl’s Motion to Limit or Exclude Expert

Testimony By Dr. Lian Gan (Doc. #328) is GRANTED.

2. Defendants American Mariculture, Inc., American Penaeid,

Inc., and Robin Pearl’s Motion to Limit or Exclude Expert

Testimony By Carlos F. Massad (Doc. #329) is GRANTED in part

and DENIED in part.

3. Defendant American Mariculture, Inc.’s Motion to Limit or

Exclude Expert Testimony of Granvil D. Treece (Doc. #330) is

GRANTED in part and DENIED in part.

4. Plaintiff TB Food USA, LLC’s Motion to Partially Exclude The

Testimony of Experts Dr. Roger W. Doyle and Dr. James Wyban

(Doc. #331) is GRANTED in part and DENIED in part.

DONE AND ORDERED at Fort Myers, Florida, this 26th day of

October, 2021.

—_— . 2, _ f

MMAA ) = Pe

JGHE E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

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