United States of America v. Second Chance Body Armor Inc ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, ex rel., )
AARON J. WESTRICK, Ph.D., )
)
Plaintiffs, )
)
v. ) Civil Action No. 04-0280 (PLF)
)
SECOND CHANCE BODY ARMOR, INC., )
et al., )
)
Defendants. )
__________________________________________)
OPINION
This False Claims Act case is scheduled for trial before a jury beginning on
March 5, 2018. Currently pending before the Court are ten motions in limine to exclude the
opinions and testimony of seven experts proffered by the United States and three experts
proffered by defendants Toyobo Co. Ltd. and Toyobo America, Inc. (collectively, “Toyobo”).
At the request of the parties, the Court held a Daubert hearing with respect to one of Toyobo’s
proffered experts, Dr. Kazuyki Yabuki, on January 23, 2018. The parties agreed to rest on their
papers with respect to the remaining motions. See Joint Report re: Daubert Hearings [Dkt. No.
503]. The Court has carefully reviewed the expert reports and supplemental reports of each
expert; the testimony of Dr. Yabuki at the Daubert hearing and the arguments presented by
counsel with respect to Dr. Yabuki; and the motions in limine filed by the parties and the
oppositions and replies thereto with respect to why the proponent believes the testimony should
be admitted and why the opponent believes it should be excluded. The Court’s rulings with
respect to these ten proffered experts follow. 1
I. LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence effectively codifies the Supreme
Court’s decisions in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire
Co. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the Court charged trial judges with the
1 In connection with the pending motions, the Court reviewed the following papers
and exhibits attached thereto: Toyobo’s Memorandum in Support of its Motion to Exclude the
Opinions and Testimony of Dr. S. Leigh Phoenix (“Phoenix Mot.”) [Dkt. No. 382-1], the United
States’ Opposition (“Phoenix Opp.”) [Dkt. No. 402], and Toyobo’s Reply (“Phoenix Reply”)
[Dkt. No. 428]; Toyobo’s Memorandum in Support of its Motion to Exclude Certain Opinions
and Testimony of Dr. Alan J. Lesser (“Lesser Mot.”) [Dkt. No. 374-1], the United States’
Opposition (“Lesser Opp.”) [Dkt. No. 397], and Toyobo’s Reply (“Lesser Reply”) [Dkt. No.
422]; Toyobo’s Memorandum in Support of its Motion to Exclude Certain Opinions and
Testimony of Dr. David S. Brookstein (“Brookstein Mot.”) [Dkt. No. 384-1], the United States’
Opposition (“Brookstein Opp.”) [Dkt. No. 401], and Toyobo’s Reply (“Brookstein Reply”) [Dkt.
No. 421]; Toyobo’s Memorandum in Support of its Motion to Exclude Certain Opinions and
Testimony of Dr. Michael A. Riley (“Riley Mot.”) [Dkt. No. 380-1], the United States’
Opposition (“Riley Opp.”) [Dkt. No. 400], and Toyobo’s Reply (“Riley Reply”) [Dkt. No. 424];
Toyobo’s Memorandum in Support of its Motion to Exclude Certain Opinions and Testimony of
Kirk Rice (“Rice Mot.”) [Dkt. No. 381-1], the United States’ Opposition (“Rice Opp.”) [Dkt. No.
No. 399], and Toyobo’s Reply (“Rice Reply”) [Dkt. No. 426]; Toyobo’s Memorandum in
Support of its Motion to Exclude Certain Opinions and Testimony of Joseph T. Anastasi
(“Anastasi Mot.”) [Dkt. No. 375-1], the United States’ Opposition (“Anastasi Opp.”) [Dkt. No.
No. 396], and Toyobo’s Reply (“Anastasi Reply”) [Dkt. No. 420]; Toyobo’s Memorandum in
Support of its Motion to Exclude Certain Opinions and Testimony of Dr. A.S. Abhiraman
(“Abhiraman Mot.”) [Dkt. No. 377-1], the United States’ Opposition (“Abhiraman Opp.”) [Dkt.
No. 398], and Toyobo’s Reply (“Abhiraman Reply”) [Dkt. No. 418]; the United States’
Memorandum of Law in Support of its Motion in Limine to Exclude the Testimony of Dr.
Kazuyuki Yabuki (“Yabuki Mot.”) [Dkt. No. 385-1], Toyobo’s Opposition (“Yabuki Opp.”)
[Dkt. No. 391], and the United States’ Reply (“Yabuki Reply”) [Dkt. No. 427]; the United
States’ Memorandum of Law in Support of its Motion in Limine to Exclude the Testimony of
Dr. Robert M. Nowak (“Nowak Mot.”) [Dkt. No. 383-1]; Toyobo’s Opposition (“Nowak Opp.”)
[Dkt. No. 393], and the United States’ Reply (“Nowak Reply”) [Dkt. No. 425]; and the United
States’ Memorandum of Law in Support of its Motion in Limine to Exclude the Testimony of
Herbert Heuchert (“Heuchert Mot.”) [Dkt. No. 379-1], Toyobo’s Opposition (“Heuchert Opp.”)
[Dkt. No. 394], and the United States’ Reply (“Heuchert Reply”) [Dkt. No. 419].
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responsibility of acting as “gatekeepers” to shield unreliable or irrelevant expert testimony and
evidence from the jury. In Kumho, the Court made clear that the gatekeeper function applies to
all expert testimony, not just scientifically-based testimony.
Rule 702 provides that if the Court finds that “scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue,” and if the Court finds that the witness “is qualified as an expert by knowledge, skill,
experience, training, or education,” then the Court may permit the witness to testify – so long as
the witness’s “testimony is based on sufficient facts or data,” “the testimony is the product of
reliable principles and methods,” and the witness has “reliably applied the principles and
methods to the facts of the case.” FED. R. EVID. 702. The party seeking to introduce the expert
testimony must demonstrate its admissibility under Rule 702 by a preponderance of the evidence.
See Meister v. Med. Eng’r Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001) (citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. at 592 n.10); Rothe Dev., Inc. v. Dep’t of Defense, 107 F.
Supp. 3d 183, 197 (D.D.C. 2015). The Court has “broad discretion in determining whether to
admit or exclude expert testimony.” U.S. ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608
F.3d 871, 895 (D.C. Cir. 2010) (quoting United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir.
1996)).
“[T]he twin requirements for the admissibility of expert testimony are evidentiary
reliability and relevance.” FTC v. Whole Foods Mkt., Inc., No. 07-1021, 2007 WL 7632283, at
*1 (D.D.C. July 27, 2007). “With respect to evidentiary reliability, the Court’s focus must be on
the methodology or reasoning employed by application of the factors in Rule 702 and the non-
exhaustive list of factors set forth in Daubert and Kumho.” Id.; see Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. at 595 (holding that the “focus, of course, must be solely on principles and
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methodology, not on the conclusions they generate”); Ambrosini v. LaBarraque, 101 F.3d 129,
140 (D.C. Cir. 1996) (“[T]he admissibility inquiry focuses not on conclusions but on
approaches . . . .”). These factors include: “(1) whether the theory or technique can be and has
been tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) the method’s known or potential rate of error; and (4) whether the theory or
technique finds general acceptance in the relevant scientific community.” Ambrosini v.
Labarraque, 101 F.3d at 134 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 593-94).
The Court is not bound by only these factors when considering reliability. As the D.C. Circuit
has noted, “[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 [with] respect to its ultimate
reliability determination.’” Gilmore v. Palestinian Interim Self-Gov’t Auth., 843 F.3d 958, 972
(D.C. Cir. 2016) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. at 142).
“With respect to relevance, the Court must determine whether the proffered
testimony is sufficiently tied to the facts of the case and whether it will aid the factfinder in
resolving a factual dispute.” FTC v. Whole Foods Mkt., Inc., 2007 WL 7632283, at *1 (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 592-93). This is a consideration of “fit.”
Ambrosini v. Labarraque, 101 F.3d at 134 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
at 591). “‘Fit’ is not always obvious, and scientific validity for one purpose is not necessarily
scientific validity for other, unrelated purposes.” Id. (citing Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. at 591).
II. EXPERTS PROFFERED BY THE UNITED STATES
Toyobo moves to exclude the opinions and testimony of seven experts proffered
by the United States: (1) Dr. S. Leigh Phoenix; (2) Dr. Alan J. Lesser; (3) Dr. David S.
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Brookstein; (4) Dr. Michael A. Riley; (5) Kirk Rice; (6) Joseph T. Anastasi; and (7) Dr. A.S.
Abhiraman. The Court notes at the outset that the rulings set forth in this Opinion pertain to the
expert reports filed in this action, United States ex rel. Westrick v. Second Chance Body Armor,
Inc. (Civil Action No. 04-0280), and not the related action, United States v. Toyobo Co., Ltd.
(Civil Action No. 07-1144). In addition, the portions of the pending motions relating to Dr.
Allen L. Price and Dr. Bradley S. Field are now moot, as Toyobo has withdrawn its designations
of those two proffered experts. See Joint Report re: Daubert Hearings [Dkt. No. 503].
Separately, in response to the Court’s summary judgment rulings on September 4, 2015, see
United States ex rel. Westrick v. Second Chance Body Armor, Inc., 128 F. Supp. 3d 1 (D.D.C.
2015), the parties have withdrawn their arguments related to the commercial warranty provided
by Second Chance Body Armor, Inc. (“Second Chance”). See Joint Submission Regarding
Previously Filed Daubert Motions [Dkt. No. 456].
A. Dr. S. Leigh Phoenix
Dr. S. Leigh Phoenix is a tenured professor of mechanical and aerospace
engineering at Cornell University proffered by the United States to opine on the relationship
between fiber properties and ballistic performance. Dr. Phoenix holds a Doctorate in Theoretical
and Applied Mechanics from Cornell University. See March 2012 Report, Phoenix Mot. Ex. 1 at
1 (“Phoenix Report”) [Dkt. No. 382-3]. His primary areas of research include the ballistic
impact of fibrous structures, statistical and micromechanical modeling, and fracture mechanics
and fatigue modeling in metals. Id. Dr. Phoenix has authored over one hundred peer-reviewed
articles, including four articles on ballistic modeling. See Phoenix Opp. at 3.
Dr. Phoenix has submitted three expert reports in this case: (i) an affirmative
report dated March 15, 2012; (ii) a supplemental report dated October 3, 2012, submitted in
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response to one of Toyobo’s proffered experts, Dr. Kazuyuki Yabuki; and (iii) a declaration
dated May 15, 2013. 2 Toyobo has filed a motion [Dkt. No. 382] to exclude Dr. Phoenix’s
opinions in their entirety, a motion which the United States opposes. While the parties agree that
Dr. Phoenix is qualified to opine on properties of Zylon fiber, they disagree over whether Dr.
Phoenix may reliably opine on fiber properties as they relate to ballistic applications and
Toyobo’s disclosures to body armor manufacturers. The Court therefore will focus its analysis
on the reliability and fit of Dr. Phoenix’s proffered opinions.
1. Opinions Regarding Ballistics
Dr. Phoenix opines that fiber tensile strength is a critical factor in determining the
ballistic performance of body armor: if fiber tensile strength decreases by a significant amount,
so too will the ballistic performance of that fiber. See Phoenix Report at 5-6. Toyobo seeks to
exclude this opinion and Dr. Phoenix’s other opinions regarding ballistics on the grounds that
they are not reliable, will not assist the jury in deciding the issues in this case, and would invade
the province of the jury. Phoenix Mot. at 10.
Toyobo argues that Dr. Phoenix relied solely on mathematical models and did not
conduct any tests using “real bullets” to ensure that his models accurately predict the real-life
performance of Zylon fiber incorporated into a bulletproof vest. Phoenix Mot. at 4. Toyobo
further asserts that Dr. Phoenix’s ballistic models apply to only a subset of the bulletproof vests
at issue, ignore the effects of vest design and construction, are not used to design or test body
armor, and do not accurately predict the results of ballistic testing done by Second Chance on its
used Zylon vests. Id. at 10-14. In addition, Toyobo contends that Dr. Phoenix has neither
2 Dr. Phoenix has also submitted a rebuttal report dated May 23, 2012 in response
to Dr. Allen Price and Dr. Field who, as noted, have been withdrawn.
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designed nor manufactured bulletproof vests and thus lacks relevant professional experience to
support his conclusions regarding ballistic performance. Id. at 14. Permitting Dr. Phoenix’s
testimony under these circumstances, Toyobo argues, would be unfairly prejudicial to Toyobo.
Id.
The Court disagrees. Dr. Phoenix’s opinions regarding ballistics and ballistic
performance are based on a sound methodology and would aid the jury in evaluating the
suitability of Zylon for use in bulletproof vests. Dr. Phoenix used his expertise in fiber
properties and ballistic modeling to analyze Toyobo’s testing data measuring the tensile strength
of Zylon fiber over time. See, e.g., Phoenix Report at 6-10. Dr. Phoenix’s ballistic impact
modeling is generally accepted science that has been cited forty-nine times in peer-reviewed
articles. Phoenix Opp. at 13. Dr. Phoenix need not have experience designing or manufacturing
bulletproof vests to reliably assess the behavior of Zylon fiber incorporated into bulletproof vests
using peer-reviewed ballistic modeling. Furthermore, Toyobo’s concerns over the lack of
ballistic testing using “real bullets” or the limits of Dr. Phoenix’s ballistic models go to the
weight to be accorded to his testimony and not its admissibility under Daubert or Rule 702. See
Robinson v. District of Columbia, 75 F. Supp. 3d 190, 200 (D.D.C. 2014). The Court therefore
will admit Dr. Phoenix’s proffered opinions regarding ballistics and ballistic performance.
Separately, Toyobo seeks to exclude Dr. Phoenix’s opinion that Second Chance’s
used-vest testing showed that some Zylon vests would fall below the standards set by the
National Institute of Justice (“NIJ”) before five years. Phoenix Mot. at 15-16; Phoenix Report at
42. Toyobo characterizes this opinion as pertaining to “the durability of Second Chance’s Zylon
vests.” Phoenix Mot. at 15. The United States responds that Dr. Phoenix does not offer an
opinion on the durability of Second Chance vests, but rather questions Second Chance’s
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interpretation of its used-vest testing data. Phoenix Opp. at 29-30. Based on Dr. Phoenix’s
report and his deposition testimony, however, it appears that Dr. Phoenix does indeed offer an
opinion that “one can crudely estimate [that] some vests would likely fall below the NIJ standard
well before 5 years . . . .” See Phoenix Report at 42; 01/17/13 Phoenix Dep. at 913:16-915:8
[Dkt. No. 382-15]. Because this opinion is admittedly based on a “crude” estimate, the Court
will exclude it.
2. Opinions Regarding Toyobo’s Disclosures
In 2001, Toyobo periodically tested the strength retention of thirteen spools of
Zylon fiber that had been continuously exposed to conditions of 40°C and 80% relative
humidity. Toyobo then disclosed the results of that testing to body armor manufacturers and
others in the body armor industry. Dr. Phoenix opines that Toyobo’s disclosures were improper
for several reasons: (i) Toyobo “suppressed” the fact that each spool had a different level of
strength retention by disclosing averaged data rather than raw data for each spool; (ii) Toyobo
selected spools with higher “Na/P ratios” in order to boost the results of the fiber strength testing;
(iii) Toyobo deleted outlier data points; and (iv) Toyobo delayed the disclosure of its testing data.
Toyobo seeks to exclude Dr. Phoenix’s opinions about Toyobo’s disclosures for
two main reasons. First, Toyobo asserts that Dr. Phoenix’s opinions about the impact of the
disclosures on the body armor industry are based on speculation rather than on reliable principles
or accepted data-reporting standards in the fiber and ballistics industries. Phoenix Mot. at 18-20.
Toyobo argues that Dr. Phoenix does not know what body armor manufacturers did with the
information from Toyobo, whether they were misled, what expectations they had of Toyobo,
whether they asked to receive raw data for each spool of Zylon, or what information they found
important. Id. Toyobo further argues that Dr. Phoenix has not worked for a fiber supplier, has
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not designed a bulletproof vest, and is not familiar with the data reporting methods of fiber
suppliers. Id. Second, Toyobo contends that Dr. Phoenix’s opinions about Toyobo’s internal
knowledge and motives are speculative and would invade the province of the jury. Id. at 20-21.
Toyobo asserts that Dr. Phoenix has no reliable basis to proffer opinions about what Toyobo
knew or intended when it conducted its testing and disclosed data to the body armor industry. Id.
The Court will admit certain portions of Dr. Phoenix’s proffered opinions and
exclude others. Dr. Phoenix’s methodology is reliable insofar as he used his expertise in fiber
properties to compare Toyobo’s internal testing data to the representations made in its
disclosures. Dr. Phoenix need not have experience as a fiber supplier or in bulletproof vest
design to reliably interpret Toyobo’s data generated from testing Zylon fiber. Due to the
technical nature of Toyobo’s data and disclosures, Dr. Phoenix’s opinions would aid the jury in
evaluating whether Toyobo’s disclosures were misleading. The Court therefore will admit Dr.
Phoenix’s opinions comparing Toyobo’s testing data to the data presented in its disclosures and
explaining how a reasonable person would have interpreted the disclosures. See In re Rail
Freight Fuel Surcharge Antitrust Litig., No. 07-mc-0489, 2017 WL 5311533, at *40 n.25
(D.D.C. Nov. 13, 2017) (admitting expert’s opinion that defendants’ behavior was consistent
with collusion but excluding his opinion that defendants intended to collude). For instance, Dr.
Phoenix may explain the results of Toyobo’s testing, describe what information Toyobo did or
did not disclose (e.g., reporting averaged data rather than raw data and removing certain data
points), opine on whether and why certain spools of Zylon fiber performed better than others,
and describe the amount of time between disclosures.
The Court will exclude, however, opinions regarding Toyobo’s knowledge or
intentions with respect to its disclosures to body armor manufacturers. Such testimony would be
9
too speculative to satisfy the reliability threshold of Rule 702 and would touch upon the ultimate
issue for the jury of whether Toyobo’s disclosures were misleading. See SEC v. Johnson, 525 F.
Supp. 2d 70, 78-79 (D.D.C. 2007) (excluding expert’s opinion that employees intended to
deceive auditors and that defendants misled auditors). Specifically, Dr. Phoenix will not be
permitted to opine on what Toyobo knew about Zylon degradation, why Toyobo made the
decision to test certain spools over others, why Toyobo chose to disclose or withhold certain
data, why Toyobo chose to present certain data in the manner that it did, or whether Toyobo was
motivated by business or other concerns. See Sykes v. Napolitano, 634 F. Supp. 2d 1, 9 (D.D.C.
2009) (excluding expert’s conclusion that a party was motivated by “self promotion and a fervent
quest to discredit the Plaintiff”); see also In re Chantix (Varenicline) Prod. Liab. Litig., 889 F.
Supp. 2d 1272, 1287 (N.D. Ala. 2012) (excluding expert testimony as to what defendant “knew”
or that defendant “misled” the FDA, but admitting testimony as to what information defendant
provided to the FDA).
Relatedly, the Court will exclude bald assertions based on the documentary record
regarding Toyobo’s intent or motivations. Dr. Phoenix includes these statements in some of his
discussion of the documentary record and Toyobo’s testing. See, e.g., Phoenix Report at 12
(“Documents show . . . [that] there was marketing pressure to increase the production speed [of
spools of Zylon fiber].”). The jury is competent to read and interpret the evidence without Dr.
Phoenix’s proffered opinions. See In re Rail Freight Fuel Surcharge Antitrust Litig., 2017 WL
5311533, at *21 (holding that “an economist’s testimony is not admissible where he or she
simply reads and interprets evidence of collusion as any juror might, or where an economist
infers intent to collude from mere documentary evidence, unrelated to his or her economic
expertise”).
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For similar reasons, the Court will exclude portions of Dr. Phoenix’s opinions
regarding whether body armor manufacturers were misled by Toyobo’s disclosures, what
information should have been conveyed to body armor manufacturers, and what information was
important to body armor manufacturers. Dr. Phoenix’s expertise in fiber properties and ballistic
modeling does not support his opinions on norms governing the disclosure of testing data within
the body armor industry.
3. Opinions in Response to Dr. Kazuyuki Yabuki
Toyobo seeks to exclude Dr. Phoenix’s opinions provided in response to one of
Toyobo’s proffered experts, Dr. Kazuyuki Yabuki. Dr. Phoenix and Dr. Yabuki disagree over
the relationship between “Na/P ratio” and the strength retention of Zylon. In Dr. Phoenix’s
opinion, Na/P ratio is an important indicator of how quickly Zylon fiber will degrade due to
exposure to heat and humidity. See October 2012 Report, Phoenix Mot. Ex. 3 at 5-6 [Dkt. No.
382-5]. Dr. Phoenix opines that Dr. Yabuki incorrectly concludes that there is a weak correlation
between Na/P ratio and Zylon degradation. Toyobo argues that Dr. Phoenix is not a polymer
chemist and thus lacks relevant experience, training, or education to reliably opine on the
relationship between Na/P ratio and strength retention. Phoenix Mot. at 23-24.
The Court is not persuaded that Dr. Phoenix’s opinion and testimony on this topic
should be excluded. Dr. Phoenix employed a reliable methodology by using his expertise in
mathematical modeling to compare Toyobo’s testing data tracking the Na/P ratio and strength
retention of various samples of Zylon fiber tested under conditions of 40°C and 80% relative
humidity. Dr. Phoenix need not be a polymer chemist to perform this type of data analysis. Dr.
Phoenix’s opinions proffered in response to Dr. Yabuki therefore will be admitted for the jury’s
consideration.
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B. Dr. Alan J. Lesser
Dr. Alan J. Lesser is a tenured professor of polymer science at the University of
Massachusetts, Amherst proffered by the United States as an expert in fiber properties and
ballistic performance. Dr. Lesser holds a Doctorate in Civil Engineering from Case Western
Reserve University and worked as a research scientist in the Polymeric Materials Department for
Shell Development Company prior to entering academia. March 2012 Report, Lesser Mot. Ex. 1
at 1 and Appendix A (“Lesser Report”) [Dkt. No. 374]. His research interests include fracture
and adhesion of fibers and environmental stress cracking and chemical degradation of polymer-
based materials. Id. at 1. Dr. Lesser has significant research experience in polymer chemistry
and fiber properties and has authored ninety-four peer-reviewed papers, including ten papers
detailing the impacts of environmental effects on the behavior of polymers and polymer-based
fibers. Lesser Report at 5.
Dr. Lesser has submitted an affirmative report dated March 15, 2012 in this case.
Toyobo has filed a motion [Dkt. No. 374] to exclude portions of Dr. Lesser’s opinions, a motion
which the United States opposes. The Court will address each of Toyobo’s objections in turn.
1. Opinions Regarding Ballistics and Vest Performance
Dr. Lesser opines that various properties of Zylon fiber render Zylon “so
mechanically and chemically fragile” that it is not suitable for use in bulletproof vests. Lesser
Report at 19. According to Toyobo, this opinion and Dr. Lesser’s other opinions related to
ballistic performance are unreliable because he lacks relevant ballistics experience – including
designing, manufacturing, or testing bulletproof vests – and did not conduct ballistic testing to
confirm that his opinions accurately reflect the behavior of Zylon fiber incorporated into a
bulletproof vest. Lesser Mot. at 7. Toyobo also contends that Dr. Lesser merely parrots a model
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of ballistic performance developed by another United States expert, Phillip M. Cunniff, that is
intended to be used in conjunction with ballistic testing. Id. at 7-9.
The Court will admit Dr. Lesser’s opinions regarding ballistic performance and
the suitability of Zylon for use in bulletproof vests. Dr. Lesser is qualified to offer opinions on
these topics based on his experience studying and working with fibers and ballistic impact
models. He reached his opinions through a reliable methodology, in which he applied his
knowledge of fiber properties to assess Toyobo’s degradation data using the Cunniff model of
ballistic performance. See, e.g., Lesser Report at 7-9. The Cunniff model – which predicts the
performance of soft body armor based on alterations in various fiber properties – has been peer-
reviewed and is generally accepted in the scientific community. Id. at 8. Dr. Lesser’s opinions
on the properties of fibers and their impact on ballistic performance would assist the jury in
assessing the suitability of Zylon fiber for use in bulletproof vests.
Contrary to Toyobo’s assertion, Dr. Lesser does not merely parrot the Cunniff
model, but rather applies his own expertise to compare the results of the Cunniff model against
other ballistic models to measure ballistic performance. See Lesser Report at 7-9; McReynolds
v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 30, 36 (D.D.C. 2004) (“An expert witness is
permitted to use assistants in formulating his expert opinion.” (quoting Dura Auto. Sys. of Ind.,
Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002)); see also Lee Valley Tools, Ltd. v. Indus.
Blade Co., 288 F.R.D. 254, 266 (W.D.N.Y. 2013) (“Where the expert was directly involved in
the research, analysis or drafting of the report, even with substantial assistance from a colleague
or associate, his involvement in and knowledge of the report are matters of weight, not
admissibility.”). Dr. Lesser’s lack of experience designing or manufacturing bulletproof vests
does not render his opinions regarding ballistic performance and the suitability of Zylon in
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bulletproof vests unreliable. Furthermore, Toyobo’s objections regarding the lack of ballistic
testing and the purported limitations of the Cunniff model go to weight and not admissibility.
See Robinson v. District of Columbia, 75 F. Supp. 3d at 200. The Court therefore will admit Dr.
Lesser’s opinions on ballistic performance and Zylon’s suitability for use in bulletproof vests.
2. Opinions Regarding Toyobo’s Disclosures
Toyobo seeks to exclude Dr. Lesser’s opinion that Toyobo communicated
“misleading” disclosures to body armor manufacturers. Lesser Mot. at 15-19. Dr. Lesser opines
that Toyobo presented data that overestimated Zylon’s strength retention, made inappropriate
predictions about service life, continually altered the manner in which it presented data, used
metrics that misled customers with respect to durability, and misrepresented data by removing
data points from graphs sent to manufacturers. Lesser Report at 20-28. Toyobo argues that these
opinions are speculative because Dr. Lesser does not know what information body armor
manufacturers sought or expected from Toyobo or how they interpreted the disclosures. Lesser
Mot. at 15-19. In addition, Toyobo asserts that opining on the effect of the disclosures on the
body armor industry is speculative and would invade the province of the jury. Lesser Reply at
10-12.
For the same reasons discussed in connection with Dr. Phoenix, the Court will
admit certain portions of Dr. Lesser’s proffered opinion and exclude others. Dr. Lesser’s
methodology is reliable insofar as he uses his expertise in polymer science and fiber properties to
compare Toyobo’s internal testing data to the representations made in its disclosures. Dr. Lesser
need not have experience as a fiber supplier or in bulletproof vest design to reliably interpret
Toyobo’s data generated from testing Zylon fiber. Dr. Lesser’s comparisons would assist the
jury in evaluating, inter alia, whether Toyobo’s disclosures regarding its fiber testing results were
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misleading. The Court therefore will admit Dr. Lesser’s opinions comparing Toyobo’s testing
data to the data presented in its disclosures and explaining how a reasonable person would have
interpreted the disclosures. For instance, Dr. Lesser may describe the results of Toyobo’s
testing, the information that Toyobo did or did not disclose, and the manner in which the data
was presented. See, e.g., Lesser Report at 28 (“Each of these [alterations in the way the data was
presented] make it difficult for customers to independently evaluate appropriate service life of
products based on strength retention.”).
The Court will exclude, however, opinions regarding Toyobo’s knowledge or
intentions with respect to its disclosures to body armor manufacturers. Such testimony would be
based on unsupported speculation and would invade the province of the jury. In particular, Dr.
Lesser will not be permitted to opine on what Toyobo knew about Zylon degradation at a given
time, why Toyobo chose to disclose or withhold certain data, why Toyobo chose to present
certain data in the manner that it did, or whether Toyobo was motivated by business or other
interests.
The Court will also exclude bald conclusions based on the documentary record
regarding Toyobo’s intent or motivations or other topics beyond the scope of Dr. Lesser’s
expertise. For example, Dr. Lesser opines that “[t]he pressure from the business and sales part
of . . . Toyobo’s organization over this period of time caused considerable tension between the
various individuals and groups in the company” and that “numerous internal documents from
Toyobo support the immense difficulty they incurred while trying to neutralize the residual PPA
in Zylon AS fiber.” Lesser Report at 17. This will not be permitted. The jury is competent to
read and interpret the evidence relevant to these topics without Dr. Lesser’s proffered opinions.
As another example, Dr. Lesser provides opinions on Toyobo’s quality control procedures, but
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has not established any specialized expertise in quality control procedures beyond reading
internal Toyobo documents: “[S]ince Toyobo has no methods in place to control this
concentration at the time of delivery to their customers, they have no way to insure that any of
their products meet their own specifications.” Id. at 13; see id. at 17 (“This becomes particularly
critical since simply identifying a product as ‘red’ is too subjective and cannot be used as a
criterion for quality control.”). The Court therefore will exclude this type of proffered testimony.
For similar reasons, the Court will exclude Dr. Lesser’s opinions regarding
whether body armor manufacturers were misled by Toyobo’s disclosures, what information
should have been conveyed to body armor manufacturers, and what information was important to
body armor manufacturers. See, e.g., Lesser Report at 20 (“Toyobo communicated misleading
results to customers.”). Dr. Lesser’s expertise in polymer science and fiber properties does not
support his opinions on norms applicable to the disclosure of testing data within the fiber and
ballistics industries.
C. Dr. David S. Brookstein
Dr. David S. Brookstein has a Bachelor’s Degree in Textile Engineering from the
Georgia Institute of Technology, and both a Master of Science Degree in Textile Technology and
a Doctorate in Mechanical Engineering from the Massachusetts Institute of Technology.
Brookstein Opp. at 4. From 1994 to 2010, he served as the Dean of the School of Engineering
and Textiles at Philadelphia University and a professor of engineering. Id. Prior to that time, Dr.
Brookstein spent fourteen years as the Associate Director of the Albany International Research
Company, a commercial research laboratory where he conducted a wide range of research and
development projects involving high-performance fibers such as Kevlar. See March 15, 2012
Report, Brookstein Mot. Ex. 1 at 1 (“Brookstein Report”) [Dkt. No. 384-3].
16
Dr. Brookstein has submitted one affirmative expert report dated March 15,
2012. 3 Toyobo seeks to exclude Dr. Brookstein’s testimony that Zylon is unsuitable for use in
ballistic applications. Brookstein Mot. at 8. According to Toyobo, Dr. Brookstein’s
methodology is not reliable because he lacks expertise in ballistics – including vest design,
construction, or manufacturing – and has not conducted ballistic testing to confirm how Zylon
fiber behaves once it is incorporated into a bulletproof vest. Id. at 9; Brookstein Reply at 4-7. In
addition, Toyobo asserts that Dr. Brookstein could not pinpoint what makes Zylon defective or
explain why other fibers that have kink bands and undergo hydrolysis are not similarly defective.
Brookstein Mot. at 12-13. Toyobo also urges the Court to exclude Dr. Brookstein’s opinions
about Toyobo’s manufacturing, quality assurance, and quality control processes, Brookstein Mot.
at 14-18, and his opinion that Toyobo misled the body armor industry. Id. at 19-21.
After reviewing his expert report, the Court has questions about Dr. Brookstein’s
methodology and the bases for many of his opinions and conclusions. Beyond that, many of his
observations are conclusory or speculative, clearly are not proper for testimony by an expert,
intrude upon the function of the jury, attribute motives to Toyobo that are beyond his ken, or are
pejorative in tone (e.g., that “Toyobo was derelict” and the manufacturing process “was out of
control”). His chart of “what Toyobo knew and when it first knew it regarding the strength
retention of Zylon fiber used in the ballistics industry,” Brookstein Report at 54-56, clearly is
beyond the pale. Furthermore, many of Dr. Brookstein’s opinions regarding Toyobo’s
3 Dr. Brookstein has also submitted a supplemental report dated May 23, 2012 in
response to Dr. Price and Dr. Field who, as noted, have been withdrawn. The supplemental
report also responds to opinions offered by a third Toyobo expert, Herbert Heuchert. Because
the Court will exclude Mr. Heuchert’s testimony, infra at 47-51, the Court need not address the
portions of Dr. Brookstein’s May 23, 2012 supplemental report pertaining to Mr. Heuchert’s
proffered opinions.
17
disclosures are not admissible for the same reasons explained with respect to Dr. Phoenix and
Dr. Lesser.
Should the United States still wish to offer Dr. Brookstein as an expert witness for
limited purposes, it should indicate in writing which opinions it still seeks to offer at trial, after
which the Court will hear testimony from Dr. Brookstein at a further Daubert hearing in advance
of trial.
D. Dr. Michael A. Riley
Dr. Michael A. Riley is a body armor researcher proffered by the United States as
an expert in ballistic testing and ballistic performance of Zylon body armor. Because Dr. Riley
is neither a retained expert nor an individual whose duties regularly involve giving expert
testimony, he did not provide an expert report but rather provided a letter summarizing his
qualifications and affirmative expert opinions. See FED. R. CIV. P. 26(a)(2)(C).
Dr. Riley holds a Doctorate in Civil Engineering from the State University of
New York at Buffalo. Riley Opp. at 4. He joined the National Institute of Standards and
Technology (“NIST”) in 1997 and currently serves as the Program Manager for Test and
Evaluation in the Protective Systems Research Group of the Office of Law Enforcement
Standards. Id. at 3-4. In that capacity, Dr. Riley oversees ballistic testing of body armor,
develops proficiency tests for ballistic armor testing laboratories, and assesses commercial
laboratories’ abilities to perform body armor testing. Id. at 3. He also advises the NIJ on the
development of new body armor standards. Id. In addition, Dr. Riley helped revise the NIJ
Standard for testing law enforcement body armor and evaluate the safety of Zylon vests in the
field. Id.
18
Toyobo has filed a motion [Dkt. No. 380] to exclude only the following opinion
proffered by Dr. Riley: “Fiber suppliers such as Toyobo Co. should provide a product to
weavers and body armor manufacturers that is consistent with purchasing specifications –
including documentation about normal production variations, how the material ages, and factors
that influence aging – and does not significantly change from those purchasing specifications
over warranty periods of active use.” November 9, 2012 Affirmative Opinions Letter, Riley
Mot. Ex. 4 at 2 (Opinion Six) [Dkt. No. 380-6]. 4
Toyobo argues that Dr. Riley is not qualified and has no reliable basis to opine on
the relationship between a fiber supplier and a weaver or body armor manufacturer, or the duties
allegedly owed by a fiber supplier. Riley Mot. at 8. Toyobo contends that Dr. Riley fails to
explain how his research and experience in Zylon degradation and fiber properties qualify him to
opine on the type of information a fiber supplier should provide in purchasing specifications.
Riley Reply at 11-14. According to Toyobo, Dr. Riley has had no conversations with body
armor manufacturers or weavers about what information they expect to receive from fiber
suppliers in purchasing specifications; has neither worked for fiber suppliers, weavers or body
armor manufacturers, nor designed a bulletproof vest; has not seen a Zylon weaver’s purchasing
specifications for Zylon fiber; and is not aware of purchasing specifications that require the type
of information that Dr. Riley opines Toyobo and other fiber suppliers should provide. Riley
Mot. at 8-10. Toyobo points out that although Dr. Riley has spoken to three fiber suppliers, he
has little information about how fiber suppliers and body armor manufacturers worked together
prior to 2005, the period relevant to this case. Id. at 9.
4 Toyobo has also moved to exclude another opinion offered by Dr. Riley
pertaining to Second Chance’s commercial warranty, which is no longer at issue. See Joint
Submission Regarding Previously Filed Daubert Motions [Dkt. No. 456].
19
The Court is not persuaded that this opinion should be excluded. As the project
manager responsible for overseeing ballistic testing of law enforcement body armor on behalf of
the United States, Dr. Riley is qualified to opine on whether fiber suppliers should provide a
product that meets its purchasing specifications. Dr. Riley has experience using Zylon fiber
specifications to study the effect of aging on Zylon and determining when a product fails to meet
its purchasing specifications. As for his experience working with fiber suppliers, Dr. Riley has
had “extensive discussions with some fiber suppliers and [he has] spent a great deal of time
looking through some of their literature to understand what’s provided.” 03/12/13 Riley Dep. at
879:4-13 [Dkt. No. 400-2]. Dr. Riley has also spoken with procurement officials whose jobs are
to purchase armor for officers in their agencies. Riley Reply Ex. 5 at 4. Toyobo’s arguments
that those conversations occurred after the time period at issue here and did not involve
purchasing specifications go to the weight of Dr. Riley’s opinion and not its admissibility.
In addition, the Court concludes that Dr. Riley’s knowledge and experience as a
researcher in the field of safety standards provides a sound basis for his opinion. At his
deposition, Dr. Riley explained that he based his opinion on literature related to fiber suppliers
and discussions with three fiber suppliers. Furthermore, rather than opining that Toyobo failed
to meet a particular requirement or satisfy a legal duty, Dr. Riley opines that fiber suppliers
should provide a product that is consistent with purchasing specifications and remains so over a
given period of time. That Dr. Riley has never worked for a fiber supplier, bulletproof vest
manufacturer, or weaver goes to weight and not admissibility. In addition, it appears that
Toyobo largely agrees with Dr. Riley on this point and that its disagreement concerns the scope
of Dr. Riley’s opinion. See Riley Reply at 11 n.28 (“Toyobo largely agrees” with the
proposition that “fiber manufacturers should provide a product consistent with its purchasing
20
specifications. . . .”). The Court therefore will admit Dr. Riley’s opinion regarding purchasing
specifications.
E. Kirk Rice
Kirk Rice is a body armor researcher proffered by the United States as an expert
in ballistic testing and ballistic performance of Zylon body armor. Because Mr. Rice is neither a
retained expert nor an individual whose duties regularly involve giving expert testimony, he did
not provide an expert report but rather provided a letter summarizing his qualifications and
affirmative expert opinions. See FED. R. CIV. P. 26(a)(2)(C).
Mr. Rice holds a Bachelor of Science Degree in Chemical Engineering from the
University of Maryland and a Master’s Degree in Engineering Administration from George
Washington University. Rice Opp. at 3. Mr. Rice is the lead government scientist working on
body armor systems at NIST. His title is Supervisory Physical Scientist serving as Program
Manager for Protective Systems Research in the Office of Law Enforcement Standards. Id. In
that role, Mr. Rice oversees a team of engineers and chemists studying body armor and develops
performance standards and test protocols for body armor. Id. Mr. Rice is also responsible for
the introduction of the NIJ’s Stab-Resistant Body Armor Standard and Ballistic-Resistant Body
Armor Standard. Rice Mot. Ex. 1 at 75. He was a key participant in establishing the formal
body armor testing laboratory accreditation program relied upon by NIJ for its compliance
testing. Id.
Toyobo has filed a motion [Dkt. No. 381] to exclude only the following opinion
proffered by Mr. Rice: “Fiber suppliers such as Toyobo Co. should provide a product to weavers
and body armor manufacturers that is consistent with purchasing specifications – including
documentation about normal production variations, how the material ages, and factors that
21
influence aging – and does not significantly change from those purchasing specifications over
warranty periods of active use.” November 9, 2012 Affirmative Opinions Letter, Rice Mot. Ex.
4 at 2 (Opinion Six) [Dkt. No. 381-6]. 5
Toyobo’s arguments largely mirror those raised in support of its motion to
exclude an identical opinion proffered by Dr. Riley. Toyobo argues that Mr. Rice is not
qualified and has no reliable basis to opine on the relationship between a fiber supplier and a
weaver or body armor manufacturer, or the duties allegedly owed by a fiber supplier. Rice Mot.
at 1. Toyobo contends that Mr. Rice has only a general, academic understanding of the types of
material used by body armor manufacturers, rather than real-world experience. Id. at 7. Toyobo
argues that Mr. Rice has never worked for a fiber supplier or body armor manufacturer; has
never designed, developed, or sold a bulletproof vest; has not seen a weaver’s purchasing
specification for Zylon fiber; and is not aware of any purchasing specifications that require the
information that he opines Toyobo and other fiber suppliers should provide. Id. Toyobo further
asserts that Mr. Rice did not speak to any fiber suppliers about the type of information they
typically provide to weavers and body armor manufacturers in purchasing specifications.
The Court concludes that Mr. Rice is qualified to offer this opinion and has an
adequate basis for his opinion. As the lead scientist for the United States on body armor systems
and standards, Mr. Rice is qualified to opine on whether fiber suppliers should provide a product
that meets its purchasing specifications. He also has significant experience with fiber
specifications. At deposition, Mr. Rice testified that his opinion is informed by his discussions
with several fiber suppliers and his involvement in fiber degradation research. Rice Opp. at 18.
5 Toyobo has also moved to exclude another opinion offered by Mr. Rice pertaining
to Second Chance’s commercial warranty, which is no longer at issue. See Joint Submission
Regarding Previously Filed Daubert Motions [Dkt. No. 456].
22
Toyobo’s arguments that those conversations occurred after the time period at issue here and did
not involve purchasing specifications go to weight and not admissibility. Moreover, rather than
opining that Toyobo failed to meet a particular requirement or satisfy a legal duty, Mr. Rice
opines that fiber suppliers should provide a product that is consistent with purchasing
specifications and that remains so over a given period of time. It appears that Toyobo largely
agrees with Mr. Rice on this point and that its disagreement concerns the scope of Mr. Rice’s
opinion. See Rice Reply at 11 n.30 (“Toyobo largely agrees” with the proposition that “fiber
manufacturers should provide a product consistent with its purchasing specifications . . . .”). The
Court therefore will admit Mr. Rice’s opinion regarding purchasing specifications.
F. Joseph T. Anastasi
Joseph T. Anastasi is a certified public accountant proffered by the United States
as an expert witness in forensic accounting and the performance of damages analysis for matters
in litigation. He has filed two expert reports in this case, one dated March 15, 2012, and the
other dated September 14, 2012. In addition, by Memorandum Opinion and Order of January
17, 2018, the Court permitted the United States to file a supplemental expert report of Mr.
Anastasi dated December 22, 2017. See Mem. Op. and Order [Dkt. No. 514]. Toyobo has filed
a motion [Dkt. No. 375] to exclude the opinions and testimony of Mr. Anastasi, a motion which
the United States opposes.
Mr. Anastasi holds a Bachelor of Science Degree in Accounting from
Pennsylvania State University. Mr. Anastasi is a managing director at the Berkeley Research
Group, a financial and economic consulting firm. He has also served variously as the Global
Practice Leader for the Forensic & Investigative Service Practice at Deloitte and a Managing
Partner at PricewaterhouseCoopers.
23
Toyobo argues that Mr. Anastasi has no basis to opine on damages in this case
both because his methodology is flawed and unreliable and because, as a matter of law, what the
United States paid Second Chance does not answer the ultimate question of what damages the
United States actually suffered because the product sold had more than zero value. In other
words, Toyobo contends that the United States’ expenditures or payments do not equate with
damages. Anastasi Mot. at 10. Rather, Toyobo maintains, the proper measure of damages is the
difference between the value of the goods or services actually provided and the value they would
have had if delivered as promised. Anastasi Reply at 5-6. The United States responds that
Mr. Anastasi is being offered as an expert witness to provide the jury with an understanding of
the vast sales data at issue in the case, his testing of that sales data, and his quantification of the
data. It maintains that the methodologies he used to analyze this massive amount of sales data
were painstaking and reliable and that his analysis would be helpful to the jury. Anastasi Opp. at
17-18. As for the legal question, the United States argues that the law is clear: False Claims Act
damages in a case involving the sale of defective products is a straight-forward analysis of how
much the United States paid for the defective product since the defect renders the product sold
and delivered valueless. Anastasi Opp. at 9.
The Court has carefully reviewed Mr. Anastasi’s March 2012 and September
2012 expert reports and his proffered supplemental report of December 22, 2017. In his reports,
Mr. Anastasi separately reviewed (1) the sales made directly by Second Chance to United States
agencies through the General Services Administration (“GSA”) and (2) reimbursements made by
the United States to state, local, and tribal law enforcement agencies under the Bulletproof Vest
Partnership Act (“BVP”). In the case of the GSA sales, Mr. Anastasi and his staff examined
17,000 line items and twenty-three boxes of Second Chance sales invoices and other
24
documentation and matched spreadsheets to supporting invoices, order forms and other kinds of
documentation. Anastasi Opp. at 1-2, 17-18. He found that the vast majority of the electronic
sales records were supported by Second Chance invoices and other forms of documentation.
Doing further calculations to account for instances where they did not match or where there were
possible overcharges, he made corrections and calculated an amount. Id. at 17-18. With respect
to the BVP reimbursements, Mr. Anastasi relied primarily on calculations done by Linda
Hammond-Deckard, but he then did his own analysis and calculated an amount in BVP
reimbursements made by the United States to state, local, and tribal law enforcement agencies.
In his September 2012 report, he engaged in random sampling techniques and corroborated the
earlier analysis he had done with respect to the BVP sales. In his supplemental report of
December 22, 2017, Mr. Anastasi provided a payments analysis – to supplement his earlier sales
analysis – with respect to orders for sales to federal agencies under GSA contracts as to which he
had already provided an analysis of sales data. 6
The Court agrees with the United States that Mr. Anastasi’s analysis, both with
respect to the GSA payments and the BVP reimbursements, is thorough and that his
methodologies are sound. His work with respect to GSA payments went well beyond the realm
of simple mathematics, contrary to Toyobo’s assertion, and required the extensive review of
twenty-three boxes of invoices and other sales documents, as well as the application of
recognized forensic accounting techniques and statistical analysis. Indeed, his forensic
accounting analysis resulted in his making downward adjustments to the underlying sales data
6 In that supplemental report, Mr. Anastasi also revised the start date for his
calculations to conform to this Court’s July 14, 2017 ruling. See United States ex rel. Westrick
v. Second Chance Body Armor, Inc., 266 F. Supp. 3d 110 (D.D.C. 2017). Toyobo does not
oppose the supplementation of Mr. Anastasi’s earlier reports, calculations, and opinions to revise
the start date.
25
numbers because of errors, credits, overcharges, and the like, which he discovered. With respect
to Mr. Anastasi’s BVP reimbursements analysis, it is true that he relied heavily on Ms.
Hammond-Deckard, but he did not simply rubber stamp or “parrot” her work. He also
conducted an independent review of a significant sample of the data, which confirmed that the
BVP reimbursements data that had been compiled by Ms. Hammond-Deckard were supported by
entries in the BVP accounting system database. See, e.g., SEC v. e-Smart Techs., Inc., 85 F.
Supp. 3d 300, 312 (D.D.C. 2015) (“Experts at IDTP, moreover, did not simply parrot opinions
articulated elsewhere. They examined data, verified results, gathered their own data, and ran tests
of their own. Their approach to the technical issues in this case was appropriate to support expert
testimony.”); Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d at 612 (“An expert witness is
permitted to use assistants in formulating his expert opinion.”). In both instances, Mr. Anastasi’s
analyses conformed to accepted forensic accounting methods, and their presentation at trial will
be extremely helpful to the jury. For all of these reasons, the Court will admit Mr. Anastasi’s
opinions and testimony at trial, subject to the following reservation.
The Court need not now opine on the legal question raised by the parties –
whether payments or expenditures made by the United States are the appropriate measure of
damages in a False Claims Act case involving the sale of defective products, or whether the price
paid must be reduced by value received in order to calculate damages. 7 That determination can
be postponed until the Court has had a further opportunity to review the various court decisions
cited by the parties and any additional authority they wish to provide. Furthermore, the parties
7 Each side cites numerous cases in support of their legal arguments, but the
touchstone in this jurisdiction must be United States v. Science Applications Int’l Corp., 626
F.3d 1257, 1277-80 (D.C. Cir. 2010). See also JOHN T. BOESE, CIVIL FALSE CLAIM S AND QUI
TAM ACTIONS §§ 3.01 [B], 3.01 [C], 3.01 [D] (4th ed. 2011).
26
will soon submit proposed jury instructions, including instructions with respect to damages,
which will, of course, be supported by case citations and references to standard instructions used
in other similar cases. The only open question as it relates to Mr. Anastasi’s opinions and
testimony to be offered at trial is whether he will be permitted to characterize the numbers about
which he testifies as a result of his calculations and analyses as “damages” or as something else. 8
G. Dr. A.S. Abhiraman
Dr. A.S. Abhiraman is a fiber scientist proffered by the United States as a rebuttal
witness to respond to one of Toyobo’s proffered experts, Herbert Heuchert. Such rebuttal
testimony is not necessary, however, because Mr. Heuchert will not be permitted to testify for
the reasons discussed infra at 47-51.
II. EXPERTS PROFFERED BY TOYOBO
The Court turns next to the expert witnesses proffered by Toyobo. The United
States moves to exclude portions of the opinions and testimony of three expert witnesses
proffered by Toyobo: (i) Dr. Kazuyuki Yabuki; (ii) Dr. Robert M. Nowak; and (iii) Herbert
Heuchert.
A. Dr. Kazuyuki Yabuki
Dr. Kazuyuki Yabuki is an industrial fiber researcher and chemist. See May 2012
Report, Yabuki Mot. Ex. 1 at 1 (“Yabuki Report”) [Dkt. No. 385-3]. He holds a Doctorate in
Engineering from the Tokyo Institute of Technology and joined Toyobo as a researcher in 1972.
8 Furthermore, Toyobo has filed a motion in limine [Dkt. No. 499] on the measure
of damages which raises this issue and the parties will shortly be filing proposed jury
instructions.
27
See Yabuki Opp. at 3-4. While employed at Toyobo, Dr. Yabuki served variously as a research
chemist, chief research engineer, and director of research and development at Toyobo. Id. at 3-4,
6. Between 1994 and 2000, Dr. Yabuki oversaw the development and commercialization of
Zylon fiber, which involved overseeing technical aspects of Zylon development including
spinning, polymerization, and construction of the commercial production plant for Zylon. Id. at
1, 3-4; Transcript of Daubert Hearing With Respect to Dr. Kazuyuki Yabuki (“Yabuki Hearing
Transcript”) at 36:7-38:6 (Jan. 23, 2018). In December 2000, Dr. Yabuki left his position
overseeing the day-to-day aspects of Zylon to take on broader management roles at Toyobo.
Yabuki Report at 4. Between 2009 and his retirement in 2013, he served as a corporate auditor
responsible for ensuring that Toyobo’s board of directors properly discharged its duties. Dr.
Yabuki has also been a visiting professor at several universities in Japan. Id. at 4, 6. He has
published twenty-seven articles on Zylon, as well as several other research papers on fiber
properties. Id.
Dr. Yabuki has been designated as a rebuttal witness to respond to three experts
proffered by the United States – Dr. Phoenix, Dr. Lesser, and Dr. Brookstein. Dr. Yabuki has
submitted one rebuttal report dated May 23, 2012. The United States filed a motion [Dkt. No.
385] to exclude Dr. Yabuki’s opinions in their entirety, a motion which Toyobo opposes. The
Court will refer to each opinion by the number of the corresponding section in Dr. Yabuki’s
report where the opinion is discussed.
The Court held a Daubert hearing on January 23, 2018, at which Dr. Yabuki
testified. During the hearing, Toyobo withdrew Opinion Eight, regarding Toyobo’s efforts to
develop stronger Zylon fiber through the “ZKP Project,” and Opinion Ten, regarding the
“forthcoming and reasonable” nature of Toyobo’s disclosures. See Yabuki Hearing Transcript at
28
8:24-9:25, 71:14-18. Toyobo also withdrew Opinion Eleven, with the exception of the final two
paragraphs discussing “Na/P ratio” and the use of Zylon vests in 2003. Id. 9
The United States asserts three global objections to Dr. Yabuki’s proffered
opinions. First, it argues that Dr. Yabuki’s reports were prepared in significant part by other
Toyobo employees with expertise beyond the scope of Dr. Yabuki’s own expertise and whose
work Dr. Yabuki “blindly” accepted without independent verification. Yabuki Mot. at 8-14, 18-
21. 10 Second, the United States contends that Dr. Yabuki either did not read certain references
cited in his report or read them many years ago. Id. at 15-24. Third, the United States asserts
that Dr. Yabuki’s opinions do not fit the facts of the case because Dr. Yabuki offers opinions
about Toyobo’s manufacturing process and quality control system but does not know how either
system operated. 11
Toyobo responds that Dr. Yabuki’s reliance on other Toyobo employees was
proper because he “directed and supervised all of [the] work [of these employees], personally
drafted his expert report, and reviewed and verified their work to confirm its accuracy.” Yabuki
Opp. at 7. Toyobo asserts that Dr. Yabuki employed a sound methodology by using his
professional experience working with Zylon fiber and his expertise in various fiber properties to
9 The Court will reserve judgment on Opinions 14-17 proffered only in the related
Toyobo action (Civil Action No. 07-1144).
10 The United States argues that it did not have the opportunity to cross-examine
these employees. Yabuki Mot. at 11-15. The Court finds this argument unavailing, however, as
the United States could have moved to compel the depositions of these employees but declined
to do so.
11 The United States also seeks to preclude Dr. Yabuki from offering certain
opinions that he agreed not to offer at his deposition. See Yabuki Mot. at 41-43. Because the
parties represented that they would resolve this issue through a joint stipulation, the Court need
not address the issue here. See Yabuki Hearing Transcript at 74:19-75:15.
29
analyze facts provided by these employees. See id. at 8-10. Toyobo argues that these employees
had specialties that were “very similar” to his own and that Dr. Yabuki opined on topics that fall
within his areas of expertise. Id. at 11. In light of Dr. Yabuki’s sound methodology, Toyobo
contends, his failure to read certain references or to read them recently goes to the weight of his
opinions rather than to their admissibility. Id. at 33-35.
Upon careful review of Dr. Yabuki’s report, deposition testimony, and testimony
before the Court at the January 23 Daubert hearing, the Court will admit certain portions of his
proffered opinions and exclude others. While the Court acknowledges the concerns expressed by
the United States with respect to Dr. Yabuki’s reliance on other Toyobo employees and his
failure to read certain references in his report, the Court finds that these concerns do not
permeate all of Dr. Yabuki’s reports, testimony and opinions. Yabuki Mot. at 2. Accordingly,
the Court will address each of Dr. Yabuki’s opinions in turn.
1. Opinion One (Kink Bands)
Dr. Yabuki concludes that the opinions of Dr. Phoenix and Dr. Brookstein
regarding the presence of “kink bands” in Zylon fiber – damage to fiber structure due to
compression or bending – are incorrect for several reasons. Yabuki Report at 3-5. For instance,
Dr. Yabuki opines that kink bands are not unique to Zylon and do not necessarily cause a
significant loss in tensile strength, and that it is “well known in the ballistic industry that fiber
damage due to weaving can decrease [ballistic] performance.” Id. Dr. Yabuki further opines
that “Toyobo has no control over how Zylon is woven, handled and/or treated” once it leaves
Toyobo’s plant and that weavers and end-product manufacturers are “in the best position to
determine what impact post-manufacturing processing has on a fiber.” Id. Dr. Yabuki also
30
opines that “Second Chance had the information it needed to account for the impacts of the
weaving process on Zylon fiber when designing its Zylon vests.” Id.
The Court will admit Opinion One for the jury’s consideration. Dr. Yabuki’s
conclusions regarding kink band formation and whether kink bands render Zylon defective are
based on a sound methodology grounded in Dr. Yabuki’s extensive experience with industrial
fibers and supported by references to multiple research papers. 12 With respect to Dr. Yabuki’s
conclusions regarding fiber damage caused by the weaving process – (i) that it is “well known
that fibers are susceptible to [the formation of kink bands] during the weaving process”; (ii) that
it is “well known in the ballistic industry that fiber damage due to weaving can decrease [ballistic
performance]”; and (iii) that “[t]hese facts were known to body armor makers and others in the
ballistics industry” – it appears that Dr. Yabuki drew upon his extensive experience developing
fibers for commercialization and use by manufacturers in various end-products. As a fiber
chemist who was intimately involved in Toyobo’s efforts to develop Zylon fiber and bring it to
market, Dr. Yabuki may reliably opine on whether it was “well known” that fiber damage due to
weaving, including the formation of kinks bands, could decrease ballistic performance. To be
sure, Dr. Yabuki testified at his deposition that he is “not too knowledgeable about [ballistics]”
and relied on Mr. Kuroki in preparing his opinions about manufacturing for ballistic applications.
See 8/22/12 Yabuki Dep. at 17:11-23 [Dkt. No. 385-6]; Yabuki Hearing Transcript at 53:21-
55:18, 59:10-20. Dr. Yabuki appears to be opining, however, on whether body armor
12 Dr. Yabuki withdrew one of the references cited in this section of his report – a
PowerPoint prepared by one of the government’s experts, Dr. Amanda Forster – because he had
not read it. See 8/22/12 Yabuki Dep. at 58:7-59:18, 73:1-5 [Dkt. No. 385-6]. The Court is not
persuaded that Opinion One is “so unreliable . . . that is fails Daubert’s reliability prong” based
on this single withdrawn reference. See In re Rail Freight Fuel Surcharge Antitrust Litig., 2017
WL 5311533, at *37.
31
manufacturers, as consumers of fiber for use in bulletproof vests, would have known that fiber is
susceptible to damage due to the weaving process and may affect ballistic performance as a
result. The Court therefore will admit Opinion One for whatever weight the jury may deem
appropriate.
2. Opinion Two (Microvoids)
Dr. Yabuki responds to the opinions of Dr. Lesser and Dr. Brookstein regarding
microvoids – fiber swelling due to moisture – by explaining that microvoids are not unique to
Zylon and do not render Zylon defective. Yabuki Report at 5-10. Dr. Yabuki describes how
microvoids form, draws comparisons to microvoids in Kevlar, and critiques the analysis applied
by Dr. Lesser and Dr. Brookstein. Yabuki Report at 6-8. He also opines that “end-product
manufacturers must protect Zylon from external moisture . . . .” Id. at 10.
The Court will admit Opinion Two for the jury’s consideration. Dr. Yabuki
applied a reliable methodology grounded in his knowledge of industrial fibers and personal
involvement in the development of Zylon fiber. Dr. Yabuki cites multiple research papers to
support his opinion, including four that he co-authored, as well as other research conducted by
Toyobo. Yabuki Report at 5-10. With respect to Dr. Yabuki’s reliance on other Toyobo
employees, Dr. Yabuki testified at his deposition that Dr. Abe prepared the calculations for
Figure 2 and that he “had Dr. Kitigawa check Dr. Lesser’s calculations.” See 8/22/12 Yabuki
Dep. at 17:6-10, 39:18-40:6 [Dkt. No. 385-6]. Accordingly, as to Opinion Two, it appears that
Dr. Yabuki relied on other Toyobo employees to verify and plot certain data. Furthermore, to
the extent that Dr. Yabuki relied on other Toyobo employees for their expertise in
microstructures, morphology, and x-ray scattering, Dr. Yabuki testified that he also has expertise
32
in those areas. See 08/22/12 Yabuki Dep. at 38:20-39:24 [Dkt. No. 385-6] (“So between or
among Dr. Murase, Dr. Kitigawa and myself, our specialties are very similar.”).
The United States argues that Dr. Yabuki read three references cited in support of
Opinion Two many years ago. See 8/22/12 Yabuki Dep. at 83:3-85:13 [Dkt. No. 385-6]
(explaining that he read the book chapter by Young cited at footnote 16 in his report in 1990);
8/22/12 Yabuki Dep. at 90:19-91:18 [Dkt. No. 385-6] (explaining that he read the Northholt
paper cited at footnote 18 in his report in 1990 or 1991 and “perhaps” did not read the entirety of
the paper in preparing his reports but “confirmed and checked” the paper); 8/23/12 Yabuki Dep.
at 102:1-105:4 [Dkt. No. 385-6] (explaining that he read the Martin paper cited at footnote 20 in
his report in 1998 and re-read certain pages in preparing his report). Because Dr. Yabuki appears
to have read each of these references at some point, and in light of the other references cited in
support of Opinion Two, the Court concludes that this issue does not render Dr. Yabuki’s
opinion “so unreliable . . . that is fails Daubert’s reliability prong.” See In re Rail Freight Fuel
Surcharge Antitrust Litig., 2017 WL 5311533, at *37. The Court finds that the United States’
further efforts to discredit Dr. Yabuki’s methodology by asserting that the book chapter by Dr.
Young cited in Dr. Yabuki’s report stands for the opposite proposition than that for which it is
cited goes to weight rather than admissibility. See Ambrosini v. Labarraque, 101 F.3d at 140;
McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d at 39; SEC v. Johnson, 525 F.
Supp. 2d at 76.
3. Opinion Three (Moisture Regain)
Dr. Yabuki responds to Dr. Lesser’s and Dr. Brookstein’s conclusions that the
moisture regain in Zylon fiber renders the fiber defective by explaining that moisture regain is “a
well understood phenomenon in polymer chemistry” and is not unique to Zylon. Yabuki Report
33
at 11. Dr. Yabuki opines that the “end product manufacturer should design its product so as to
protect the polymer . . . from external moisture.” Id. at 11. Dr. Yabuki also offers multiple
opinions in response to Dr. Brookstein’s conclusions about Toyobo’s manufacturing process and
quality control procedures. Id.
The Court will admit certain portions of Opinion Three and exclude others. Dr.
Yabuki may offer opinions on: (i) the fiber properties of Zylon as they relate to moisture regain;
(ii) the duration of exposure to sunlight sufficient to cause degradation; (iii) whether Toyobo has
control over Zylon fiber once it leaves Toyobo’s plant; and (iv) whether end-product
manufacturers or weavers could take steps to protect the fiber from moisture. These opinions
were reached through a reliable methodology grounded in Dr. Yabuki’s extensive experience
with fiber properties and his knowledge of the certain aspects of the manufacturing process (e.g.,
exposure to light or water) that may affect fiber properties.
The Court will exclude, however, certain opinions regarding Toyobo’s quality
control procedures or those of weavers and Second Chance. Although Dr. Yabuki may properly
opine that “were any light or ambient condition-induced degradation to occur, it would be
reflected in the fiber properties that are measured after Zylon is ‘exposed’ to light and ambient
conditions at the plant,” he may not opine that “the spool would be downgraded under Toyobo’s
[quality control] procedures” as a result. Yabuki Report at 11. Furthermore, he may not opine
that “weavers checked the fiber properties of Zylon fiber when it arrived at their plant, and with
the exception of long red yarn and shipping-related physical damage (unrelated to light or
hygrothermal degradation), there is no evidence that any shipments of Zylon were rejected
because the fiber properties were outside of specification” or that “weaver [quality control]
processes demonstrated that the Zylon that arrived at the weaver’s factories met Toyobo’s Zylon
34
specification.” Id. at 11. Dr. Yabuki has not established any specialized expertise in Toyobo’s
quality control procedures or those of weavers of ballistic fibers. Indeed, it appears that his
knowledge of Toyobo’s quality control procedures is based solely on information provided by
other Toyobo employees, namely Mr. Kuroki and Mr. Teramoto. See, e.g., 8/22/12 Yabuki Dep.
at 41:6-13 [Dkt. No. 385-6].
4. Opinions Regarding Residual Phosphorous
Opinions Four, Five, and Six address the presence of residual phosphorus in
Zylon fiber, which can lower tensile strength and resistance to thermal degradation. In
particular, Opinion Four challenges Dr. Brookstein’s and Dr. Lesser’s conclusion that Toyobo
allows excessive phosphorus to remain in Zylon fiber. Yabuki Report at 12-13. Relatedly, in
Opinion Five, Dr. Yabuki concludes that Dr. Lesser and Dr. Brookstein wrongly suggest that
“residual PPA” (residual phosphoric acid) is not adequately neutralized and contributes to
hydrolytic degradation (moisture damage) in Zylon. Yabuki Report at 13. Similarly, Opinion
Six provides that Dr. Lesser’s opinions about the existence of residual phosphorus in Zylon as a
mono-aryl phosphate ester are incorrect. Id. at 14-16. Dr. Yabuki describes Toyobo’s research
on this topic and concludes that PBO mono-phosphate does not catalyze hydrolysis. Id. at 15-16.
The Court will admit Opinions Four, Five, and Six, subject to the exceptions
below. These opinions are based in large part on a reliable methodology grounded in his
extensive experience analyzing fiber properties and his personal involvement in the research
efforts of Toyobo and Dow Chemical. The Court will exclude, however, the following portions
of Opinion Four and Opinion Five regarding Toyobo’s quality control procedures for confirming
that the fiber was properly neutralized:
35
Opinion Four: [T]he evidence establishes that the Zylon Toyobo sold was well
within the residual P target of 5,000 ppm or less. For example, the manufacturing
process that was designed to reduce residual P to levels at or below 5,000 ppm and
production conditions (e.g., residence time and wash temperature) was tightly
controlled to ensure that this was accomplished. . . .Toyobo frequently checked the
residual P content and, in all instances except one, found that Zylon contained less
than 5,000 ppm residual P. With respect to the one exception, residual P was only
slightly more than 5,000 ppm and Toyobo did not ship the fiber for use in bullet-
resistant applications.
Opinion Five: As a quality assurance measure, Toyobo checked the color of the
Zylon fiber in the fourth washing cabinet to confirm neutralization. This verified
that the Zylon produced was neutralized. And during production, Toyobo
frequently checked the residual sodium and phosphorous content in Zylon, and used
the data to calculate Na/P molar ratios. This testing consistently confirmed that the
Zylon produced for commercial sale was properly neutralized, and that the Na/P
ratio remained within the specified range.
Yabuki Report at 12-14. Dr. Yabuki has not established that he has specialized expertise in this
area and appears to have relied solely on Mr. Teramoto and certain Toyobo documents. See
8/22/12 Yabuki Dep. at 41:6-13 [Dkt. No. 385-6].
With respect to Opinion Six, the United States argues that Dr. Yabuki cited the
wrong paper written by Dr. Ying-Hung So. See 8/23/12 Yabuki Dep. at 143:3-144:25 [Dkt. No.
385-6]. The United States asserts that Dr. Yabuki also misstated or overstated Dr. So’s research
findings because, inter alia, Dr. So’s research required more than just adding “a drop of water” to
remove the mono-aryl phosphate ester from the PBO molecule. 8/23/12 Yabuki Dep. at 155:17-
21 [Dkt. No. 385-6]. The Court is not persuaded that Opinion Six is “so unreliable . . . that it
fails Daubert’s reliability prong” based on the citation to the incorrect article by the same author
in one instance. See In re Rail Freight Fuel Surcharge Antitrust Litig., 2017 WL 5311533, at
*37. The Court further concludes that the objection that Dr .Yabuki overstated the article’s
findings goes to weight and not admissibility. See SEC v. Johnson, 525 F. Supp. 2d at 76.
36
5. Opinion Seven (Strength Loss)
Dr. Yabuki opines that Dr. Phoenix, Dr. Lesser, and Dr. Brookstein incorrectly
suggest that Zylon is defective because it is susceptible to strength loss over time. Yabuki
Report at 16-21. Dr. Yabuki opines that all materials, including fibers like Zylon, are susceptible
to degradation. Id. at 16-17. Dr. Yabuki explains that Kevlar, like Zylon, degrades under certain
conditions and is not considered to be “sub-standard.” Id. at 17-19. Dr. Yabuki also opines that
the rate of hydrolysis can be reduced if “the end-product manufacturers protect Zylon from
exposure to external moisture.” Id. at 19. Dr. Yabuki relies on a NIST study regarding the
degradation of Zylon due to moisture to show that “if the Zylon fiber is protected from exposure
to external moisture once it has been incorporated into a vest, there should be little or no
degradation of the strength of the Zylon fiber.” Id. at 19-20.
The United States raises two primary objections to Opinion Seven. First, the
United States argues that the NIST study that Dr. Yabuki relied on was issued two years after
Zylon stopped being sold. See Yabuki Hearing Transcript 36:7-38:6 [Dkt. No. 385-6]; Yabuki
Report at 19 n.62. Second, the United States argues that at his deposition, Dr. Yabuki identified
two “commercially available and well-known methods” for protecting Zylon against external
moisture using seaweed and aluminum film. 11/8/12 Yabuki Dep. at 293:4-294:25. The United
States argues that these opinions do not fit the facts of this case because Dr. Yabuki does not
know if these methods can be used to protect Zylon from external moisture in ballistic
applications or whether Toyobo informed body armor manufacturers about the need to protect
Zylon from moisture degradation.
The Court will admit Opinion Seven for the jury’s consideration. Dr. Yabuki
applied a sound methodology by applying his knowledge of fiber properties as well as research
37
from papers that he co-authored to assess Zylon fiber’s susceptibility to moisture degradation
and strength loss. His partial reliance on the NIST study that was issued two years after Zylon
was no longer being sold is permissible, as Dr. Yabuki testified at the Daubert hearing that the
findings and the study mainly confirmed an established scientific fact that he had always known.
See Yabuki Hearing Transcript 36:7-38:6. Opinion Seven would assist the jury in assessing the
suitability of Zylon fiber for use in ballistic applications.
As for his references to the protective qualities of seaweed and aluminum film,
Dr. Yabuki does not purport to opine on whether the methods are feasible to protect body armor
made from Zylon fiber from moisture or whether these methods were communicated to body
armor manufacturers. Rather, he offered these suggestions in response to a question asked by
counsel for the United States. 11/08/12 Yabuki Dep. at 293:9-294:6 [Dkt. No. 385-6]. Counsel
may cross examine Dr. Yabuki on this point.
6. Opinion Nine (Red Thread)
According to Dr. Yabuki, Dr. Lesser and Dr. Brookstein incorrectly conclude that
the presence of red thread indicates that Zylon is defective. Yabuki Report at 21. Dr. Yabuki
opines that there is no evidence that Second Chance used Zylon fabric containing red thread,
Toyobo had quality control processes in place to inspect for red thread, and weavers and body
armor manufacturers had quality control systems in place to segregate non-conforming fiber. Id.
at 21-22. Dr. Yabuki opines that “my review of the record shows that these stops worked
because weavers and Second Chance caught red thread during their [quality assurance and
quality control] processes, and Toyobo never received a report of red fiber being used in the
manufacture of a bullet-resistant vest.” Id. at 22.
38
The Court will exclude Opinion Nine in its entirety. Dr. Yabuki’s opinion
appears to be based on his “review of the record” and information conveyed by Toyobo
employees rather than on any specialized expertise in Toyobo’s quality control processes.
11/8/12 Yabuki Dep. at 304:7-307:4 [Dkt. No. 385-6] (explaining that Dr. Yabuki’s
understanding of Toyobo’s quality assurance and quality control procedures discussed in his
reports to detect red thread was based on what he was told by Mr. Teramoto or Mr. Tanaka);
Yabuki Hearing Transcript at 56:4-58:8. Dr. Yabuki does not analyze red thread in terms of its
impact on Zylon fiber or its formation during the manufacturing process, but rather focuses on
whether Toyobo’s quality control procedures were designed to identify and segregate Zylon fiber
containing red thread. Opinion Nine therefore will be excluded. 13
7. Opinion Eleven (Na/P Ratio)
In the portion of Opinion Eleven that Toyobo has not withdrawn, Dr. Yabuki
opines that Dr. Phoenix miscalculated the correlation between Na/P ratio and strength retention.
Yabuki Report at 30-32. After re-plotting the same data used by Dr. Phoenix, Dr. Yabuki found
a weaker correlation than the figures reported by Dr. Phoenix. Id. Separately, Dr. Yabuki opines
that Dr. Brookstein “ignores the fact that Second Chance continued to use Zylon in Triflex vests
even after Toyobo’s October 2003 disclosures and Second Chance’s warranty exchange
program.” Id. at 32.
Because Dr. Yabuki’s correlation analysis is based on the same data that Dr.
Phoenix used and Dr. Yabuki merely disagrees with Dr. Phoenix’s conclusions, the Court will
13 Because the Court will exclude Opinion Nine, the Court need not address the
arguments raised by the United States with respect to the expert report of Herbert Heuchert or the
Hexcel Corporation documents cited on page 22 of Dr. Yabuki’s report.
39
admit Dr. Yabuki’s correlation analysis in Opinion Eleven. See Ambrosini v. LaBarraque, 101
F.3d at 140 (“[T]he admissibility inquiry focuses not on conclusions but on approaches . . . .”).
The Court will exclude, however, the final paragraph of Opinion Eleven regarding Second
Chance’s continued use of Triflex vests after 2003. This portion of Dr. Yabuki’s proffered
opinion reads more like a lawyer’s argument than an expert opinion based on specialized
knowledge of or experience with Toyobo’s disclosures to body armor manufacturers.
8. Opinion Twelve (Use of Averaged Data)
In Opinion Twelve, Dr. Yabuki opines that, contrary to the conclusions reached
by Dr. Phoenix, Dr. Lesser, and Dr. Brookstein, Toyobo properly accounted for data scatter in
tensile strength measurements by averaging the results of Toyobo’s strength testing. Yabuki
Report at 32. The Court will admit Opinion Twelve, except for the following sentence:
“Toyobo’s handling of the data is consistent with JIS L1013 and ASTEM 0885.” Id. Dr. Yabuki
testified at his deposition that he read JIS L1013 or ASTEM 0885 many years ago and did not re-
read them in preparation for his report and relied on Toyobo’s quality control and quality
assurance department to confirm that Toyobo’s procedures had conformed to these standards.
11/9/12 Yabuki Dep. at 398:14-399:23 [Dkt. 385-6].
9. Opinion Thirteen (Ballistic Application)
In Opinion Thirteen, Dr. Yabuki disagrees with Dr. Brookstein’s opinion that
Toyobo was responsible for determining the suitability of Zylon for use in a given end-product.
Yabuki Report at 32-33. First, Dr. Yabuki opines that the “final determination of suitability for
use lies with the end-product manufacturers – here, Second Chance.” Yabuki Report at 33.
With respect to fiber used in ballistic applications, Dr. Yabuki opines, inter alia, that “there are
40
many different end-product designs” and that “fiber manufacturers cannot test their fiber for each
of the infinite array of product designs with respect to vests using Zylon, and the use of Zylon
with other ballistic materials.” Id. The Court will admit these portions of Opinion Thirteen for
the jury’s consideration.
Second, Dr. Yabuki opines that “in my experience the end users like Second
Chance consider their end product design to be proprietary and do not share the designs with a
raw material supplier like Toyobo.” Yabuki Report at 33. He also opines that “fiber suppliers
do not control end-product designs, including how the fiber is processed and whether it is
protected from sources of environmental damage, such as light degradation or external moisture,
or how much Zylon is incorporated into the end design.” Id. He concludes: “For all of these
reasons, it is customary in the high performance fiber industry for high performance fiber
suppliers not to provide any warranties or guarantees regarding the use of the fiber in end
applications.” Id.
The Court will exclude these portions of Opinion Thirteen. Dr. Yabuki fails to
cite a single publication, article, or other resource setting forth industry standards or other
conventions to support his opinions regarding the specific practices of Second Chance or other
body armor manufacturers. Although Dr. Yabuki has extensive professional experience as a raw
fiber supplier at Toyobo, he has not established how that experience informs or supports his
opinions regarding the “customary” practices of body armor manufacturers. Absent such a
showing, Dr. Yabuki’s opinions are grounded in speculation rather than a reliable methodology.
B. Dr. Robert M. Nowak
Dr. Robert M. Nowak is a polymer chemist proffered by Toyobo as a rebuttal
witness to respond to two experts proffered by the United States, Dr. David S. Brookstein and
41
Dr. Alan J. Lesser. Dr. Nowak holds a Doctorate in Chemistry from the University of Illinois.
Nowak Opp. at 2-3. He spent thirty-seven years at Dow Chemical Company, where he served as
Chief Scientist and Head of Central Research until retiring in 1993. Id. While employed at Dow
Chemical, Dr. Nowak oversaw the development of a number of synthetic polymers, including
Zylon. Id. Since that time, Dr. Nowak has spent fifteen years as the President and CEO of the
Michigan Molecular Institute, a polymer research institute. Id. Dr. Nowak has published
eighteen papers on organic reaction mechanisms and reinforced plastics. Id.
Dr. Nowak has submitted a rebuttal report dated May 23, 2012. The United
States has filed a motion [Dkt. No. 383] to exclude certain opinions proffered by Dr. Nowak, a
motion which Toyobo opposes. Specifically, the United States seeks to exclude Opinions One,
Two, Three, Four, Five and Twelve in their entirety. Nowak Mot. at 3. The United States also
seeks to exclude opinions on four additional topics: (i) analogies or comparisons of degradation
in Zylon fiber or its polymer to degradation of human skin in sunlight and to metal fatigue in
aircraft parts and resulting aircraft crashes; (ii) whether Zylon’s aging characteristics and
vulnerabilities had been quantified and its susceptibility to degradation could be addressed when
designing a product; (iii) whether the results of testing used Zylon vests were more important
than testing Zylon fiber in a laboratory; and (iv) whether Toyobo had any control over Zylon
after it was shipped. 14
14 The United States also seeks to exclude “any topic on which Dr. Nowak testified
at his deposition that he had no opinion.” Nowak Mot. at 4, 27. The United States attached a
Proposed Order to its motion identifying seventeen topics as to which Dr. Nowak purportedly
testified that he had no opinion. See Proposed Order [Dkt. No. 383-5]. Because the United
States’ request does not clearly identify which numbered opinions it seeks to exclude, the parties
are directed to submit a joint stipulation identifying which opinions, if any, listed in Dr. Nowak’s
report remain in dispute in light of this Opinion.
42
1. Opinions One & Two (Strength Loss)
In response to Dr. Brookstein’s opinions that Toyobo should not have continued
to sell Zylon because it could not resolve the Zylon degradation problem and that, because of its
degradation problem, Zylon was not suitable for use in ballistic applications, Dr. Nowak opines
that all materials degrade over time and degradation vulnerabilities – such as fiber tensile
strength loss – must be considered by the end-product manufacturer when designing end
products. May 2012 Nowak Report, Mot. Ex. 1 at 3 (“Nowak Report”) [Dkt. No. 383-3]. The
United States argues that Opinions One and Two are based on “junk science” rather than a
reliable methodology and are generalized opinions which do not fit the facts of this case.
First, the United States seeks to exclude Dr. Nowak’s comparisons of Zylon
degradation to degradation of human skin in sunlight and metal fatigue in aircraft parts. Nowak
Mot. at 9-14. In support of Opinions One and Two, Dr. Nowak explains that steps can be taken
to protect polymers from degradation sources like heat, light, and moisture, such as using
sunscreen to protect skin (a natural polymer) from sun damage. Nowak Report at 7-8. In
support of Opinion Two, Dr. Nowak explains that aluminum is used in aircraft parts even though
it is susceptible to fatigue and corrosion in order to illustrate that Zylon’s susceptibility to
degradation does not render it defective. Id. at 8-9.
According to the United States, because Dr. Nowak did not explain the
relationship between human skin or metal and Zylon, the comparisons are not the product of a
reliable methodology. Nowak Mot. at 9. The United States asserts that Dr. Nowak lacks the
training or expertise to draw such a comparison because he is not a doctor or a metallurgist. Id.
at 11-12. In addition, the United States contends that Dr. Nowak’s analogies risk confusing the
jury by conveying that degradation is either easily solved or an accident. Id. at 12-13. Toyobo
43
responds that Dr. Nowak’s comparisons are mere “illustrations” and that Dr. Nowak does not
analogize Zylon degradation to sun degradation in skin or metal fatigue in aircrafts. Nowak
Opp. at 9. Rather, Dr. Nowak based his opinions concerning degradation on polymer chemistry.
Toyobo argues that he used the examples only to show that all materials degrade (albeit
differently) but may still be used so long as appropriate steps are taken by the end-product
manufacturer. Id. at 9-10.
The Court concludes that Dr. Nowak’s proffered comparisons are admissible for
the purpose for which they are offered – to show that all materials degrade over time and that
susceptibility to degradation can be addressed when designing a product. Dr. Nowak used a
reliable methodology by applying his knowledge of and experience in principles of polymer
chemistry and fiber properties. The jury can decide what weight to give to the examples he
invokes in support of his opinions regarding degradation. Furthermore, Dr. Nowak expressly
acknowledged that these two materials are not analogous, thus minimizing the risk of confusion
to the jury.
Second, the United States contends that Dr. Nowak’s opinion that body armor
manufacturers could use Zylon degradation information to design their vests does not fit the facts
of the case. The United States argues that Dr. Nowak did not opine on whether Toyobo provided
sufficient information to body armor manufacturers to design a vest to account for degradation.
Id. at 16. The United States further contends that his suggestion that the vest manufacturers
“would go back to Toyobo and ask for more information” does not fit the facts because Second
Chance did not ask Toyobo to conduct any testing on its vests. Id. at 18.
The Court will admit Dr. Nowak’s opinion that degradation vulnerabilities must
be considered by the end-product manufacturer when designing end products. The Court finds
44
that the United States’ concerns regarding whether the information disclosed by Toyobo was
sufficient or whether Second Chance asked Toyobo for further testing go to weight rather than
admissibility.
2. Opinion Four (Kink Bands)
In Opinion Four, Dr. Nowak concludes that “[k]ink bands are a common
occurrence in lyotropic LCPs like Kevlar, Zylon, M5 and others and are presumed to lower the
mechanical properties of the polymer slightly. This is not a major problem and does not cause a
further decay in properties over time.” Nowak Report at 13. The United States seeks to exclude
this opinion because it does not fit the facts of the case. It argues that Dr. Nowak incorrectly
assumed that Toyobo did not have control over Zylon fiber after it left the Toyobo
manufacturing plant. Nowak Opp. at 24. 15 The United States argues that this assumption is
belied by the facts because Toyobo played a role in selecting weavers, worked with Second
Chance during the development of certain bulletproof vests, provided information and advice
about weaving to Second Chance and the weavers, and knew that the vests were 100% Zylon.
Id. at 25-26. The United States further argues that Dr. Nowak’s opinion that kink bands are not a
major issue is improper because he is not a ballistics expert and cannot reliably opine on whether
the ballistics industry was aware of the extent of the damage that weaving caused in Zylon. Id. at
26-27.
The Court will admit Opinion Four. Dr. Nowak relied on his decades of
experience in polymer chemistry and working with synthetic polymers like Zylon and Kevlar to
analyze the factual record and reach his conclusions regarding the impact of kink bands on
15 This appears to be one of the bases for excluding Opinion Three, which the
United States does not directly address in its briefing.
45
Zylon’s suitability for use in bulletproof vests. The United States’ objections regarding whether
Toyobo exercised any control over Zylon fiber after it left the plant do not establish that Dr.
Nowak’s methodology is unsound, but rather express disagreement with his conclusions.
3. Opinion Five (Hydrolysis)
In Opinion Five, Dr. Nowak states that “studying the hydrolysis of a polymer
under laboratory conditions is very important data, but there is no substitute for evaluating the
product containing that polymer under real life conditions by the manufacturer of the end
product.” Nowak Report at 15. 16 The United States seeks to exclude the opinion that, as the
United States puts it, “ballistic testing of the vests is more important than testing the fiber,” as
unreliable in light of Dr. Nowak’s prior testimony about the results of Second Chance’s used vest
testing. The United States argues that this opinion does not fit the facts of this case because
Second Chance did provide Toyobo with the data from the testing of its used Zylon vests.
Nowak Mot. at 22-23.
The United States has mischaracterized Dr. Nowak’s opinion – Dr. Nowak merely
opines that end-product testing is important, not that is it “more important.” Furthermore, if
there are inconsistencies between Dr. Nowak’s report and his prior testimony, this may be
fruitful ground for cross examination. The Court therefore will admit Opinion Five.
4. Opinion Twelve (Red Thread)
In Opinion Twelve, Dr. Nowak opines that Dr. Lesser and Dr. Brookstein
overstate the “problem” with red thread and that Dr. Brookstein’s conclusion that Zylon should
16 This also appears to be one of the bases for excluding Opinion Three, which the
United States does not directly address in its briefing.
46
never have been sold is incorrect. Nowak Report at 21. He opines that quality control personnel
“constantly monitor the process to catch any irregularities in production.” Id. The United States
seeks to exclude this opinion on the ground that Dr. Nowak’s opinions about Toyobo’s quality
control for red thread are speculative because he did not about how the quality control processes
functioned. The Court agrees. Dr. Nowak has not established that his testimony regarding
Toyobo’s quality control procedures is based on anything other than his review of internal
Toyobo documents rather than specialized expertise. The Court therefore will exclude Opinion
Twelve.
C. Herbert Heuchert
Herbert Heuchert is a consultant proffered by Toyobo as an expert in the
manufacture of “safety-related products.” Mr. Heuchert has over thirty years of manufacturing
experience in the tire industry. Heuchert Opp. at 3-5. Between 1960 and 1993, Mr. Heuchert
worked for Uniroyal Goodrich, a tire manufacturer, where he served variously as an industrial
engineer, vice president of engineering and process development, and senior vice president of
operations. While employed at Uniroyal, Mr. Heuchert oversaw the manufacture of rubber and
other raw materials used in tires, fire protection gear, and other products. Id. at 4, 9-10. Mr.
Heuchert was also responsible for evaluating the suitability of high-performance fibers like
Kevlar for use in tires and implementing quality control systems at multiple tire manufacturing
plants and rubber suppliers. Id. at 4-5, 10-11. Since leaving Uniroyal in 1993, Mr. Heuchert has
managed his own consulting company that provides manufacturing and quality control expertise
primarily in the tire industry. Id.
Mr. Heuchert has submitted an affirmative report dated March 15, 2012 and a
rebuttal report dated May 23, 2012 in response to one of the United States’ experts, Dr. David S.
47
Brookstein. The United States has filed a motion [Dkt. No. 379] to exclude Mr. Heuchert’s
proffered opinions in their entirety, a motion which Toyobo opposes. 17
Mr. Heuchert’s proffered opinions focus on the respective roles and
responsibilities of Toyobo and body armor manufacturers as participants in a supply chain
wherein Toyobo provided the raw material (Zylon) to the end-use manufacturers (Second
Chance and other body armor manufacturers) for use in bulletproof vests. Mr. Heuchert
concludes that Toyobo met its duties and obligations as a supplier of raw material and that body
armor manufacturers and Toyobo employed appropriate quality control procedures. March 2012
Report, Heuchert Motion Ex. 1 at 4-5 [Dkt. No. 379-1]. In his rebuttal report, Mr. Heuchert
responds to Dr. Brookstein’s criticisms of Zylon fiber and Toyobo’s manufacturing process by
opining that “the design and assembly stages of end product development are when the
sensitivities and vulnerabilities of raw materials should be examined and the measures taken to
protect against those sensitivities,” and that Toyobo implemented appropriate quality control
procedures to identify and isolate defective Zylon fiber. May 2012 Rebuttal Report, Heuchert
Mot. Ex. 3 at 4, 8 [Dkt. No. 379-1].
The United States seeks to exclude Mr. Heuchert’s opinions as unreliable and
irrelevant because his experience is limited to the tire industry. Heuchert Mot. at 7. According
to the United States, Mr. Heuchert has not shown how his experience – limited to the tire
industry – applies to the manufacture of high-performance fibers used in the ballistics industry.
Id. at 10, 15. The United States also contends that Mr. Heuchert has failed to explain how the
duties and expectations of Uniroyal, a tire manufacturer that conducts its own testing of raw
17 The parties have withdrawn their arguments related to Second Chance’s
commercial warranty. See Joint Submission Regarding Previously Filed Daubert Motions [Dkt.
No. 456].
48
materials incorporated into its tires, are comparable to those of Toyobo or Second Chance in
terms of designing, testing, and manufacturing Zylon for use in bulletproof vests. Id. at 9, 13-15.
Toyobo takes a broader view of Mr. Heuchert’s expertise. Toyobo acknowledges
that Mr. Heuchert is not an expert in the ballistics industry but maintains that he has relevant
expertise by virtue of his experience as an end-product manufacturer and a raw material supplier
in the “safety-related industry.” Heuchert Opp. 1, 12. Toyobo explains that Mr. Heuchert also
has extensive experience with the development, implementation, and ongoing supervision of
quality control management systems at multiple raw materials and safety-related end-product
manufacturing plants. Id. at 1. According to Toyobo, Mr. Heuchert’s opinions on
manufacturing standards and quality control processes would aid the jury in understanding the
relationship between a raw material supplier and an end-product manufacturer in a “safety-
related industry.” Id. at 2, 17.
The Court finds that Mr. Heuchert’s opinions are neither reliable nor relevant.
Mr. Heuchert bases his opinions exclusively on his extensive manufacturing and consulting
experience in the tire industry. Mr. Heuchert fails, however, to explain how his experience in the
tire industry supports his opinions about the manufacture of high-performance fibers in the
ballistics industry or how these industries are comparable. See Arias v. DynCorp., 928 F. Supp.
2d at 10, 15-16 (D.D.C. 2013) (holding that an expert witness relying solely or primarily on his
or her experience to form the basis of his or her opinions must explain “how that experience
leads to the conclusions reached, why that experience is a sufficient basis for the opinion and
how that experience is reliably applied to the facts” (quoting FED. R. EVID. 702 advisory
committee notes)). While safety may be a significant concern in both industries, it is hardly
adequate to say that “[t]ires, like bullet resistant vests, are safety-critical products.” Opp. at 3-4.
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Mr. Heuchert has not explained whether or how practices of the tire industry apply to the
ballistics industry. See McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1244-45 (11th Cir.
2005) (reversing district court’s admission of expert testimony where witness could not
demonstrate that the drug at issue and the drug that the expert had knowledge of acted in the
same manner). Moreover, Mr. Heuchert does not cite any accepted industry standards or
relevant articles in either of his reports, relying instead solely on documents and testimony from
this case.
Toyobo attempts to furnish the missing link between Mr. Heuchert’s tire industry
experience and his opinions regarding the ballistics industry through a chart matching the topics
on which he opined to his experience. See Heuchert Opp. Ex. 5 [Dkt. No. 394-6]. The chart,
however, only further demonstrates the gap between Mr. Heuchert’s experience and his proffered
opinions. For instance, in support of his opinion that end-product manufacturers are responsible
for durability testing, Toyobo cites Mr. Heuchert’s “experience as both a raw material supplier
and end product manufacturer.” Heuchert Opp. Ex. 5 at 2 [Dkt. No. 394-6]. This assertion
merely reinforces the fact that Mr. Heuchert has not explained whether or how standards in the
tire industry may be applied to the ballistics industry.
Similarly, Mr. Heuchert has not shown how his opinions about conduct in the tire
industry are relevant to manufacturing fiber for ballistic use. His proffered opinions would not
aid the jury in assessing the responsibility of suppliers and manufacturers in the industry at issue.
Indeed, his opinions would risk confusing the jury regarding the standards applicable to the body
armor industry. Mr. Heuchert offers opinions about standards generally applicable to the
“safety-related industry” without any experience working in or studying the particular industry at
issue – fibers manufactured for ballistic use. See, e.g., SEC v. Tourre, 950 F. Supp. 2d 666, 674-
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75 (S.D.N.Y. 2013) (excluding expert with expertise in “general area of structured finance,” but
no experience in particular industry of collateralized debt obligations).
In sum, Mr. Heuchert has not worked in the ballistics industry and is not an expert
in the field of fiber science or ballistics. His expertise in “safety-related products” is so broad a
category as to be meaningless. The Court therefore will exclude Mr. Heuchert’s opinions in their
entirety.
IV. CONCLUSION
For the reasons set forth in this Opinion, the Court will admit certain opinions and
testimony offered by the parties’ expert witnesses and exclude others. Counsel shall prepare
their experts to avoid the excluded subject matter. A separate Order consistent with the decisions
expressed herein will be issued this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: February 2, 2018
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