ORDER
This matter comes before the court on defendant’s motion to exclude plaintiffs expert Dr. James A. Storer (“Storer”), (DE 329), pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
BACKGROUND
This ease has a complex procedural history and lengthy factual background. The court récounts the following facts and procedure pertinent to the issues now under consideration.
Plaintiff develops and markets a group of software products designed to perform data analysis, management, and presentation, collectively known as the SAS system, Users of the SAS system may write various programs, also known as procedures or “PROCs” using a system of inputs known as the “SAS language.” Plаintiff bundles and markets a select group of the products comprising the SAS system as a less expensive and functionally limited SAS Learning Edition, (“SAS LE”), aimed at users who are interested in learning the SAS language.
Defendant develops a competing software product, the World Programming System (“WPS”). Defendant intended to develop WPS to mimic ¡the SAS system’s functionality, aspiring to achieve a uniform correspondence of outputs for any given-set of inputs in the SAS language ,(“input/output correspondence”). In the course of WPS’s development, defendant purchased several copies of SAS LE for the purpose of comparing WPS’s output against the SAS system’s. When installing SAS LE, defendant’s employees were required to agree to the terms of the SAS LE license agreement, which contained a number of terms and conditions, including explicit terms limiting use of SAS LE to “nonproduction purposes only” and prohibiting “reverse engineering” of SAS LE. This court previously has' determined that defendant breached the SAS LE license agreement by using the software for “production purposes” and “reverse engineering” SAS LE.
To assist in the calculation of damages owed- to plaintiff as a result of defendant’s breach of the SAS LE license agreement, as well as damages on other claims which remain pending for trial,
Defendant argues that Storer’s testimony is both irrelevant and -unreliable. With respect to the relevancy of Storer’s testimony, defendant contends he is not quali
COURT’S DISCUSSION
A. Standard of Review
The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. The proponent of the expert testimony bears the burden of establishing its admissibility by a preponderance of proof. Cooper v. Smith & Nephew, Inc.,
Rule 702 provides that expert testimony is appropriate when it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. Rule 702 further provides that a witness qualified as an expert may be permitted to testify where “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Id. Courts have distilled the requirements of Rule 702 into two crucial inquiries: whether the proposed expert’s testimony is relevant and whether it is reliable. Kumho Tire Co. v. Carmichael,
In order to be considered relevant, the proposed expert testimony must appear to be helpful to the trier of fact. See Daubert,
“ ‘[T]he test of reliability is flexible’ and ‘the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’ ” United States v. Wilson,
One factor pertinent to reliability is the proposed expert’s qualifications. See Giddings v. Bristol-Myers Squibb Co.,
Additional factors also bear on the reliability of the expert’s testimony. They may include: “(1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its application; and (4) whether the theory or technique enjoys general аcceptance within the relevant community.” Tunnell v. Ford Motor Co.,
Of course, the admission of expert testimony must be considered within the context of the other rules of evidence. In particular, Rule 403 provides that the court must ensure that the probative value of any proffered evidence is not “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulаtive evidence.” Fed.R.Evid. 403. As this court has noted, “[d]espite the court’s ability to exercise broad discretion and flexibility when determining the admissibility of expert testimony, the court must balance this discretion with the concerns of Rule 403 to ensure that the probative value of the proffered testimony is not ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ ” Bouygues Telecom, S.A. v. Tekelec,
B. Summary of Storer’s Qualifications and Opinions
Storer is a professor of computer science at Brandies University in Waltham, Massachusetts, and has served in that capacity or similar capacities since 1981. He holds a Ph.D. in computer science from Princeton University. His primary research interest is data compression, and he is accomplished in that field. However, he teaches classes on a wide variety of computer science topics. Storer knows and has studied many different programming languages and has developed software in a traditional commercial setting, for government research, and in academia.
If allowed to testify at trial, Storer will opine on defendant’s inability to develop WPS fully without use of SAS LE. In particular, Storer will opine that development of WPS required “heavy” or “integral” use of SAS LE in order to achieve defendant’s desired input/output correspоndence between the two systems. Storer bases the majority of this opinion on documents produced by defendant in this litigation, as well as documents from a parallel litigation in the United Kingdom between the parties.
C. Analysis
With respect to defendant’s challenge under Daubert, because plaintiff has established both the relevance and the reliability of Storer’s testimony, the court will not close the gate on this witness. With regard to defendant’s Rule 403 argument, the court will exclude a portion of Storer’s proposed testimony as unnecessarily confusing to the jury.
1. Qualifications
Dеfendant first contends Storer’s opinion is irrelevant, because he is not qualified to offer an opinion in this case. Defendant’s challenge to Storer’s qualifications is grounded in his lack of experience in the realm of commercial software development, generally, and with both the SAS system and WPS, more specifically. Defendant’s argument takes too narrow a view of Rule 702.
“Where the expert’s qualifications are challenged, the test for exclusion is a strict one.... One knowledgeable about a particular subject need not be precisely informed about all details of the issues raised in order to offer an opinion.” Kopf,
Storer has been a computer scientist for approximately 30 years. Over that time he has developed software personally, in a commercial setting as a part-time job prior to beginning his Ph.D. program; while working in the self-described “post-doctoral” atmosphere of Bell Laboratories in Princeton, New Jersey, where he obtained a federal grant to develop both hardware and software; and with fellow academics at Brandies University. In addition he has supervised students as they developed their own software, as required undergraduate work and as a student’s chosen area of research in pursuit of his or her graduate studies. This various and lengthy background sufficiently satisfies the court that Storer’s experience and training qualify him as an expert in the area of software development.
Defendant’s contentions grounded in a lack of commercial experience and experience with the relevant software also are without merit. As an initial matter, defendant has done nothing to demonstrate why commercial software development is so unique that an otherwise qualified expert should be disqualified in the absence of specialized experience. See Belk, Inc. v. Meyer Corp.,
In addition, defendant’s objections are irrelevant in light of the high level nature оf Storer’s proposed opinion. As is discussed more fully below, Storer does not ground his opinion that defendant could not have developed WPS in specific evidence of defendant’s use of SAS LE or in his technical understanding of the software at issue. Rather, more accurately stated, Storer opines that defendant could not have developed WPS without use of SAS LE in light of his experience in software development generally. His opinion nei
2. Helpfulness
Defendant also challenges the relevance of Storer’s opinion by arguing that it will not be “helpful” to the trier of‘fact. See Fed.R.Evid. 702(a). Defendant contends Storer’s entire opinion is unhelpful because he did not rely on his expertise in reaching his conclusion. To address the helpfulness of Storer’s opinion it is necessаry separately to consider what the court has identified as its two constituent parts. First, the court considers Storer’s opinion that WPS is a “clone” of SAS LE. Second, the court considers Storer’s opinion that development of WPS would have been “impractical” without use of SAS LE.
An expert may not ground his or her opinion in sensibilities common to the average juror. See United States v. Perkins,
.Storer’s first opinion will be helpful to the jury.. Defendant primarily-argues that Storer’s opinion merely summarizes already admissible evidence and presents it to the jury in a format susceptible to undue weight, given its expert source. The court disagrees.
Rule 702 does not grant an expert an unlimited licénse to testify in a manner that simply summarizes otherwise admissible evidence without some 'connection to the expert’s proffered' expertise. United States v. Johnson,
Under the circumstances of this case, Storer’s opinion, admittedly derived in large part from defendant’s internal communications and prior trial testimony, will be helpful to the trier of fact in understanding the technical nature of those documents. Although some of the documents from which Storer draws his conclusion are self explanatory, a large number of those documents were written “programmer to programmer,” such that they are not readily understood by lay persons. In summarizing or characterizing these “programmer tо programmer” documents for the jury, Storer will rely on his background knowledge of computer science to educate the jury and assist in their understanding of the case. See Fed.R.Evid. 702, advisory committee notes (2000); Johnson,
Although Storer’s testimony aimed toward facilitating the jury's understanding of the evidence is admissible, such admissibility does not give plaintiff a “blank check” to inquire as to Storer’s characterization of all the evidence he reviewed. When an expert summarizes evidence for the jury, the cornerstone of admissibility is the expert’s reliance on his or her expertise in conveying that summary. See Johnson,
With respect to Storer’s second opinion, that development of WPS would have been impractical without use of SAS LE, defendant’s motion also must be denied. It is doubtful defendant can mount a serious challenge to the helpfulness of this opinion, because its subject matter is technical in nature and outside the common knowledge of the average juror. As is discussed below, this opinion is grounded firmly in Storer’s expertise and was reached applying reliable methodology. Accordingly, defendant’s motion to еxclude Storer’s testimony as unhelpful is denied.
3. Methodology
a. Defendant’s Motion Presentation
Before turning to the substance of defendant’s challenges to Storer’s method
Where an expert’s methodology is grounded in his experience, as Storer’s is, a proper methodology analysis focuses on three areas: 1) how the expert’s experience leads to the conclusion reached; 2) why that experience is a sufficient basis for the opinion; and 3) how that exрerience is reliably applied to the facts of the case. SMD Software,
In any event, although defendant’s briefing presents its. аrgument in an awkward fashion, it is not so obtuse as to preclude proper analysis of defendant’s motion. This is especially true in light of the court’s own questioning of Storer at hearing and the arguments of counsel. With these considerations in mind, the court turns now to-the merits of the remaining part of. defendant’s motion.
b. “Integral” use of SAS LE
Relying oh EEOC v. Freeman,
Defendant’s comparison of Storer’s opinion to that offered by the proposed expert at issue in Freeman borders on specious. First, in Freeman the. defendant’s objection to the EEOC’s expert was grounded in errors in the expert’s statistical methodology. Freeman,
Even assuming-the principles in Freeman are applicable to the case at bar, defendant’s argument still misses 'the mark. In Freeman, the EEOC^s expert was presented with a universe of data, all of which were relevant to his methodology and could have impacted his overall conclusion, which he subsequently ignored in large part when developing his opinion. See id.; id. at 468-69 (Agee, J., concurring). Under the circumstances of this case, there is no indication that the entire universe of evidence available was relevant to Storer’s methodology, where he offers only a high level opinion based on his experience in software development. Moreover, even if the complete universe .of evidence could have impacted Storer’s opinion, the court cannot substitute . its judgment for that of the expert as to what is sufficient evidence to inform his experiential conclusion. See Cooper,
In essence, defendant contends Storer should have looked at a larger universe of data when drawing his conclusion. In most cases, it is not the court’s place to close the gate based on that ground; so too here. In view of the nature of Storer’s opinion, any failure to consider additional evidence or employ a diffеrent, more quantitative mode of analysis must be the subject of cross examination.
c. Development by Third Party Installation “Impractical”
Defendant also suggests Storer’s opinion, that development of WPS would have been “impractical” without: use of SAS LE, should be excluded as unreliable. The court disagrees.
As part of his experience relevant to this case, Storer discussed a computer programming concept known as a “standard,” published data describing the industry accepted output with respect to a type of file, such as an MPEG file which contains audio and video. Storer further discussed the integral nature of a program, known in the industry as a “reference coder,” that allows a programmer to compare in real time the output of his or her own program against that standard. Storer indicated that he previously had used a “reference coder” to compare output of his own program against a “standard.” Storer then stated that the SAS system is not a “standard,” and as such no reference coder exists,, but that it is possible to use SAS LE. or another SAS installation as if it is a reference coder, as defendant did here. He then opined that, in light of the heavy reliance on “reference coders”' by programmers attempting to perfect a single output, it would have been impractical for defendant to develop WPS without reliance on a readily accessible copy of SAS LE, given the fact , that defendant sought to create a unified input/output correspondence.
Storer’s opinion seems wanting in certain aspects. For example, his opinion regarding the impracticality of relying on third parties fails to account for how much defendant actually used SAS LE in the
4. Rule 403
Defendant also argues that Storer’s opinion contains certain statements, that should be excluded under Federal Rule of Evidence 403. First, defendant contends that the court should exclude Storer’s opiniоn inasmuch1 as he states that the SAS system is not an interpreter or compiler, because the court found that the SAS system was in its order on summary judgment. Next, defendant contends that the court should exclude Storer’s opinion where he opines that WPS is a “clone” of the SAS system.
Federal Rule of Evidence 403 provides that the court may exclude otherwise relevant evidence “if its probative value is, substantially outweighed by a danger-.of ... unfair prejudice, confusing the issues, misleading the .jury, undue delay, wasting time or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. When making -rulings under Rule 403, the district court is - afforded wide discretion. See Minter v. Wells Fargo Bank, N.A.,
With regard to Storer’s statеments that the SAS system is not “an interpreter or compiler,” as was found by this court in its order on summary judgment, but, rather is a system of interpreters and compilers, defendant’s motion is allowed. The opinion is of scant, if any," probative value. Moreover, whether or not the SAS system .more properly is characterized as a system of interpreters and compilers versus “an interpreter or compiler” is of no moment in this case and could confuse the jury,
Defendant’s argument, regarding Storer’s statement that WPS is a “clone” of SAS LE. or that defendant’s development of WPS essentially was “copying” of SAS LE is without merit. Defendant contends Storer’s testimony will be unnecessarily confusing. Even though defendant contends the use of the word “clone” or “copy” is contrary to this court’s order on summary judgment, wherein the court concluded that the SAS language could be freely used, the court declines defendant’s invitation to exclude Storer’s opinion based on his repeated use of those terms. The terms “clone” or “copy” will be helpful to the jury in understanding Storer’s opinion regarding the functionality overlap between WPS and SAS LE. Understanding the correspondence between the two programs is integral to understanding Stoker's later-offered opinion that WPS could
CONCLUSION
Based on the forgoing defendant’s motion to exclude Storer’s testimony as irrelevant and unreliable under Daubert is DENIED. (DE 329). However, to the extent plaintiff will have Storer characterize otherwise admissible evidence, Storer must confine his opinion to those documents that require expertise to comprehend. Plaintiff is reminded that Storer may not offer expert testimony about the substance of all otherwise admissible documents he reviewed in forming his opinion absent procedural protections.
To the extent defendant’s motion sounds as'one to exclude certain portions of Storer’s testimony under Rule 403, that motion is GRANTED in PART and DENIED in PART. In particular, defendant’s Rule 403 motion is granted as to Storer’s оpinion that the SAS system is a system of “interpreters and compilers” rather than “an interpreter or compiler,” because Storer’s characterization is of little probative value and may confuse the jury. However, defendant’s motion is denied in remaining part.
Notes
. Also pending before the court is plaintiff’s motion to exclude certain opinions of defendant’s proffered expert, Kendyl A. Roman. (DE 347). The court orally granted plaintiff’s motion at hearing. A separate order grounding and expanding on the court's oral ruling will follow,
, In addition to the breach of contract claim discussed in the text, also pending for trial are claims for copyright violation; fraudulent inducement to contract; and violation of the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen.Stat. § 75-1.1 st seq. At' hearing, plaintiff, through counsel) expressed willingness to dismiss pláintiff’s copyright claim, but stopped short of making an oral motion to dismiss that claim. .Rather, plaintiff's counsel indicated that he preferred to file a written motion. To date, no such motion has been filed.
. A more through discussion of the United Kingdom litigation may be found in a prior order. SAS Inst. v. World Programming Ltd., No. 5:10-CV-25-FL, slip op. at *2-6 (E.D.N.C. July 21, 2015).
. Other cases relevant to this issue include: United States v. Milkiewicz,
. Defendant also suggests that use of the terms "clone” and "copy,” as well as their derivatives, should be excluded under Daubert, where Storer uses technical terms without providing a meaning. Despite defendant’s protestations, it is apparent that Storer’s use of those terms is not grounded in any veiled technical meaning, unexplained in his report, deposition, or at hearing. The court concludes, rather, that Storer’s use of the words "clone” and "copy” is colloquial in nature and will be helpful to a the jury in understanding the substance of his opinion.