Case 4:19-cv-02033-YGR Document 384 Filed 07/17/23 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE APPLE INC. SECURITIES
`LITIGATION
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`Case No. 4:19-cv-02033-YGR
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`ORDER ON MOTIONS TO EXCLUDE
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`Dkt. Nos.: 292, 301
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`Before the Court are the parties’ motions to exclude expert opinions. (Dkt. Nos. 292, 301.)
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`For the reasons given herein defendants’ motion is denied and plaintiff’s motion is granted in part
`and denied in part.
`LEGAL FRAMEWORK
`I.
`Federal Rule of Evidence 702 permits expert opinion testimony by a witness who is
`qualified and offers a relevant and reliable opinion. An expert witness may be qualified by
`“knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The proponent of
`expert testimony has the burden of proving admissibility. Fed. R. Evid. 702, Advisory Committee
`Notes (2000 amendments). “An expert should be permitted to testify if the proponent
`demonstrates that: (i) the expert is qualified; (ii) the evidence is relevant to the suit; and (iii) the
`evidence is reliable.” Perez v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2019 WL 1491694,
`at *3 (N.D. Cal. Apr. 4, 2019) (referencing Thompson v. Whirlpool Corp., No. C06-1804-JCC,
`2008 WL 2063549, at *3 (W.D. Wash. 2008) (citing Daubert v. Merrell Dow Pharms., Inc., 509
`U.S. 579, 589-90 (1993) (“Daubert I”)).
`Trial judges have discretion to determine reasonable measures of reliability. Kumho Tire
`Co. v. Carmichael, 526 U.S. 137, 153 (1999). Daubert I and Rule 702 also require that expert
`testimony be “relevant to the task at hand” and “fit” the facts of the case. Daubert I, 509 U.S. at
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`Case 4:19-cv-02033-YGR Document 384 Filed 07/17/23 Page 2 of 18
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`591, 597. “Expert testimony which does not relate to any issue in the case is not relevant and,
`ergo, non-helpful.” Id. at 591. The “test of reliability is flexible and Daubert’s list of specific
`factors neither necessarily nor exclusively applies to all experts or in every case” rather the “list of
`factors was meant to be helpful, not definitive, and the trial court has discretion to decide how to
`test an expert’s reliability as well as whether the testimony is reliable, based on “the particular
`circumstances of the particular case.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as
`amended (Apr. 27, 2010) (internal quotation omitted).
`Additionally, Paragraph 11 of this Court’s standing order for civil cases reads:
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`Daubert Motions. Each side is limited to three Daubert motions throughout the
`entire case absent leave of court. Daubert motions must clearly specify the
`paragraphs or portions of the report that the party seeks to exclude. Parties are
`reminded that issues going to the weight and credibility to be given to a report are
`not proper bases to bring a Daubert motion.
`(Emphasis supplied.)
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`Here, the Court allowed the parties to submit omnibus orders challenging more than three
`experts. (Dkt. No. 288.) It did not relieve the parties from the requirement that they clearly
`identify the opinions being challenged.
`DEFENDANTS’ MOTION TO EXCLUDE
`II.
`Defendants move to exclude opinions of two of plaintiff’s experts: Frank Partnoy and Dr.
`Oded Shenkar. (Dkt. No. 292; Dkt. No. 292-2, Partnoy Rebuttal; Dkt. No. 292-6, Shenkar
`Report.) The Court addresses each in turn.
`Frank Partnoy
`A.
`Defendants first argue the opinions referenced in paragraphs 9-21 of the Partnoy Rebuttal
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`should be excluded as improper legal opinions because Partnoy opines that the experts he is
`rebutting, Alex Gauna and Brett Trueman, do not rely on any reliable methodology or principles.
`(Dkt. No. 292 at 2.) Though a few sentences in the challenged opinions use language from
`Federal Rule of Evidence 702, they are not legal opinions. (See, e.g., Partnoy Rebuttal at ¶ 9
`(stating Gauna and Trueman “do not describe any reliable methodology, or reliable principles and
`methods, that they applied in forming their opinions and conclusions, or any principles and
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`methods that another expert could follow to test or replicate their opinions”).) The challenged
`opinions include detailed analysis of what he sees as the shortcomings of the other experts’
`opinions. Partnoy is making a substantive critique of the methods employed by the other experts,
`which is often the central role of a rebuttal expert. He is not simply stating as a matter of law that
`they are inadmissible under Daubert.
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`Defendants additionally seek exclusion of the opinions in paragraphs 25-26 and 28-31
`because they go beyond rebuttal of defendants’ experts. Defendants argue that Partnoy improperly
`refers to media articles and reports about the November 1, 2018 call that were not referenced by
`defendants’ experts. This is not improper. Partnoy refers to these sources as a critique of
`defendants’ experts’ methodology. Defendants’ experts only looked at a certain kind of analyst
`report during a specific period of time after the call as a basis for their opinions on how the public
`perceived the Challenged Statement. Partnoy argues that these limitations were arbitrary and that
`a broader view undermines their findings regarding how the Challenged Statement was
`understood. Thus, his references to other sources is directly responsive to their opinions.
`Accordingly, the motion is DENIED as to Partnoy.
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`ODED SHENKAR
`B.
`Defendants argue that Shenkar’s opinions include improper assertions about defendants’
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`subjective knowledge.1 “Courts routinely exclude as impermissible expert testimony as to intent,
`motive, or state of mind.” Lanard Toys Ltd. v. Anker Play Prod., LLC, No. CV 19-4350-RSWL-
`AFMX, 2020 WL 6873647, at *7 (C.D. Cal. Nov. 12, 2020) (citation and internal quotation marks
`omitted) (collecting cases). However, [“g]enerally, ‘state of mind’ and ‘intent’ objections are
`better ruled on at trial: the context of the testimony and the purposes for which it is offered are
`critical.” In re Juul Labs, Inc. Mktg., Sales Pracs. & Prod. Liab. Litig., No. 19-MD-02913-WHO,
`2022 WL 1814440, at *14 (N.D. Cal. June 2, 2022). Opinions premised on what a defendant
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`1 Defendants only identify paragraphs 75, 91, 103, 116, 123, 129, and 172, but purport to
`challenge any paragraphs in which Dr. Shenkar makes improper assertions regarding knowledge
`or state of mind. The motion is denied as to any opinions not specifically identified. It is not the
`role of the Court to scour the report sua sponte for potential problems.
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`knew at a certain time may be appropriate where reasonably based on admissible evidence. Id.
`(leaving until trial determination of whether expert could opine regarding what defendant knew
`regarding health effects).
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`The opinions defendants identified do not go to intent or motive, they are statements
`regarding what Apple must have known at certain times based on the evidentiary record.
`Accordingly, the Court does not find exclusion at this time appropriate and denies the motion on
`this basis.
`Defendants also move to exclude opinions in paragraphs 4, 14, and 52-63.2 They argue
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`Shenkar may not opine on certain economic issues in China as he is a sociologist and not an
`economist. Specifically, they challenge his expertise on “economic trends, and in particular, their
`impact on the Chinese smartphone market.” (Dkt. No. 292 at 7.)
`Shenkar is qualified to give the challenged opinions. He is an expert in Chinese sociology
`with a focus on business. His background and experience sufficiently prepare him to make the
`challenged opinions, which are his opinion regarding what studies and other sources say about the
`general economic climate in China. Shenkar grounds these opinions in citations to various
`sources, none of which defendants challenge. Accordingly, the Court finds the opinions
`adequately supported and within Shenkar’s expertise.
`Accordingly, the motions is DENIED as to Shenkar.
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`Defendants’ motion to exclude is therefore DENIED in its entirety.
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`III.
`PLAINTIFF’S MOTION
`The Court first addresses three issues relevant to multiple experts. First, to the extent
`plaintiff seeks to exclude experts based on relevance because they opine on the accuracy of the
`November 1, 2018, 1Q19 Guidance (“Guidance”), the motion is denied. The accuracy of the
`Guidance and the extent to which it accounted for factors that plaintiff alleges were not adequately
`disclosed through the Challenged Statement are relevant to various of defendants’ defenses,
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`2 Again, though defendants request the Court strike all opinions in which Dr. Shenkar
`opines improperly on the Chinese economy, the Court only addresses those paragraphs which
`defendants specifically identify and denies any other as procedurally not properly raised.
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`including that defendants did not act with knowledge or intent, which is relevant to scienter.
`Similarly, the Court rejects plaintiff’s argument that opinions regarding whether factors and events
`subsequent to the Challenged Statement are irrelevant and prejudicial. Though plaintiff is correct
`that such opinions are not relevant to determination of what defendants knew when the Challenged
`Statement was made, they are relevant to issues such as loss causation. Plaintiff must show that
`the Challenged Statement caused its loss. Whether other events subsequent to November 1 and
`before the end of the class period impacted changes in the value of Apple’s securities is relevant.
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`Second, plaintiff appears to seek to exclude any opinions on the accuracy of the
`Challenged Statement as interpreted by defendants (that is, that the Challenged Statement was
`retrospective and/or about countries experiencing currency value fluctuation). While plaintiff is
`correct that experts may not opine on Cook’s intent in making the statement, or what he thought
`the statement meant, they may opine on whether a given interpretation of the statement is factually
`supported.
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`Third, to the extent plaintiff seeks to exclude opinions without adequately identifying the
`specific paragraphs at issue, the motion is denied. In line with this Court’s standing order, the
`Court limits its review of plaintiff’s motion to opinions that are clearly identified.
`DENNIS YANG
`A.
`Dennis Yang, Ph.D. was hired by defendants to opine on macroeconomic conditions in
`China during the second half of 2018. (Dkt. No. 301-2, “Yang Report.”)
`Plaintiff does not clearly identify the portions of the Yang Report it seeks to exclude. (See,
`e.g., Dkt. No. 301 at 3 (stating at one point that “much of” the testimony is unreliable and
`irrelevant and later that the entire report is unreliable and irrelevant).) The Court has considered
`whether each argument raised is a basis for excluding the entire report or, if identified, the specific
`paragraphs. As with the defendants, the Court will not scour the record to identify objectionable
`opinions not specified by plaintiff. While plaintiff raises numerous objections to Yang’s proffered
`testimony, his qualifications as an expert on the Chinese economy is not one of them.
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`Opinions Framing Plaintiff’s Claims
`1.
`Plaintiff argues that Yang’s statement of plaintiff’s theory of the case as reflected in
`paragraph 7 is false and misleading. (See Yang Report at ¶ 7.) The Court agrees. Yang is
`excluded from testifying as to his articulation of plaintiff’s case as it is misleading. The motion is
`GRANTED as to the second sentence of paragraph 7. Plaintiff has not identified any other opinions
`it seeks to exclude on this basis.
`Opinions Regarding Accuracy of the Challenged Statement
`2.
`Plaintiff seeks to exclude the opinion in paragraph 99 from the “Conclusion” Section on
`the ground that it makes a determination of fact that is to be decided by the jury. This opinion
`states:
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`99. Based on the evidence I have described above, I have concluded that the
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`statements made by Mr. Cook on November 1, 2018 were accurate and Apple’s
`sales of iPhones in China were significantly negatively affected during November
`and December of 2018 due to unexpected events and the unexpected weakening of
`the Chinese economy.
`The Court agrees. Whether the Statement was accurate depends on the Statement’s meaning,
`which is disputed. The opinion goes too far in addressing an ultimate issue of fact which is the
`province of the jury. It is for the jury to determine both the meaning of the Statement and whether
`the facts indicate it was accurate. Accordingly, the motion is GRANTED as to the opinion in
`paragraph 99.
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`Opinions Regarding Huawei Chief Financial Officer (“CFO”)
`3.
`Plaintiff identifies several grounds to exclude opinions regarding the impact on iPhone
`sales resulting from the arrest of Huawei’s CFO. (Dkt. No. 301 at 8, identifying Yang Opinions
`78-84 and 98.) Huawei is a competitor of Apple. First, plaintiff argues these opinions are
`irrelevant because the arrest took place in December, after the Challenged Statement.
`While the arrest of the CFO of Apple’s competitor after November 1 is not relevant to a
`determination of what Apple knew as of November 1, it is relevant to other elements of plaintiff’s
`claims and defendants’ defenses. Plaintiff must show that the Challenged Statement caused its
`loss. Whether events after November 1 and before the end of the class period impacted changes in
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`Case 4:19-cv-02033-YGR Document 384 Filed 07/17/23 Page 7 of 18
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`the value of Apple’s securities is therefore relevant.
`Second, plaintiff argues that Yang’s opinions are unreliable because he does not consider
`evidence that certain Apple executives did not think the arrest impacted iPhone sales. Experts are
`not required to consider all evidence in the record. In re Korean Ramen, 281 F.Supp.3d 892, 931
`(N.D.Cal. 2017) (“That [expert] did not address (or review) deposition testimony where
`defendants' employees testified to matters that purportedly undermine some of his opinions or
`assumptions does not make his testimony excludable. Those are grounds for cross-examination.”).
`The topic is one for cross-examination, not exclusion.
`Third, plaintiff argues that Yang provides no methodology, analysis, or evidence
`supporting his opinion (stated at paragraphs 84 and 98) that the arrest had actual impact on iPhone
`sales. Plaintiff misunderstands the basis for his opinions. Yang has been working in this area for
`decades. It is based upon that wealth of experience that he opines on the impact of the arrest. In
`this arena scientific modeling is not required. That Yang made reference to articles stating that
`consumers were less likely to buy iPhones after the arrest as well as a survey regarding consumer
`intent to buy Apple products, merely contributes to his overall opinion; they cannot be viewed in a
`vacuum from his overall expertise. Again, the issue is one of weight, not admissibility. The
`motion is denied as to the opinions reflected in paragraphs 84 and 98.
`Opinions Regarding Unexpected Changes in the Chinese Economy
`4.
`Plaintiff moves to exclude opinions regarding unexpected changes to the Chinese economy
`and identifies paragraphs 10-11, 45, 66, 71-74, and 98-99.
`First, plaintiff argues these opinions are contrary to the opinions of defendants’ other
`experts and that the data he relies on could support a different conclusion. These arguments go to
`weight not admissibility.
`Second, plaintiff argues that Yang does not have a valid methodology for concluding that
`changes to the Chinese economy were unexpected. The Court disagrees. Yang explains that he
`relied on various sources including articles and publicly available statements from various
`companies operating in China in the relevant period. The critiques raised by plaintiff, such as that
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`Yang does not clearly define what the expected macroeconomic conductions were for the relevant
`period or to whom exactly the economy’s performance was unexpected (e.g., consumers,
`economics, investors) are relevant to weight and are properly raised in a rebuttal report. Plaintiff
`may cross-examine. The motion is denied as to these opinions.
`Opinions Regarding Stability of Chinese Currency
`5.
`Plaintiff argues that Yang’s opinions regarding stability of the Chinese currency during the
`class period are irrelevant and prejudicial. The Court disagrees. The stability of the currency is
`relevant to defendants’ defense that the Challenged Statement was related to changes in currency
`and accurately represented Apple’s knowledge at the time regarding same. The motion is denied
`as to these opinions.
`Accordingly, as stated herein, the motion is GRANTED IN PART in part and DENIED IN
`PART at to Yang.
`ALEX GAUNA
`B.
`Alex Gauna, MBA, opines on various topics related to sources of information on the value
`of a stock, including analyst reports and corporate disclosures. (Dkt. No. 301-4, “Gauna Report.”)
`In plaintiff’s introduction to this part of its motion, it asserts that Guana’s “testimony would be
`unhelpful and misleading to a jury and should therefore be entirely excluded.” (Dkt. No. 301 at 11
`(emphasis supplied).) However, plaintiff’s arguments are only relevant to certain of Guana’s
`opinions. Accordingly, the motion is denied to the extent it seeks to exclude the entire report.
`Opinions Regarding Disclosure Requirements
`1.
`Plaintiff objects to the opinions reflected in paragraphs 12(d), 32, 35-36, 39, and 41 on two
`main grounds. The Court addresses each in turn.
`First, plaintiff asserts that these opinions are irrelevant and misleading as SEC disclosure
`laws are not at issue. As defendants note in their opposition, understanding what information is
`provided in SEC disclosures may help the jury understand what information was available to the
`market. SEC disclosures are not irrelevant simply because they are not the basis for plaintiff’s
`claims.
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`Second, plaintiff argues that these opinions impermissibly opine on what the law requires.
`They are therefore excludable as legal conclusions and as outside Gauna’s expertise. The Court
`agrees that parts of these opinions impermissibly opine on what the law requires, are outside
`Gauna’s expertiece, and further, do so in a vague manner likely to confuse or mislead a jury. The
`motion is GRANTED as to the first sentence of paragraph 35 to the extent it opines on what
`companies are “required” to do (“Public companies are not required to — and generally do not —
`provide their disclosures in a uniform and standardized fashion.”), the first two sentences of
`paragraph 39 (“It is not a regulatory requirement for management to provide any guidance . . . no
`guidance at all.”), the first sentence of paragraph 41 (“There are no specific parameters or formats
`required by any regulatory body providing guidance . . . .”) and all of paragraph 32 except for the
`first and last sentences on this basis.
`If these are jury issues, and a proper statement of law, a party may request a jury
`instruction.
`The motion on this basis is otherwise denied. The remaining challenged opinions address
`certain industry norms, the direct and indirect benefits of conducting conference calls, norms in
`addressing disclosure requirements, and the competitive value and risk to companies of disclosing
`certain information. They do not construe the law or its requirements.
`Opinions Regarding “Intra-quarter Updates”
`2.
`Plaintiff argues that the opinions reflected in paragraphs 45, 61, 63, and 65 should be
`excluded as irrelevant and misleading because they characterize the Challenged Statement as
`“intra-quarter results or an intra-quarter forecast.” (Dkt. No. 301 at 13-14.) Plaintiff states that it
`does not allege the Challenged Statement is an intra-quarter update, but rather that “Apple
`misrepresented the current state of its business in Greater China including demand for pricy new
`iPhones there.” (Id. at 14.) Plaintiff does not explain how a statement made regarding the status
`quo in the midst of a quarter is substantively different from an “intra-quarter update.” The
`difference appears semantic, which is an inadequate basis for exclusion. The motion is denied as
`to those opinions.
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`Opinions Regarding Views of the November 1 Call
`3.
`Plaintiff moves to exclude the opinions in paragraphs 12(g), 59 to 66 because they are not
`based on a reliable methodology and make factual determinations that should be made by the jury.
`The Court agrees.
`In short, Gauna merely serves as a conduit for attorney argument. Here, Gauna purports to
`summarize “other professional equity analysts’ reports in response to the November 1, 2018,
`earnings call” (paragraph 59) and quotes past earnings calls to provide context regarding how
`Apple has handled such calls in the past. He does not explain how he chose which reports or calls
`to consider or how they are representative of reports on the call generally. As such, they do not
`appear to provide any reliable context for a jury and appear to substitute his own judgment for
`theirs. Further, these opinions do not address technical statements in the calls or reports or
`otherwise require expert opinion. “It . . . does not take any special competence, for example, to
`read pertinent public documents (e.g., prospectuses, press releases, and recorded statements) to
`determine whether certain risks were conveyed to the public.” In re Stratosphere Corp. Sec.
`Litig., 66 F. Supp. 2d 1182, 1188 (D. Nev. 1999) (citing In re Apple Computer Sec. Litig., 886
`F.2d 1109, 1116 (9th Cir.1989)).
`Paragraph 66 similarly lacks any methodology. Gauna merely states that his conclusions
`are supported by “statistical realities” presented in Professor Trueman’s report without any
`explanation of how they do so.
`Paragraph 12(g) is the summary of plaintiff’s opinions regarding how Cook’s statement of
`the call was understood by the market. As the underlying opinions are excluded, this opinion is
`also excluded. The motion is GRANTED as to the opinions reflected in paragraphs 12(g), and 59 to
`66.
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`Accordingly, as stated herein, the motion is GRANTED IN PART in part and DENIED IN
`PART at to Gauna.
`BRETT TRUEMAN
`C.
`Brett Trueman, Ph.D., was hired to opine on how investors and the market understood the
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`November 1 call and Challenged Statement. (Dkt. No. 301-5, “Trueman Report.”) He did so by
`reviewing analyst reports and other publicly available information. (Id. at ¶¶ 21-25.)
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`Methodology
`1.
`Plaintiff asserts that Trueman’s opinions are not based on any reliable principles or
`methods as required by FRE 702(c). Trueman states that his analysis “is based on the statements
`that analysts made with respect to Apple’s business in China . . .” and other sources, which he
`conducted “[b]ased on [] academic research and my own expertise.” (Id. at ¶ 25.) Plaintiff alleges
`that this inadequately discloses the “analysis” Trueman performed. The Court disagrees.
`To support his opinions, Trueman read the sources, applied his knowledge, and reached his
`conclusions. That is a sufficiently clear methodology in this context. The remainder of plaintiff’s
`arguments regarding methodology, including that Trueman did not consider all analyst reports and
`did not perform other more exacting methodologies such as text analytics to compare analyst
`reactions to the call go to the weight that should be given to his opinions, not their admissibility.
`Indeed, as plaintiff’s motion states, plaintiff’s rebuttal expert makes these exact points. The
`motion on this basis is denied.
`Opinions Regarding Analyst Understanding of Call
`2.
`Plaintiff argues that Trueman’s opinions regarding what Apple analysts understood from
`the alleged misstatements is not based on expertise and invades the province of the jury.
`Specifically, they move to exclude paragraphs 27, 34, 40, 44, 49, 51, 53, 60, 61, 66, 68, and 69.
`As addressed with regard to Gauna’s report, the jury is capable of reading and understanding the
`reports themselves. Indeed, as Trueman opines, analysts draft their reports for use by investors
`not for a more esoteric or professionalized audience. (Trueman Report at ¶¶23-24 (analysts “‘help
`investors understand the implication of the earning announcements’”).)
`Unlike the Gauna opinions, the Court finds the Trueman opinions plaintiff challenges do
`not invade the province of the jury. They do not repeat, or purport to repeat what the reports say,
`they include Trueman’s interpretation of those reports. For example, he opines that had the
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`Case 4:19-cv-02033-YGR Document 384 Filed 07/17/23 Page 12 of 18
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`Challenged Statement been interpreted as plaintiff alleges, he would expect such significant
`information to be included in the analyst reports. That goes beyond merely stating what is in the
`reports. The motion is denied on this ground.
`Distortion of Plaintiff’s Claims
`3.
`Plaintiff alleges Trueman’s conclusions, as summarized in Opinion 27 and in the report’s
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`headings, mischaracterize plaintiff’s claims such that they pose a danger of unfair prejudice and
`confusion. The Court disagrees.
`As previously addressed, plaintiff has not convinced the Court that defendants’ use of the
`short-hand “intra-quarter update” is prejudicial. To the extent Trueman uses it to describe
`plaintiff’s allegations, the motion is denied.
`Plaintiff also argues Trueman’s opinion that the market did not come away from the
`November 1 call thinking that Apple was “not experiencing pressure in China” is prejudicial
`because it “creates the impression that Plaintiff must prove the market believed Apple was not
`facing business pressure in China.” (Dkt. No. 301.) Trueman does not indicate that this is the
`standard plaintiff must prove, rather he is opining on what he believes is the reasonable spectrum
`of interpretations that can be given to the Challenged Statement. This argument fails. The motion
`is denied on this ground.
`Gaming Applications and Foreign Currency Issues
`4.
`Plaintiff argues that Trueman’s opinions that reference Apple’s gaming business in China
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`(specifically, ¶¶ 44-45, 47, and 49) and foreign currency issues (id. at ¶¶ 41-43) should be
`excluded as irrelevant and likely to confuse the jury. The Court disagrees.
`One of defendants’ defenses is that the Challenged Statement was differentiating China
`from emerging countries experiencing fluctuations in currency value. It is therefore relevant to
`whether analysts understood Cook’s statement to mean that China was not experiencing the kinds
`of currency fluctuations seen in other countries. Opinions regarding gaming, which Cook
`admitted during the call was facing headwinds in China, could be relevant to several
`determinations including loss causation. The motion is denied on this ground.
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`Case 4:19-cv-02033-YGR Document 384 Filed 07/17/23 Page 13 of 18
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`Improper Rebuttal Opinions
`5.
`Plaintiff argues Section III of Trueman’s 8-page rebuttal report, Dkt. No. 301-6, “Trueman
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`Rebuttal,” is improper rebuttal testimony as it does not respond to the adverse party. This
`argument fails. This section directly responds to sources relied upon by Shenkar, the expert
`Trueman is rebutting. Trueman opines that not only do these sources not support Shenkar’s
`perspective they support his own.
`Accordingly, the motion is DENIED as to Trueman.
`CARLYN TAYLOR
`D.
`Plaintiff moves to exclude the entire rebuttal report of Carlyn Taylor as cumulative and
`outside the scope of Shenkar’s report. (Dkt. No. 301-10, “Taylor Rebuttal.”) The Court disagrees.
`Parties will be facing time limits at trial. Cumulative evidence wastes time. However, the
`parties’ trial strategy allows for multiple experts and decisions made later with respect to which
`expert will testify as to which issues at trial. The objection thus is premature and denied.
`Regarding the issue of scope, plaintiff alleges that the report is focused on the process
`through which Apple created its Guidance, which is not the subject of Shenkar’s report. Plaintiff
`overreaches. It ignores that much of Taylor’s rebuttal explicitly and directly responds to
`Shenkar’s report. (See, e.g., Taylor Rebuttal at ¶ 6 (“But the Shenkar Report contains no
`organizing framework for understanding the evidence that Dr. Shenkar cites.”); ¶ 40 (“Dr. Shenkar
`refers to various emails and other documents discussing problems with the iPhone XR launch but
`does not mention any of these downward revisions . . . .”); ¶ 44 (critiquing Shenkar’s reliance on
`store traffic and other measurements of demand).) Exclusion of the entire reports is thus
`inappropriate. The motion is DENIED as to Taylor.
`ERIC POER
`E.
`Plaintiff moves to exclude the opinions of Eric Poer, CPA, CFF, ABV, CFE. (Dkt. No.
`301-7, Report of Eric Poer, “Poer Report.”)
`Scope of Expertise
`1.
`Plaintiff argues Poer does not have expertise to support his various opinions. Again,
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`Case 4:19-cv-02033-YGR Document 384 Filed 07/17/23 Page 14 of 18
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`plaintiff does not identify the opinions it challenges or even the topics that Poer is unqualified to
`opine on. Indeed, it seems to agree that he is qualified to opine on accounting and finance, though
`it argues that “this case is not an accounting case, or a finance case.” (Dkt. No. 301 at 26.) This
`argument fails.
`Relevance of Opinions
`2.
`Plaintiff asserts that opinions regarding numerous topics are irrelevant and should be
`stricken. However, plaintiff does not explain why these topics