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In order to determine that an expert's opinions are admissible, this Court must undertake a two-part analysis: first, the Court must determine that the witness is qualified by "knowledge, skill, experience, training, or education" to render the opinions; and second, the Court must determine whether the witness's opinions are "reliable" under the principles set forth in Daubert and Kumho Tire.
In this action, plaintiff Marten Transport, Ltd. ("Marten"), a trucking company, alleged that defendant PlattForm Advertising, Inc. ("PlattForm") used Marten's name and trademarks without authorization on websites on which PlattForm advertised truck driver jobs. The matter came before the Court on PlattForm's motion to exclude expert testimony by Marten's experts Ronald Fischer and Richard Follis. In seeking to exclude the opinions of Mr. Fischer, PlattForm first argued that Mr. Fischer is not sufficiently qualified to render opinions based on use of the Wayback Machine because he is not an expert specifically with respect to website archiving. PlattForm argued that Mr. Fischer, in opining that certain websites referenced Marten in the past as shown by the Wayback Machine, improperly acts as a surrogate for the experts who created the Internet Archive. PlattForm challenged two sets of opinions by Mr. Follis from his report. First, PlattForm took issue with the opinions in a paragraph discussing the "importance of a carrier being able to capture every qualified driver possible" and various issues of concern to drivers and applicants. PlattForm argued that these opinions represent mere speculation without basis.
In determining the admissibility of an expert’s opinion, is it necessarily required that the expert have invented or to have experience designing the particular tools that he uses in his field?
The court denied PlattForm's motion to exclude expert testimony from Mr. Fischer. Mr. Fischer has experience using tools to recover electronic data, including the use of the Wayback Machine, and the Court found such experience to be sufficient to withstand a Daubert challenge. The Court noted in that regard that an expert is not necessarily required to have invented or to have experience designing the particular tools that he uses in his field. The court concluded that Mr. Fischer offers expertise beyond that of the typical lay juror concerning search techniques, including the use of internet archives, and that his expert testimony would therefore be helpful to a jury. As regards Mr. Follis, the court held that his opinions were the type that Mr. Follis is qualified to render based on his expertise and long experience in the trucking industry. Accordingly, PlattForm's motion to exclude expert testimony by Marten's experts Ronald Fischer and Richard Follis was granted in part and denied in part. The motion was granted with respect to Mr. Follis's opinions regarding search engine optimization, which testimony shall be excluded at trial. The motion was otherwise denied.