The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MGMTL, LLC CIVIL ACTION
VERSUS NO. 20-2138-WBV-MBN
STRATEGIC TECHNOLOGY SECTION: D (5)
ORDER AND REASONS
Before the Court is Defendant’s Motion in Limine to Preclude Expert
Testimony of James C. Fontana.1 MGMTL, LLC oppose the Motion,2 and Defendant
has filed a Reply.3
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND4
This is copyright infringement case concerning MGMTL, LLC’s (“MGMTL’s”)
Security Management and Reporting Tool (“SMART”), a “computer software
application designed to streamline and efficiently manage the complex tasks and
1 R. Doc. 92.
2 R. Doc. 103-6, filed into the record under seal. MGMTL moved for leave to file under seal its
Opposition brief and several exhibits thereto “[o]ut of an abundance of caution” and on the basis that,
“Strategic Technology, Institute, Inc. has taken an expansive approach with respect to the parties’
protective order and has designated all documents it has produced in discovery in this litigation as
‘confidential’ pursuant to the protective order (Rec. Doc. 39).” R. Doc. 104. The Court granted that
request. R. Doc. 105.
3 R. Doc. 120.
4 In the interest of judicial economy, and because the Court set forth the factual and procedural
background of this matter in great detail in its February 16, 2022 Order and Reasons regarding
Defendant’s Motion In Limine to Preclude Opinion Testimony of Jorge Menes (R. Doc. 173), the Court
will limit its recitation of the factual and procedural background to matters relevant to the instant
Motion.
requirements of United States Department of Defense security managers,
government contracting companies, and other industries for which the management
of personnel and their security clearance is a priority.”5 MGMTL alleges that the
SMART software application is an extremely valuable tool and the first of its kind,
capable of evaluating thousands of personnel records while applying Department of
Defense rules, regulations, and applicable security clearance guidelines to each one.6
MGMTL asserts that it obtained a registered copyright for “the SMART Security
Management and Reporting Tool” on September 27, 2013.7
MGMTL alleges that it entered into a distributor agreement with Strategic
Technology Institute, Inc. (“STI”), through which STI was permitted to advertise,
promote, and resell SMART to end-users.8 MGMTL alleges that STI violated the
distributor agreement, as well as MGMTL’s copyright interests in SMART, by
repackaging the software application as a security personnel management software
called Personnel Administrative Security System, or “PASS,” which STI then sold to
the Marine Forces Reserve and installed on five machines at the Marine Forces
Reserve office in New Orleans.9 MGMTL alleges that PASS is listed on STI’s United
States Government General Services Administration (“GSA”) schedule, which is a
long-term government-wide contract that provides federal, state, and local
government buyers certain contractual pre-approvals to move forward with licensing
5 R. Doc. 22 at ¶¶ 2 & 8.
6 Id. at ¶ 9.
7 Id. at ¶ 11.
8 Id. at ¶¶ 19 & 20.
9 Id. at ¶¶ 35 & 36.
or purchasing the PASS application.10 According to MGMTL, the PASS application
is actively listed and available for purchase on GSA’s Advantage! Website at a
purchase price of $214,094.00 per license.11 MGMTL filed this lawsuit after learning
of these actions allegedly taken by STI.
On May 10, 2021, STI filed the instant Motion in Limine, seeking to preclude
the expert testimony of James C. Fontana under Fed. R. Evid. 702.12 STI seeks to
exclude the opinions contained in Fontana’s expert report dated January 28, 2021 for
several reasons. Specifically, STI asserts that Fontana’s opinions regarding the value
of, and market for, SMART must be excluded because Fontana is not qualified to
render expert opinions on that subject and because the opinions are not based upon
reliable methodology.13 STI also seeks to exclude Fontana’s opinion that the
Government has determined that the price for PASS on STI’s GSA Schedule contract
($214,094.00) is fair and reasonable on the basis that this is a legal conclusion.14
Finally, STI seeks to exclude Fontana’s opinion that STI has a competitive advantage
in being certified as a small business in connection with its potential sales of PASS
on the basis that the opinion is irrelevant to the facts in dispute in this case.15
MGMTL opposes the Motion, asserting that Fontana is an experience-based
expert, namely an attorney who has worked as general counsel for multiple
government contractors and in private practice in the realm of government
10 Id. at ¶ 38.
11 Id. at ¶ 39.
12 R. Doc. 92.
13 R. Doc. 92-1 at pp. 3 & 5-10.
14 Id. at p. 4 (citing R. Doc. 92-2 at ¶¶ 7-8 & 11-12).
15 R. Doc. 92-1 at p. 4.
contracting for approximately 35 years. 16 MGMTL contends that Fontana’s
testimony will help the jury understand the complicated process of government
contracting and acquisitions, including in the context of security management tools,
and that he will provide a framework for the jury to determine the amount of damages
suffered by MGMTL as a result of STI’s actions.17 While not a model of clarity,
MGMTL also seems to assert that Fontana is qualified to offer expert opinions in this
case,18 that his opinions are based upon sufficient facts and data,19 and that his
methodologies are reliable.20
In response, STI maintains that Fontana’s testimony should be excluded
because he is not qualified to opine about the value of, and market for, SMART and
because his opinions are unreliable and based upon insufficient information.21 STI
contends that while MGMTL seeks to use Fontana’s testimony to “shore up” the
damages opinion testimony of Jorge Menes, Fontana failed to identify how many
people he thinks would license SMART, how likely they are to license SMART, how
long they would license SMART, the probability that they would license SMART, or
at what price they may market SMART.22 As such, STI argues that Fontana’s opinion
“is so general that it is irrelevant.”23 STI further asserts that the Court should
disregard the new Declaration from Fontana, submitted with the Opposition brief,
16 R. Doc. 103-6 at pp. 1, 5 & 9-17.
17 Id. at p. 6.
18 Id. at pp. 5, 6, 12, 14, 15-16, 17, & 23.
19 Id. at pp. 21-22.
20 Id. at pp. 8-21.
21 R. Doc. 120.
22 Id. at p. 1.
23 Id.
which seems designed to make it look like Fontana – contrary to his deposition
testimony – actually considered some financial factors in reaching his opinions.24 STI
maintains that Fontana’s experience in the field of government contracts does not
relate to his opinions about the value of, and market for, SMART, and that his
reliance on his experience alone is fatal to the reliability of his report.25 Finally, STI
asserts that MGMTL relies upon inapposite cases in its Opposition brief, ignoring the
fact that other courts have severely limited testimony from government contracting
experts.26
II. LEGAL STANDARD
When expert testimony is challenged, the party seeking to present the
testimony has the burden of proving by a preponderance of the evidence that the
testimony satisfies Federal Rule of Evidence 702.27 Rule 702 provides:
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.28
Rule 702 codifies the Supreme Court’s opinion in Daubert v. Merrell Dow
Pharmaceuticals, Inc., which charges district courts to act as “gatekeepers” when
24 Id. at pp. 2 -3.
25 Id. at pp. 3-4.
26 Id. at pp. 4-5 (citing authority).
27 Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998).
28 Fed. R. Evid. 702.
determining the admissibility of expert testimony.29 “To be admissible under Rule
702, the court must find that the evidence is both relevant and reliable.”30 According
to the Fifth Circuit, reliability is determined by assessing whether the reasoning or
methodology underlying the testimony is scientifically valid, while relevance depends
on whether the reasoning or methodology underlying the testimony can be properly
applied to the facts at issue.31 The purpose of the reliability requirement is to exclude
expert testimony based merely on subjective belief or unsupported speculation.32
District courts have considerable discretion to admit or exclude expert testimony
under Rule 702.33
III. ANALYSIS
A. MGMTL Has Established That Fontana Is Qualified to Offer Expert
Opinions Regarding Government Contracting, But Not the Value
of, or Market For, the SMART Software Application.
STI asserts that Fontana’s testimony must be excluded under Rule 702
because he does not possess expertise in determining the value of, or market for,
software, his specialized knowledge does not pertain to the facts at issue in this case,
and he offers opinions on legal issues that are the province of the Court.34 As to
29 United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing Daubert, 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993)).
30 United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing United States v. Valencia, 600 F.3d
389, 423 (5th Cir. 2010)).
31 Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).
32 Tajonera v. Black Elk Energy Offshore Operations, LLC, Civ. A. No. 13-0366, 2016 WL 3180776 at
*8 (E.D. La. June 7, 2016) (Brown, J.) (citing Daubert, 509 U.S. at 590, 113 S.Ct. at 2795).
33 See, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Seatrax,
Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000); Tajonera, Civ. A. No. 13-0366, 2016 WL
3180776 at *8 (citing authority).
34 R. Doc. 92-1 at pp. 2-3.
Fontana’s opinion regarding the value of, and market for, SMART,35 STI asserts that
Fontana has no professional background, experience, training, or education in
valuation, software licensing, conducting market analyses, marketing software
products to government agencies or government contractors, or purchasing software
products for government agencies or government contractors.36 STI contends that
Fontana’s background and experience is limited to providing legal advice regarding
contracts. STI points out that Fontana testified during his deposition that he has
never performed a market analysis as part of any expert work, he has never been
retained as an expert to evaluate software, he has not authored any publications
regarding software licensing, software valuation, or the market for software, and he
has never been accepted as an expert by a court.37
Regarding Fontana’s opinion that the Government has determined the price
for PASS listed on STI’s GSA Schedule contract is fair and reasonable, STI asserts
this is a legal conclusion based upon federal regulations and that experts may not
render legal conclusions. 38 Finally, as to Fontana’s opinion that STI has a
competitive advantage as a small business in its sales of PASS to government
agencies, STI asserts that the opinion is irrelevant because it is undisputed that STI
has never sold PASS from its GSA Schedule contract.39 STI contends that Fontana
35 R. Doc. 92-1 at p. 3 (citing R. Doc. 92-2 at ¶¶ 21-23).
36 R. Doc. 92-1 at p. 3 (citing R. Doc. 92-2 at ¶¶ 1-2 & 21).
37 R. Doc. 92-1 at p. 3 (citing R. Doc. 92-3 at pp. 2-5, 6, 7; R. Doc. 92-2 at p. 21).
38 R. Doc. 92-1 at p. 4 (citing R. Doc. 92-2 at ¶¶ 7-8, 11-12; Snap-Drape, Inc. v. C.I.R., 98 F.3d 194, 198
(5th Cir. 1996)).
39 R. Doc. 92-1 at p. 4 (citing R. Doc. 92-2 at ¶¶ 18-19).
http://www.fpds.gov/ezsearch/search.do?indexName=awardfull&templateName=1.5.1&s=FPDS.GOV
&a=47ATCA19D009P ). The Court notes that, as of the date of this Order, a search of the foregoing
website yields the following result: “ezSearch - Page Not Found.”
failed to quantify the value of PASS and that his opinions are so general that they
are irrelevant.40
MGMTL argues that Fontana’s experience is not limited to government
contracts and includes “deep and personal involvement in industrial security and
security clearance management processes.”41 MGMTL claims that this experience
includes managing security officers who are responsible for processing, managing,
and otherwise handling facility and personnel security clearances and access to
classified information facilities, which required knowledge of security management
regulations, the cost of security management, security management systems, and the
challenges presented to security managers.42 MGMTL asserts that the premise of
STI’s argument, that Fontana must be labeled as a software valuation expert to offer
his opinion testimony, is wrong.43
Although difficult to discern,44 MGMTL seems to assert that Daubert requires
specialized knowledge only as to the topics about which the expert will testify, and
that Fontana meets that requirement. 45 MGMTL contends that Fontana
understands the potential need for and use of security management software with
the functionality of SMART among government offices and government contractors,
since he has personally worked in that space for years. MGMTL argues that
40 R. Doc. 92-1 at p. 4.
41 R. Doc. 103-6 at p. 6.
42 Id. (citing R. Doc. 103-3 at ¶ 2).
43 R. Doc. 103-6 at p. 12.
44 The Court notes that MGMTL provided a combined analysis of Fontana’s qualifications and the
reliability and relevance of his opinions, making it difficult for the Court to construe MGMTL’s
arguments regarding Fontana’s qualifications to testify as an expert. Id. at pp. 12-23.
45 Id. at p. 14.
Fontana’s testimony that SMART would likely be sold in substantial or marketable
quantities is supported not only by his government contracting experience, but also
by his detailed personal knowledge of security management.46 MGMTL claims that
Fontana’s knowledge of government contracting will also allow him to testify that it
is well known in the industry that listing a product on a GSA Schedule is a recognition
by the government that such a listed price is “fair and reasonable.”47 Although STI
attempts to downplay Fontana’s experience in the security management context,
MGMTL argues that his industrial security and security management process
experience “is significant,” as set forth in Fontana’s Declaration, submitted with the
Opposition brief.48 As such, MGMTL asserts that Fontana is qualified by knowledge
and experience to provide testimony as to the value of a security management tool
such as SMART.49
MGMTL further asserts that Fontana is not providing legal conclusions
regarding the price at which PASS is listed on STI’s GSA Schedule, as he will testify
about the industry meaning and standards regarding representations made on the
GSA Schedule and in the documentation STI submitted of past commercial sales
(called “CSP-1”),50 how putting a price on a particular product in the GSA Schedule
is a representation that the price is fair and reasonable, and that GSA, in evaluating
and awarding such schedule contracts, places a heavy premium on that
46 Id.
47 Id.
48 Id. at p. 16 (citing R. Doc. 103-3 at ¶ 2).
49 R. Doc. 103-6 at p. 17.
50 Id. at p. 5.
representation.51 MGMTL points out that expert testimony on industry standards is
common in civil litigation, and helpful in explaining contract terms in government
contracts.52
In response, STI asserts that despite Fontana’s 35 years of experience in
security management, he is not qualified to testify regarding the value of, or market
for, SMART because his testimony shows that he “has no idea about what government
offices would do because Fontana could not answer even the basic question of whether
SMART could work on government systems.”53 STI argues that Fontana’s experience
in the field of government contracts does not relate to his opinions about the value of,
and market for, SMART and that his opinions must be excluded.54 STI further
asserts that while Fontana may have the experience to discuss terms in the
government contracting industry, he lacks a foundation for his opinions that SMART
is “valuable” or that someone might purchase it.55
According to the Opposition brief, MGMTL intends to offer Fontana as an
expert in government contracting and security systems management.56 Fontana’s
expert report provides that he has assisted clients on a variety of government contract
matters during his career, including: (1) contract formation issues and related
regulatory compliance pursuant to federal procurement laws and regulations,
including the Federal Acquisition Regulation (“FAR”) and its agency acquisition
51 Id. at p. 18.
52 Id. (citing authority).
53 R. Doc. 120 at p. 3 (citing R. Doc. 92-3 at p. 8; R. Doc. 120-1 at p. 3).
54 R. Doc. 120 at p. 3.
55 Id. at p. 5.
56 R. Doc. 103-6 at p. 21.
supplements; (2) government contracts litigation, including bid protests before
federal agencies, the Government Accountability Office (“GAO”), and the United
States Court of Federal Claims (“COFC”), and claims and appeals before the Boards
of Contract Appeals and COFC; (3) issues related to contracts with the United States
General Services Administration (“GSA”) and the GSA Federal Supply Schedule,
including Schedule contracting matters, interpretation of and compliance with FAR,
GSA Acquisition Manual (“GSAM”), and GSA Acquisition Regulation (GSAR”),
formation of and amendments to GSA Schedule contracts, GSA audits of Schedule
contract holders, litigation involving GSA Schedule contract holders, and related
legal matters; (4) small business contracting issues; and (5) transactions related to
government contractors, including GSA Schedule holders. 57 According to his
curriculum vitae, Fontana “has over 35 years of experience as an attorney
specializing in government and commercial contracts and related litigation, as well
as ethics compliance and corporate governance issues,” and “specializes in mergers
and acquisitions in both the government technology and commercial sectors.”58
Fontana has also given seminars on several topics, including “issues relating to
government contracts . . . and technology-related issues,” was previously a regular
contributor to Washington Technology’s Infotech and the Law column, and has
published articles in several publications, including the American Bar Association’s
Public Contract Law Journal.59
57 R. Doc. 92-2 at p. 2.
58 Id. at p. 15.
59 Id.
With this in mind, the Court finds that Fontana is qualified to testify regarding
government contracting based upon his extensive experience and knowledge in that
field. Specifically, Fontana is qualified to testify regarding the effect of an award of
a GSA Schedule contract to STI for its PASS product,60 any competitive advantage
STI may receive as a result of being certified as a small disadvantaged business,61
and whether the SMART product would likely be a valuable tool available to
Government Security Management Officers (“SMOs”), Government contractor
Facility Security Officers (“FSOs”), or other Government personnel in managing and
implementing Government personnel security clearances.62 It is clear to the Court,
from Fontana’s expert report and his curriculum vitae, that Fontana possesses the
knowledge and experience required to offer expert opinions on these topics. The
Court rejects STI’s request to exclude, as a legal conclusion, Fontana’s opinion that
the Government has determined $214,094 to be a fair and reasonable price of the
PASS product by virtue of the awarded GSA Schedule contract to STI. As MGMTL
points out,63 the Fifth Circuit has recognized that, “a trial court’s reliance on
individuals experienced in a particular field for the purposes of obtaining explanation
of the technical meaning of terms used in the industry is ‘prudent.’”64 Moreover,
MGMTL and Fontana have represented to the Court that Fontana has explicitly
recognized and accepted the duty to avoid rendering legal conclusions, which he
60 Id. at ¶¶ 6-17.
61 Id. at ¶¶ 18-19. See, Id. at ¶ 20 for the definitions of SMOs and FSOs.
62 Id. at ¶ 21.
63 R. Doc. 103-6 at p. 20.
64 Kona Technology Corp. v. Southern Pacific Transp. Co., 225 F.3d 595, 611 (5th Cir. 2000) (quoting
Phillips Oil Co. v. OKC, Corp., 812 F.2d 265, 281 (5th Cir. 1987)).
acknowledged is the sole province of this Court.65 Should Fontana’s testimony stray
into offering strictly legal conclusions, the Court will entertain and rule on objections
from STI at that time.
The Court further finds that Fontana’s experience in the area of government
contracts, while extensive, does not make him qualified to render opinions regarding
the value of, or the market for, the SMART software application. The Fifth Circuit
“require[s] that a witness’s qualifying training or experience, and resultant
specialized knowledge, are sufficiently related to the issues and evidence before the
trier of fact [such] that the witness’s proposed testimony will help the trier of fact.”66
Stated another way, an expert may not go beyond the scope of his expertise in giving
his opinion.67 The Court agrees with STI that MGMTL has not demonstrated that
Fontana has any experience, training, background, or knowledge regarding software
valuation or licensing, conducting market analyses, marketing software products to
government agencies or government contractors, or purchasing software products for
government agencies or government contractors to support an opinion as to the value
of, or market for, the SMART software.68 In fact, Fontana testified that he has not
conducted any market studies in this case, nor did he conduct a market analysis when
he was retained as an expert in a prior, unrelated case.69
65 R. Doc. 103-6 at p. 21 (citing R. Doc. 103-2 at ¶ 6).
66 Macy v. Whirlpool Corp., 613 Fed.Appx. 340, 345 (5th Cir. 2015) (quoting United States v. Wen Chyu
Liu, 716 F.3d 159, 167 (5th Cir. 2013)) (internal quotation marks omitted) (emphasis added by Macy).
67 Tingle v. Hebert, Civ. A. No. 15-626, 2018 WL 2287028, at *4 (M.D. La. April 23, 2018) (quoting
Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009)) (quotation marks omitted).
68 R. Doc. 92-1 at p. 3 (citing R. Doc. 92-2 at ¶¶ 1-2 & 21; R. Doc. 92-3 at pp. 2, 3-4, 5, 6, & 7).
69 R. Doc. 92-3 at pp. 2-5 & 9.
While MGMTL argues that the inquiry into Fontana’s expertise and
qualifications should be guided by the specific opinions to which he will testify,70
MGMTL fails to address how Fontana’s experience in the area of “government
contracts and related litigation”71 makes him qualified to testify regarding the value
of SMART or its marketability to government agencies. Fontana’s expert report
merely states that his opinions are based upon his knowledge of the government
contracting industry, his representation of contractors in matters related to GSA
Schedules, his experience representing contractors with security clearances at the
facility and personnel levels, his familiarity with the use and management of security
clearances by Government SMOs, his experience with defense agency purchasing
practices, and his general familiarity with the Joint Personnel Adjudications Systems
(“JPAS”).72 The Court finds that these conclusory statements and this prior
experience does not make Fontana qualified to testify that the SMART software
application “would likely be marketable for purchase by [Government] organizations
in substantial quantities.”73 As such, STI’s Motion is granted to the extent that it
seeks to exclude Fontana’s testimony regarding the market for, or value of, the
SMART software application,74 on the basis that Fontana is not qualified to testify as
an expert on those topics.
70 R. Doc. 103-6 at pp. 12-15.
71 R. Doc. 92-2 at p. 2.
72 Id. at ¶¶ 21 & 22.
73 Id. at p. 4.
74 Id. at p. 4 & ¶¶ 21-23.
B. MGMTL Has Failed to Establish that Fontana’s Opinions
Regarding The Value Of, and the Market For, the SMART Software
Application Are Reliable.
The Court further finds that, even if Fontana is qualified to offer opinion
testimony regarding the value of, and the market for, SMART, such opinions must be
excluded as unreliable under Fed. R. Evid. 702. To satisfy the reliability prong of the
Daubert/Rule 702 analysis, a “party seeking to introduce expert testimony must show:
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.”75 To prove reliability, the
proponent of the expert testimony must present some objective, independent
validation of the expert’s methodology.76 As explained by the Supreme Court, the
objective of this Court’s gatekeeper role is to ensure that an expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.”77
1. Fontana’s Opinions Are Based Upon Sufficient Facts or Data.
As STI points out,78 the Fifth Circuit has recognized that, “The Daubert
reliability analysis applies to, among other things, ‘the facts underlying the expert’s
75 Recif Resources, LLC v. Juniper Capital Advisors, L.P., Civ. A. No. H-19-2953, 2020 WL 5623982, at
*2 (S.D. Tex. Sept. 18, 2020) (Atlas, J.) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009))
(internal quotation marks omitted).
76 Recif Resources, LLC, Civ. A. No. H-19-2953, 2020 WL 5623982, at *2 (citing Brown v. Illinois Cent.
R. Co., 705 F.3d 531, 536 (5th Cir. 2013)).
77 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999);
Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir. 2006).
78 R. Doc. 92-1 at p. 5.
opinion.’”79 “In particular, an opinion based on ‘insufficient, erroneous information,’
fails the reliability standard.”80 The Fifth Circuit has further cautioned that,
“Although the Daubert reliability analysis is flexible and the proponent of the expert
evidence need not satisfy every one of its factors, ‘the existence of sufficient facts . . .
is in all instances mandatory.’”81 Thus, “expert testimony that relies on ‘completely
unsubstantiated factual assertions’ is inadmissible.”82 Nevertheless, the Fifth
Circuit has made clear that, “[a]s a general rule, questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned that opinion rather
than its admissibility and should be left for the jury’s consideration.”83 “It is the role
of the adversarial system, not the court, to highlight weak evidence.”84
STI asserts that Fontana’s opinions are not based on sufficient facts or data
because the only “facts and data” he relied upon was a simple demonstration of the
SMART software application by its co-creator, Jorge Menes, a statement from Steve
McMurtry of the Marine Forces Reserve, the number of Department of Defense
personnel and government contractors with security clearances, and his own
experience providing legal advice to companies regarding federal procurement and
79 Moore v. Int’l Paint, LLC, 547 Fed.Appx. 513, 515 (5th Cir. 2013) (quoting Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007)); Jacked Up, LLC v. Sara Lee Corporation, 291 F. Supp.
3d 795, 802 (N.D. Tex. 2018) (Horan, M.J.) (quoting Moore, 547 Fed.Appx. at 515).
80 Moore, 547 Fed.Appx. at 515 (quoting Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 389
(5th Cir. 2009)).
81 Moore, 547 Fed.Appx. at 515 (quoting Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007))
(internal citation omitted).
82 Moore, 547 Fed.Appx. at 515 (quoting Hathaway, 507 F.3d at 319 n.4).
83 Primrose Operating Co. v. National American Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (quoting
United States v. 14.38 Acres of Land, More of Less Sit. In Leflore County, Miss, 80 F.3d 1074, 1077 (5th
Cir. 1996)) (internal quotation marks omitted) (emphasis added by Primrose).
84 Primrose, 382 F.3d at 562.
GSA Schedules.85 STI also claims that Fontana failed to speak with any agency or
contractor in the market to develop his opinion regarding the value of SMART or any
potential interest in licensing it, he failed to complete any market surveys to evaluate
what, if any, other comparable software was on the market, and he failed to conduct
any independent investigation to determine if any other government office or official
would be interested in SMART.86 The Court finds that these factors are relevant to
whether Fontana’s methodology is reliable, not the sufficiency of the facts or data
supporting his opinions.
While not a model of clarity, MGMTL seems to argue that STI’s criticisms of
the bases and sources of Fontana’s opinions affect the weight to be assigned to his
opinions, rather than their admissibility, and should be left for the jury’s
consideration.87 The Court agrees. During his deposition, Fontana confirmed that
his analysis in this case was based upon his experience, as well as a demonstration
of the SMART software application by one of its creators, Jorge Menes, and a
discussion with Menes.88 MGMTL asserts that Fontana’s analysis is also based upon
“a review of materials related to SMART and the copycat PASS product” and STI’s
submissions to the federal government, and that Fontana considered the parameters
and requirements for getting a product listed on a government-wide GSA contract,
STI’s submissions to the GSA office, and its listing of PASS on its GSA schedule.89
85 R. Doc. 92-1 at pp. 5-6 (citing R. Doc. 92-2 at ¶¶ 20-23 & pp. 17-18; R. Doc. 92-3 at pp. 23-24, 25-26).
86 R. Doc. 92-1 at pp. 6-7 (citing R. Doc. 92-3 at pp. 9, 20, 21-22, 26, & 27).
87 R. Doc. 103-6 at pp. 21-22 (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987))
(internal quotation marks omitted).
88 R. Doc. 92-3 at p. 10; See, Id. at pp. 6 & 8-9.
89 R. Doc. 103-6 at p. 7. See also, Id. at pp. 17-18.
Although perhaps not as concrete as STI would like them to be, the Court finds
that the facts and data relied upon by Fontana in reaching his opinions are sufficient
for purposes of Daubert. The Court remains cognizant that, notwithstanding
Daubert, “the rejection of expert testimony is the exception and not the rule.”90 To
the extent that STI is attacking the factual basis of Fontana’s opinions, such
arguments address the weight to be assigned to those opinions, rather than their
admissibility at trial.91 As suggested by MGMTL,92 the Court is fully satisfied that
during the trial, counsel for STI is perfectly able to, and will, take the opportunity to
cross-examine Fontana regarding the bases for his opinions, thus allowing the jury
to determine the weight to give the testimony. The Court therefore rejects STI’s
contention that Fontana’s opinions must be excluded because they are not based upon
sufficient facts or data.
2. Fontana’s Opinions Regarding the Value of, and the Market For,
SMART Are Not The Product of Reliable Methodologies.
The Supreme Court in Daubert set forth the following non-exclusive list of
factors to consider in determining the reliability of expert testimony: (1) whether the
theory has been tested; (2) whether the theory has been subject to peer review and
publication; (3) the known or potential rate of error; (4) whether standards and
controls exist and have been maintained with respect to the technique; and (5) the
90 Johnson v. Samsung Electronics America, Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (Duval, J.)
(quoting Fed. R. Evid. 702 Advisory Committee Notes to 2000 Amendments) (internal quotation marks
omitted).
91 See, Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 393 (5th Cir. 2002) (“Unocal instead attempts to
show that the underlying data – provided by Unocal – was itself unreliable. This is an issue that
Unocal could – and did – raise in cross-examination.”).
92 R. Doc. 103-6 at p. 22.
general acceptance of the methodology in the scientific community.93 “Whether some
or all of these factors apply in a particular case depends on the facts, the expert’s
particular expertise, and the subject of his testimony.”94 The Fifth Circuit has held
that a trial court may consider additional factors in assessing the scientific reliability
of expert testimony, including: (1) whether the expert’s opinion is based on incomplete
or inaccurate data; (2) whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion; and (3) whether the expert has
adequately accounted for alternative explanations.95 “The overarching goal ‘is to
make certain that an expert, whether basing testimony on professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.’”96
STI asserts, generally, that Fontana’s opinions are “unmoored from any
principles or methodology that can be objectively evaluated for reliability” because
Fontana repeatedly testified that his opinions are not based on any objective
principles or methodology.97 The remainder of the Motion, however, addresses the
reliability of Fontana’s opinions regarding the value of, and the market for, SMART98
93 In re: Vioxx Products Liability Litigation, 401 F. Supp. 2d 565, 573 (E.D. La. 2005) (Fallon, J.) (citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2768, 125 L.Ed.2d 469
(1993)).
94 In re: Vioxx, 401 F. Supp. 2d at 573 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 138,
119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
95 Nola Ventures, LLC v. Upshaw Insurance Agency, Inc., Civ. A. No. 12-1026, 2014 WL 12721798, at
*6 (E.D. La. Oct. 31, 2014) (Brown, J.) (citing Black v. Food Lion Inc., 171 F.3d 308, 313 (5th Cir. 1999);
Moore v. Ashland Chemical Inc., 151 F.3d 269, 278-79 (5th Cir. 1998); In re Vioxx, 401 F. Supp 2d at
573).
96 Nola Ventures, LLC, Civ. A. No. 12-1026, 2014 WL 12721798 at *6 (quoting Kumho Tire, 526 U.S.
at 152, 119 S.Ct. at 1176).
97 R. Doc. 92-1 at pp. 7-8 (citing R. Doc. 92-3 at pp. 8-9, 10, 19, & 27).
98 R. Doc. 92-1 at pp. 7-10.
and, as such, the Court will limit its reliability review to those opinions. STI claims
that Fontana did not conduct any independent market analysis, surveys, or
comparative analysis, nor did he use any scientific or mathematical methodologies in
determining that SMART is a “valuable tool.”99 STI also complains that Fontana did
not interview anyone other than Menes.100 STI contends that courts often exclude
expert opinions where the expert, like Fontana, failed to conduct any independent
research to determine the reliability of his assumptions.101
While Fontana states that his opinions are based upon his prior years of
experience assisting and representing clients in the government contracting field, STI
asserts that Fontana has no experience purchasing products like SMART or PASS
for government agencies.102 STI contends that while Fontana may have “familiarity
with the use and management of security clearances by Government SMOs,” he cites
no experience or actual involvement therein and his belief that government agencies
would find SMART a valuable tool is speculative.103 STI asserts that Fontana’s
opinions, particularly his opinion regarding the value of and market for SMART, are
not reliable because he performed no independent research and did not employ any
methods that are subject to empirical testing, peer review or publication, known or
potential error rates, or general acceptance.104 STI contends that because Fontana
did not run any surveys, perform any market studies, complete any comparative
99 Id. at p. 8 (citing R. Doc. 92-3 at pp. 8-9, 10 & 19).
100 R. Doc. 92-1 at p. 8 (citing R. Doc. 92-3 at pp. 6, 9, & 20).
101 R. Doc. 92-1 at p. 8 (quoting JRL Enterp., Inc. v. Procorp Associates, Inc., Civ. A. No. 01-2893, 2003
WL 21284020, at *8 (E.D. La. June 3, 2003) (Fallon, J.)) (internal quotation marks omitted).
102 R. Doc. 92-1 at p. 9 (citing R. Doc. 92-2 at ¶¶ 2-3 & pp. 15-16).
103 R. Doc. 92-1 at p. 9 (citing R. Doc. 92-2 at ¶¶ 21-22).
104 R. Doc. 92-1 at p. 10.
analyses, conduct any interviews, or determine any appropriate price point for
SMART, his report does not satisfy Daubert and his opinions must be excluded.105
In it Opposition brief, MGMTL seems to rely on the Supreme Court’s decision
in Kumho Tire Co., Ltd. v. Carmichael to assert that Fontana’s opinions are reliable
based upon his experience and qualifications, and urges the Court to focus on
Fontana’s experience, rather than his methodology. 106 MGMTL asserts that
Fontana’s testimony that SMART would likely be sold in substantial or marketable
quantities “is supported not only by his government contracting experience but also
by his detailed personal knowledge of security management.”107 MGMTL disputes
STI’s attempt to downplay Fontana’s experience by referring to his “familiarity” with
security management, and asserts that Fontana’s industrial security and security
management process experience “is significant,” as set forth in Fontana’s Declaration
submitted with the Opposition brief.108 MGMTL argues that Fontana’s opinions are
rational deductions based on directly applicable and specific experience, as Fontana
has personally been in the position of a potential customer for a security management
tool like SMART.109 As such, MGMTL claims that Fontana is qualified by knowledge
and experience to provide testimony regarding the value of a security management
tool like SMART.110
105 Id.
106 R. Doc. 103-6 at pp. 8-10 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999)).
107 R. Doc. 103-6 at p. 14.
108 Id. at p. 16 (citing R. Doc. 103-2 at ¶ 2); R. Doc. 103-6 at p. 10 (citations omitted).
109 R. Doc. 103-6 at pp. 16-17 (quoting R. Doc. 103-3 at ¶ 4) (internal quotation marks omitted).
110 R. Doc. 103-6 at p. 17.
In response, STI urges the Court to ignore Fontana’s new Declaration, which
it contends was submitted to make it appear, contrary to his deposition testimony,
that Fontana actually considered some financial factors to reach the opinions
contained in his expert report.111 STI specifically takes issue with Fontana’s
assertion in his Declaration that he considered “savings in terms of financial outlay
and personnel that would be made through [security management software].”112 STI
claims that Fontana explicitly testified during his deposition that his opinion of
SMART’s value was “independent of price” and that costs were a factor that he did
not consider when he opined that SMART was “valuable.”113 Further, STI points out
that Fontana’s expert report does not discuss analyzing savings in terms of financial
outlay and personnel in reaching his opinions.114 STI argues that these assertions in
the Declaration contradict Fontana’s prior testimony and seek to add new material
that he did not consider and did not previously disclose. STI contends that the Court
should disregard Fontana’s Declaration because “supplemental expert reports cannot
be used to fix problems in initial reports.”115 STI also argues that the Court should
disregard Fontana’s Declaration under the “sham-affidavit rule.”116 STI maintains
that Fontana has provided no methodology for his opinions, relying only on his
111 R. Doc. 120 at p. 2.
112 Id. (quoting R. Doc. 103-2 at ¶ 4) (internal quotation marks omitted).
113 R. Doc. 120 at p. 2 (quoting R. Doc. 92-3 at pp. 8-13) (internal quotation marks omitted).
114 R. Doc. 120 at p. 2 (citing R. Doc. 92-2).
115 R. Doc. 120 at p. 2 (quoting Simmons v. Johnson, Civ. A. No. 06-325-A-M2, 2008 WL 474203, at *2
(M.D. La. Feb. 14, 2008) (Noland, M.J.)) (internal quotation marks omitted).
116 R. Doc. 120 at p. 3 (citing Hacienda Records, L.P. v. Ramos, 718 Fed.Appx. 223, 235 (5th Cir. 2018)).
experience and materials provided to him by MGMTL, and that his lack of
methodology is fatal to the reliability of his report.117
The Court finds that MGMTL has failed to carry its burden of establishing that
Fontana’s opinions regarding the value of, and the market for, the SMART software
application are based upon reliable methods or principles, as required by Daubert and
Fed. R. Evid. 702. Regarding his opinion on the value of SMART to government
agencies, Fontana testified during his deposition that he has never been retained as
a software expert, that he is not a software expert, and that he did not apply any sort
of scientific methodology or conduct any market study to arrive at his conclusion that
a product like SMART “would likely be a valuable tool available to SMOs or other
government personnel in managing security clearances, and that such agencies
employing an SMO would likely purchase this tool.”118 Fontana further testified that
he did not contact any of his clients to inquire if they would be interested in licensing
SMART or a product like SMART, and that he did not perform an analysis of the
price point that he thought SMOs would likely pay to purchase SMART.119 Instead,
Fontana stated that, “The analysis was really based on my experience.”120 Fontana
then gave conflicting testimony regarding whether he considered the price point of
SMART in reaching his conclusion regarding the value of SMART, at first stating
that he did not consider price, but later testifying that he compared the price at which
MGMTL had attempted to sell a one-year license of SMART to the military ($30,000)
117 R. Doc. 120 at pp. 3-4.
118 R. Doc. 92-3 at pp. 6-7 & 8-9. See, R. Doc. 92-2 at ¶ 21.
119 R. Doc. 92-3 at pp. 9-13.
120 Id. at p. 10.
to the $214,094 price of PASS “that is on STI’s federal supply schedule - - GSA
schedule.”121 Fontana likewise gave conflicting testimony regarding the importance
of considering the price point in reaching his conclusion regarding the value of
SMART, stating that, “price will always be a factor,” and that the price “would
certainly be a factor in the government’s decision to buy a product or not buy a
product,” but also stating that he “was looking at the value of SMART to government
agencies independent of price, although, as I said, price is always going to be a
factor.”122 Fontana subsequently testified that he reviewed Steve McMurtry’s
deposition transcript, and that McMurtry’s testimony reinforced Fontana’s opinion
about “how agencies would look upon such a tool” like SMART.123
Fontana further testified that the basis for his opinion regarding the value of
SMART to government agencies is contained in his expert report.124 According to the
report, Fontana’s opinion is based upon his “knowledge of the Government
contracting industry and representation of such contractors both as an in-house
general counsel and private law firm attorney in matters related to GSA Schedules,”
as well has his “experience representing contractors having security clearances at
both the facility and personnel levels, my familiarity with the use and management
of security clearances by Government SMOs and my general familiarity with
JPAS.”125 Although Fontana has repeatedly stated that his opinion is based upon his
121 Id. at pp. 13-14.
122 Id. at pp. 11-12.
123 Id. at pp. 25-26.
124 Id. at p. 9.
125 Id.; See, R. Doc. 92-2 at ¶ 21.
experience, these conclusory statements were not supported by an explanation of
how, specifically, his experience led him to the conclusion reached, or how that
experience was applied to the facts of this case. For example, Fontana testified that
his opinion regarding the value of SMART “was really based on my experience,” but
he did not expound upon that statement or explain what specific past experience he
had in evaluating the value of computer software to government agencies and how
his opinion in this case compared with his past experience.126
Moreover, while the evidence before the Court demonstrates that Fontana has
extensive experience in the field of government contracting and related litigation,127
neither his curriculum vitae nor his expert report mention any experience or
knowledge regarding software valuation or purchasing software on behalf of
government agencies. To the extent MGMTL asserts that Fontana has sufficient
experience to render an opinion on the value of SMART because he has “been in the
position of a potential customer for a security management tool like SMART,”128 the
Court is not persuaded that this conclusory statement, without more, shows that
Fontana has any experience in software valuation or purchasing software on behalf
of government agencies. The Court therefore finds that Fontana’s opinion regarding
the value of SMART to government agencies lacks a sufficiently reliable basis in the
126 See, GWTP Investment, L.P. v. SES Americom, Inc., Civ. A. No. 3:04-CV-1383-L, 2007 WL7630459,
at *14 (N.D. Tex. Aug. 3, 2007) (Ramirez, M.J.) (excluding expert testimony where the expert’s
“conclusory statements were not supported by an explanation of how, specifically, his experience led
him to the conclusion reached or how that experience was applied to the facts.”).
127 R. Doc. 92-2 at pp. 2 & 15.
128 R. Doc. 103-6 at pp. 16-17 (quoting R. Doc. 103-3 at ¶ 4) (internal quotation marks omitted).
knowledge and experience of the relevant discipline and must be excluded.129 As
explained by the Supreme Court, “Experts of all kinds tie observations to conclusions
through the use of what Judge Learned Hand called ‘general truths derived from . . .
specialized experience.’”130 MGMTL has failed to show that Fontana derived his
opinion regarding the value of SMART from such specialized experience.
The Court recognizes that Fontana’s experience-based testimony regarding the
value of a software application to government agencies may not be subject to
traditional scientific, peer-tested theories or techniques. MGMTL, which bears the
burden of proving that the opinions are based on reliable methods, however, has
failed to address whether Fontana’s methodology “is generally accepted in the
relevant” government contracting community, or that “his preparation is of a kind
that others in the field would recognize as acceptable.”131 As STI points out, Fontana
could have conducted a market analysis or contacted government agencies to
determine their level of interest in the SMART software application. Other courts,
including this one, have excluded expert opinions where the expert failed to conduct
any independent research to determine the reliability of his assumptions.132 Fontana
also gave conflicting testimony regarding whether his opinion concerning the value
of SMART is based upon a specific price point or some nebulous comparison between
129 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999)
(quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993)); Looney Ricks Kiss Architects, Inc. v. Bryan, Civ. A. No. 07-572, 2010 WL 5157874, at *3
(W.D. La. Dec. 7, 2010) (citing Kumho Tire, 526 U.S. at 149, 119 S.Ct. at 1175)).
130 Kumho Tire, 526 U.S. at 148-49, 119 S.Ct. at 1174 (quoting Hand, Historical and Practical
Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1901)).
131 Kumho Tire, 526 U.S. at 151, 119 S.Ct. at 1176.
132 JRL Enterp., Inc. v. Procorp Associates, Inc., Civ. A. No. 01-2893, 2003 WL 21284020, at *8 (E.D.
La. June 3, 2003) (citing authority).
the respective price to license SMART and PASS,133 leaving the Court wondering
whether, and to what extent, that comparison contributed to Fontana’s opinion. To
the extent MGMTL relies upon the new Declaration from Fontana to bolster the
reliability of the methodology relied upon by Fontana in reaching his conclusion, the
Court agrees with STI that the Declaration is merely an attempt by MGMTL to
circumvent Fontana’s deposition testimony that the opinions contained in his expert
report are based solely upon his own personal experience.134 The Court is not
persuaded by the new Declaration that Fontana’s opinion regarding the value of
SMART is based upon sufficiently reliable methodology. Accordingly, the Court finds
Fontana’s opinion regarding the value of SMART to government agencies is not
reliable and must be excluded under Daubert and Fed. R. Evid. 702.
The Court reaches the same conclusion regarding Fontana’s opinion that
SMART “would likely be marketable for purchase in substantial quantities by
multiple Government agencies employing SMOs or similar type positions to manage
and implement security clearances” 135 and that, “a Government contracting
organization managing and implementing such security clearances would also benefit
by using the SMART tool, and such a tool would likely be marketable for purchase in
substantial quantities by such organizations.”136 During his deposition, Fontana
testified that these opinions were not the product of any scientific methodology, but
that he believed, based on his experience being in charge of industrial security
133 R. Doc. 92-3 at pp. 9-14.
134 R. Doc. 120 at p. 2.
135 R. Doc. 92-2 at p. 4 & ¶ 22.
136 Id. at p. 4 & ¶ 23.
matters for different companies and advising clients regarding security, that SMART
would be a valuable tool for SMOs and that agencies “would be interested in that
tool.”137 As with his opinion regarding the value of SMART, Fontana testified that
his opinion regarding its marketability was not based on “any market studies in
terms of surveying agencies with regard to that issue,” and that he did not undertake
any analysis as to what a fair price might be for SMART that such an agency would
actually pay.138 Fontana further testified that he did not assess whether there were
any products that were the same or similar to SMART or PASS available on the GSA
Schedule, but confirmed that he has knowledge about how a government agency
would acquire a service or product.139
According to Fontana’s expert report, his opinions that SMART “would likely
be marketable for purchase in substantial quantities by multiple Government
agencies employing SMOs or similar type positions to manage and implement
security clearances” and that, “a Government contracting organization managing and
implementing such security clearances would also benefit by using the SMART tool,
and such a tool would likely be marketable for purchase in substantial quantities by
such organizations” are based upon his knowledge of GSA Schedule contracts over 35
years of legal practice, his general familiarity of JPAS, his experience with defense
agency purchasing practices, his familiarity with the use and management of security
clearances by Government GMOs, and his knowledge of the Government contracting
137 R. Doc. 92-3 at pp. 19-20.
138 Id. at p. 20.
139 Id. at pp. 21-22 & 27.
industry and representation of such contractors as an in-house general counsel and a
private practice attorney in matters related to GSA Schedules.140 The Court, again,
finds that Fontana’s assertions that his opinions are based upon his experience are
conclusory statements without any support or explanation of how, specifically, his
experience led him to reach those opinions, or how that experience was applied to the
particular facts of this case. For instance, Fontana did not expound upon or explain,
either in his report or during his deposition, what specific past experience he had in
evaluating the market value of computer software to government agencies and how
his opinion in this case compared with his past experience.141 Moreover, neither his
curriculum vitae nor his expert report mention any experience or knowledge
regarding computer software marketability to government agencies or purchasing
such software on behalf of government agencies. Thus, the Court finds that MGMTL
has failed to show that Fontana will “employ[] in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field”142
with respect to his opinions regarding the market for the SMART software
application. The opinions regarding the market for the software must, therefore, be
excluded as unreliable under Daubert and Fed. R. Evid. 702.
140 R. Doc. 92-2 at ¶¶ 22 & 23.
141 See, GWTP Investment, L.P. v. SES Americom, Inc., Civ. A. No. 3:04-CV-1383-L, 2007 WL7630459,
at *14 (N.D. Tex. Aug. 3, 2007) (excluding expert testimony where the experts “conclusory statements
were not supported by an explanation of how, specifically, his experience led him to the conclusion
reached or how that experience was applied to the facts.”).
142 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238
(1999); Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir. 2006).
C. MGMTL Has Failed to Show That Fontana’s Opinion Regarding
STI’s Competitive Advantage Is Relevant.
At the outset, the Court notes that STI only challenges the relevance of
Fontana’s opinion that STI has a competitive advantage in being certified as a small
disadvantaged business (a “SDB”) in connection with its potential sales of PASS to
government agencies and other GSA Schedule users.143 STI contends that this
testimony is irrelevant because it is undisputed that STI has never sold PASS from
its GSA Schedule contract.144 MGMTL does not address this argument in its
Opposition brief.145 Instead, MGMTL asserts, generally, that Fontana’s experience
and qualifications make his opinions relevant and reliable.146 MGMTL claims that
Fontana’s testimony, “considered together with other evidence and testimony, will
help MGMTL prove its case.”147 MGMTL also asserts that Fontana’s testimony
would be insightful and useful to the jury, and that, “This helpfulness is apparent
from his deposition testimony, in which he explained, among other things . . .
competitive advantages of disadvantaged-business status . . .”148 MGMTL, however,
does not cite to Fontana’s deposition testimony to support this assertion, and cites
instead to the two paragraphs in Fontana’s expert report that address STI’s
certification as a small disadvantaged business.
143 R. Doc. 92-1 at p. 4 (citing R. Doc. 92-2 at p. 4 & ¶¶ 18-19).
144 R. Doc. 92-1 at p. 4 (citing
http://www.fpds.gov/ezsearch/search.do?indexName=awardfull&templateName=1.5.1&s=FPDS.GOV
&a=47ATCA19D009P ). Although STI asserts that this web address shows “that there have been no
purchases on the contract and that STI has made no revenue from the contract,” as of the date of this
Order, a search of the foregoing web address yields the following result: “ezSearch - Page Not Found.”
145 See, generally, R. Doc. 103-6.
146 Id. at pp. 2, 9, & 11.
147 Id. at p. 2.
148 Id. at pp. 19-20 (citing R. Doc. 103-1 at pp. 8-9).
The Court finds that MGMTL has failed to carry its burden of proving that
Fontana’s testimony regarding STI’s purported competitive advantage as a small
disadvantaged business is relevant to the disputed facts of this case and that it will
aid the jury in understanding and resolving such factual disputes.149 The Court
surmises that this opinion may have some bearing on the issue of MGMTL’s damages,
as Fontana asserts in his report that, “A Government contractor with an SDB
certification have [sic] access to certain procurements that are ‘set aside’ specifically
for small businesses as well as a small business that are [sic] qualified as an SDB,”
and that, “STI, as an SDB, would have available to it more opportunities to
participate in Government procurements that are set aside than other non-small or
non-SDB concerns.”150 Fontana further opines that STI would have an enhanced
competitive position in the sale of its PASS software “because Government agencies
are required to set aside a certain percentage of contract awards to targeted groups
to include SDBs.”151 Neither Fontana nor MGMTL, however, tie these opinions to
any facts in dispute in this case. Nor does MGMTL address STI’s assertion that
Fontana’s testimony on this issue is irrelevant because “it is undisputed that STI has
never sold PASS off its GSA Schedule contract.”152 As such, the Court finds that
MGMTL has failed to carry its burden of proving, by a preponderance of the evidence,
that Fontana’s testimony regarding STI’s competitive advantage from its certification
149 Looney Ricks Kiss Architects, Inc. v. Bryan, Civ. A. No. 07-572, 2010 WL 5157874, at *1 (W.D. La.
Dec. 7, 2010) (Hicks, Jr., J.) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591,
113 S.Ct. 2768, 2796, 125 L.Ed.2d 469 (1993)).
150 R. Doc. 92-2 at p. 9, ¶ 18.
151 Id. at ¶ 19.
152 R. Doc. 92-1 at p. 4 (citation omitted).
as a SDB should be excluded under the relevancy prong of Daubert and Fed. R. Evid.
702.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s
Motion in Limine to Preclude Expert Testimony of James C. Fontana 1° is
GRANTED in part and DENIED in part. The Motion is GRANTED to the extent
that STI seeks to exclude Fontana’s expert testimony regarding the value of, and the
market for, the SMART software application to government agencies, as well as his
opinion regarding STI’s competitive advantage as a small disadvantaged business, as
set forth in Fontana’s January 28, 2021 expert report.154 The Motion is otherwise
DENIED.
New Orleans, Louisiana, February 17, 2022.
Od □□ Vitti
WENDY BJ VITTER
United States District Judge
154 R, Doc. 92-2 at p. 4 & JF 18-19 & 21-23.