# Wolff v. Tomahawk Manufacturing

> District Court, D. Oregon · May 28, 2025

URL: https://www.frixlaw.com/law-library/cases/11060877

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11060877

## How later opinions describe it (automated extraction)

- noting that an expert can be qualified based on “professional studies or personal experience”
- affirming exclusion of an accounting expert who “would do no more than make basic arithmetical computations with figures supplied to him by counsel” because it would be “expert testimony concerning matters clearly within the realm of jurors’ comprehension”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JAMES B. WOLFF, Case No. 3:21-cv-880-SI

Plaintiff, TENTATIVE OPINION AND ORDER
ON DEFENDANT’S MOTION TO
v. EXCLUDE PLAINTIFF’S EXPERT
WITNESSES
TOMAHAWK MANUFACTURING,

Defendant.

Stephen Healy, LAW OFFICE OF STEPHEN HEALY, 9450 SW Gemini Drive, PMB 79802,
Beaverton, OR 97008, and Sean Darshan Healy, LAW OFFICES OF STEPHEN HEALY, 1390
N. McDowell Blvd., Suite G, Petaluma, CA 94952. Of Attorneys for Plaintiff James B. Wolff.

David W. Silke and Eliza Whitworth, GORDON REES SCULLY MANSUKHANI LLP, 701 Fifth
Avenue, Suite 2100, Seattle, WA 98104; Aaron T. Olejniczak, ANDRUS INTELLECTUAL
PROPERTY LAW, LLP, 790 N Water Street, Suite 2200, Milwaukee, WI 53202; Steven L. Levitt
and Trevor M. Gomberg, LEVITT LLP, 129 Front Street, Mineola, New York 11501. Of Attorneys
for Defendant Tomahawk Manufacturing.

Michael H. Simon, District Judge.

Plaintiff James B. Wolff (“Wolff”) sues his former employer, Defendant Tomahawk
Manufacturing (“Tomahawk”). Before the Court is Tomahawk’s motion to exclude Wolff’s
expert witnesses under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals, Inc. (“Daubert”), 509 U.S. 579 (1993), and its progeny. In preparation for
discussion at the upcoming final pretrial conference, the Court tentatively grants in part and
denies in part Tomahawk’s motion.
LEGAL STANDARDS
A. Expert Testimony
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of
Evidence, as interpreted by Daubert and its progeny. 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 the proponent demonstrates to the court that
it is more likely than not that:
(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’s opinion reflects a reliable application of the
principles and methods to the facts of the case.
Fed. R. Evid. 702.
“The question of admissibility only arises if it is first established that the individuals
whose testimony is being proffered are experts in a particular . . . field.” Daubert v. Merrell Dow
Pharms., Inc. (“Daubert II”), 43 F.3d 1311, 1315 (9th Cir. 1995). Rule 702 “contemplates a
broad conception of expert qualifications” and is “intended to embrace more than a narrow
definition of qualified expert.” Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th
Cir. 1994). Thus, a witness may be qualified as an expert upon demonstrating at least a “minimal
foundation of knowledge, skill, and experience.” Hangarter v. Provident Life & Accident
Ins., 373 F.3d 998, 1016 (9th Cir. 2004) (emphasis in Hangarter) (quoting Thomas, 42 F.3d
at 1269).
When determining the admissibility of expert testimony, a district court’s role under
Rule 702 is not to be a “fact finder” but a “gatekeeper.” Elosu v. Middlefork Ranch Inc., 26
F.4th 1017, 1024 (9th Cir. 2022) (quoting Primiano v. Cook, 598 F.3d 558, 568 (9th Cir. 2010)).
To fulfill its role as gatekeeper, a district court must “ensure that the testimony is both relevant
and reliable” before it deems such testimony admissible. United States v. Valencia-Lopez, 971

F.3d 891, 898 (9th Cir. 2020) (cleaned up). A court’s gatekeeping role “applies not only to
testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting
Fed. R. Evid. 702). By acting as a gatekeeper for all proffered expert testimony, a court “make[s]
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 152.
Courts “must ensure that the proposed expert testimony is relevant to the task at hand,”
which is sometimes referred to as the “fit” requirement. Daubert II, 43 F.3d at 1315 (quotation

marks omitted). Although the “[t]he relevancy bar is low,” Messick v. Novartis Pharms.
Corp., 747 F.3d 1193, 1196 (9th Cir. 2014), to be sufficiently relevant, the expert opinion
evidence must “logically advance[] a material aspect of the proposing party’s case.” Daubert
II, 43 F.3d at 1315; see also Primiano, 598 F.3d at 565 (“Expert opinion testimony is relevant if
the knowledge underlying it has a valid connection to the pertinent inquiry.” (quoting United
States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)). Rule 702 also requires opinion
evidence to be “helpful” to the trier of fact, which is another way of describing a “relevance
inquiry.” Tekoh v. County of Los Angeles, 75 F.4th 1264, 1265 (9th Cir. 2023). “Expert
testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”
Daubert, 509 U.S. at 591 (quotation marks omitted). Further, “[u]nder Rule 702, expert
testimony is helpful to the jury if it concerns matters beyond the common knowledge of the
average layperson and is not misleading.” Moses v. Payne, 555 F.3d 742, 756 (9th Cir. 2009).
“Under Daubert and its progeny, including Daubert II, a district court’s inquiry into
admissibility is a flexible one.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th
Cir. 2014).

Turning to the reliability requirement, “[t]he question of reliability probes whether the
reasoning or methodology underlying the testimony” is valid. Murray v. S. Route Mar. SA, 870
F.3d 915, 922 (9th Cir. 2017) (quotation marks omitted). To aid a court’s evaluation of
reliability, the Supreme Court in Daubert “identified four factors that may bear on the analysis:
(1) whether the theory can be and has been tested, (2) whether the theory has been peer reviewed
and published, (3) what the theory’s known or potential error rate is, and (4) whether the theory
enjoys general acceptance in the applicable scientific community.” Id. (citing Daubert, 509 U.S.
at 593-94).
“Concerning the reliability of non-scientific testimony,” however, “the ‘Daubert factors

(peer review, publication, potential error rate, etc.) simply are not applicable to this kind of
testimony, whose reliability depends heavily on the knowledge and experience of the expert,
rather than the methodology or theory behind it.’” Hangarter, 373 F.3d at 1017 (emphasis in
Hangarter) (quoting United States v. Hankey, 203 F.3d 1160, 1169 (2000)). The Supreme Court
also confirmed that the Daubert factors are “meant to be helpful, not definitive,” and “may or
may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s
particular expertise, and the subject of his testimony.” Kumho Tires, 526 U.S. at 150, 151.
“[W]hether Daubert’s specific factors are, or are not, reasonable measures of reliability in a
particular case is a matter that the law grants the trial judge broad latitude to determine.” Id.
at 153.
“[E]xpert testimony may not be admitted unless the proponent demonstrates to the court
that it is more likely than not that the proffered testimony meets the admissibility requirements
set forth in the rule.” Fed. R. Evid. 702 advisory committee’s note to 2023 amendment. “It is the
proponent of the expert who has the burden of proving admissibility.” Lust ex rel. Lust v. Merrell
Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996). Admissibility of the expert’s proposed

testimony must be established by a preponderance of the evidence in accordance with
Rule 104(a). See Daubert, 509 U.S. at 592 n.10. The party presenting the expert must show that
the expert’s findings are based on sound principles and, if applicable, that they are capable of
independent validation. Daubert II, 43 F.3d at 1316.
B. Royalty Calculation1
“A reasonable royalty can be calculated from an established royalty, the infringer’s profit
projections for infringing sales, or a hypothetical negotiation between the patentee and infringer
based on the factors in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120
(S.D.N.Y.1970).”2 Wordtech Sys., Inc v. Integrated Networks Sols., Inc., 609 F.3d 1308, 1319

1 The Court applies the law for calculating royalties under patent law because “[i]t seems
generally accepted that ‘the proper measure of damages in the case of a trade secret
appropriation is to be determined by reference to the analogous line of cases involving patent
infringement.’” Univ. Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 535 (5th
Cir. 1974) (quoting Int’l Indus., Inc. v. Warren Petroleum Corp., 248 F.2d 696, 699 (3d
Cir. 1957).
2 The Georgia-Pacific factors include:
(1) royalties the patentee has received for licensing the patent to others;
(2) rates paid by the licensee for the use of comparable patents; (3) the
nature and scope of the license (exclusive or nonexclusive, restricted or
nonrestricted by territory or product type); (4) any established policies or
marketing programs by the licensor to maintain its patent monopoly by not
licensing others to use the invention or granting licenses under special
conditions to maintain the monopoly; (5) the commercial relationship
between the licensor and licensee, such as whether they are competitors;
(6) the effect of selling the patented specialty in promoting sales of other
(Fed. Cir. 2010). It is not enough merely to “discuss[ ]” the Georgia-Pacific factors; the expert
must “explain how [he or] she calculated [the proffered] royalty rate using these factors.”
Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp., 879 F.3d 1332, 1349 (Fed. Cir. 2018).
Although Georgia-Pacific was a patent infringement case, its factors have been applied in trade
secret misappropriation cases. See Atl. Inertial Sys. Inc. v. Condor Pac. Indus. of Cal., Inc., 2015

WL 3825318, at *10-11 (C.D. Cal. June 18, 2015) (listing the Georgia-Pacific factors in a trade
secret misappropriation case, but also listing other factors); Veritas Operating Corp. v. Microsoft
Corp., 2008 WL 7404617, at *5 (W.D. Wash. Feb. 26, 2008) (applying Georgia-Pacific factors
in trade secret misappropriation case).
“No matter what the form of the royalty, a patentee must take care to seek only those
damages attributable to the infringing features.” Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308,
1326 (Fed. Cir. 2014). “[W]here multi-component products are involved, the governing rule is
that the ultimate combination of royalty base and royalty rate must reflect the value attributable
to the infringing features of the product, and no more.” Ericsson, Inc. v. D-Link Sys., Inc., 773

F.3d 1201, 1226 (Fed. Cir. 2014). “When the accused infringing products have both patented and

products of the licensee; (7) the duration of the patent and license term;
(8) the established profitability of the product made under the patent,
including its commercial success and current popularity; (9) the utility and
advantages of the patent property over old modes or devices; (10) the
nature of the patented invention and the benefits to those who have used
the invention; (11) the extent to which the infringer has used the invention
and the value of that use; (12) the portion of profit or of the selling price
that may be customary in that particular business to allow for use of the
invention or analogous inventions; (13) the portion of the realizable profit
that should be credited to the invention as opposed to its non-patented
elements; (14) the opinion testimony of qualified experts; and (15) the
results of a hypothetical negotiation between the licensor and licensee.
Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221, 1240 n.3 (Fed. Cir. 2011).
unpatented features, measuring this value requires a determination of the value added by such
features.” Id. Thus, “a patentee may assess damages based on the entire market value of the
accused product only where the patented feature creates the basis for consumer demand or
substantially creates the value of the component parts.” Virnetx, 767 F.3d at 1326 (emphasis in
original) (cleaned up). This is known as the “entire-market-value” rule. Uniloc USA, Inc. v.

Microsoft Corp., 632 F.3d 1292, 1318 (Fed. Cir. 2011).
The entire-market-value rule “allows a patentee to assess damages based on the entire
market value of the accused product only where the patented feature creates the basis for
customer demand or substantially creates the value of the component parts.” Id. (cleaned up). A
plaintiff must provide tangible and unspeculative evidence apportioning the defendant’s profits
between protected and unprotected features unless the plaintiff satisfies the entire-market-value
rule. Id. The entire-market-value rule also may apply in the context of trade secret
misappropriation. See, e.g., In re Avaya Inc., 602 B.R. 445, 459 (S.D.N.Y. 2019) (“The entire-
market-value rule may allow for a damages award of up to all of the profits derived by a trade-

secret misappropriator from any infringing products making use of the misappropriated content.”
(citing patent cases)); MSC Software Corp. v. Altair Eng’g, Inc., 2015 WL 13273227, at *15
(E.D. Mich. Nov. 9, 2015), supplemented, 2015 WL 13359781 (E.D. Mich. Nov. 22, 2015)
(“The hidden and unknown trade secret may not literally be what the customer demands, but in a
credible EMVR case, the product’s known functionality or physical property that is enabled by
the hidden trade secret could very well be the basis of the customer’s demand for the product.”
(emphasis in original)). Finally, “when a sufficiently comparable license is used as the basis for
determining the appropriate royalty, further apportionment may not necessarily be required.”
Vectura Ltd v. Glaxosmithkline LLC, 981 F.3d 1030, 1040 (Fed. Cir. 2020).
PLAINTIFF’S EXPERT WITNESSES
A. Elisabeth Wolff
Tomahawk challenges the expert opinion on damages offered by Wolff’s daughter,
Elisabeth Wolff (“Ms. Wolff”). ECF 395-3 (unsealed), 400-2 (sealed). Tomahawk argues that
Ms. Wolff is unqualified to serve as a damages expert and that her opinion is unreliable.
Tomahawk adds that Ms. Wolff’s bias as Wolff’s daughter is an additional ground for finding

her expert opinion to be unreliable.
1. Qualification
Ms. Wolff graduated from Portland State University with an undergraduate degree in
biology. She did not take any business or accounting classes in college but after graduating took
an accounting course from a local accounting firm, EBS Associates, Inc. (“EBS”). The course
lasted ten weeks at approximately one hour per week. Ms. Wolff does not know whether EBS
was accredited. Ms. Wolff did not list her accounting course on her resume.
Ms. Wolff’s resume begins by listing a generic job title of “office manager, executive
assistant, human resources, bookkeeper.” It then identifies her skills and expertise before
describing her job experience. Her most recent resume states that she is currently employed at

Sound Equine Options. At her deposition, however, she testified that she stopped working for
Sound Equine Options in October 2024 and currently works at Mickelberry Gardens, where she
has worked since November 2024. Her resume does not list Mickelberry Gardens, even though
she included her resume with her expert report in this case on December 31, 2024. During her
deposition, Ms. Wolff stated that she works for Mickelberry Gardens as an executive assistant
and office administrator. She added that in that position, she handles accounts receivables and
accounts payables and performs some of the business’s bank reconciliations.
Ms. Wolff testified at deposition that EBS did not teach her how to value a business. She
has never valued a business, does not know the methodologies for valuing a business, and has
never heard of valuing a business using a discounted cash flow method. She also explained that
in her current position she valued part of an income stream of a business after her employer lost a
client.

Ms. Wolff also testified that she has never before calculated a reasonable royalty and is
unfamiliar with the Georgia-Pacific factors. She explained that she believes that a reasonable
royalty would be achieved by the parties discussing and agreeing upon one, but if they did not
agree, she was unfamiliar with any accepted methodology for calculating a reasonable royalty.
Ms. Wolff has never served as an expert witness before. She asserted at deposition that
she believed she was qualified to render an expert damages opinion based on her 13 years of
work experience. Defense counsel asked about the “top contributions” of experience that
Ms. Wolff noted on her resume, asking if she used any of the skills she listed when she prepared
her expert report. She replied that she did not use any of those identified skills in preparing her

expert report. She explained her general financial understanding and experience was the basis for
her expert report.
In response to Tomahawk’s motion to exclude, Wolff argues that Ms. Wolff is qualified
to serve as an expert witness based on her past job experience. He states that Ms. Wolff has
evaluated financial statements and profit and loss statements, and she has valued an income
stream of a company. Wolff argues that these experiences qualify Ms. Wolff to value the
“income owed to Plaintiff” from his trade secrets claim and that Tomahawk’s challenges go to
the weight, not the admissibility, of Ms. Wolff’s testimony.
The Court disagrees with Wolff and finds that he must show that Ms. Wolff has at least a
minimal foundation of relevant knowledge, skill, or experience. See Hangarter, 373 F.3d at
1016. Ms. Wolff’s knowledge, skill, and experience in business do not meet a minimum
threshold to qualify her as an expert to opine on damages in this case. She has no experience in
valuing a business or a royalty. She has only minimal general accounting or bookkeeping
experience. More importantly, she is unfamiliar with the concepts underlying business valuation.
As discussed below, she did not use any recognized knowledge, skill, or experience in valuation

methodology or accounting in her report. She simply concluded that 100 percent of all gross
sales should be disgorged because of Tomahawk’s “theft of the technology.”
Alternatively, Ms. Wolff states that the specific royalty figure used in the FOT
Agreement, which is not part of this case, should be applied to the gross sales numbers that she
was asked to assume by Wolff’s counsel.3 That, however, is merely arithmetic. It does not

3 “FOT” refers to “fiber orientation technology.” ECF 305-1 at 1. To avoid having to seal
this Opinion and Order, the Court is not stating the specific royalty figure contained in the FOT
Agreement. The FOT Agreement is an agreement between Spherical IP, LLC (“Spherical”), a
business affiliated with Wolff, and Formtec, LLC (“Formtec”), a business affiliated with
Tomahawk. In 2011, Wolff formed Spherical and Robert Tournour, President of Tomahawk,
formed Formtec, to “exploit” Wolff’s “inventions relating to any use of a venturi effect using
spherical geometry, and any fiber orientation.” See, e.g., ECF 294 at 3 (Decl. of James B. Wolff,
¶ 11, dated January 29, 2024); ECF 305-1 at 1 (FOT Agreement). The FOT Agreement assigns
all rights, title, and interest of Spherical regarding those inventions to Formtec. Wolff contends
that the FOT Agreement covers only meat-forming products because of the requirement of “fiber
orientation.” See ECF 294 at 3 (¶ 11). Thus, Wolff asserts, the products at issue in this case
(water nozzles, shower heads, “soft choice/soft fill,” and gradient breather plates), are not
covered by the FOT Agreement and are technology owned by Wolff. See, e.g., ECF 205 at 4-6;
206 at 3-5; 303 at 6, 8, 10; 305 at 5, 7; 326 at 3. Tomahawk responds that at least some of this
technology is covered by the FOT Agreement and, if not, that Wolff failed to follow the
requirements in a 2010 Non-Disclosure Agreement (“2010 NDA”) between Wolff and
Tomahawk to invoke its protections or the disputed technology otherwise does not qualify for
protection. See, e.g., ECF 170 at 5, 11; 225 at 12, 14. Spherical and Formtec went to arbitration
over a dispute about the technology covered in the FOT Agreement. In an earlier Opinion and
Order, the Court held that Wolff’s claim in this case alleging breach of the 2010 NDA is not
subject to arbitration because Wolff was not a signatory to the FOT Agreement. See Wolff v.
Tomahawk Mfg., 2022 WL 377926, *10-11 (D. Or. Feb. 8, 2022), aff’d, 2022 WL 17749271 (9th
Cir. Dec. 19, 2022). In resolving the parties’ cross motions for summary judgment, the Court
evaluated, among other things, the parties’ arguments about whether the disputed technology in
this case was covered by the FOT Agreement as a matter of law because technology covered by
the FOT Agreement is subject to arbitration and is not part of this federal lawsuit. See, e.g., Wolff
require expert analysis.4 The Court thus excludes Ms. Wolff from testifying as an expert based
on her lack of relevant qualifications and the fact that her testimony would not be helpful to the
jury. But even if she were a qualified expert, the Court still would exclude her expert testimony
as unreliable for the reasons discussed next.
2. Reliability

In her report, Ms. Wolff opines that 100 percent of Tomahawk’s gross sales on “soft
choice/soft fill” products should be paid to Wolff as damages. Alternatively, Ms. Wolff contends
that the royalty figure from the FOT Agreement would apply to those gross sales. In her report,

v. Tomahawk Mfg., 2024 WL 3540845, at *6-8 (D. Or. July 24, 2024). If the technology at issue
in this case would have been the same as the technology covered under the FOT Agreement, that
technology would have been transferred by Spherical to Formtec under the FOT Agreement and
the parties’ dispute would have been resolved in the arbitration. Further, Wolff repeatedly has
represented that the technology at issue in this case is different from the technology covered by
the FOT Agreement. See, e.g., ECF 29 at 5 (“The NDA relates to improvements to machinery,
equipment and tooling manufactured by Tomahawk, not to the technology which is the subject of
the FOT Agreement.”); 191 at 3 (“[I]t it is the non-FOT Confidential Information that is the
current subject of this case.”); 469 at 9 (conceding Tomahawk’s Motion in Limine No. 9, seeking
to preclude Wolff from arguing that the technology covered by the FOT Agreement is part of this
federal trial).
4 Ms. Wolff was provided a spreadsheet in an editable format by Plaintiff’s former
counsel and sales information from one of Plaintiff’s other expert witnesses, Charles Sweat. She
transferred the sales numbers onto the spreadsheet and performed basic arithmetic, assuming
either 100% of sales or the royalty number from the FOT Agreement. Experts performing only
basic arithmetic without any analysis, opinion, or data synthesis, however, do not provide any
opinion that is helpful to the jury and are regularly excluded by courts. See, e.g., United States v.
Grizaffi, 471 F.2d 69, 74 (7th Cir. 1972) (affirming exclusion of an accounting expert who
“would do no more than make basic arithmetical computations with figures supplied to him by
counsel” because it would be “expert testimony concerning matters clearly within the realm of
jurors’ comprehension”); Golden Unicorn Enters., Inc. v. Audible, Inc., 682 F. Supp. 3d 368, 379
(S.D.N.Y. 2023) (quoting FPP, LLC v. Xaxis US, LLC, 2017 WL 11456572, at *1-2 (S.D.N.Y.
Feb. 13, 2017) (“Courts regularly exclude expert testimony where the expert ‘engages in
arithmetic, not expert analysis.’” (gathering cases)); Think20 Labs LLC v. Perkinelmer Health
Scis., Inc., 2023 WL 9005633, at *4 (C.D. Cal. Nov. 30, 2023) (“The remainder of Dr. Fisher’s
opinion is simple arithmetic for which no expertise is required.”).
Ms. Wolff offers no reliable methodology for how she came up with either conclusion, nor did
she provide a reasoned explanation at her deposition.
Regarding the 100 percent figure, Ms. Wolff testified at deposition that she did not have
“a good answer” for why she selected 100 percent versus any other percentage. She stated that
she chose 100 percent because of the purported “theft” of Wolff’s technology. She did not

explain, however, why the alleged misappropriation of Wolff’s technology would result in a
royalty of 100 percent of Tomahawk’s gross sales. For example, she did not explain why there
would be no consideration for Tomahawk’s contribution to the products (resulting in less than
100 percent), or Tomahawk’s costs in manufacturing or marketing the product (taking the
percentage from profits as generally is done with royalties, versus gross sales).
For the lower royalty percentage, Ms. Wolff explained at deposition that she simply
applied the royalty figure from the FOT Agreement. She stated she believed the same technology
was at issue in this case. But that is inaccurate. As explained in footnote 3, supra, the technology
covered by the FOT Agreement was subject to an arbitration and is not part of this case. Thus,

Ms. Wolff’s underlying premise is without support. She offers no explanation for why it was
reasonable to apply the same royalty percentage to a hypothetical royalty between Wolff and
Tomahawk that was negotiated between Formtec and Spherical for different technology under
different circumstances.
Ms. Wolff offered no methodology or reasoning in her report or deposition. She did not
discuss any of the Georgia-Pacific factors. Regardless of whether it was the Georgia-Pacific
factors, or other factors such as those listed in University Computing Co. v. Lykes-Youngstown
Corp., 504 F.2d 518, 539 (5th Cir. 1974),5 Ms. Wolff needed to provide some discussion of how

5 The Fifth Circuit in University Computing explained that in a trade secrets case:
and why she reached her royalty determination beyond simply using the royalty figures from the
FOT Agreement.
As explained by the Federal Circuit in the patent infringement context:
After a discussion of each of the Georgia-Pacific factors, including
the benefits of the patented technology, sales and profitability, and
the competitive relationship of the parties, Exmark’s expert
concluded with little explanation that Exmark and Briggs would
have agreed to a 5% reasonable royalty rate on the sales of the
accused lawn mowers as the value for the improved baffle.
Nowhere in her report, however, did she tie the relevant Georgia-
Pacific factors to the 5% royalty rate or explain how she calculated
a 5% royalty rate using these factors. To be admissible, expert
testimony opining on a reasonable royalty must sufficiently tie the
expert testimony on damages to the facts of the case. If the
patentee fails to tie the theory to the facts of the case, the testimony
must be excluded.
Exmark Mfg., 879 F.3d at 1349 (cleaned up).
“[T]he reliability analysis applies to all aspects of an expert’s testimony: the
methodology, the facts underlying the expert’s opinion, the link between the facts and the
conclusion, et alia.” Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999). Ms. Wolff did
not discuss any factors or provide a methodology for why she selected her royalty figures.
Indeed, all she did was apply simple arithmetic calculations. That is fatal to her expert report.6

In calculating what a fair licensing price would have been had the parties
agreed, the trier of fact should consider such factors as the resulting and
foreseeable changes in the parties’ competitive posture; that prices past
purchasers or licensees may have paid; the total value of the secret to the
plaintiff, including the plaintiff’s development costs and the importance of
the secret to the plaintiff’s business; the nature and extent of the use the
defendant intended for the secret; and finally whatever other unique factors
in the particular case which might have affected the parties’ agreement,
such as the ready availability of alternative processes.
504 F.2d at 539.
6 As noted, Ms. Wolff gave as her only explanation that she “arrived” at 100 percent
disgorgement based on the alleged “theft” of Wolff’s technology. As discussed, this is not a
Wolff also argues that Ms. Wolff’s opinion is reliable because of the “entire-market-
value rule.” He contends that he will prove at trial that his confidential technology is the basis for
the entire (or vast majority of) customer demand of the “soft choice/soft fill” products, and thus
he is entitled to 100 percent of the market value of the product.
The problem with Wolff’s argument that Ms. Wolff’s opinion is reliable based on the

entire-market-value rule is that there is no evidence that Ms. Wolff considered this doctrine.
Ms. Wolff did not apportion Tomahawk’s profits or gross sales by protected and unprotected
features, which generally is required in assessing a reasonable royalty. Ms. Wolff also did not
give any deposition testimony or provide any statements in her report indicating that she applied
the entire-market-value rule exception. She did not provide any support that her opinion is based
on facts, methodology, assumptions, or any consideration that Wolff’s technology created the
basis for the customer demand or substantially created the value of the product. During her
deposition, she stated she did not have a good answer for why she chose 100 percent and then
simply kept repeating that she selected that royalty figure simply because of “theft of the

product.” Defense counsel gave her an opportunity to explain her reasoning and she never
provided any other explanation or detail. Wolff’s post hoc argument that Ms. Wolff’s opinion is
based on the entire-market-value rule cannot fill in the gaps for her deficient expert report.
Because Ms. Wolff did not apportion the royalty, cite or discuss the entire-market-value rule, or
provide any reasoning or methodology that explains her royalty calculation or can support an

reliable methodology for calculating a reasonable royalty. In the alternative, she took the lower
royalty figure from the FOT Agreement based on her assumption that the technology was the
same as in the FOT Agreement. Again, this is not a reliable methodology, particularly because it
is based on an incorrect assumption—the technology about which she was opining could not be
covered by the FOT Agreement and be recoverable in this federal lawsuit. Thus, her explanations
are insufficient to “tie [her] expert testimony on damages to the facts of the case.” See Exmark,
879 F.3d a 1349.
inference that she applied the entire-market-value rule, her opinion is unreliable. For these
reasons, the Court excludes the proffered opinion testimony from Elisabeth Wolff under
Rule 702.7
B. Langston Murray
Tomahawk challenges the damages opinion of Langston Murray (“Murray”). ECF 457-2

(unsealed), 424-4 (sealed). Tomahawk argues that Murray is unqualified to render an expert
opinion on damages in this case and that his opinion is unreliable.
1. Qualification
Murray received a Master of Business Administration (“MBA”) degree in
December 2022, with a focus in project management. He has worked for two years at Sandia
National Laboratories (“Sandia”) as a Business Operations Analyst. Before that, he worked as an
intern at Sandia. At his undergraduate college, he believes he may have taken at most one
economics class, but he does not recall if it was a micro or macro economics class and he does
not know the difference between the two. He could not correctly identify what the acronyms
“GAAP” (Generally Accepted Accounting Principles) or “LLC” (limited liability company)
mean. He also did not know that an ownership interest in an LLC offers protection to the owner

from the debts and obligations of the LLC.
Murray has never valued a business.8 He states that he understands some of the valuation
concepts “to an extent,” but he has never used a cost approach, income approach, market

7 Because the Court grants Tomahawk’s motion to exclude expert testimony from
Ms. Wolff on the grounds that she is unqualified and her opinion is unreliable, the Court declines
to reach Tomahawk’s argument relating to bias.
8 At first, Murray testified that he had valued a business, but on further questioning he
clarified that he only valued a business in terms of what that business would spend, meaning its
budget process. That is not the same as valuing a business in the context of expert damages
valuation testimony.
approach, or discounted cash flow approach to valuation. He also did not know the steps in or
elements of the “buildup method” for valuing a business. He has never calculated a royalty
before and had never heard of the Georgia-Pacific factors.
At Sandia, Murray works as a financial analyst. He manages a portion of an annual
budget of about $15 million for the human resources department. He monitors the spending of

the “managers and admins,” raises any budget variances to the attention of others, proposes
reductions and other changes to get the budget back on track, and works with others in his
department to propose budget allocations.
Considering Murray’s knowledge, education, and experience, he is not qualified to render
an opinion on damages in this case. He does not have the requisite training, knowledge, or
experience in valuing a business or calculating a royalty. As discussed below, he did not use any
business experience or training to calculate the royalty that he used. He merely applied the
percentage and down payment figure from the FOT Agreement to Tomahawk’s gross sales.
Murray, however, provided no explanation for why the relationship between the signing entities

in the FOT Agreement, on the one hand, and the parties in this lawsuit, on the other, makes the
royalty stated in that agreement a reliable basis to find a reasonable royalty between Wolff and
Tomahawk here. Nor did Murray provide any explanation for why a down payment would apply
in the context of calculating a reasonable royalty (unlike the sale of technology that occurred
through the FOT Agreement) and why gross sales instead of profits would be appropriate. Even
if he were qualified, however, as discussed next, his opinion is unreliable.
2. Reliability
In his report, Murray opines that the down payment and royalty terms from the FOT
Agreement are reasonable to apply to Tomahawk’s gross sales of the “soft choice/soft fill”
products at issue. He then applies these arithmetic calculations to sales figures he was told to
assume by Wolff’s counsel to reach his conclusions. Murray’s only explanation in his report for
applying the FOT Agreement terms is that “[a] reasonable royalty can be based upon the prior
dealings of the parties.”
Murray testified at deposition, however, that he did not know the names of the members
of Spherical, one of the parties to the FOT Agreement. Murray also did not know the names of

the members of Formtec, the other party to the FOT Agreement. He also did not know who
owned Tomahawk or how Formtec and Tomahawk were related. He simply accepted the
characterization that Tomahawk and Formtec were “sister” companies, but he could not recall
where he learned about that corporate connection. He also was unaware of any principle or rule
of business permitting an expert to treat related companies as the “same” entity. He provided no
reasoned explanation for why the royalty agreed to between Formtec and Spherical for one set of
products should be applied to a different set of products between Tomahawk and Wolff. Murray
explained only that he considered Wolff and Spherical to be “closer to one” because Wolff was
the owner of Spherical. But Murray also testified that he did not know the ownership structure of

Spherical. In general, Murray appeared confused about the corporate structure of Spherical,
Formtec, and Tomahawk and he had not done any research into those entities before forming his
conclusion.
As noted, Tomahawk and Wolff are not parties to the FOT Agreement. That is why this
case was not subject to the arbitration between Formtec and Spherical, the parties to that
agreement. Wolff cannot disclaim being a party to the FOT Agreement to avoid arbitration and
then embrace its terms as a “party” to accept a comparable royalty, at least without any
reasonable analysis. As noted, Murray engaged in no independent investigation into the
corporate structure of Formtec or Spherical, nor did he engage in any analysis as to why the
terms of an agreement between Formtec and Spherical should be the same as a hypothetical
reasonable royalty between Wolff and Tomahawk. He also testified that he did not know how
Spherical and Formtec reached the royalty number contained in the FOT Agreement and made
no reasoned application to “soft choice/soft fill” products. Thus, the foundational aspect of his
opinion is unreliable and not specifically tied to the facts of this case.
Murray also testified that he assumed that the technology he was valuing was the same

technology that was covered by the FOT Agreement. As with Ms. Wolff, however, this was a
fundamental error that underpinned Murray’s valuation. It also renders his opinion unreliable.
Additionally, like Ms. Wolff, Murray used gross sales numbers without explanation. He did not
research a reasonable royalty for this type of technology. He did not research royalties for
patented versus unpatented technology. He did nothing other than apply the FOT Agreement
royalty to Tomahawk’s sales figures he calculated from the numbers given to him. For these
reasons, the Court excludes the proffered opinion testimony from Langston Murray under
Rule 702.
C. Samuel Gannon
Tomahawk challenges the technical expert opinion of former Tomahawk employee

Samuel Gannon (“Gannon”) (ECF 457-3, unsealed; 424-8, sealed) on multiple grounds.
Tomahawk argues that his opinion is confusing because he defines “soft choice/soft fill”
differently than does Wolff’s other technical expert, Charles Sweat (“Sweat”), another former
employee of Tomahawk. Tomahawk also argues that Gannon’s opinion is unreliable for several
reasons. Finally, Tomahawk argues that Gannon is unqualified to render an expert technical
opinion in this case.
Gannon’s expert report describes that the technology in “soft choice” and “soft fill” is
used in the food forming industry, although it also has other applications. The most notable
attribute of the technology is reducing pressure exerted on the food-forming equipment,
particularly through the profile or the shape of the holes in the fill plates and breather plates,
some of which cause a Venturi effect. Gannon attached multiple drawings to his report and the
“Soft Fill” trademark that he states was abandoned by Tomahawk.
At deposition, Gannon was asked what he would look for to determine if a part was “soft
choice/soft fill.” He responded that he would primarily look at the tooling, and then he would

look at the encoder settings of the programming. For the tooling, he would look at the breather
plate and the fill plate to check their profile and their part numbers to see if “soft fill” or “soft
choice” was on their drawings.
Tomahawk challenges Gannon’s methodology on multiple grounds. Wolff does not
specifically respond to any argument raised by Tomahawk. He simply asserts generally that
Gannon is qualified because he worked at Tomahawk on meat-forming products for a national
fast-food chain and then quotes Gannon’s expert report. Tomahawk, however, challenges
Gannon’s conclusions as unreliable. Wolff’s failure to respond to any of Tomahawk’s reliability
challenges is a concession of Tomahawk’s arguments. See, e.g., Stewart v. Bos. Sci. Corp., 2016

WL 2939516, at *12 (S.D. W.Va. May 19, 2016) (“The plaintiffs fail to respond to this
argument, and I presume that the plaintiffs concede that [the expert challenged under Daubert]
will not offer such an opinion at trial. I decline to raise counterarguments on their behalf.”). Even
if Wolff did not concede these arguments, the Court agrees with Tomahawk.
As Tomahawk asserts, Gannon’s opinion is unreliable because he provided no
methodology, testing, or reasoned basis for his conclusions. For example, he did not test to see if
the combination of tooling and timing he contends is necessary for “soft choice/soft fill” reduced
pressure in any product as compared to any other product. He also did not compare the pressure
of soft fill, standard fill, and multi-flow products. He further did not conduct any testing for his
conclusion in this case regarding the profile necessary for “soft choice/soft fill” products. He
simply noted the flow simulation he did for the arbitration, but that was in a different context.
Gannon also could not provide any reasoned methodology for determining when a part
used “soft choice/soft fill” technology. During his deposition, Gannon explained that he would
look at the part’s timing and tooling. But he could not recall how to test or program the timing.

For the tooling, meaning the interaction and orientation of the breather plates and fill plates and
their orifices, he could not describe those with any certainty. For example, he did not know
whether an angled fill plate or gradient breather plate would indicate the use of “soft choice/soft
fill.” When counsel for Tomahawk tried to get Gannon to identify a specific method for
determining when a part was using “soft choice/soft fill,” Gannon said that he would check the
drawing to see if it stated, “soft choice” or “soft fill.” He then added that a part could be Wolff’s
“soft choice/soft fill” technology even if the drawing did not have that identification, and that
drawings before a certain date might not include Wolff’s technology even if they stated, “soft
choice/soft fill.” He also was unsure whether creating a Venturi effect was required for “soft

choice/soft fill,” even though that was the focus of his flow simulation test in the arbitration—
whether the underlying shape created a Venturi effect. When asked at deposition, he responded
that he would rely on his previous experience working for four years at Tomahawk. Ultimately,
when counsel for Tomahawk tried to summarize a list of factors for determining whether a
product used “soft choice/soft fill” technology based on Gannon’s testimony,9 Gannon responded
that he was unsure whether those were all the factors, but they were based on Gannon’s

9 Tomahawk’s counsel summarized Gannon’s testimony as including the following
factors: (1) whether the pressure is lowered in the machine; (2) the timing encoder settings;
(3) breather plate; (4) fill plate; and (5) assessing the fill plate orifice to determine whether it
creates a Venturi effect.
experience and understanding. When Tomahawk’s counsel asked if there may be more factors,
Gannon responded, “I’m not sure. Ask Mr. Wolff. . . . As I stated, this is part of his technology
and understanding. I do not know all of Mr. Wolff’s technology or understanding of his
development.”
The Court agrees with Wolff that Gannon is generally qualified. He is a mechanical

engineer. He worked for four years at Tomahawk, first as a project engineer and then as an
engineering lead. But he cannot issue an expert opinion simply on his own ipse dixit.
Pomona, 750 F.3d at 1049 (“It is where expert opinion is ‘connected to existing data only by the
ipse dixit of the expert’ that there may be ‘too great an analytical gap between the data and the
opinion preferred’ to support inclusion of the testimony.” (quoting Joiner, 522 U.S. at 146)).
When pushed for evidence or proof supporting his statements, Gannon generally responded that
he was relying on his experience at Tomahawk. But when an expert is relying on experience, the
expert still must render an opinion “based on sufficient facts or data” that “is the product of
reliable principles and methods.” Fed. R. Evid. 702(a)-(b). Thus, the conclusions expressed in

Gannon’s opinion are unreliable. For these reasons, the Court excludes the proffered opinion
testimony from Samuel Gannon under Rule 702.10
D. Charles (Chuck) Sweat
Tomahawk challenges the technical expert opinion of Charles Sweat. ECF 457-4
(unsealed); 424-10 (sealed). Tomahawk argues that Sweat’s testimony must be excluded because
it is inconsistent with Gannon’s testimony and would be confusing to a jury. Because the Court
has excluded Gannon’s testimony, the Court rejects Tomahawk’s argument based on

10 Because the Court concludes that Gannon’s opinion is unreliable for the reasons
discussed, the Court declines to reach Tomahawk’s remaining arguments.
inconsistency. Tomahawk also argues that Sweat is not qualified to render an expert opinion and
that his opinion is unreliable.
1. Qualification
Sweat worked for 19 years in the meat-forming industry. He held management-level
positions in machine-servicing departments, including at Tomahawk, where he supervised Wolff.

Tomahawk highlights that Sweat is not an engineer, but relevant work experience can qualify an
expert.11 See, e.g., Kumho Tire, 526 U.S. at 152 (noting that an expert can be qualified based on
“professional studies or personal experience”). The Court rejects Tomahawk’s motion to exclude
Sweat for lack of expert qualification.12
2. Reliability13
Sweat’s report describes that for two Tomahawk machines, the F-19 and the TH-400, the
changes designed by Wolff improved the functioning of those machines. Sweat explains that part
of the improvements came from incorporating “soft choice/soft fill” technology. He then
describes how the “soft choice/soft fill” technology works. He explains that “soft choice/soft fill”
involves: (1) timing; (2) specific holes of the fill plate, including a 45-degree angle; and (3) a
gradient breather plate with added holes, more at the front. He notes that any one factor reduces

pressure and all three make a significant reduction in pressure. He describes his background in

11 The Court rejects Tomahawk’s characterization that Sweat “could not hold a job in the
protein industry.” Sweat’s first three jobs lasted approximately six, five, and five years,
respectively.
12 Tomahawk also contends that Sweat failed to review patents and other relevant
materials and thus is unqualified based on knowledge, but the Court considers that to be a
challenge to reliability, based on Sweat failing to issue an opinion based on sufficient facts or
data.
13 Although Wolff does not provide much more in response to this aspect of the motion
against Sweat than he does in response to the motion against Gannon, the Court finds that Wolff
provides just enough to avoid a finding that he conceded this aspect of Tomahawk’s motion.
discovering problems with these machines in 2007-08 and suggesting to Wolff and others that
they improve the machines. Years later, when Sweat worked at Tomahawk, he again mentioned
the problems to Wolff, who informed Sweat that Wolff had designed improvements and put
them in a notebook that he gave to Robert Tournour of Tomahawk.14 Wolff and Sweat retrieved
the notebook and obtained permission from Tournour to develop the improvements designed by

Wolff.
Tomahawk argues that Sweat’s opinion is unreliable because he did not engage in testing
other than looking at pressure gauges on the machines to see the lower pressure in using the new
plates versus the other plates. Tomahawk argues that factors other than the different style plates
could cause the reduced pressure. This, however, goes to the weight and not admissibility of
Sweat’s testimony. Unlike Gannon, Sweat did test the pressure changes when he was working on
developing the new technology.
Tomahawk also argues that because Sweat did not review the patents of a competitor,
which Tomahawk appears to contend invalidates Wolff’s contentions that he developed the

technology, Sweat’s opinion is unreliable and not based on adequate facts and data. Sweat,
however, was shown the patents during his deposition. He testified that the patents involved
standard breather plates and not gradient breather plates. This challenge also goes to the weight
and not the admissibility of his testimony.
Finally, Tomahawk argues that Sweat is biased because he is a longtime friend of
Wolff’s, and this renders his opinion unreliable. As Wolff argues, however, bias generally is not
a valid basis to exclude expert testimony. United States v. Abonce-Barrera, 257 F.3d 959, 965

14 There may be a hearsay issue if Wolff seeks to elicit what he said to Sweat. Now is not
the time, however, to resolve that question.
(9th Cir.2001) (“Generally, evidence of bias goes toward the credibility of a witness, not his
competency to testify, and credibility is an issue for the jury. Further, Abonce-Barrera had the
opportunity to cross-examine [the expert] fully about any biases, and [the expert’s] credibility as
an expert was impeached by defendant’s expert . . . .”). The Court agrees with Wolff and denies
Tomahawk’s motion to exclude Sweat’s expert testimony.

E. Brian Kearns, M.D.
Tomahawk moves to exclude Wolff’s treating physician, Dr. Brian Kearns (“Kearns”)
from testifying as a treating medical expert. Tomahawk contends that Wolff failed to produce a
sufficient report regarding Dr. Kearns under Rule 26(a)(2)(C) of the Federal Rules of Civil
Procedure. In its reply, Tomahawk asserts that Wolff also failed to disclose Dr. Kearns as an
expert witness in Wolff’s pretrial witness list and statement. See ECF 431.
Wolff responds that on March 7, 2025, he made the following disclosure under
Rule 26(a)(2)(C):
Brian Kearns (“Dr. Kearns”) is a Hematology specialist and
treating physician of Wolff. Dr. Kearn’s testimony is relevant but
not limited to Plaintiff’s Third Claim for Relief, Disability
Discrimination (ORS 659A.112). Dr. Kearns performed multiple
test protocols on February 23-26, 2011, at the request of Dr. Leng.
Such tests include a 12-lead electrocardiogram, CT pulmonary
angiogram, continuous telemetric monitoring, lower extremity
duplex ultrasound, and a nocturnal oximetry study.
Dr. Kearns will testify to his diagnosis and treatment of Wolff
based on those test results. That is, that he diagnosed Wolff with
Pulmonary Embolus, Presumed Hypercoagulable Disorder with
Recurrent Tromboembolic Disease, Hyponatremia, Remote
History of Tobacco Abuse (currently in remission) and Elevated
Troponin, Presumed Secondary to Right Ventricular Heart Strain.
Wolff was prescribed enoxaparin (Lovenox), Warfarin,
Acetaminophen, Ibuprofen, and supplemental oxygen to treat his
conditions. Attached hereto is Exhibit B, relevant Providence St
Vincent Medical Records from February 23, 2011 to February 27,
2011.
ECF 441 at 16-17.
The Court rejects Tomahawk’s argument that this disclosure fails to comply with
Rule 26(a)(2)(C). The disclosure provides sufficient information from which Tomahawk can
ascertain the subject matter on which Dr. Kearns will opine and a summary of the facts and
opinions to which he is expected to testify, to wit, Dr. Kearns’s diagnoses of Wolff, the

medications he prescribed, the tests he performed, and the treatment he recommended. The Court
also finds no unfair prejudice or surprise to Tomahawk in Dr. Kearns testifying to this
information because it was included in the March 2025 disclosure and described again in Wolff’s
response to Tomahawk’s Daubert motion. Further, Dr. Kearns was listed on Wolff’s witness list
and statements. See ECF 431 at 4-5. The Court denies Tomahawk’s motion to exclude
Dr. Kearns’s expert testimony.
F. Mith Leng, M.D.
Dr. Mith Leng treated Wolff from approximately June 9, 2011 through July 6, 2015.
Tomahawk makes many of the same arguments against the testimony of Dr. Leng as it does
against Wolff’s other treating physician, Dr. Kearns. In Tomahawk’s reply brief, however,

Tomahawk raises the additional argument that Wolff failed to list Dr. Leng as a trial witness in
Wolff’s trial witness list and statement. See ECF 431. Thus, Tomahawk argues, Wolff failed to
comply with the Court’s Trial Management Order. ECF 354. Tomahawk also filed a motion in
limine to exclude Dr. Leng’s testimony. See ECF 444 at 5-6 (MIL No. 3).
The Court rejects Tomahawk’s Daubert motion to exclude the testimony of Dr. Leng for
the same reasons the Court rejected Tomahawk’s Daubert challenge to Dr. Kearns. The March
2025 disclosure described Dr. Leng’s testimony relating to his diagnoses, prescriptions, and
treatment of Wolff.15
The Court, however, grants Tomahawk’s motion in limine (MIL No. 3) to exclude
Dr. Leng’s testimony, as discussed in the Court’s separate Order on Motions in Limine. The
Court’s Trial Management Order (ECF 354) expressly requires parties to disclose every lay and

expert witness whom that party intends to call to testify at trial in that party’s case-in-chief. That
a party may have disclosed a witness earlier in some other disclosure does not excuse the
requirement to disclose a trial witness in the required pretrial filings. The Court thus excludes the
testimony of Dr. Leng based on Wolff’s failure to list Dr. Leng in Wolff’s witness list (ECF 431)
as required in the Court’s Trial Management Order (ECF 354).
CONCLUSION
In preparation for discussion at the upcoming final pretrial conference, the Court provides
this tentative Opinion and Order to exclude under Rule 702 of the Federal Rules of Evidence
opinion testimony from the following expert witnesses proffered by Plaintiff: (1) Elisabeth

15 This disclosure stated:

Mith Leng, M.D. (“Dr. Leng”) was a treating physician for Plaintiff, James Wolff
(“Wolff”) from approximately June 9, 2011 to July 6, 2015. Dr. Leng’s testimony
is relevant but not limited to Plaintiff’s Third Claim for Relief, Disability
Discrimination (ORS 659A.112). Dr. Leng will testify to the existence and
treatment of Wolff’s disability; which includes hypercoagulability, Deep Venous
Thrombosis, Pulmonary Embolus. Dr. Leng is expected to testify that Wolff has a
strong family history of thrombosis and that he began treatment because Wolff’s
family members had hypercoagulability with high factor VIII levels, and that he
had also been told he has the same. Dr. Leng is expected to testify about his
treatment of Wolff’s disabilities, including but not limited to prescriptions for
anticoagulation and referrals to Hematology (i.e. Dr. Brian Kearns). Attached to
this disclosure is Exhibit A, James B. Wolff’s Kaiser Medical Records from
February 1, 2011 to January 1, 2017, reflecting Dr. Leng’s diagnosis and
treatment of Wolff.
Wolff; (2) Langston Murray; and (3) Samuel Gannon. The Court also tentatively excludes all
testimony from Dr. Mith Leng based on Plaintiff’s failure to comply with the Court’s Trial
Management Order. ECF 354. The Court will allow expert testimony from Charles Sweat and
Dr. Brian Kearns. To this extent, the Court tentatively GRANTS IN PART and DENIES IN
PART Defendant’s Daubert Motion to Exclude the Opinions and Testimony of Plaintiff’s

Experts. ECF 422.
IT IS SO ORDERED.

DATED this ____ day of June, 2025.

[Tentative Opinion and Order]
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11060877. Public record. Not legal advice.