# Polycon Industries Inc v. R & B Plastics Machinery, LLC

> District Court, N.D. Indiana · March 26, 2025

URL: https://www.frixlaw.com/law-library/cases/10831558

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 26, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

POLYCON INDUSTRIES, INC., )
)
Plaintiff & Counter-Defendant, )
)
v. ) Case No. 2:19-CV-485-PPS
)
R&B PLASTICS MACHINERY, LLC, )
and MONROE MOLD, LLC, )
)
Defendants & Counterclaimants. )

OPINION AND ORDER

In this now long running and contentious litigation, several motions to exclude
testimony are presently before me. First, there is Plaintiff Polycon’s motion to bar the
expert testimony of two individuals associated with Defendant R&B Plastics [DE 221].
Second, there is R&B’s renewed motion to exclude the expert testimony of Polycon’s
damages expert, Dr. Lynch [DE 244]. And third, R&B seeks to exclude both the
testimony of Polycon’s former Controller Jill Contro and a spreadsheet she prepared
[DE 253]. For the reasons I discuss below, Polycon’s motion to exclude [DE 221] is
GRANTED IN PART and DENIED IN PART; R&B’s motion to exclude concerning
Lynch [DE 244] is GRANTED IN PART and DENIED IN PART; and R&B’s motion to
exclude Contro and her spreadsheet [DE 253] is DENIED.
Legal Standard
The treatment of expert testimony changed dramatically when the Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) made judges
1
instead of juries the principal gatekeeper of expert testimony. The case led to an
important amendment to Federal Rule of Evidence 702. The Rule now authorizes

testimony by a witness who is “qualified as an expert by knowledge, skill, experience,
training, or education” where (1) “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;” (2) “the testimony is based on sufficient facts or data”; (3) “the testimony is the
product of reliable principles and methods”; and (4) “the expert has reliably applied the
principles and methods to the facts of the case.” Downing v. Abbott Labs., 48 F.4th 793,

808-09 (7th Cir. 2022) (quoting Fed. R. Evid. 702).
There’s a three-step process in determining the admissibility of expert testimony
under Rule 702: I must (1) review the proffered expert’s qualifications; (2) then look at
the reliability of the expert’s methodology; and (3) determine its relevance. Kirk v. Clark
Equip. Co., 991 F.3d 865, 872 (7th Cir. 2021); Gopalratnam v. Hewlett-Packard Co., 877 F.3d

771, 779 (7th Cir. 2017).
Step one evaluates, as Rule 702 instructs, the expert’s “knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702. At step two, concerning
reliability, courts may evaluate the following non-exhaustive list of factors: “(1) whether
the proffered theory can be and has been tested; (2) whether the theory has been

subjected to peer review; (3) whether the theory has been evaluated in light of potential
rates of error; and (4) whether the theory has been accepted in the relevant scientific
community.” Gopalratnam, 877 F.3d at 779 (quotation and citation omitted). This Daubert
standard “applies to all expert testimony, whether it relates to areas of traditional
2
scientific competence or whether it is founded on engineering principles or other
technical or specialized expertise.” Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir.

2000).
Finally, at step three courts evaluate whether “the expert testimony will assist the
trier of fact.” Robinson v. Davol Inc., 913 F.3d 690, 695 (7th Cir. 2019). This entails an
evaluation of “whether the proposed scientific testimony fits the issue to which the
expert is testifying.” Id. One of my important roles as the gatekeeper is to be careful that
the opinion isn’t just some “ipse dixit” of the expert—telling me (or the jury) that

something is true just because the expert says so when it is unmoored from the
underlying data. United States v. Owens, 18 F.4th 928, 941 n. 5 (7th Cir. 2021).
When challenged, the party seeking to introduce the expert testimony has the
burden to show, by a preponderance standard, that the testimony meets the Daubert
standard. Downing, 48 F.4th at 809. Importantly, “[t]he rejection of expert testimony is

the exception rather than the rule, and the trial court’s role as gatekeeper is not intended
to serve as a replacement for the adversary system.” See Loeffel Steel Prods., Inc. v. Delta
Brands, Inc., 372 F.Supp. 2d 1104, 1110 (N.D. Ill. 2005) (quotation omitted).
I. Polycon’s Motion to Exclude Expert Testimony [DE 221]
Polycon seeks to exclude testimony from Fred Piercy, R&B’s President and

General Manager, and William Long, one of R&B’s owners. In its initial motion,
Polycon sought to exclude any testimony by Piercy and Long concerning “Polycon’s
profitability” and the profitability of Polycon’s contract to produce plastic bottles for its

3
customer Ecolab. [DE 221 at 7.] But in reply, as will be discussed below, Polycon
appears to expand the scope of its initial request to exclude.

R&B designated Piercy and Long as non-retained experts under Federal Rule of
Civil Procedure 26(a)(2)(C). [DE 223-3 at 3–12, 24–26.] R&B disclosed the following
opinion now at issue for Piercy:
Mr. Piercy will testify about Polycon’s contract with Ecolab based on his
experience running blow-molding facilities similar to Polycon’s while
working at Amcor and his experience contracting for the sale of blow-
molded containers. Based on the cost of resin, the cost of the equipment
needed to produce containers for ECOLAB, Polycon’s cost overruns on the
ECOLAB project unrelated to any machine issues, Polycon’s own history
with less-than-stellar production efficiency, and the contract pricing,
Polycon’s contract with ECOLAB was doomed to failure from the start and
would not have resulted in substantial profits for Polycon.

[Id. at 11.]
R&B disclosed the following opinion now at issue for Long:
Mr. Long may also testify about Polycon’s contract with Ecolab based on
his experience running blow-molding facilities similar to Polycon’s while
working at AMCOR and his experience manufacturing and selling blow-
molded containers. Based on the cost of resin, the cost of the equipment
needed to produce containers for ECOLAB, Polycon’s cost overruns on the
ECOLAB project unrelated to any machine issues, Polycon’s own history
with less-than-stellar production efficiency, and the contract pricing,
Polycon’s contract with ECOLAB was doomed to failure from the start and
would not have resulted in substantial profits for Polycon.

[Id. at 25–26.]
In its opening brief, Polycon argues that Piercy’s and Long’s opinions regarding
the profitability of Polycon’s contract with Ecolab are impermissible because they are
premised on guesswork. According to Polycon, neither witness took any steps to
“apprise themselves of the facts which could lead to a proper opinion”, and they did
4
not employ any scientific or analytical method to form their opinions on profitability.
[DE 221 at 6.]

In response, R&B relies heavily on Piercy’s and Long’s background and
experience in the manufacture and sale of plastic bottles, which is the methodology
used in forming their respective opinions. R&B also seeks to distinguish Piercy’s
testimony and concedes that it does not oppose Polycon’s request to preclude Piercy
from opining on the profitability of Polycon’s Ecolab contract so long as Piercy is
permitted to testify about a list of other topics. [DE 223 at 3–4.] Finally, R&B alleges that

Polycon failed to disclose certain information that limited Piercy’s and Long’s ability to
form their opinions.
In reply, Polycon does a head fake and changes its argument; it argues instead
that Piercy and Long, as non-retained expert witnesses, cannot testify as to opinions
formed after the commencement of litigation based upon information obtained during

litigation. [DE 229 at 2.] Instead of seeking to bar Long’s and Piercy’s testimony
concerning the profitability of the Ecolab contract, Polycon in reply now argues that “all
of Mr. Long’s and Mr. Piercy’s opinions regarding the Ecolab contract . . . are improper
and must be barred.” [Id. (emphasis added).] Finally, Polycon argues that R&B seeks for
Piercy to testify as to topics which were not included in his Rule 26(a)(2)(C) disclosure.

[Id. at 9–11.]
Let’s start with R&B’s argument that Piercy and Long were unable to calculate
expected or actual profit on the Ecolab contract because of Polycon’s failure to disclose
relevant information. This is a puzzling argument to raise at this hour given discovery
5
has long since closed. If Polycon indeed failed to provide R&B with information
necessary for Piercy and Long to form their expert opinions, then R&B should have

moved to compel the production of that information. R&B cannot sit on its hands in the
face of alleged discovery violations and then point to the absence of that discoverable
information to shore up perceived weaknesses with its experts’ methodologies. Given
R&B’s failure to move to compel this information, I will set this argument to the side.
There is no question that Piercy and Long are qualified to opine as experts on
plastic bottle manufacturing generally. Both have extensive backgrounds and

experience in that sector. [See DE 223-1 at 3–17; DE 223-10.] Nor is there any question on
the relevance of their opinions. Instead, Polycon challenges both the reliability of
Piercy’s and Long’s opinions (step two of the Daubert inquiry) and whether Piercy and
Long formed their opinions only after litigation (a Rule 26 issue). These are two related
but separate inquiries that guide the permissible scope of Piercy’s and Long’s

testimony. I’ll begin with the reliability challenge. Given R&B’s concession that it “does
not oppose Polycon’s motion to preclude Mr. Piercy from opining on the profitability of
Polycon’s contract with Ecolab”, [DE 223 at 4], this first section primarily, though not
entirely, concerns Long’s testimony.
Daubert inquiries often focus on “scientific” expert testimony, but the Daubert

inquiry applies to expert testimony based on “technical” or “other specialized
knowledge” too. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49 (1999).
Indeed, the Seventh Circuit has instructed that “[a]n expert’s testimony is not unreliable
simply because it is founded on his experience rather than on data.” Metavante Corp. v.
6
Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010); Smith, 215 F.3d at 718 (same).
Experience, however, is not a blank check for expert testimony. An expert testifying

based on their experience still must explain the methodologies and principles that
support their opinion; they “cannot simply assert a bottom line.” Metavante Corp., 619
F.3d at 761 (citation omitted). Thus, to the extent that Polycon argues Long failed to
“utilize any scientific or analytical method”, that argument is overbroad because both
experts may draw upon their experiences and specialized knowledge to form their
opinions.

Metavante Corp. provides an instructive example of an expert who properly
testified based on their industry experience rather than based on some scientific theory
or principle. In that case, the Seventh Circuit affirmed the decision to permit a
consultant designated as an expert in the “performance of financial technology
agreements” to testify as to the commercial reasonableness of the plaintiff’s

performance under a specific services agreement. 619 F.3d at 760. The Seventh Circuit
rejected the notion that the consultant’s testimony was conclusory ipse dixit. Rather, the
consultant was found to have properly used his experience in finance to apply criteria
that firms use to evaluate technological innovations. Id. at 761–62.
As detailed in Long’s Rule 26(a)(2)(C) disclosure, Long bases his opinion on his

experience running blow-molding facilities (which includes experience with
manufacturing and sales), the cost of resin, the cost of equipment needed to produce
Ecolab containers, Polycon’s cost overruns, Polycon’s manufacturing history, and the
contract pricing. [DE 223-3 at 25–26.] This disclosure mirrors the bases Long identified
7
during his deposition: Polycon’s record of operation and maintenance, substantial
capital investment and startup costs to implement new blow molding machines, the

timeline described in the Ecolab contract, Polycon’s staffing levels and technical
expertise, and the gross margins for the products Polycon contracted to produce for
Ecolab. [DE 223-1 at 21–23.] Long said he analyzed these factors “relying on my past
experiences on major capital investments of similar amounts, as well as much, much
higher” and concluded that Polycon’s contract “was not going to be a success and was
doomed to failure.” [Id. at 23.]

To determine whether Polycon made a profit on its Ecolab business, Long said “I
did not make any specific calculations.” [Id. at 24.] Polycon then asked Long about his
opinions on profitability for specific years. Concerning the profitability of Polycon’s
Ecolab business in 2017, Long said “I don’t have financials to give me specific insight,
but my guestimate, relying on my experience in the business, based on all the things I’m

aware of in terms of issues in the plant, up and down time, start, stops, et cetera, et
cetera, the . . . pricing that was in place, I doubt if in 2017 there was any profit generated
on – on that business.” [DE 221-3 at 2–3.] After 2017, Long testified that he had “less and
less” insight and knowledge about Polycon’s operations. [Id. at 3.] Accordingly, for
profitability estimates for 2018 through 2020, Long said the 2.5-gallon Ecolab product

“may have been profitable” but doubted that the 93 oz capsule product was profitable,
though he acknowledged that his profitability estimates for all three years were a
“guess.” [Id. at 3–4.]

8
Long acknowledged that he did not have information on the volume of Polycon’s
sales to Ecolab over later years after amendments to the original 2016 supply

agreement. [Id. at 4–5.] Long conceded that he did not know the cost of resin over the
course of Polycon’s contract with Ecolab, though he said he was able to calculate it
based on documents produced to R&B. [DE 223-1 at 25–26.] And though Long said he
reviewed the original Ecolab supply agreement and the first amendment to that
agreement, he had not seen the second and third amendments. [Id. at 27; DE 221-3 at 2.]
Central to the Parties’ dispute is the scope of Long’s testimony. I agree with

Polycon that if R&B designated Long to testify as to actual or expected profit
calculations on the Ecolab contract for 2017 through 2020, that would be impermissible.
Long, and R&B, admitted that he lacked the information necessary to perform specific
calculations, so instead he “guesstimated.” That is not a sufficiently reliable
methodology to perform profitability calculations. Cf. Tuf Racing Prods., Inc. v. Am.

Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) (permitting a CPA to calculate the
discounted present value of lost future earnings based on financial information and
assumptions provided by counsel).
R&B, however, argues that Long “was never asked to provide a calculation of
Polycon’s actual or expected lost profits” and instead seeks to testify as to “opinions he

formed in the course of the business relationship between Polycon and R&B based on
what he learned about Polycon’s manufacturing operations during that time.” [DE 223
at 3, 10.] The question is whether Long may testify, based on his experience, as to this
more general topic. Metavante Corp. counsels that such testimony would be permissible.
9
I understand Long to be leveraging his experience in the plastic bottle industry and his
experience and knowledge specific to his relationship with Polycon to opine in general

terms on the profitability of Polycon’s Ecolab contract. To the extent Long seeks to
testify as to specific profitability calculations or data, he is prohibited because he did not
perform any such calculations.
This does not end the inquiry for Long, however. Turning to Polycon’s next
argument, I must place additional limitations on the scope of Long’s testimony given
that much of the bases for his opinion were not known or available to Long until after

the commencement of litigation.
As non-retained hybrid fact/expert witnesses, Long and Piercy “must testify
from the personal knowledge they gained on the job.” Indianapolis Airport Auth. v.
Travelers Prop. Cas. Co. of Am., 849 F.3d 355, 371 (7th Cir. 2017); LeBlanc v. Mr. Bult’s, Inc.,
No. 15 C 6019, 2019 WL 3776957, at *4 (N.D. Ill. Aug. 12, 2019) (“Forming an opinion

based on a review of documents . . . after the fact is the province of a retained expert
witness under Rule 26(a)(2)(B)” and not a non-retained expert) (citation omitted).
Polycon argues that both Piercy and Long did not know the details of Polycon’s
contract with Ecolab necessary to form their opinions prior to commencement of the
present litigation. As a result, Polycon moves to bar “all of Mr. Long’s and Mr. Piercy’s

opinions regarding the Ecolab contract.” [DE 229 at 2.]
Long testified during his deposition that he was not personally involved in
R&B’s decision to sell the 4/11 and 8/16 machine to Polycon. [DE 229-3 at 2–6.]
However, Long went on to testify that he and Piercy were involved, starting in early
10
2017, in troubleshooting Polycon’s problems operating the R&B machines and in getting
products qualified for sale to Ecolab. [Id. at 6.; DE 223-2 at ¶8.] This means Long is

prevented from opining that Polycon’s April 2016 contract with Ecolab was “doomed to
failure from the start”, [DE 223-3 at 26], because it appears that Long had no personal
involvement or knowledge of the details of that contract prior to litigation. See LeBlanc,
2019 WL 3776957, at *4.
But Long was clearly involved in Polycon’s attempts to qualify and produce
Ecolab products after 2017 and before the present litigation began in 2019. If during that

time Long received information that would allow him to generally opine on the
likelihood that the Ecolab contract would be a profitable one, he will be permitted to
testify on that subject. But a proper foundation will have to be laid first. I cannot now
determine the admissibility of his testimony beyond that. It is enough to say that he will
be limited to the scope of facts he learned and opinions he formed during his

interactions with Polycon prior to litigation and which are fairly raised in his Rule 26
disclosure.
Similarly, by the time of his deposition, Piercy had never seen nor read Polycon’s
contract with Ecolab and did not know the price, profit margin, or volume of sales for
the two products Polycon sold to Ecolab. [DE 221-2 at 2–5.] Like Long, Piercy, as a non-

retained, hybrid fact/expert witnesses, “must testify from the personal knowledge [he]
gained on the job.” Indianapolis Airport Auth., 849 F.3d at 371; LeBlanc, 2019 WL 3776957,
at *4. In response to Polycon’s motion, R&B now states it “does not expect to elicit any
testimony from Mr. Piercy regarding his opinions on whether Polycon’s contract with
11
Ecolab would have been profitable.” [DE 223 at 3.] I accept that concession and the
point is therefore moot: Piercy will be prohibited from testifying about the profitability

of Polycon’s specific Ecolab contract.
Nevertheless, R&B continues to seek to elicit four categories of information from
Piercy: (1) how the cost of resin factors into profitability of a plastic bottle manufacturer;
(2) the timeframe for a manufacturer to get a new line up and running and bottles
qualified; (3) the competitiveness of the plastic bottle market and how Polycon would
likely have to price its products to win the business of a customer like Ecolab; and (4)

how a large capital project like Polycon’s business with Ecolab would affect the
profitability of the overall project. [Id. at 3–4.]
These categories of information are generalized enough that, based on Piercy’s
background and experience in the plastic bottle manufacturing industry, he is likely
qualified to discuss them. And while Rule 37 prohibits a party who fails to provide

information as required by Rule 26(a) to use that witness at trial, at this stage the
discussion is too abstract to make a clear ruling. Certain of the four topics of
information R&B in its response seeks to permit Piercy to testify about appear within
the scope of his Rule 26(a)(2)(C) disclosure. At this stage, I find it to be a more practical
outcome to defer a broad ruling and instead permit Polycon to raise specific objections

to the scope of Piercy’s testimony during trial. As with Long, Piercy’s testimony will be
guided by the limits of his Rule 26(a)(2)(C) disclosure and his knowledge prior to the
commencement of litigation (given his designation as a non-retained expert). I will
confront challenges to the scope of his testimony as they arise during trial.
12
To sum up: to the extent that Piercy and Long have knowledge of Polycon’s
contract with Ecolab based on their personal knowledge from R&B’s interactions with

Polycon, they are of course permitted to testify as to that knowledge as fact witnesses.
Long and Piercy may also draw upon their experience and expertise in plastic
manufacturing to opine on the factors that would likely make the Ecolab deal successful
or not. But as discussed above, their testimony will be limited to what was in their Rule
26 disclosures or matters reasonably to be inferred from it.
II. R&B’s Motion to Exclude Polycon’s Damages Expert [DE 244]

In its motions to exclude, R&B launches a two-pronged attack on Polycon’s
efforts to prove its alleged damages. First, R&B moves to exclude the testimony of
Polycon’s damages expert Dr. Gerald Lynch. Second, R&B moves to exclude a
spreadsheet relied upon by Dr. Lynch to form his opinions and testimony from the
drafter of that spreadsheet, Jill Contro (Polycon’s former Controller). The motions rely

upon much of the same facts and background.
R&B seeks to exclude the testimony of Dr. Lynch. [DE 168, 244.]1 I held a hearing
on the motion on December 11, 2024. [DE 256.] In ruling on the current motion, I
considered R&B’s prior iteration of its motion [DE 168] as well as relevant portions of
that hearing.

R&B alleges that Dr. Lynch’s testimony fails to meet the reliability standards of
Federal Rule of Evidence 702 and Daubert because Lynch used his credentials to

1 R&B originally moved to exclude Dr. Lynch’s testimony in November 2023 [DE 168], but I denied this
motion without prejudice to be refiled at the appropriate time. [DE 236 at 17–18.]
13
“launder[ ] the inadmissible speculation” of Polycon. [DE 170 at 2.] R&B challenges
Lynch’s process and the data he relied upon. First, R&B says that Lynch relied upon

data “spoon-fed to him” by Contro and “did nothing to independently vet or verify”
that information. [DE 168 at 1 (emphasis in original).] This information included (1)
profit margins; (2) projected sales volume; and (3) efficiency rates for Polycon’s
manufacturing processes. Much of the information Lynch relied upon came from a
spreadsheet prepared by Contro (more on that in the next section). According to R&B,
Lynch did not review the source data for the spreadsheet and, instead, simply accepted

Contro’s calculations. [DE 170 at 6.] Relatedly, R&B takes issue with Lynch’s reliance on
Berle Blitstein’s (Polycon’s President) assertions concerning the market for the 2.5-
gallon stock container product. [Id. at 7–8.] Finally, R&B argues that the data Contro
provided to Lynch was either false or not supported by the evidence. [Id. at 10–18.]
Polycon responds that experts, such as Lynch, can offer opinions based upon

financial information provided to them by a party and even by a party’s counsel. [DE
205 at 2.] Moreover, Polycon argues that R&B’s arguments regarding the validity of the
data Lynch used goes to the weight of the evidence (a jury issue) and not the
admissibility of his opinion. [Id.] Polycon also defends the validity of the data prepared
by Contro, and in turn used by Lynch, concerning profit margins, projected sales

volumes, and manufacturing line efficiency. [Id. at 7–9.]
During the December 11, 2024, hearing on this motion, R&B focused on three
alleged problems with Lynch’s report that R&B argues illustrate its challenge to Lynch’s
methodology and data: (1) Lynch copied Contro’s calculation of increased costs of
14
production that used an inaccurate estimate of the number of bottles actually sold; (2)
Lynch’s opinion that Polycon lost $4.7 million in profits because Ecolab did not renew

its contract with Polycon; and (3) Lynch’s opinion concerning an alternative market for
the 2.5 gallon stock container product. [DE 258 at 10–18.] I will summarize below the
discussion on these examples R&B selected.
Lynch calculated that Polycon suffered approximately $3.6 million in lost profits
due to higher costs of production. [DE 205-2 at 7–8.] This figure is the sum of higher
costs to produce the 93 oz capsule and 2.5-gallon Ecolab products. Concerning the 93 oz

capsule, the higher costs of production include two manufacturing lines: “Line 2”
(which used the new R&B machines) and “Line 11” (which used Polycon’s existing
older and slower machines). According to Polycon, the newer machines on Line 2
produced bottles at a slower rate than contracted for, so Polycon also had to produce
bottles on its older Line 11 machines to meet required demand. Lynch testified that the

slower rate of production also resulted in higher costs of production because of
additional overhead. [DE 258 at 99–104.]
To formulate this opinion, Lynch testified that he used figures supplied by
Contro for the expected and actual costs to produce one thousand units of each product.
[Id. at 98–99.] Lynch said Contro calculated the cost per thousand by using historical

cost records and projections for labor, machine output rate, and materials (“Actual
Achieved” on Table 1 of Lynch’s report) compared to R&B’s advertised, and (according
to Polycon) expected, output per minute rates (“Per Spec” on Table 1 of Lynch’s report).
[Id. at 99–101; DE 205-2 at 7.] For the annual production volume figures, Lynch used
15
15.8 million for how many capsules the Line 2 machines should have produced (which
he said was a halfway point between the minimum and maximum output figures in the

Ecolab contract) and 11.8 million for how many capsules the machines actually
produced. [DE 258 at 100–02; DE 205-2 at 7.]
On cross examination, R&B pointed out that Lynch copied and pasted Tables 1,
2, and 3 in his report from a spreadsheet provided by Contro that she had prepared in
2018. [DE 258 at 122.] Lynch noted, however, that the information in Contro’s
spreadsheet was “exactly . . . the kind of information [he] would need” to prepare his

report and would have asked for anyway. [Id. at 123.] Lynch did not look at source
documents to verify Contro’s work. [Id. at 123–24.] Lynch trusted the numbers Contro
provided and said exploring the source data was “not a standard approach that I think I
or any other economist would take.” [Id. at 124.] Importantly, Lynch did not know that
the 11.8 million production figure listed for “Actual Achieved” of the 93 oz capsules in

Contro’s spreadsheet, and incorporated into Table 1 of his report, was a calculation by
Contro and not the true production number. [Id. at 130.]
R&B also highlighted that Lynch assumed that Polycon would have been able to
renew its contract with Ecolab for another three years past the initial 2016 – 2019 term.
[Id. at 148–49.] Lynch confirmed that he used 14.5 million in per year sales for the 93 oz

capsules to estimate the lost profits that stemmed from the loss of an additional three-
year renewal by Ecolab. [Id. at 152.] Lynch acknowledged that this figure did not
include the impact of the COVID-19 pandemic, which decreased profit margins in the
plastic bottle industry. [Id. at 150.] Lynch also conceded that he did not know the actual
16
volume of Polycon’s sales to Ecolab during the three-year extension period he
estimated. [Id. at 153–54.]

Concerning Lynch’s opinion for lost revenue and profit on the 2.5-gallon stock
container, Lynch testified that Blitstein told him Polycon could sell 9 million bottles per
year for three years (for a total of 27 million bottles) based on his “knowledge of the
market.” [Id. at 96.] Lynch incorporated this figure (“Remaining Capacity”) into Table 3
of his report. [DE 205-2 at 11.] Lynch acknowledged the lack of concrete data to support
Blitstein’s statement, so he cut the total 27 million bottle estimate over three years by

two thirds down to a total of 9 million over three years. [DE 258 at 96.] Lynch
acknowledged that cutting the number by two thirds was not based on economic or
market analysis or any calculations. [Id. at 136.] Lynch noted: “I don’t have a cost per
bottle for other producers, but it was based on the information that they felt they had
that they said they thought they could sell that amount.” [Id. at 98.] Lynch then used the

sale price and profit margin provided by Contro to calculate the lost profits for that
product. [Id. at 96–97.]
During the hearing, given its centrality to this dispute, I explicitly asked Lynch to
explain his methodology and his use of the figures Contro provided. [Id. at 160.] Lynch
acknowledged that much of the data he would typically have asked for to prepare his

report, such as profit margin and expected sales figures, had already been pulled
together by Contro. [Id. at 160–61.] Lynch said he then analyzed the figures already
prepared by Contro and translated them to prose format in his report. [Id. at 161–62.]

17
He described this as a standard approach economists use. [Id.] Indeed, Lynch agreed
with the characterization of his work as a confirmation of Contro’s work. [Id. at 162.]

This motion requires an examination of the nuances of challenging an expert’s
methodology versus the accuracy of their data. This is a difficult line to walk. “If the
proposed expert meets the Daubert threshold of relevance and reliability, the accuracy
of the actual evidence is to be tested before the jury with familiar tools of vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (internal citation

omitted). And “[a]s a general rule, questions relating to the bases and sources of an
expert’s opinion affect only the weight to be assigned that opinion rather than its
admissibility.” Loeffel Steel Prod., Inc., 372 F. Supp. 2d at 1119. In fact, “[a]n expert is of
course permitted to testify to an opinion formed on the basis of information that is
handed to rather than developed by him.” Matter of James Wilson Assocs., 965 F.2d 160,

172 (7th Cir. 1992). That said, while an expert may to some extent rely upon information
furnished by a party, they still must employ some methodology to analyze that data,
otherwise their testimony is nothing more than improper ipse dixit. Manpower, Inc. v. Ins.
Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013).
R&B categorizes this situation as “one of the rare instances where cross-

examination will not suffice” and exclusion is warranted. [DE 208 at 3.] According to
R&B, because Lynch’s methodology “was simply repeating information supplied to
him by others, the Court must specifically inquire into the reliability of the foundation”
for his opinions and whether they are supported by “independent bases.” [Id. at 4.]
18
R&B’s counsel during the December 11, 2024, hearing acknowledged the general
premise that Lynch is allowed to accept the assumptions provided by Polycon but

sought to distinguish this established rule by arguing that the assumptions Lynch relied
upon were “speculative or wildly-unsupported hypothetical guesses.” [DE 258 at 9.]
In its initial briefing, R&B took issue with the mere fact of Lynch’s admitted
reliance on data provided to him by Polycon. But the law is clear that an expert’s use of
data provided by a party, and even by a party’s counsel, is permissible and not on its
own enough indicia of an unreliable methodology. For example, in Tuf Racing Products,

Inc. the Seventh Circuit approved of an accountant’s use of “financial information
furnished by [the plaintiff] and assumptions given him by counsel on the effect of the
termination on [plaintiff’s] sales” to calculate the discounted present value of lost future
earnings. 223 F.3d at 591.
R&B later shifts the focus of its argument to assert that “the issue here is less that

Lynch relied on information from employees”, but rather that Lynch did nothing to
independently verify that information. [DE 208 at 8.] To support this claim, R&B argues
that the data Lynch relied on is false or unsupported by the evidence. So, to what extent
must an expert verify the accuracy of the information provided to them in forming their
opinions? This is a messy area of law. It is indeed difficult to square comments from the

Seventh Circuit that “[a] Daubert inquiry is not designed to have the district judge take
the place of the jury to decide ultimate issues of credibility and accuracy”, Lapsley, 689
F.3d 802 at 805, with district court cases cited by R&B that require experts to
“independently verify the reliability” of data used to form their opinions. See State Farm
19
Fire & Cas. Co. v. Electrolux Home Prods., Inc., 980 F.Supp.2d 1031, 1049 (N.D. Ind. 2013);
Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F.Supp.2d 870, 887–93 (E.D. Wis. 2010).

Before diving deeper into this question, I first address the argument R&B raised
during the December 11, 2024, hearing that a December 2023 Amendment to Rule 702
dramatically changed the landscape of a court’s responsibilities in a Daubert inquiry.
[DE 258 at 168–71.] According to R&B, courts now must ensure that experts verified the
accuracy of the data underlying their opinions before admitting that testimony. [Id. at
168–69.] R&B described the 2023 Amendment as abrogating substantial case law in this

Circuit and agreed with the suggestion that the 2023 Amendment to Rule 702 is a sea
change to the Daubert inquiry.
The December 2023 Amendment added language to Rule 702 to clarify that the
proponent of expert testimony must satisfy Rule 104(a)’s requirement to demonstrate
that it is more likely than not that the proffered testimony meets the admissibility

requirements. The Advisory Committee explained that “many courts have held that the
critical questions of the sufficiency of an expert’s basis, and the application of the
expert’s methodology, are questions of weight and not admissibility”, which is
“incorrect.” Fed. R. Evid. 702 Advisory Committee Notes to 2023 Amendments. The
Committee reiterated “that arguments about the sufficiency of an expert’s basis [do not]

always go to weight and not admissibility.” Id.
R&B points to West v. Home Depot U.S.A., Inc. as evidence of the supposed sea
change in the law. No. 21 CV 1145, 2024 WL 2845988 (N.D. Ill. June 5, 2024). In that case,
the court opined on the 2023 Amendment to Rule 702 when considering a motion to
20
reconsider its prior ruling excluding expert testimony from three doctors. Id. at *2. The
court interpreted the Amendment as instructing courts to evaluate whether it was more

likely than not the expert’s opinions were based on sufficient facts or data. Id. at *3 (“A
proper methodology is not enough if the expert did not rely on sufficient facts or
data.”). The court concluded that the plaintiff had not met her burden with respect to
the three doctors in question because they relied, in part, on inaccurate and
“affirmatively misleading” medical histories. Id.
I see West as a unique situation that does not squarely fit R&B’s critiques of

Lynch’s data. Of course, I agree with West that the Rule 104(a) preponderance standard
applies to evaluation of an expert’s facts and data. That is a plain statement of the
amended text of Rule 702. But in West the experts relied upon “affirmatively
misleading” information provided by the plaintiff in their medical history. It’s a stretch
to say that is the same situation here. As I understand it, R&B disputes Lynch’s reliance

on Contro’s calculations because R&B views the underpinnings of that data as shaky.
But there is nothing to suggest that Contro’s data was affirmatively misleading.
Having conducted additional research, I am not convinced, as R&B suggests, that
the 2023 Amendment is a sea change to the Rule 702 analysis of the sufficiency of an
expert’s facts or data. At best, the case law in this Circuit post December 2023 suggests a

ripple on the surface. See Dennis v. Andersons, Inc., No. 20-cv-4090, 2024 WL 4433471
(N.D. Ill. Oct. 7, 2024). Indeed, the Advisory Committee itself noted:
Nothing in the amendment imposes any new, specific procedures. Rather,
the amendment is simply intended to clarify that Rule 104(a)’s requirement
applies to expert opinions under Rule 702. Similarly, nothing in the
21
amendment requires the court to nitpick an expert’s opinion in order to
reach a perfect expression of what the basis and methodology can support.
The Rule 104(a) standard does not require perfection. On the other hand, it
does not permit the expert to make claims that are unsupported by the
expert’s basis and methodology.

Fed. R. Evid. 702 Advisory Committee Notes to 2023 Amendments. As the Committee
Notes make clear, the Amendment clarifies that the Rule 104(a) preponderance
standard applies to Rule 702 and that courts cannot put their head in the sand when it
comes to evaluating the sufficiency of an expert’s bases for their opinions. As an aside,
R&B’s reliance on case law that predates the 2023 Amendment further supports the
understanding that courts in this Circuit are still operating under largely the same
framework as before the Amendment.
Having established that there has been no sea change to the Rule 702 / Daubert
inquiry since December 2023, I return to the question of a court’s duty to examine the
sufficiency of an expert’s facts or data. As I see it, there are two separate inquires here.
First, whether Lynch failed to independently verify the figures he received from Contro
in her spreadsheet. And second, whether Lynch failed to verify the sufficiency of
Blitstein’s comments concerning the market for 2.5-gallon stock bottles (a product that
Polycon did not manufacture and sell specifically for Ecolab). I begin with the first
question of whether, and to what extent, Lynch had a duty to verify the data Contro

provided.
In State Farm, the court adopted the findings of a magistrate judge who struck
certain opinions of an expert as based on an unreliable methodology. 980 F.Supp.2d at
1041. The expert witness’s analysis compared two different data sources for dryer fires.
22
She compared the total number of dryer fires (for all manufacturers nationwide)
reported in a national report with the self-reported number of fires involving the

defendant manufacturer’s dryer based on information reported to the manufacturer. Id.
at 1048–49. The expert admitted she did not review any other documents or examine the
nature of the sources that reported the fires to the manufacturer. Id. at 1049. In fact, the
expert seems to have primarily, or even entirely, relied upon internal and outside
counsel for her information and not any of the defendant’s employees (who were not
lawyers). Id. at 1049 n.6. The court determined that this failure to “independently verify

the reliability” of the manufacturer data rendered her statistical analysis unreliable. Id.
at 1049. The court determined that the selection of two different types of data also
meant that her statistical analysis was flawed. Id.
In Fail-Safe, the court found the opinions of two expert witnesses unreliable. One
of those experts relied on a single, undated PowerPoint slide that stated the company’s

hopeful market demand and its assumptions on how quickly the product would grow
on the market. 744 F. Supp. 2d at 887–88. The court concluded that the expert had
conducted no independent analysis of the data or the market for the product and was
“merely parroting” hopeful projections by company executives. Id. at 888–89.
Additionally, the court criticized the expert for “in no way scrutiniz[ing] [defendant’s]

assumptions.” Id. at 888.
Polycon seeks to distinguish Fail-Safe and similar cases because the “analytical
method was suspect.” [DE 205 at 10.] That is true, but these cases were also explicit
about their focus on the experts’ failure to scrutinize assumptions and suspect data
23
provided to them by parties. However, there are some important differences in Lynch’s
use of Contro’s data and the data relied upon by experts in Fail-Safe and in State Farm.

For starters, the figures Contro provided Lynch were not merely untethered, hopeful
projections by Polycon executives (as in Fail-Safe) nor did Lynch parrot client and
attorney fed data without any understanding of the basis for that information (as in
State Farm). The data Contro supplied was grounded in the Ecolab supply contract,
specifications provided by R&B concerning their machines, and historical sales
performance and profit margins. That Contro had already compiled the information

Lynch said he would pull together in the normal course of conducting his economic
analysis does not somehow make the underlying data unreliable. And while Lynch did
not himself appear to review much of the source data for Contro’s calculations, unlike
in State Farm he discussed the source of this information directly with Contro and
confirmed that she would verify its accuracy. [DE 258 at 122–25.]

R&B indeed raises interesting questions concerning some of Contro’s and
Lynch’s calculations and assumptions that formed the basis of Lynch’s report. But that
is what vigorous cross-examination is all about. At this point, I cannot say that the data
is outright incorrect, intentionally misleading, or baseless. I therefore conclude that
Polycon has satisfied its burden to prove that Lynch’s testimony, as it relates to the

information provided by Contro, is more likely than not based on sufficient facts or
data. I find the data in Fail-Safe and State Farm to be more speculative and baseless than
the data Contro provided to Lynch. To the extent that these cases and others took a
more exacting approach to review of an expert’s data, I decline to do so given the
24
preponderance standard, the Advisory Committee Notes to the 2023 Amendment to
Rule 702, and the clear Seventh Circuit instruction that evaluation of whether an expert

used the “best” data as well as their conclusions are matters for the jury. Manpower, Inc.,
732 F.3d at 808 (“[A]rguments about how the selection of data inputs affect the merits of
the conclusions produced by an accepted methodology should normally be left to the
jury.”).
Lynch’s reliance on Blitstein’s statements is a different story. Lynch relied on
Blitstein’s comments alone concerning the existence and scope of the market for the 2.5-

gallon stock container products. Lynch testified that he did not see any documents that
analyzed the existence of such a market, did not know of any specific customers, and
had not seen any marketing material Polycon would have used for such a market. [DE
258 at 135–38.] Unlike Contro’s data for the Ecolab products, Blitstein’s loose comments
on the 2.5-gallon stock container market were not guided by any specific supply

agreement or historical sales data. Moreover, Lynch conceded that he never conducted
any independent analysis of the 2.5-gallon stock bottle market to verify the information
Blitstein provided. [Id. at 136–38.] And I agree with R&B that the two out of circuit cases
cited by Polycon are not persuasive because Blitstein provided no historical sales
information for the 2.5-gallon stock bottles. [DE 208 at 6.] In sum, I largely deny R&B’s

motion but will grant it in part for the limited purpose of excluding Lynch’s testimony
concerning lost profits for the 2.5-gallon stock container product.
III. R&B’s Motion to Exclude Expert Testimony and Spreadsheet Prepared by
Polycon’s Former Controller [DE 253]

25
Finally, as the second prong of its challenge to Polycon’s ability to present
evidence of damages, R&B challenges the admissibility of former Polycon Controller Jill

Contro’s testimony and a spreadsheet she prepared concerning production costs and
damage estimates. This is the same spreadsheet discussed above in R&B’s challenge to
Lynch’s opinions.
R&B seeks to exclude Contro’s spreadsheet as inadmissible hearsay. According
to R&B, the spreadsheet is an out of court statement offered for the truth of the
damages’ calculations contained therein. [DE 253 at 8.] And because R&B alleges that

Contro’s spreadsheet “was specifically made for Polycon to use in this case; it was not
prepared in the ordinary course of Polycon’s business”, R&B asserts that the business
record hearsay exception does not apply. [Id. at 2–3, 8–9.] R&B also argues that Polycon
did not disclose Contro as an expert witness, so she should be barred from offering any
expert opinions at trial. [Id. at 9–10.]

As to the last point, Polycon tells me that Contro is a fact witness, not an expert
witness. Polycon says Contro will testify about her personal knowledge of the events at
issue in this case and the details of the calculations she supplied to Lynch. [DE 255 at 6.]
In short, Contro will not be providing any opinion testimony and so nothing more need
be said about it. Instead, the real issue is whether Contro’s spreadsheet is admissible as

a business record under FRE 803(6). I find that it is. Polycon also argues that Contro’s
spreadsheet is admissible as a summary under FRE 1006. But because I find that the
document is admissible under FRE 803(6), I need not address this argument.

26
No one disputes that Contro’s spreadsheet is hearsay: it is indeed an out of court
statement offered to prove the truth of the matter asserted (the data and calculations

contained therein). But Rule 803(6) is an exception to the rule prohibiting hearsay
commonly referred to as the “business records” exception. The Rule states as follows:
(6) Records of a Regularly Conducted Activity. A record of an act, event,
condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from
information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether or not
for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6).
The Parties primarily disagree as to whether Contro prepared this spreadsheet in
anticipation of litigation. This dispute asks me to evaluate whether subparts (A), (B),
and (C) of Rule 803(6) are satisfied. R&B argues that Contro created the spreadsheet in
“June 2018 to provide damages allegations for her boss, David Blitstein, who then cited
those figures in a letter threatening R&B with litigation.” [DE 259 at 2.] Polycon
responds that Contro created the spreadsheet during the course of her duties as
controller as an “analytical tool to assess profitability of the bottles produced on
[Polycon’s machines].” [DE 273 at 3.]
During the December 11 hearing, I directly questioned Contro as to the timeline
of creation, purpose, and usage of the spreadsheet. Contro prepared the spreadsheet in
27
June 2018. [DE 258 at 52.] This was during the three-year supply contract with Ecolab
and prior to the present litigation. Contro credibly testified that she created this

spreadsheet “through the ordinary course of business and financials to know how much
the bottle would cost to produce versus what the selling price was and how much we
were actually attaining.” [Id. at 35.] Contro acknowledged that she would not have done
this analysis if the machines were “running perfect[ly]”, but she collected this
information as part of her duty as controller to understand the impact of Polycon’s
financial results. [Id. at 45.] Contro said she conducted this analysis at “multiple points”,

including before and during operation of the machines Polycon purchased from R&B.
[Id. at 35] And Contro testified that she prepared this information in part so that
Polycon (through Blitstein) could approach Ecolab to negotiate a price increase under
the supply agreement. [Id. at 45.]
I find that Contro created her spreadsheet during the course of a regularly

conducted business activity. Contro’s testimony was clear as to the timing and purpose
for which she created this document. This was not a “made for litigation” spreadsheet
as R&B asserts. Contro credibly testified that she prepared the spreadsheet for two
business purposes: (1) assessing Polycon’s financial situation by examining the
profitability of its R&B-created machine production lines and (2) negotiating a price

increase with Ecolab. Cf. King v. Ind. Harbor Belt R.R., Case No. 2:15-CV-245 JD, 2018 WL
5982134, at *3 (N.D. Ind. Nov. 13, 2018) (rejecting admissibility as a business record
where plaintiff presented no argument that his occupation required him to make the
recording at issue and his counsel admitted that the recording was created for
28
litigation). That Blitstein later cited the figures contained in Contro’s spreadsheet in a
July 26, 2018, letter to R&B that alleged a breach of contract and warranty does not

change the spreadsheet’s initial purpose. [See DE 255-8 at 4–6]
Nor is there any problem that Contro relied upon information reported to her by
others that she incorporated into her report. “The business records exception to the
hearsay rule clearly does not require that the witness have personal knowledge of the
entries in the records. The witness need only have knowledge of the procedures under
which the records were created.” U.S. v. Wables, 731 F.2d 440, 449 (7th Cir. 1984). Contro

relied upon scrap analysis that was regularly included in production reports, costs due
to delayed start up time that were tracked by Polycon’s CFO, and machine downtime
hours that were regularly kept business records. [See DE 273-2 at 4–5; DE 273-3 at 7–8.]
Contro, as the custodian of the spreadsheet, has adequately demonstrated at the
December 11 hearing and in her December 9, 2022, declaration that the criteria for Rule

803(6) have been satisfied. [DE 137-10 at 2–5.]
Accordingly, R&B’s motion to exclude Contro’s spreadsheet is denied. R&B’s
separate request to exclude Contro from offering expert testimony at trial is also denied
given that Contro has been designated as a fact witness only and R&B has not identified
any opinions that it argues exceed the scope of a fact witness.

Conclusion
For the aforementioned reasons, Polycon’s motion to exclude [DE 221] is
GRANTED IN PART and DENIED IN PART; R&B’s motion to exclude concerning

29
Lynch [DE 244] is GRANTED IN PART and DENIED IN PART; and R&B’s motion to
exclude Contro and her spreadsheet [DE 253] is DENIED.

SO ORDERED.
ENTERED: March 26, 2025.

/s/ Philip P. Simon
UNITED STATES DISTRICT JUDGE

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10831558. Public record. Not legal advice.