RVC Floor Decor, Ltd. v. Floor & Decor Holdings, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RVC FLOOR DECOR, LTD.,

Plaintiff, MEMORANDUM & ORDER

18-CV-6449 (JS)(ARL)

-against-

FLOOR AND DECOR OUTLETS OF

AMERICA, INC.,

Defendant.

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APPEARANCES

For Plaintiff: Craig B. Sanders, Esq.

Jonathan Mark Cader, Esq.

James H. Freeman, Esq.

Sanders Law Group

333 Earle Ovington Boulevard, Suite 402

Uniondale, New York 11530

Erica Carvajal, Esq.

Sanders Law LLC

100 Garden City Plaza, Suite 500

Garden City, New York 11530

For Defendant: Bryan J. Wolin, Esq.

H. Forrest Flemming, III, Esq.

Robert Nathan Potter, Esq.

Kilpatrick Townsend & Stockton LLP

1114 Avenue of the Americas, 21st Floor

New York, New York 10036

Richard Charles Henn, Jr., Esq.

Kilpatrick Townsend & Stockton LLP

1100 Peachtree Street, Suite 2800

Atlanta, Georgia 30309

SEYBERT, District Judge:

RVC Floor Decor, Ltd., (“Plaintiff”) initiated this

trademark infringement case against Floor & Decor Outlets of

America, Inc. (“Defendant”) pursuant to Section 43(a) of the Lanham

Act, New York common law, and New York General Business Law

Section 360-l.1 Trial is scheduled to commence in this case on

April 10, 2023. Presently before the Court is Defendant’s Motion

to Exclude the Expert Testimony of Christopher Ramey (“Ramey”)

(ECF No. 170). For the reasons detailed below, Defendant’s motion

is GRANTED.

BACKGROUND

I. Facts

For a thorough recitation of the factual and procedural

background of this case, the Court refers the parties to Judge

Hurley’s March 18, 2021 Memorandum & Order denying Plaintiff’s

motion for summary judgment and denying in part and granting in

part Defendant’s cross-motion for summary judgment. See RVC Floor

Decor, Ltd. v. Floor and Decor Outlets of Am., Inc., 527 F. Supp.

3d 305, 312-15 (E.D.N.Y. 2021).2 The Court recites only those

facts necessary to resolve the instant motion.

1 Plaintiff also brought claims pursuant to New York General

Business Law Section 349, which were dismissed during the summary

judgment stage of this case. See RVC Floor Decor, Ltd. v. Floor

and Decor Outlets of Am., Inc., 527 F. Supp. 3d 305, 321-22

(E.D.N.Y. 2021).

2 Judge Hurley’s Memorandum & Order is also available on the case

docket at ECF No. 147. Going forward, the Court will refer to

this case by its Reporter citation.

A. Ramey’s Qualifications and Report3

Ramey describes himself as “a marketing expert with an

emphasis on home furnishings and specifically floor coverings.”

(Ramey Report, Ex. 2, ECF No. 172-2, ¶ 1, attached to Flemming

Decl., ECF No. 172.) Ramey owns a consulting firm known as CPR

Marketing Partners, LLC, and is presently the “president of the

Home Trust International, Inc.” which is “a >400 store marketing

organization.” (Id.) Ramey’s “clients include many companies in

the floor covering and furnishings industries” and he is also “a

consultant [with the] Floor Covering Institute” and partner “in

www.retail-rescue.net, a company dedicated to helping small

independent businesses.” (Id.) Ramey asserts that his “career in

floor covering began when [he] was recruited at Penn State by

Macy’s to enter their . . . ‘Executive Management Training

Program’” where he was then “placed as an Assistant Buyer in their

floor covering departments, carpet and rugs.” (Id. ¶ 2.) Next,

Ramey “was employed by WestPoint Pepperell in the carpet division

as a territory manager.” (Id.) At the age of 28, Ramey opened

his own floor covering store and “[a] few years later . . . was

invited to join the American Floorcovering Association Board of

Directors.” (Id.)

3 The Court notes that Ramey does not have a curriculum vitae

(“CV”) and no CV was prepared before or after he submitted his

report. (See Ramey Dep. Tr., Ex. 1, ECF No. 172-1 at 6:19-6:25,

attached to Flemming Decl., ECF No. 172.)

“More recently, [Ramey’s] former position was SVP for

CCA Global Partners” where he was “responsible for membership of

floor covering dealers.” (Id. at ¶ 3.) “Prior to that position

[Ramey] was president of two CCA Global Partners brands:

International Design Guild . . . and Savvi Formalwear.” (Id.)

Ramey “wrote a column about marketing and management for ten years

for Floor Covering Weekly, a Hearst publication . . . focus[ing]

[on] how to help independent floor covering business thrive.” (Id.

at ¶ 5.) Ramey has also written “a column for Greentree

Gazette . . . [where his] directive was to help academic

administrators manage their business like a retail store.” (Id.

¶ 6.) Ramey claims that “[o]ver the last several years, [he has]

become Luxury Daily’s most quoted expert because of [his] business

acumen and understanding of [the] luxury market.” (Id. at ¶ 7.)

“Luxury Daily is known as [the] ‘World’s Leading Luxury Business

Publication.’” (Id.) Additionally, Mr Ramey is “a professional

speaker and teacher” whose past and current clients include “dozens

of floor covering stores and businesses in the shelter and design

industries.” (Id. at ¶ 8.) Ramey also highlights that he “earned

‘Leader Top 5%’ from Gerson Lehrman for [his] contributions working

with private equity firms investing in the floor covering

industry.” (Id. ¶ 9.)

The opinions in Ramey’s report “are based on [his]

experience . . . and [his] knowledge of the floor covering

industry.” (Id. at ¶ 13.) When asked to expound on the

methodology used to develop the opinions in his report, Ramey

stated that he used “[c]ommon sense, 40 years in the industry, and

a pragmatic approach to the workplace.” (Ramey Dep. Tr. at

39:9-39:25.) Ramey confirmed that he did not follow any scientific

model in developing his opinions. (Id.)

While the Ramey Report does not expressly state that it

is being offered as a rebuttal to particular aspects of the report

submitted by Jonathan E. Hochman (“Hochman”), Ramey’s deposition

testimony confirms that it is. Ramey clarified he was rebutting

Hochman’s opinion “that [Plaintiff’s] online marketing strategy

and branding [was] inadequate and inconsistent.” (Id. at 73:1-

73:11.) Ramey also believes “Hochman create[d] standards

consistent with a large company” which are “not the [applicable]

standards to . . . judge mom-and-pop operations.” (Id. at

69:3-69:8.)

Ramey also weighed in on matters not discussed in his

report. For example, he did not agree with Hochman’s opinion that

Defendant was not “seek[ing] to undermine [Plaintiff’s] listings

in any way” stating that he would “be surprised if [Defendant’s]

mission [was not] to undermine anyone’s listing [since] [t]hat is

what they do . . . [specifically] it[] [is] what marketing does.”

(Id. at 73:12-73:25.) However, when asked if he had “looked at

any data regarding what Floor & Decor[] [has] been doing in terms

of its online listings,” Ramey replied that he had not. (Id. at

74:2-74:7.)

B. Defendant’s Motion

Defendant argues that the Ramey Report should be

excluded as untimely because “a cursory reading of it shows the

Report contains no rebuttal” of any of Defendant’s report.

(Support Memo, ECF No. 171 at 4.) Next, Defendant contends that

Ramey’s report fails to meet “any of the Daubert indicia of

admissibility.” (Id. at 5.) Specifically, Defendant argues that:

(1) Ramey is not qualified to give expert testimony; (2) Ramey’s

testimony is not based on sufficient facts or data; (3) Ramey did

not use any methodology to develop his opinions which renders them

unreliable; and (4) Ramey’s opinions are not otherwise reliable or

relevant. (Id. at 5-13.) Plaintiff filed opposition to

Defendant’s Motion. (See Opp’n, ECF No. 179.) Afterwards,

Defendant filed a reply. (See Reply, ECF No. 184.)

DISCUSSION

I. Legal Standard

A. Motions in Limine

“A district court’s inherent authority to manage the

course of its trials encompasses the right to rule on motions in

limine.” Highland Cap. Mgmt., L.P. v. Schneider, 551 F. Supp. 2d

173, 176 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S.

38, 41 n.4 (1984)). Motions in limine “aid the trial process by

enabling the Court to rule in advance of trial on the relevance of

certain forecasted evidence, as to issues that are definitely set

for trial, without lengthy argument at, or interruption of, the

trial.” Mango v. BuzzFeed, Inc., 316 F. Supp. 3d 811, 812

(S.D.N.Y. 2018) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d

Cir. 1996)). In ruling on a motion in limine, evidence should be

excluded, “[o]nly when [it] is ‘clearly inadmissible on all

potential grounds.’” United States v. Ceballo, No. 13-CR-0308,

2014 WL 4980554, at *1 (E.D.N.Y. Oct. 6, 2014) (quoting United

States v. Paredes, 176 F. Supp. 2d 192, 193 (S.D.N.Y. 2001)). In

“considering a motion in limine, [the Court] may reserve judgment

until trial, so that the motion is placed in the appropriate

factual context.” United States v. Chan, 184 F. Supp. 2d 337, 340

(S.D.N.Y. 2002). Moreover, the Court’s ruling on a motion in

limine is “subject to change when the case unfolds, particularly

if the actual testimony differs from what was contained in the

defendant’s proffer.” Id. at 341 (quoting Luce, 469 U.S. at 41).

B. Expert Testimony

The admission of expert testimony is governed by Federal

Rule of Evidence (“FRE”) 702, which allows the testimony of “[a]

witness who is qualified as an expert by knowledge, skill,

experience, training, or education” where:

(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.

While the party seeking admission of the expert

testimony bears the burden of demonstrating its admissibility, see

In re Vivendi, S.A. Sec. Litig., 838 F.3d 223, 253 (2d Cir. 2016),

under FRE 702, district courts perform a “‘gatekeeping’ role’ by

‘ensuring that an expert’s testimony both rests on a reliable

foundation and is relevant to the task at hand.’” United States

v. Napout, 963 F.3d 163, 187-88 (2d Cir. 2020) (quoting Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)). In

fulfilling its role as gatekeeper, the district court “should look

to the standards of [FRE] 401 in analyzing whether [the] proffered

expert testimony is relevant.” Amorgianos v. Nat’l R.R. Passenger

Corp., 303 F.3d 256, 265 (2d Cir. 2002). Pursuant to FRE 401,

“[e]vidence is relevant if: (a) it has any tendency to make a fact

more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” FED.

R. EVID. 401. However, “[t]he court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” FED. R. EVID. 403.

“Next, the district court must determine ‘whether the

proffered testimony has a sufficiently “reliable foundation” to

permit it to be considered.’” Amorgianos, 303 F.3d at 265 (quoting

Daubert, 509 U.S. at 597). The Court, in making this determination

“should consider the indicia of reliability identified in [FRE]

702.” Id. “In short, the district court must ‘make certain that

an expert, whether basing testimony upon 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.’” Id. at 265-66 (quoting Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999)).

In addition to the indicia of reliability identified in

FRE 702, “Daubert enumerated a list of additional factors bearing

on reliability that district courts may consider.” United States

v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). These additional

factors include “(1) whether a theory or technique has been or can

be tested; (2) ‘whether the theory or technique has been subjected

to peer review and publication;’ (3) the technique’s ‘known or

potential rate of error’ and ‘the existence and maintenance of

standards controlling the technique’s operation;’ and (4) whether

a particular technique or theory has gained general acceptance in

the relevant scientific community.” Id. (quoting Daubert, 509

U.S. at 593-94). Importantly, the additional factors enumerated

in Daubert are not intended to constitute “a ‘definitive checklist

or test.’” Amorgianos, 303 F.3d at 266 (quoting Daubert, 509 U.S.

at 593). Instead, “[t]he inquiry envisioned by [FRE] 702

is . . . a flexible one, and ‘the gatekeeping inquiry must be tied

to the facts of a particular case.’” Id. (alterations in original)

(first quoting Daubert, 509 U.S. at 594, then quoting Kumho Tire,

526 U.S. at 150).

II. ANALYSIS

As set forth above, Defendant’s motion to exclude Ramey

from testifying as an expert for Plaintiff has five arguments.

The Court addresses Defendant’s timeliness argument first and

then, in the interests of efficiency, will address Defendant’s

Daubert arguments.

A. The Timeliness of Ramey’s Rebuttal Report

Defendant’s first argument to exclude the Ramey Report

is that it is untimely. (Support Memo at 3.) Defendant contends

that the Ramey Report is an initial expert report masquerading as

a rebuttal report because “a cursory reading . . . shows the

[Ramey] Report contains no rebuttal of” Defendant’s Reports. (Id.)

Defendant highlights that its expert, Dr. Neal, submitted a report

which discussed “whether [Plaintiff’s] asserted tradename, ‘Floor

Decor,’ has achieved secondary meaning” in the relevant

geographical area; however, the Ramey Report contains “no

discussion of surveys or secondary meaning.” (Id. at 4.)

Similarly, Defendant states that the Hochman Report assessed:

(1) Plaintiff’s “damages, if any;” (2) “whether [Defendant’s]

online advertising is typical;” and (3) whether “[Plaintiff’s]

online advertising has been effective at building a brand name

around the name ‘Floor Decor.’” (Id.) While Defendant concedes

that “the Ramey Report states that it ‘defies logic to suggest’

that [Plaintiff] has not been damaged,” Defendant notes that “the

remainder of the Ramey Report is focused on general ‘go-to-market’

strategies, not online advertising efforts.” (Id.)

Defendant asserts that “[t]he case schedule gave

[Defendant] 30 days to review and analyze [Plaintiff’s] initial

expert reports before submitting [Defendant’s] own reports.”

(Id.) Defendant contends that it was “stripped . . . of the

opportunity to rebut” the Ramey Report because Plaintiff “failed

to serve a timely initial report” and instead served the Ramey

Report as a rebuttal. (Id.) Plaintiff counters that the rebuttal

report was timely served in accordance with the deadlines set in

this case and that Ramey’s deposition testimony confirms that the

Ramey Report was intended “to be a rebuttal in toto” to the Hochman

Report since Ramey “believed the entirety of the Hochman Report

[was] inapplicable, as it was not an ‘apples to apples’

comparison.” (Opp’n at 4.) Even if Plaintiff were to concede the

Ramey Report was untimely, Plaintiff argues Defendant suffered no

prejudice because Defendant deposed Ramey. (Id. at 4-5.)

Plaintiff also argues that Defendant’s position is inconsistent in

that it argues Ramey’s “opinions are unsupported” while

simultaneously arguing that “such opinions [are] prejudicial.”

(Id. at 1.)

Federal Rule of Civil Procedure (“FRCP”) 26 permits

parties to submit expert testimony that is “intended solely to

contradict or rebut evidence on the same subject matter identified

by another party.” FED. R. CIV. P. 26(a)(2)(D)(ii). “A rebuttal

expert report is not the proper place for presenting new arguments,

unless presenting those arguments is substantially justified and

causes no prejudice.” Ebbert v. Nassau County, No. 05-CV-5445,

2008 WL 4443238, at *13 (E.D.N.Y. Sept. 26, 2008) (internal

citation omitted). Rebuttal evidence is admissible “when it will

explain, repel, counteract or disprove the evidence of the adverse

party.” Sci. Components Corp. v. Sirenza Microdevices, Inc., No.

03-CV-1851, 2008 WL 4911440, at *2 (E.D.N.Y. Nov. 13, 2008)

(quoting Crowley v. Chait, 322 F. Supp. 2d 530, 551 (D.N.J. 2004)).

“The scope of a rebuttal is limited to the same subject

matter encompassed in the opposing party’s expert report, but

district courts have been reluctant to narrowly construe the phrase

‘same subject matter’ beyond its plain language.” In re Specialist

and Other Vessel Owner Limitation Actions, No. 16-CV-4643, 2020 WL

8665287, at *2 (S.D.N.Y. June 30, 2020) (quoting Scott v. Chipotle

Mexican Grill, Inc., 315 F.R.D. 33, 44 (S.D.N.Y. 2016)); see also

Roberts v. Los Alamos Nat’l Sec., LLC, No. 11-CV-6206, 2016 WL

4442833, at *2 (W.D.N.Y. Aug. 19, 2016) (“[T]he ‘same subject

matter’ language simply requires that a rebuttal report address

the same topic as the affirmative report, as opposed to the same

topic and methodology the affirmative expert relied on.” (emphasis

in original))). Consequently, “[a] rebuttal expert is permitted

to use new methodologies ‘for the purpose of rebutting or

critiquing the opinions [of the opposing party’s] expert

witness.’” In re Specialist, 2020 WL 8665287, at *2.

Where a party challenges an expert report as exceeding

“the bounds of proper rebuttal, the court must decide whether to

strike the report.” In re Zimmer M/L Taper Hip Prosthesis or M/L

Taper Hip Prosthesis with Kinectiv Tech. and Versys Femoral Head

Prods. Liab. Litig., No. 18-MD-2859, 2021 WL 1405185, at *3

(S.D.N.Y. Apr. 14, 2021). In determining whether to preclude

expert testimony, courts within the Second Circuit consider four

factors, commonly known as the Softel factors:

(1) the party’s explanation for the failure to

comply with the discovery order; (2) the

importance of the testimony of the precluded

witness; (3) the prejudice suffered by the

opposing party as a result of having to

prepare to meet the new testimony; and (4) the

possibility of a continuance.

Sci. Components, 2008 WL 4911440, at *4 (quoting Softel, Inc. v.

Dragon Med. & Sci. Commc’ns, 118 F.3d 955, 961 (2d Cir. 1997)).

However, “[p]recluding testimony of an expert, even when

there has not been strict compliance with [FRCP] 26, may at times

tend to frustrate the Federal Rules’ overarching objective of doing

substantial justice to litigants.” Id. (alteration in original)

(quoting Wechsler v. Hunt Health Sys., Ltd., 381 F. Supp. 2d 135,

155 (S.D.N.Y. 2003)); see also Lab Crafters, Inc. v. Flow Safe,

Inc., No. 03-CV-4025, 2007 WL 7034303, at *2 (Oct. 26, 2007)

(noting that “the court has considerable discretion” when deciding

whether to strike an expert’s rebuttal report and that “courts

generally favor the determination of issues on the merits” which

is “inconsistent with . . . exclusionary relief”).

Here, regardless of whether the Court finds that the

Ramey report is a timely served rebuttal or an untimely served

initial expert report, the Court finds that wholesale preclusion

of the report is unwarranted based on a weighing of the Softel

factors, particularly due to the fact that Defendant will suffer

no prejudice if the Ramey Report is introduced. Indeed, as

Plaintiff notes, Defendant was able to depose Ramey and probe any

deficiencies in his Report as well as the bases upon which he

formed his opinions. See In re Zimmer, 2021 WL 1405185, at *3

(“Prejudice can be cured by allowing the movant to challenge the

expert’s testimony through depositions . . . .”); compare Rekor

Sys., Inc. v. Loughlin, No. 19-CV-7767, 2022 WL 2063857, at *9

(S.D.N.Y. June 8, 2022) (excluding untimely expert rebuttal report

where allowing its admittance would require the court, out of

fairness, “to permit [p]laintiff to reopen discovery [and] depose”

the expert); Coene v. 3M Co., 303 F.R.D. 32, 44 (W.D.N.Y. 2014)

(excluding expert rebuttal report where, inter alia, the defendant

did “not ha[ve] an opportunity to depose [the expert] concerning

his new opinions”). Defendant’s argument that it was unable to

rebut Ramey’s report is unavailing and the Court declines to strike

the Ramey Report on timeliness grounds. See In re Zimmer, 2021 WL

1405185, at *6 (finding that the fact a party’s “experts did not

get a sur-rebuttal does not constitute cognizable prejudice” under

the Softel factors).

B. Daubert Indicia of Reliability

1. Ramey’s Qualifications

Defendant next argues that the Ramey Report should be

excluded because Ramey is not qualified to serve as an expert in

“retail and marketing of home furnishing and floor coverings.”

(Support Memo at 6.) Defendant highlights that a review of Ramey’s

qualifications for this role is impossible given that “Ramey does

not have a resume.” (Id. at 7.) From Ramey’s deposition,

Defendant extrapolated that Ramey: (1) “does not have a bachelor’s

degree;” (2) “has never served as an expert witness or submitted

an expert report” before; and (3) “has not published an article in

at least seven years.” (Id.) Moreover, Defendant notes that “any

articles [Ramey] previously published were not about flooring or

decor products.” (Id.) Plaintiff counters that Ramey is qualified

because he “has more than 40 years of experience in the relevant

fields.” (Opp’n at 8.) Further, Plaintiff notes that Ramey “is

the founder of CPR Marketing Partners, LLC[,] . . . a consultancy

specializing in marketing and branding that serves hundreds of

businesses including many companies in the floor covering and home

furnishings industries.” (Id.)

“Whether a purported expert witness is qualified as such

by his or her ‘knowledge, skill, experience, training or

education,’ is a ‘threshold question’ to be resolved prior to the

other inquiries.” Arista Recs. LLC v. Lime Grp. LLC, No. 06-CV-

5936, 2011 WL 1674796, at *2 (S.D.N.Y. May 2, 2011) (first quoting

FED. R. EVID. 702, then quoting Nimely v. City of New York, 414 F.3d

381, 396 n.11 (2d Cir. 2005)). To “determine whether a witness is

qualified to render an expert opinion, a court ‘must first

ascertain whether the proffered expert has the educational

background or training in a relevant field.’” Id. (quoting Cary

Oil Co., Inc. v. MG Refin. & Mktg., Inc., No. 99-CV-1725, 2003 WL

1878246, at *2 (S.D.N.Y. Apr. 11, 2003)). To do this, the Court

must look at the “totality of [the] witness’s background.” Arista

Recs. LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 422 (S.D.N.Y.

2009) (internal citation omitted). “A witness may be qualified

based on any one or more of the qualities listed in [FRE]

702 . . . .” Lime Grp., 2011 WL 1674796, at *2 (citing Tiffany

(NJ) Inc. v. eBay, Inc., 576 F. Supp. 2d 457, 458 (S.D.N.Y. 2007)).

However, “[t]he qualification requirements of [FRE] 702 ‘must be

read in light of the liberalizing purpose of the rule.’” Deutsch

v. Novartis Pharm. Corp., 768 F. Supp. 2d 420, 481 (E.D.N.Y. 2011)

(quoting United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985)).

“[Q]ualification . . . is determined by comparing the area in which

the witness has superior knowledge, skill, experience, or

education with the subject matter of the witness’s testimony.”

Id. (alteration in original) (quoting In re Fosamax Prods. Liab.

Litig., 645 F. Supp. 2d 164, 202 (S.D.N.Y. 2009)).

Here, the fact that Ramey does not have a formal

education in the field of retail and marketing of home furnishings

and floor coverings is not dispositive as to whether he may serve

as an expert. See Peerless Ins. Co. v. Marley Engineered Prods.

LLC, No. 05-CV-4848, 2008 WL 7440158, at *2 (E.D.N.Y. June 12,

2008) (“This Circuit has adopted a liberal standard for qualifying

an expert and there is no requirement that a witness have formal

education or training before being qualified as an expert” (citing

Nimely, 414 F.3d at 396)).

Notwithstanding, Plaintiff bears the burden of

establishing that Ramey is qualified to give every opinion in his

report. Where an expert testifies outside the scope of his

discipline, the Court must exclude that portion of his testimony.

Walker v. Schult, 365 F. Supp. 3d 266, 276 (N.D.N.Y. 2019)

(“Whether based on traditional science or specialized experience,

[FRE] 702 further mandates that an expert ‘stay within the

reasonable confines of [their] subject area, and [thus] cannot

render expert opinion on an entirely different field or

discipline.’” (second and third alterations in original) (quoting

Lappe v. Am. Honda Motor Co., Inc., 857 F. Supp. 222, 227 (N.D.N.Y.

1994), aff’d sub nom., 101 F.3d 682 (2d Cir. 1996)); see also Davis

v. Carroll, 937 F. Supp. 2d 390, 413 (S.D.N.Y. 2013) (“[W]here an

expert is admitted under [FRE] 702 and then purports to offer

opinions beyond the scope of his expertise, courts strike the

extraneous testimony, as the admission of an expert does not

provide that individual with carte blanche to opine on every issue

in the case.”).

Although Ramey is qualified to testify about retail and

marketing of home furnishings and floor coverings based upon his

professional experience, the Court finds that neither his

education nor experience qualifies him to offer comparative

opinions on the quality of the parties’ products. Nowhere in

Ramey’s report does he explain how he deduced that Defendant’s

“flooring products fall at the lower end of the quality spectrum

when compared to [Plaintiff’s] products,” nor how he could possibly

know this based upon his professional experience. (See Ramey

Report, in toto.) The extent to which Ramey is even familiar with

any of the parties’ products is limited to his viewing of

Defendant’s website as well as personal visits to a dozen of

Defendant’s stores; Ramey did not conduct any studies or

assessments of Defendant’s products before drawing his

conclusions. This falls far short of meeting the low threshold

required for being qualified as an expert. Consequently, Court

finds that Ramey is not qualified to offer any opinions on the

comparative quality of Defendant’s products in relation to

Plaintiff’s.

2. Sufficient Facts or Data

Defendant next contends that Ramey’s “conclusions are

not supported by sufficient facts or data –- but instead are mere

speculation or unsupported ‘opinion.’” (Support Memo at 7.) To

highlight its point, Defendant notes that Ramey does not cite to

any “single fact or data point” to support his opinion which

provides that “floor covering is purchased infrequently.” (Id.)

Defendant notes that Ramey’s “opinion regarding the quality of

[Defendant’s] flooring products is pure conjecture . . . [and]

undermined by an article [Ramey] attache[d] to his report which

acknowledge[d] that [Defendant] [was] able to offer competitive

pricing because it buys directly from suppliers and ‘buys big.’”

(Id. at 8.) According to Defendant, Ramey’s conclusion, which is

that Defendant’s pricing is dictated by its purchase of lower

quality products compared to Plaintiff, is a “bald assertion” with

“no data or facts” to support it. (Id.) Plaintiff contends, as

it did with regards to Ramey’s qualifications, that Ramey has “40

years of experience in the flooring industry” and that this alone

qualifies him to render the opinions contained in his report.

Pursuant to FRCP 26(a)(2)(B)(i) an expert report must

contain “a complete statement of all opinions the witness will

express and the basis and reasons for them.” Similarly, FRCP

26(a)(2)(B)(ii) requires an expert report to contain “the facts or

data considered by the witness in forming [his opinions].”

“[P]roffered ‘expert testimony should be excluded if it is

speculative or conjectural.’” Major League Baseball Props., Inc.

v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (quoting Boucher

v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir. 1996)). “An

expert’s conclusory opinions are similarly inappropriate.” Id.

“An expert opinion is inadmissible as conclusory if it ‘cannot

reasonably be assessed for reliability.’” Carotek, Inc. v.

Kobayashi Ventures, LLC, 875 F. Supp. 2d 313, 337 (S.D.N.Y. 2012)

(quoting Comm. Note to FED. R. EVID. 702 (2000)).

Here, the Court agrees with Defendant that Ramey’s

report is comprised largely of ipse dixit opinions which contain

no citations to any supporting facts or data. (See Ramey Report

¶¶ 15-30.) Similarly, Ramey provides no analysis as to how he

came to his conclusions, or how his experience informed his

opinions. (Id.) For this reason, the Court finds that Ramey’s

report must be excluded. See Piepes v. NAI Ent. Holdings LLC, 394

F. Supp. 3d 315, 319 (E.D.N.Y. 2019) (finding that the Court could

not perform its gatekeeping role under Daubert where the expert

opinion at issue was conclusory in nature, had “no explanation,

citation, or analysis [and] . . . read[] like . . . a single

sentence conclusion that parrot[ed] the end result a lawyer or

someone else has asked him to reach”).4

3. Methodology

Defendant also argues that Ramey fails to use a

methodology; specifically, Defendant highlights that at no point

in his report does Ramey “set[] forth a methodology, and the report

fails to explain how he applied any principles or methodology to

any facts or data to arrive at his conclusions.” (Support Memo at

9.) Defendant emphasizes Ramey’s deposition testimony, in which

4 To the extent Plaintiff may have argued that support for Ramey’s

opinions could be found in the exhibits attached to his report,

without any specific or general references to these exhibits in

the report itself, the Court finds that Ramey’s report violates

FRCP 26(a)(2)(B)’s requirement that the expert’s report must

contain “a complete statement of all opinions the witness will

express and the basis and reasons for them.” FED. R. CIV. P.

26(a)(2)(B)(i) (emphasis added); accord R.C. Olmstead, Inc. v. CU

Interface, LLC, 657 F. Supp. 2d 905, 910-11 (N.D. Ohio 2008)

(finding that an expert’s two page report that summarily stated an

opinion and attached 197 pages of exhibits without making any

specific references in his report to the supporting material

“violated [FRCP] 26(a)(2)(B)’s command to be “detailed and

complete” (quoting Salgado by Salgado v. General Motors Corp., 150

F.3d 735, 738 (7th Cir. 1998))), aff’d 606 F.3d 262, 271 (6th Cir.

2010); see also Reed v. Binder, 165 F.R.D. 424, 430 (D.N.J. 1996)

(finding several expert reports deficient under FRCP 26(a)(2)(B)

where they “refer[red] to massive amounts of documents, [but] the

opinions [were] expressed in vague terms with few specific

references”).

he stated that “the only methodology he relied upon was ‘common

sense, 40 years in the industry, and a pragmatic approach to the

marketplace.’” (Id.) Plaintiff counters that Ramey has the

necessary experience in the industry to make the opinions that he

did.

Again, the Court finds that Ramey’s lack of methodology

or explanation as to how his experience informed his opinions is

fatal to the admissibility of his report. Piepes, 394 F. Supp. 3d

at 318 (finding that “where ‘the witness is relying solely or

primarily on experience, . . . the witness must explain how that

experience leads to the conclusion reached and how that experience

is reliably applied to the facts” because “[t]he trial court’s

gatekeeping function requires more than simply ‘taking the

expert’s word for it’” (quoting Israel v. Spring Indus., Inc., No.

98-CV-5106, 2006 WL 3196956, at *2 (E.D.N.Y. Nov. 3, 2006))).

Additionally, to the extent Ramey’s opinions are based

upon “common sense,” there is no reason to introduce an “expert”

to assist jurors in making common sense determinations -- this is

something jurors are perfectly capable of doing without any need

for expert opinion. See Betances v. Fischer, No. 11-CV-3200, 2021

WL 1534159, at *4 (S.D.N.Y. Feb. 23, 2021) (noting that “[c]ourts

have . . . excluded proposed expert testimony under [FRE] 702

where the resolution of the factual question involved in the case

turned on an application of ‘common sense,’ the antithesis of

expert knowledge” (quoting Dreyer v. Ryder Auto. Carrier Grp.,

Inc., 367 F. Supp. 2d 413, 439-40 (W.D.N.Y. 2005))).

Accordingly, the Court finds that Ramey’s report is not

based on sufficient facts or data and that Ramey does not explain

how his experience in the relevant industry led to the opinions he

reached in his report. Consequently, the Court finds that Ramey’s

report must be excluded in its entirety.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that the

Defendant’s Motion to Exclude the Expert Report of Christopher

Ramey (ECF No. 170) is GRANTED.

SO ORDERED.

JOANNA SEYBERT__________

Joanna Seybert, U.S.D.J.

Dated: April 7, 2023

Central Islip, New York