Morsell v. Symantec Corporation ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
ex rel. LORI MORSELL, et al., :
:
Plaintiffs, : Civil Action No.: 12-800 (RC)
:
v. : Re Documents Nos.: 105, 118, 124
:
SYMANTEC CORPORATION, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO STRIKE
THE EXPERT DESIGNATION AND EXPERT TESTIMONY OF CHARLES HARRIS AND
GRANTING IN PART AND DENYING IN PART THE UNITED STATES’ MOTION TO EXCLUDE
PERSONS DESIGNATED BY SYMANTEC TO PROVIDE EXPERT TESTIMONY
This case began as a qui tam action by Lori Morsell, an employee at the Defendant
corporation who came to believe that her employer had violated certain contractual obligations to
the United States. She filed an action as Relator under the False Claims Act (“FCA”) against
Symantec Corporation, which is now known as NortonLifeLock, Inc. (“Norton” or
“Symantec/Norton”). The United States (“the Government”) intervened, along with California
and Florida, and Ms. Morsell elected to assert claims on behalf of New York State. In brief,
these governments claim that, in the process of setting pre-negotiated maximum prices for
government purchasers with the General Services Administration (“GSA”), the Defendant
overcharged them by misrepresenting the existence of certain prices and discounts that were
available to its private customers and by consequently failing to offer government purchasers the
same low prices these customers received. See generally Mem. Op. Granting in Part and
Denying in Part Def.’s Mot. for Summ. J. and Granting in Part and Denying in Part the United
States’ Mot. for Summ. J. (“MSJs Op.”), ECF No. 184.
This opinion addresses a pair of motions concerning three experts that the parties have
put forward. The Defendant has moved to strike the expert designation and testimony of the
Government’s expert Charles Harris. Symantec Corp.’s Mot. to Strike the Expert Designation
and Expert Test. of Charles Harris and Supp. Statement of P. & A. (“Def.’s Mot.”), ECF No.
124. The United States has moved to exclude two persons designated by the Defendant to
provide expert testimony, Bill Gormley and Larry Allen, Jr. U.S. Mem. of P. & A. in Supp. of
its Mot. to Exclude Persons Designated by Symantec to Provide Expert Test. (“U.S. Mot.”), ECF
No. 106-2. Both motions were opposed, and both are now ripe for decision.
In both motions, the moving party makes essentially the same argument: that its
adversary is attempting to introduce improper expert testimony that consists of legal conclusions
and argumentation rather than proper expert analysis rooted in reliable principles and methods.
To a large extent, the Court agrees, though not entirely. The Court agrees with Norton that the
Government’s expert is improper and will exclude him. The Court agrees with the Government
that much of what Norton’s experts will say is likewise improper. However, some of their
proposed testimony is proper, so they will not be excluded outright.
I. BACKGROUND
A detailed version of the undisputed facts of this case is available in the Court’s recent
Memorandum Opinion addressing the parties’ motions for summary judgment and partial
summary judgment. MSJs Op. at 3–19. For purposes of this opinion the Court will only
describe some of the basic disputes in this case that are most relevant to the proposed testimony
at issue in these motions.
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The central dispute in this case concerns the Defendant’s obligations under a Multiple
Awards Schedule (“MAS”) that it negotiated with GSA and entered into in 2006 and early 2007.
These contracts enable GSA to streamline federal government procurement by providing pre-
negotiated maximum prices and other terms that govern all subsequent purchases covered by the
contract. The MAS program is authorized under two statutes: Title III of the Federal Property
and Administrative Services Act of 1949, 41 U.S.C. § 251 et seq., and Title 40, 40 U.S.C. § 501.
The program is additionally governed by Title 48 of the Code of Federal Regulations, which is
also known as the Federal Acquisition Regulation (“FAR”), 48 C.F.R. § 8.402 et seq. See U.S.
Mot. for Partial Summ. J. (“U.S. MSJ”) Ex. 6, GSA MAS Program Desk Reference (“Desk
Reference”) at 13, ECF No. 130-6. Additional regulations establishing procedures to be
followed by contracting GSA officers are found in the GSA Acquisition Regulation (“GSAR”),
48 C.F.R. § 501.101 et seq., the entirety of which is also incorporated into the GSA Acquisition
Manual (“GSAM”), U.S. MSJ Ex. 9, GSAM (July 2004), ECF No. 130-9.
GSA regulations prescribe standard questions contained in a MAS solicitation, in
response to which an offeror must disclose certain information in a Commercial Sales Practices
Format, known as the offeror’s “CSPs.” GSAM at 515-7 (“Commercial Sales Practices Format”
or “CSPs Form”); id. at 515-8, fig.515.4-2 (Instructions for the Commercial Sales Practices
Format). The CSPs Form instructions provide that an offeror seeking a MAS contract must
provide information that is “current, accurate, and complete” as of fourteen calendar days prior
to submission. Id. at 515-8. The offeror is also told “[y]ou must . . . disclose any changes in
your price list(s), discounts and/or discounting policies which occur after the offer is submitted,
but before the close of negotiations,” and, “[i]f your discount practices vary by model or product
line, the discount information should be by model or product line as appropriate.” Id.3
The GSAM does not require GSA officers to obtain the offeror’s best price in every
single case, but it emphasizes that this is always the goal. Negotiators are required to “seek to
obtain the offeror’s best price (the best price given to the most favored customer),” but with the
understanding that “the Government recognizes that the terms and conditions of commercial
sales vary and there may be legitimate reasons why the best price is not achieved” in any given
negotiation. Id. at 538-1 (GSAR § 538.270). A contracting officer “may award a contract
containing pricing which is less favorable than the best price the offeror extends to any
commercial customer for similar purchases” if the officer determines that “prices offered to the
Government are fair and reasonable” and that the “[a]ward is otherwise in the best interest of the
Government.” Id. Nonetheless, the officer must always “compare the terms and conditions of
the [offeror’s response to the] MAS solicitation with the terms and conditions of agreements with
the offeror’s commercial customers. Id.
GSA officials are instructed to include in all contracts two clauses designed to ensure that
the prices negotiated for government purchasers are appropriately advantageous and that they
remain so. The first of these is a Price Adjustment Clause (“PAC”) reserving to the Government
the right to reduce unilaterally the price of a contract if the Government determines the offeror
failed to provide “current, accurate, and complete” information, or to disclose changes that
occurred after its initial submission. GSAM at 552-12. This reduction can equal the amount of
the overpayment plus interest. Id. The second is a Price Reduction Clause (“PRC”), which is
designed to account for changes in the offeror’s pricing over the life of the MAS contract. Id. at
552-39. The PRC requires that GSA and the offeror agree on a customer or category of
customers that will serve essentially as a baseline for the government’s discounts. See id. The
offeror must keep the contracting officer appraised of prices being offered to that customer or
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category of customers throughout the life of the MAS contract, and PRC ensures that the
Government’s prices are reduced if this customer or category of customers is given lower pricing
or increased discounts. Id. The PRC identifies certain events which trigger price reductions
when they occur, and certain exceptions to these triggers. Id. at 552-39–552-40.
The operative First Amended Omnibus and Restated Complaint (the “Omnibus
Complaint”), ECF No. 70, outlines nine counts brought by the Government, two each from
California and Florida, and three from Morsell on behalf of New York state. The Government’s
first five claims are brought under the FCA. The remaining four arise under common law.
California and Florida each bring two claims under their respective state law–equivalents to the
FCA. Morsell does the same for New York and adds an additional claim based on state
contracts.
The FCA enables a qui tam plaintiff, known as a Relator, to initiate a civil action on
behalf of the United States to recover monies paid on account of false or fraudulent claims. See
31 U.S.C. § 3730; United States v. Kellogg Brown & Root Servs., Inc., 800 F. Supp.2d 143, 146–
47 (D.D.C. 2011). The FCA as amended creates several forms of liability. Among these is
liability for “any person who . . . knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval,” 31 U.S.C. § 3729(a)(1)(A), as well as for “any person
who . . . knowingly makes, uses, or causes to be made or used, a false record or statement
material to a false or fraudulent claim,” id. § 3729(a)(1)(B). Count I alleges that the Defendant
knowingly presented false claims in violation of § 3729(a)(1)(A). Omnibus Compl. ¶¶ 288–95.
Count II alleges that the Defendant knowingly made false statements material to false claims in
violation of § 3729(a)(1)(B). Id. ¶¶ 296–302. Count III alleges that the Defendant caused
independent resellers to make false claims, again in violation of § 3729(a)(1)(A), id. ¶¶ 303–11,
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and Count IV alleges that the Defendant caused resellers to make false statements material to
false claims in violation of § 3729(a)(1)(B), id. ¶¶ 312–19. Count V, brought under another
provision of the FCA, § 3729(a)(1)(G), alleges that the Defendant knowingly concealed and
improperly avoided paying its obligations to the government (reverse false claims). Id. ¶¶ 320–
25. The Government’s five common-law claims are for negligent misrepresentation, id. ¶¶ 326–
31 (Count VI), breach of contract, id. ¶¶ 332–37 (Count VII), unjust enrichment, id. ¶¶ 338–40
(Count VIII), and payment by mistake, id. ¶¶ 341–43 (Count IX). California, Florida, and
Morsell on behalf of New York each allege that the Defendant violated their respective state
false claims statutes. See id. ¶¶ 344–410 (Counts X through XVI).
As plead in the Omnibus Complaint and as argued by the Government throughout this
litigation, most of these claims depend at least in part on whether Symantec/Norton breached its
contractual obligations to make “current, accurate, and complete” CSPs disclosures, GSAM at
552-12 (PAC), and on whether it breached the PRC. Count VII is a common law breach of
contract claim in which the Government sues directly over these alleged breaches, Omnibus
Complaint ¶¶ 332–37, but the same breaches underly other claims. For example, the FCA claim
in Count I alleges that Symantec submitted claims to the Government that were “materially
false” for reasons including “implied representations regarding its compliance with the material
terms of the Contract, including that the initial disclosures were accurate and complete and that it
continued to abide by the Contract’s PRC.” Omnibus Compl. ¶¶ 290–91. Whether the
Defendant fulfilled its contractual obligations regarding CSPs disclosures and whether it
breached the PRC are therefore among the central legal questions in this case, upon which much
of the Defendant’s liability will depend.
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II. LEGAL STANDARD
The Defendant’s motion is styled as a motion to strike Harris’s expert designation and to
exclude his expert testimony, while the Government’s is styled as a motion to exclude the
Defendant’s experts. The distinction between a motion to strike and a motion to exclude makes
for little practical difference in the Court’s consideration of the motions. A motion to exclude an
expert or an expert’s testimony asks the Court to disallow that expert from testifying in front of
the jury at trial. See United States v. Machado-Erazo, 901 F.3d 326, 336–37 (D.C. Cir. 2018). A
motion to strike an expert’s testimony and designation in advance of trial is framed in a
backward-looking manner and focuses somewhat more on material already in the record, but it
seeks the same relief regarding testimony at trial. See United States v. Davis, 863 F.3d 894, 907–
08 (D.C. Cir. 2017). For both motions, the question is whether the proposed testimony—much
of which has been previewed in the experts’ reports—is proper expert testimony that could be
presented at trial.
Federal Rule of Evidence 702 provides that qualified expert testimony is admissible if
“(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient
facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid.
702. A witness may qualify as an expert through knowledge, skill, experience, training or
education. Id. “In general, Rule 702 has been interpreted to favor admissibility.” Khairkhwa v.
Obama, 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 587 (1993)). “The degree of ‘knowledge, skill, experience, training or education’
required to qualify an expert witness ‘is only that necessary to [e]nsure that the witness’s
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testimony “assist” the trier of fact.’” Id. at 11 (quoting Mannino v. Int’l Mfg. Co., 650 F.2d 846,
851 (6th Cir. 1981) (noting that the weight of the evidence is a matter to be assessed by the trier
of fact)). “[I]t is not necessary that the witness be recognized as a leading authority in the field
in question . . . .” 29 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure §
6264.1 (2015). “[T]he ‘help’ requirement [from Rule 702] is satisfied where the expert
testimony advances the trier of fact’s understanding to any degree.” Id.
“The Rule requires trial courts to assume a ‘gatekeeping role,’ ensuring that the
methodology underlying an expert’s testimony is valid and the expert’s conclusions are based on
‘good grounds.’” Chesapeake Climate Action Network v. Export-Import Bank of the U.S., 78 F.
Supp. 3d 208, 219 (D.D.C. 2015) (quoting Daubert, 509 U.S. at 590–97). “The trial court’s
gatekeeping obligation applies not only to scientific testimony but to all expert testimony.”
Groobert v. President & Dirs. of Georgetown Coll., 219 F. Supp. 2d 1, 6 (D.D.C. 2002) (citing
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999)). The court’s analysis is “flexible”
and it has “the same broad latitude when it decides how to determine reliability as it enjoys in
respect to its ultimate reliability determination.” Kumho Tire Co., 526 U.S. at 141–42 (citing
General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997)). Trial courts may apply a variety of
factors in assessing reliability, including whether the expert’s technique can be tested or has been
subject to peer review, the existence and maintenance of standards and controls, and whether the
technique has been generally accepted in the scientific community. See Groobert, 219 F. Supp.
2d at 6 (citing Daubert, 509 U.S. at 593–94).
Pursuant to Rule 702, Daubert, and its progeny, when determining the admissibility of
expert testimony, the Court must consider: (1) whether the testimony is based upon sufficient
facts and data; (2) whether the testimony is the product of reliable principles and methods, i.e.
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whether the reasoning and methodology underlying the expert’s opinion is scientifically valid;
and (3) whether the witness has applied the principles and methods reliably to the facts of the
case. See generally Ambrosini v. Labarraque, 101 F.3d 129, 133 (D.C. Cir. 1996). Once the
court is satisfied that the witness is an expert within the meaning of Rule 702, “[u]nder Daubert
the district court is required to address two questions, first whether the expert’s testimony is
based on ‘scientific knowledge,’ and second, whether the testimony ‘will assist the trier of fact to
understand or determine a fact in issue.’” Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1126
(D.C. Cir. 2001) (quoting Daubert, 509 U.S. at 592).
“Expert testimony that consists of legal conclusions cannot properly assist the trier of
fact” in either “‘understand[ing] the evidence’ or . . . ‘determin[ing] a fact in issue.’” Burkhart v.
Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) (quoting Fed. R. Evid.
702)); see also United States ex rel. Mossey v. Pal-Tech, Inc., 231 F. Supp. 2d 94, 98 (D.D.C.
2002) (“[E]xpert testimony consisting of legal conclusions will not be permitted because such
testimony merely states what result should be reached . . . .”). Thus, while “an expert may offer
his opinion as to facts that, if found, would support a conclusion that the legal standard at issue
was satisfied,” an expert “may not testify as to whether the legal standard has been satisfied.”
Burkhart, 112 F.3d at 1212–13 (emphasis added). This limitation, the Circuit has explained, is
consistent with the Federal Rules’ advisory committee notes, which explain that an expert may
not offer “‘opinions which would merely tell the jury what result to reach,’ or which are ‘phrased
in terms of inadequately explored legal criteria.’” Id. at 1212 (quoting Fed. R. Evid. 704
advisory committee’s note). “[T]he line between an inadmissible legal conclusion and
admissible assistance to the trier of fact in understanding the evidence or in determining a fact in
issue is not always bright.” Id. An expert’s testimony is likely to constitute a legal conclusion
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where “it track[s] the language of the applicable statute” and uses terms that “ha[ve] a
specialized legal meaning that [are] more precise than the lay understanding of the term.” Id. In
Burkhart itself, for example, the D.C. Circuit held that the district court abused its discretion by
permitting an expert witness to testify that the Washington Metropolitan Area Transit Authority
and a transit police officer had violated the ADA by failing to provide the plaintiff—who was
deaf—with communication that was “as effective” as the communication provided to other
individuals. Id. at 1213.
“The burden is on the proponent of [expert] testimony to show by a preponderance of the
evidence that the proffered expert witness is qualified, that his proposed testimony would be
useful to the finder of fact, and that the testimony is reliable.” Sykes v. Napolitano, 634 F. Supp.
2d 1, 6 (D.D.C. 2009) (citing Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir.
2001)). Even if the proposed testimony is proper and relevant, the Court may nonetheless
exclude it “if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403; see Bazarian Int’l Fin.
Assocs., LLC v. Desarrolos Aerohotelco, C.A., 315 F. Supp. 3d 101, 128 (D.D.C. 2018)
(analyzing expert testimony under Rule 403).
III. ANALYSIS
A. Defendant’s Motion to Exclude the Government’s Expert
Norton has moved to strike the expert designation and to exclude the expert testimony of
the Government’s expert Charles Harris. See Def.’s Mot. at 5. 1 According to the Expert
1
Because the Defendant’s motion does not include page numbers, the Court’s citations to this
motion reference the page numbers generated by the Court’s CM/ECF system.
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Summary he produced, he has been an audit manager at GSA since 2003 and has worked as a
GSA auditor, with minimal interruption, since 1987. See Def.’s Mot. Ex. 1, Expert Summary of
Charles E. Harris (“Harris Rep.”) at 1–2, ECF No. 124-1. Harris says he “ha[s] a detailed
understanding of the manner in which GSA audits [MAS] contracts, including to identify
transactions that violate the [PRC].” Id. at 1. According to the Government, “[t]estimony by a
career GSA auditor with decades of experience reviewing MAS contracts and contractors’
transactional data to flag potential PRC violations will assist the trier of fact to make the factual
determinations necessary to calculate damages to the United States” and “will allow the trier of
fact to understand why GSA would flag individual commercial transactions as potential PRC
violations.” U.S. Opp’n to Def.’s Mot. (“U.S. Opp’n”) at 4, ECF No. 138.
Harris describes the data he reviewed as follows: He was asked by the Government’s
counsel to review Norton/Symantec sales data assembled by another Government expert, Dr.
Allison Holt. See Harris Rep. at 2. Dr. Holt had filtered out certain types of transactions, using
“conservative assumptions” about the Defendant’s liability. Id. The data that Harris received
from Dr. Holt “included only those sales on which a commercial customer received a non-
standard discount from Symantec,” id. at 3 (footnote omitted), and Dr. Holt had “compiled data
from various available datasets to gather note fields and other pieces of transactional data . . . that
might be relevant to consider in identifying whether any sales transaction violated Symantec’s
PRC,” id. at 4. The Government’s counsel directed Harris’s attention to certain excerpted fields
from this larger dataset, but provided him “[t]he complete collection of data assembled by Dr.
Holt” for his review.” Id.After the data was all processed in this way, Harris’s analysis began, and primarily
involved addressing two questions. First, he evaluated “[w]hether [he] believed that a
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transaction triggered a price reduction under the PRC in light of the terms of Symantec’s [Final
Proposal Revision (“FPR”)] and any other items [he] would typically review in a pre- or post-
award audit.” Id. at 5. Second, in relation to the same materials, he would make an assumption,
favorable to Symantec, that certain deals were excluded from PRC coverage, and would then
consider again “whether [he] believed a transaction triggered a price reduction.” Id.Specifically, during this second stage of analysis, Harris assumed that Symantec/Norton’s
October 2006 Supplement responding to an Administrative Letter from GSA had exempted
certain types of deals from PRC coverage when it explained that these particular types of deals
were deals for which Symantec would give “better rates and/or terms and conditions” than it was
offering the Government. Id.; U.S. MSJ Ex. 82 at 49 (the “October 2006 Supplement”), ECF
No. 131-32. 2 Harris’s Summary concludes with his determination that certain transactions he
flagged “triggered a price reduction under the PRC in light of Symantec’s FPR” and that “had
these transactions been identified in a pre-or post-award audit of Symantec’s GSA contract a
GSA auditor would have referred them for contractual actions to the relevant Contracting
Officer.” Harris Rep. at 8. Assuming the suggested carve-out did not change these conclusions.
Id. at 8–9.
Norton argues that Harris’s testimony should be excluded and his expert designation
stricken because these opinions are legal conclusions and thus not admissible as expert
testimony. Def.’s Mot. at 11–15. The Court agrees. Harris would testify, in essence, that it is
his expert opinion that Norton/Symantec committed violations of the PRC. This testimony
2
Harris’s Expert Summary cites to a different version of the relevant document, see Harris Rep.
at 5, but the Court was not able to locate a version of the October 2006 Supplement with the
Bates stamp numbering Harris cites. The cited version is attached to the United States’ Motion
for Partial Summary Judgment and, as far as the Court can tell, it is identical to the document
Harris used, at least with regard to reflecting the basis for the alleged carve-out.
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would be a legal conclusion because it “states what result should be reached.” Mossey, 231 F.
Supp. 2d at 98. It crosses over the line between testimony “as to facts that, if found would
support a conclusion that the legal standard at issue was satisfied” and is instead testimony
stating “whether the legal standard has been satisfied.” Burkhart, 112 F.3d at 1212–13. “An
expert witness may not deliver legal conclusions on domestic law, for legal principles are outside
the witness’ area of expertise under Federal Rule of Evidence 702.” Weston v. Wash. Metro.
Area Transit Auth., 78 F.3d 682, 684 n.4 (D.C. Cir. 1996).
Harris’s testimony would be comparable to the testimony excluded by the D.C. Circuit in
Burkhart. See Burkhart, 112 F.3d at 1212–13. As the Court has explained, whether Symantec
breached the PRC is among the questions directly posed by Count VII of the Omnibus
Complaint, alleging breach of contract. Omnibus Compl. ¶¶ 332–37. An affirmative answer
would also fulfill the falsity element that the Government is required to prove for most of its
other claims. As this Court has said before:
While courts have at times permitted greater leeway and allowed expert testimony,
couched in legal conclusions, when such testimony would assist the factfinder in
navigating the complex legal regime at issue, those courts have been careful to
caution that an expert may not testify about how the application of those legal
standards should cut in the particular case before them.
National Association for the Deaf v. District Hospital Partners, L.P., No. 14-cv-1222, 2016 WL
447444, at *6 (D.D.C. Feb. 4, 2016) (citing United States v. Bilzerain, 926 F.2d 1285, 1294–95
(2d Cir. 1990); United States v. Offill, 666 F.3d 168, 174 (4th Cir. 2001)). Harris’s report and
proposed testimony would tell the jury exactly what result to reach on this contested issue in this
particular case.
The Government argues otherwise, but it does not draw a convincing distinction between
impermissible expert testimony offering legal conclusions and the testimony that it would have
Harris introduce. In opposing Norton’s motion to exclude, the Government says Harris will
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testify only as to “whether he believed that a Symantec transaction triggered the PRC . . . such
that he would have flagged the transactions” in the course of a pre- or post-award Audit. U.S.
Opp’n at 6. The government says he would be qualified based on his “vast experience reviewing
contracts and transactional data in the course of conducting PRC compliance audits, as well as
extensive familiarity with the PRC itself and its application.” Id. at 4; see Fed. R. Evid. 702
(allowing qualification based on “other specialized knowledge”). This would put Harris’s
testimony at a level of remove. He would testify as to his typical practice as an auditor and to
whether Symantec transactions resemble those he would normally identify as possible violations,
rather than testifying directly as to whether the Defendant’s activity was a violation. This kind
of testimony could be proper if it served to illuminate the Government’s understanding of the
PRC, and thus to help resolve the factual dispute over what the parties mutually intended when
they agreed to the contract. See MSJs Op. at 45–50 (holding that unresolved disputes of material
fact concerning the parties’ mutual understandings of the PRC prevented summary judgment for
the Government on its claim that Symantec breached the PRC). But the Government’s careful
phrasing of Harris’s proposed testimony in its opposition brief is inconsistent with the text of
Harris’s actual report, in which he writes quite definitively that “It is my opinion . . . that these
[flagged] transactions triggered a price reduction under the PRC in light of the terms of
Symantec’s FPR.” Harris Rep. at 8.
The Government tried to draw a similar line during Harris’s deposition. The
Government’s counsel asked Harris, “Is it your understanding that your role at trial will be to tell
the Jury, ‘Ladies and gentlemen, this is how you should interpret the contract’?” to which Harris
answered “No.” Def.’s Mot. Ex. 2, Deposition Tr. of Charles Harris (“Harris Tr.”) at 177–78,
ECF No. 124-2. By way of contrast, counsel next asked, “Instead, is it your understanding that
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your role at trial will be something along the lines of, ‘Ladies and gentlemen, this is the
understanding I have of the contract that I applied to the sales data’?” to which Harris answered
“Yes.” Id. at 178. The Court acknowledges there is some distinction between these two
formulations, and that some of the latter might be proper expert testimony under Rule 702.
However, distinguishing between the two formulations requires drawing a finer line than the
Court thinks the jury can safely be asked to draw without becoming confused or misled. The
Court will therefore exclude under Rule 403 whatever borderline proper testimony Harris might
be able to provide. “In jury trials, the danger of prejudice from the presentation of expert
testimony is significant because of the potential for the jury to accept an expert witness’s
testimony automatically.” Edmonds v. United States, No. 05-cv-540, 2009 WL 969938, at *1
(D.D.C. Apr. 7, 2009) (citing United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974));
United States v. Anderson, 851 F.2d 384, 393 (D.C. Cir. 1988) (“Courts have frequently noted
that there is often an inherent danger with expert testimony unduly biasing the jury because of its
aura of special reliability and trust.” (citation, quotation marks and alterations omitted)). The
Court thinks that in this instance there is a serious risk that the jury will credit Harris too
automatically based on his work as a GSA auditor.
Furthermore, Harris’s report and proposed testimony implicitly reaches legal conclusions
about the meaning of the contract. The Court has ruled twice now that the PRC is ambiguous on
its face, as the terms “commercial class of customers” and “discount relationship” are both
subject to more than one reasonable interpretation. United States ex rel. Morsell v. Symantec
Corp., 130 F. Supp. 3d 106, 138 (D.D.C. 2015) (denying the Government’s first motion for
partial summary judgment); MSJ Op. at 45–50 (denying summary judgment on the issue of PRC
breach in ruling on the Government’s second motion for partial summary judgment). Harris’s
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two-stage analysis accounts for ambiguity in “commercial class of customers,” by testing both
alternatives for what it might mean. He does not, however, account for the fact that “discount
relationship” is ambiguous. Nor does he explain what assumptions he is making about how it
should be understood. Harris’s report then, implicitly and impermissibly provides a definition
for “discount relationship” and interprets the contract accordingly. See, e.g., Mossey, 231 F.
Supp. 2d at 98 (excluding an expert report that “provide[d] definitions of legal and regulatory
terms coupled with [the expert’s] conclusions on how these terms affect[ed] [the] contract”
because this would not “help the trier of fact better ‘understand the evidence’ or ‘determine a fact
in issue,’” (quoting Fed. R. Evid. 702)). If Harris were allowed to testify about conclusions he
reached using a particular understanding of the disputed term “discount relationship,” there
would be a serious risk of misleading the jury into thinking either that the meaning of the term is
not a subject of dispute or that Harris’s (legal) opinion about what the term means ought to be
credited.
Importantly for the Rule 403 analysis, the Court finds that the probative value of Harris’s
proposed testimony is significantly diminished by the availability of Dr. Holt’s testimony. As
explained, Harris’s work in this case entailed only reviewing data that Dr. Holt had “compiled
from various datasets . . . and distilled to isolate transactions that may have violated Symantec’s
PRC.” Harris Rep. at 2. Harris was not involved in deciding what data he would review or how
it was presented. See Harris Tr. at 74–75. Dr. Holt, on the other hand, dedicates nearly three
pages of her initial report to explaining how she distilled the relevant data to identify transactions
that may have triggered the PRC. U.S. MSJ Ex. 73, Expert Rep. of Allison I. Holt, Ph.D. at 29–
32, ECF No. 131-23. Norton has not moved to exclude or to strike Dr. Holt’s testimony, and she
would be able to explain how the Government identified alleged PRC violations. She could do
16
this based solely on her statistical expertise, and there would be a reduced risk of her testimony
misleading the jury as compared with Harris’s, which might carry an inappropriate air of added
authority based on his status as a GSA auditor. Because Dr. Holt’s testimony is available to the
Government, Harris’s would add little probative value to offset the significant risk of prejudice it
would introduce.
Finally, although the Government suggests that Harris’s testimony “will assist the trier of
fact to make the factual determinations necessary to calculate damages,” U.S. Opp’n at 4
(emphasis added), the Court does not understand Harris’s work to be an integral part of the
Government’s damages calculation. The Government explains that a third expert, “Dr. David
Gulley . . . calculated damages to the United States resulting from the transactions contained in
Dr. Holt’s analysis.” Id. at 1. “Dr. Gulley,” the Court is told, “use[d] the transactions that
Harris . . . identified” as ones that would have been flagged “to calculate the Government’s
damages.” Id. at 2. Dr. Gulley’s report—partially produced to the Court as an exhibit during
summary judgment briefing—references calculations made “[b]ased on the dataset of PRC-
triggering transactions that [Dr. Gulley] received from Charles Harris.” U.S. Opp’n to Sym.
MSJ Ex. 245 at 8, ECF No. 142-11. Still, the Court fails to see how Harris’s work was a
necessary step in the damages calculation. Harris played no role in selecting what data he
reviewed, and assumed that every transaction he reviewed violated the PRC. Harris Tr. at 177
(confirming Harris’s assumption “that every deal [he] reviewed contained a special discount that
disturbed the price discount relationship at least as the government believes it”).
It appears that Harris was essentially a middleman between Dr. Holt and Dr. Gulley, and
that he simply agreed with counsel that that the transactions Dr. Holt had identified looked like
the kinds of transactions he would have flagged. These transactions were passed along to Dr.
17
Gulley with Harris’s imprimatur. Rather than having Harris testify to liability, and possibly
confuse a jury with his purported expertise, the Government could instead show Dr. Gulley the
transactions identified by Dr. Holt and ask him to assume liability. This would avoid confusing
the legal question of liability with the factual questions to which experts may properly testify.
The Government has explained that Harris’s “opinions are being proffered in connection with a
complex damages analysis,” U.S. Opp’n at 14, but it has not argued that the damages calculation
is impossible without his input. Because, as the Court understands it, there is an alternative
means of introducing testimony concerning damages—though it may require an update to Dr.
Gulley’s report—the exclusion of Dr. Harris will not prejudice the government by seriously
undermining its ability to present a calculation of damages. 3
B. The Government’s Motion to Exclude Defendant’s Experts
The Government has moved to exclude the testimony of two experts retained by Norton.
Because the Government challenges their testimony on similar grounds, and because their
testimony does, in fact, present many of the same problems, the Court will address these experts
together. Ultimately the Court holds that some of their testimony is proper and some is
improper. Rather than attempt to review these experts’ reports and testimony line-by-line, the
Court will endeavor to identify those arguments by the Government that are meritorious and will
highlight some portions of the proposed testimony that are either proper or improper. In so
doing, the Court hopes to identify the contours of proper testimony by these witnesses and to
3
If the Government believes Harris’s calculations are necessary to present the damages
calculations made by Dr. Gulley, the Court would entertain a motion for reconsideration on this
narrow basis.
18
streamline their testimony for trial, but to avoid constraining the Defendant’s ability to put
forward a case at trial by limiting these experts’ testimony to statements already in the record. 4
The first of Norton’s experts that the Government challenges is Bill Gormley. U.S. Mot.
According to his expert report, Gormley worked for GSA for nearly thirty years, during which he
“extensively reengineered the Schedules program,” “developed the first government-wide e-
commerce tools,” and helped develop the CSP solicitation format. See U.S. Mot. Ex. 20, Expert
Rep. of Bill Gormley (“Gormley Rep.”) at 3–4, ECF No. 106-22. Gormley left GSA in 2000 and
has since worked as a consultant and as a high ranking official in at least two government
purchasing industry groups. Id. at 4.
Gormley’s expert report includes general background about GSA and the MAS Schedule
contract program as well as more specific conclusions based on a review of the documentary
record produced in this case. Id. at 5 (“Background of the GSA Schedules Program”), 8 (“The
Negotiation and Award of GSA Schedules”), 12 (“Symantec’s Offer and Negotiation”). His
opinions regarding the GSA-Symantec negotiating process are fairly specific including, for
example, that “Symantec’s CSP Disclosures adequately disclosed its discounting practices” and
that “[a] reasonable contracting officer would have understood that Symantec did not intend that
non-standard discounts would trigger the PRC” and “could have decided to exclude certain of
Symantec’s buying programs from the price negotiations.” Id. at 4–5 (summarizing opinions).
Gormley explains that his opinions “are based on a review of the documents that were made
4
The Defendant additionally filed a Motion for Leave to Supplement the Record in Support of
its Opposition to the Government’s Motion, ECF No. 118, with arguments based on deposition
testimony taken after it filed its Opposition to the Government’s Motion. This Motion for Leave
to Supplement the Record is granted.
19
available and upon [his] education, training, knowledge, experience[,] and expertise regarding
GSA and GSA Schedules.” Id. at 4.
Norton’s second expert is Larry Allen, Jr. U.S. Mot. Allen is the founder and president
of a consulting firm and “often represent[s] GSA Schedule contract holders whom [he] assist[s]
in a wide variety of GSA Schedule compliance matters.” U.S. Mot. Ex. 22, Expert Rep. of
Edward Larry Allen, Jr. (“Allen Rep.”) at 1, ECF No. 106-24. Allen says he has “counseled
GSA Schedule contractors . . . on all aspects of seeking, negotiating, and administering a GSA
Schedule contract,” and that this includes “conduct[ing] compliance reviews” focusing on “the
many complex terms and conditions of a MAS contract, including the [PRC].” Id. at 2. He has
“worked with government contract attorneys on GSA Schedule contract audits” and “with
companies to develop, update, and assess their GSA Schedule contract compliance programs.”
Id. Allen has been an industry representative on a GSA MAS Advisory Panel, id. at 3–4, and
also led an industry lobbying group for over ten years, id. at 4–5.
Like Gormley, Allen’s expert report includes a combination of broad observations about
GSA contracting and specific evaluations of this case. See, e.g., id. at 8 (“Overview of an
Effective GSA Schedule Compliance Program”), 19 (“Symantec’s Understanding of its . . . PRC
Responsibilities was Reasonable and Never Contradicted by GSA”). The portions of his report
that do not focus on the facts of this case differ from comparable sections of Gormley’s report in
that they are much more focused on criticizing GSA. Allen’s report includes, for example, a
nine-page section with the heading “Compliance Challenges Created by GSA’s Lack of
Guidance to Contractors Regarding Schedule Compliance,” which explains, among other things,
that “[i]n [Allen’s] experience, the lack of clear definitions and meaningful guidance from GSA,
combined with the wide range of goods and services sold through GSA Schedule contracts,
20
makes it extremely difficult for Schedule contract holders to decipher their compliance
obligations.” Id. at 10–19; 13–14. Allen’s opinions about this case are similar to Gormley’s and
include that “[p]rior to the award of its GSA Schedule contract, Symantec diligently sought to
understand the rules governing the MAS program” and that “[i]n seeking to obtain a GSA
Schedule Contract, Symantec submitted detailed CSP disclosures, with extensive supporting
data, sufficient to allow a reasonable GSA [contracting officer] to negotiate a fair and reasonable
GSA Schedule contract with Symantec.” Id. at 7 (“Summary of Opinions”).
1. Opinions Concerning Contract Interpretation
The Government first presents several arguments for why testimony that it characterizes
as “Allen and Gormley’s interpretations of the basis of award category and discount relationship
in the Contract” between GSA and Symantec should not be admitted. U.S. Mot. at 20. Their
first argument in this regard is familiar. The Government argues that Gormley and Allen, as
experts, cannot offer interpretations of the contract between GSA and Symantec because
interpretation of contracts and the underlying regulations is a legal issue. Id. at 21–23. Norton’s
response is to say that Gormley and Allen will not “offer their own interpretations” of the
contract but will instead speak only to “agency and industry usage.” Def. Symantec Corp.’s
Mem. of P. & A. in Opp’n to U.S. Mot. (“Def.’s Opp’n”) at 32, ECF No. 108. Both parties state
the law more or less correctly. An expert “should not be permitted to testify regarding the
meaning of [a] contract between the parties” but may be “permitted to testify regarding the
meaning of contract terms when the meaning depends on industry practice.” SEC v. Johnson,
525 F. Supp. 2d 66, 70 (D.D.C. 2007) (citations omitted). The D.C. Circuit has specifically said
that an expert may testify as to “the common usage of . . . terms in the government contracts
21
industry.” United States v. Safavian, 528 F.3d 957, 967 (D.C. Cir. 2008). The relevant question,
then, is on which side of this line Gormley’s and Allen’s testimony would fall.
Much of what Gormley and Allen said in their reports and depositions is improper
testimony regarding the meaning of the contract between the parties. At his deposition, Allen
agreed that, as far as he was aware, “there is . . . not an industry standard that defines something
different than what the solicitation says” for the term “customer.” U.S. Mot. Ex. 21, Allen Tr.
(“Allen Tr.”) at 173, ECF No. 106-23. Gormley likewise acknowledged that “commercial class
of customers” was not “an industry term of art” and that he did not consult any “industry
standard definition.” U.S. Mot. Ex. 19, Gormley Tr. (“Gormley Tr.”) at 315–16, ECF No. 106-
21. To the extent their testimony would rely on any particular definitions of these terms, then,
such testimony is inappropriate—like Harris’s—because “provid[ing] definitions of legal and
regulatory terms coupled with [the expert’s] conclusions on how these terms affect [the]
contract” does not help the jury. Mossey, 231 F. Supp. 2d at 98. Similarly, Allen opines on what
“Symantec understood the Commercial Class of Customers [Basis of Award]” to entail, citing
the deposition transcript of Symantec’s lead negotiator, Kim Bradbury. Allen Rep. at 19. This is
improper testimony as to the meaning of the contract between the parties. Furthermore, by
interpreting Bradbury’s testimony this opinion also arguably usurps the role of the jury as the
finder of fact. See United States v. Libby, 461 F. Supp. 2d 3, 7 (D.D.C. 2006) (holding in a
criminal case that “[e]xpert testimony will . . . be precluded if [it] would usurp the jury’s role as
the final arbiter of the facts, such as testimony on witness credibility and state of mind”).
Elsewhere in its Motion, the Government asks the Court to exclude as impermissible
“Gormley’s opinions as to what a reasonable contracting officer could have done or would have
understood are unreliable and would not assist a jury.” U.S. Mot. at 43. The Government argues
22
that opinions like “[a] reasonable contracting officer would have understood that Symantec did
not intend that non-standard discounts would trigger the PRC,” Gormley Rep. at 5, are simply “a
rephrasing of . . . inadmissible contract interpretation opinions,” U.S. Mot. at 43. There is a
subtle difference between stating outright what a contract means and stating how it could
reasonably be interpreted, but nonetheless the Court agrees with the broader point that this
testimony would not help the jury because it is too similar to the improper testimony just
outlined. “Expert testimony, like all other evidence, may be excluded under Rule 403 if it would
confuse or mislead the trier of fact . . . .” Edmonds, 2009 WL 969938, at *1; see Fed. R. Evid.
403.
Although testimony about reasonability or about the meaning of the contract between the
parties is improper, other opinions offered by these experts do appear to be properly grounded in
their experiential understandings of “the common usage of . . . terms in the government contracts
industry.” Safavian, 528 F.3d at 967. Gormley and Allen may properly testify in this regard.
For example, Gormley may properly testify that “[i]n [his] experience, a broad Basis of Award
customer or category of customers like ‘all commercial customers’ . . . is not typical in GSA
Schedules held by large companies.” Gormley Rep. at 18. Likewise Allen can testify that “[he]
ha[s] seen contractors and [contracting officers] agree on a wide variety of [bases of awards],
including single customers, groups of customers, pricing programs, and pricelists.” Allen Rep. at
20. Testimony like this is based on the experts’ personal experiences in the industry and does
not purport to directly interpret the contract or to know what was in the minds of GSA or
Symantec. See Johnson, 525 F. Supp. 2d at 69 n.3 (admitting testimony regarding industry
custom “drawn from many years of experience” and “significant research”). The Government
will be free to challenge this testimony on cross-examination and can point to the specific facts
23
and documents produced in this case that may be at odds with the experts’ more general
experiential testimony. Moreover, GSA fact witnesses may testify about their experiences to the
extent they are different.
The Government puts forward a few additional arguments against any contract
interpretation testimony, arguing that Allen and Gormley’s contract interpretation testimony
should additionally be excluded because it is not based in accepted standards or methods, lacks
reliability, and does not qualify under the standard for experiential experts. 5 U.S. Mot. at 25–27.
The focus on “standards or methods” is somewhat misplaced, because, as the Government seems
to recognize, an expert “may . . . be qualified on the basis of his or her practical experience or
training.” Rothe Dev., Inc. v. Dep’t of Def., 107 F. Supp. 3d 183, 196 (D.D.C. 2015) (quoting
Robinson, 75 F. Supp. 3d at197–98). Rule 702 requires that an expert be qualified to testify on
the basis of “knowledge, skill, experience, training, or education[,]” and thus the rule
encompasses “not only experts in the strictest sense of the word, e.g., physicians, physicists, and
architects, but also the large group sometimes called skilled witnesses, such as bankers or
landowners testifying to land values.” Fed. R. Evid. 702 advisory committee’s note (1972)
(internal quotation marks and citation omitted).
“[I]n a variety of cases involving experts whose experience forms the basis of their
opinions,” courts have allowed expert testimony based on a “methodology” involving
“observ[ing] the relevant evidence and appl[ying] their specialized knowledge to the case at
5
The Government additionally argues that “[t]he methods employed by Allen and Gormley
are . . . contradicted by publications made by GSA and the private industry.” U.S. Mot. at 27.
The Court is relatively less concerned about this than about some of the other problems the
Government identifies because expert testimony with a weak basis in fact can be addressed
through cross-examination. See Robinson v. District of Columbia, 75 F. Supp. 3d 190, 200–01
(D.D.C. 2014); see also United States v. Williams, 212 F.3d 1305, 1310 (D.C. Cir. 2000).
24
hand.” Heller v. District of Columbia, 952 F. Supp. 2d 133, 141 (D.D.C. 2013) (quotations
omitted); see also, e.g., id. at 142 (admitting testimony based on “each expert’s professional
judgment obtained through long experience in the field”). To the extent that any contract
interpretation testimony is grounded in this kind of experiential methodology and is not improper
legal opinion, the Court will permit it. This may describe only a narrow category. Again the
broader principle is that testimony about industry usage or common practice is acceptable and
testimony specific to the Defendant’s contract is not, because Allen and Gormley have general
industry experience rather than any particular knowledge of this Contract, or of the inner
workings of any particular contracting officer’s mind.
2. Opinions Concerning the Sufficiency of CSPs Disclosures
Second, the Government argues that the Court should exclude any opinions from
Gormley or Allen as to whether Symantec’s CSP disclosures were “adequate” or “sufficient.”
U.S. Mot. at 34–37. The Government explains that both of the Defendant’s experts agree that
the PAC, which requires “current, accurate, and complete” disclosures, GSAM at 552-12, sets a
standard for CSPs disclosures, U.S. Mot. at 34–35 (citing Allen Tr. at 44–45; Gormley Tr. at 80,
374). The Government then makes assertions along the lines of “Symantec’s CSP Disclosures
adequately disclosed its discounting practices,” Gormley Rep. at 4, or “Symantec submitted
detailed CSP disclosures . . . sufficient to allow a reasonable GSA [contracting officer] to
negotiate[,]” Allen Rep. at 7. At the same time, though, the experts claim to be “offering no
opinions as [to] the accuracy or completeness of Symantec’s CSPs.” U.S. Mot. at 35 (citing
Allen Tr. at 45–46; Gormley Tr. at 81, 215–16, 255–59, 373–74). The Government says that the
experts’ opinions about the CSPs’ sufficiency are based on an incorrect or nonexistent standard.
Id. at 36–37. Norton argues in response that testimony as to sufficiency or detail of the
25
disclosures will be relevant for purposes of determining whether any deficiencies in the CSPs
were material. See Def.’s Opp’n at 34.
The Court agrees with the Government that Allen and Gormley’s opinions concerning the
adequacy or sufficiency of Symantec’s CSPs will be almost entirely irrelevant. The relevant
question in this case is whether the CSPs were “current, accurate, and complete.” See GSAM at
552-12. To be sure, if Allen and Gormley had spoken directly to that question, the Government
would have moved to exclude the testimony as offering a legal conclusion, and the Court would
likely have agreed. The shift to speaking in terms of sufficiency, adequacy, or level of detail
does not suffice to salvage this expert evaluation of the CSPs because it makes experts’
testimony about the CSPs confusing and likely prejudicial.
This testimony will not be allowed because it is likely to confuse and mislead the jury.
See Edmonds, 2009 WL 969938, at *1; Fed. R. Evid. 403 (“Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”). As the Court has stated, there is a
“significant” risk during a jury trial that “the jury [will] accept an expert witness’s testimony
automatically.” Id. (citing Addison, 498 F.2d at 744). The jury is likely to hear and interpret
testimony averring the quality of Symantec’s CSPs as testimony that the CSPs met the regulatory
and contractual standard of “current, accurate, and complete.” Allen and Gormley use language
that is almost synonymous with the legal standard. It is unrealistic to ask jurors to carefully
distinguish between, for example, the notion that the CSPs “adequately disclosed . . . discounting
practices” and the notion that Symantec’s CSPs were “accurate and complete.”
26
Additionally, neither Allen nor Gormley appears sufficiently familiar with Symantec’s
pricing and discount policies to testify about whether they were disclosed in sufficient detail by
the CSPs. Each disclaimed any expertise regarding the specifics of Symantec’s pricing. Allen
Tr. at 21; Gormley Tr. at 73. The Government also argues that the experts failed to review a
number of relevant materials in the record regarding Symantec’s pricing and discounting
practices. U.S. Mot. at 36–37. Were this the only shortcoming with their testimony on CSPs,
the Court might say the issue could be better addressed through cross-examination. See supra
n.5 (citing Williams, 212 F.3d at 1310). As it stands, though, the lack of demonstrated
knowledge of Symantec’s policies cuts against the probative value of the testimony under the
Rule 403 balancing test.
Although the Court will not allow testimony directly commenting on whether Symantec’s
CSPs were sufficient, adequate, or detailed, Allen and Gormley do have experience sufficient to
qualify them to make some comments regarding CSP disclosures generally. See Rothe Dev.,
Inc., 107 F. Supp. 3d at 196 (discussing expert qualifications based on experience). Gormley
helped develop the CSPs format while at GSA. Gormley Rep. at 3–4. He also worked as a GSA
contracting officer. Id. at 3. This experience qualifies him to offer testimony on, for example,
what CSP disclosures generally look like or on how GSA uses them. Allen’s experience is less
direct. He does not say he has ever reviewed or worked with CSPs, but he says he “assisted
GSA with the creation of the CSP format” and that his firm offered comments while the format
was being developed. Allen Rep. at 6. This experience is not quite as strong a basis for expert
testimony as Gormley’s experience is, but it is enough that the Court cannot say Allen lacks any
basis to opine on CSPs generally.
27
The bottom line when it comes to CSPs testimony by Allen and Gormley is very similar
to the bottom line regarding contract interpretation. These experts are qualified based on their
experience in the industry to offer general opinions on typical practice, but may not say or even
intimate that Symantec’s CSPs met any particular standard. Gormley can explain, for example,
the purposes behind CSP disclosure requirements, and can describe how a contracting officer
uses them, based on his experience. Gormley Rep. at 8–9. He may also testify, as he did in his
report, based on his “experience,” to “longstanding practice” at GSA. Id. at 19. He may not,
however, testify as to what a contracting officer could or would make of Symantec’s particular
disclosures, or offer comparative testimony describing how Symantec’s disclosures compare to
those of “typical vendor[s].” See, e.g., id. at 16. Based on the career experience he describes in
his report, the Court has reason to question whether Allen has the experience necessary to say
properly as much about CSPs as Gormley, but Allen may also give similar general testimony
about industry practice. The Government will have the opportunity to cross examine both
experts and to challenge their degrees of experience and familiarity with different aspects of the
MAS contracting process. See Williams, 212 F.3d at 1310 (“[T]rial judges generally rely on the
structural check of cross-examination in permitting opinion testimony with a weak
foundation . . . .”).
3. Remaining Opinions
The Government’s remaining arguments are an assortment of challenges to the remaining
sections of Gormley’s and Allen’s testimony. The Government asks the Court to exclude
“Allen’s personal opinions on the sufficiency of GSA’s training concerning the MAS program.”
U.S. Mot. at 37. His report explains in detail what Allen describes as “compliance challenges
created by GSA’s lack of guidance to contractors regarding schedule compliance.” Allen Rep. at
28
10; see id. at 10–19. The Court agrees with the Government that this testimony is irrelevant to
this case and should be excluded under Rule 401. U.S. Mot. at 39 (citing Fed. R. Evid. 401
(“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable . . . ; and
(b) the fact is of consequence in determining the action.”)). This case is about whether the
Defendant violated its obligations under a contract that it entered into with GSA, it is not about
whether GSA does enough to educate potential contractors about what they will be getting into if
they participate in the MAS program. At no point has the Defendant raised any sort of
affirmative defense that would absolve it of liability based on insufficient compliance guidance
from GSA. Nor does the Defendant explain in its Opposition how this testimony would be
relevant.
Furthermore, the suggestion that Symantec did not know what it was getting into is
completely at odds with the picture the Defendant painted for the Court in its recent Motion for
Summary Judgment. The Defendant’s brief supporting that motion began by arguing that the
“most glaring and irremediable flaw” in the Government’s case was “their failure to take into
account the knowledge, expertise, or discussions by the two women who negotiated the contract”
who were both “thoroughly versed in GSA contracting requirements, expertise they acquired
through years of negotiating and administering GSA Schedule contracts.” Symantec Corp.’s
Statement of P. & A. in Supp. of its Mot. for Summ. J. (“Sym MSJ”) at 1, ECF No. 126-2. The
Defendant also told the Court that its lead negotiator, Bradbury, was “an experienced GSA
Schedule contract administrator” who had “‘received . . . a lot of training about government
contracting’ and ‘worked in government contracts for [her] entire career,’ which started in
1981.” Def. Symantec Corp.’s Statement of Undisputed Material Facts in Supp. of its MSJ ¶ 10,
ECF No. 126-3 (alterations in original) (citations omitted).
29
The Government also challenges “Allen’s opinions regarding Symantec’s general
compliance program and methods to track price list changes.” U.S. Mot. at 40; see id. at 40–43.
This refers to two different portions of Allen’s testimony. The Government’s reference to
opinions regarding the “general compliance program” refers to Allen’s discussion of Department
of Justice guidance. Allen Rep. at 10; see U.S. Mot. at 40 (citing Allen Tr. at 304–08). The
Court agrees with the Government that this testimony is not relevant. Allen has acknowledged
that these compliance programs are “not specifically tailored to the schedules program” and that
they do not set standards for complying with any of the regulatory obligations at issue in this
case. Allen Tr. at 305–08. And even if marginally relevant, it would be excluded under Rule
403 as its presentation would result in “undue delay, [and] wasting [of] time.” Fed. R. Evid. 403.
Allen’s opinions on “Symantec’s . . . methods to track price list changes,” U.S. Mot. at
40, refers to a different section of his report. This section describes “thorough and significant
steps” taken by Symantec in preparation of seeking a GSA Schedule contract, including
acquiring Veritas Software Corp. and tasking Bradbury with preparing Symantec’s proposal.
Allen Rep. at 25–26. He then devotes over a dozen pages of his report to explaining his opinion
“that Symantec’s policies, practices, systems, and personnel, collectively met or exceeded
reasonable industry standards for GSA Schedule contract compliance.” Id. at 33; see id. at 33–
48. This opinion is based on his review of documents and deposition testimony produced in this
case, and is “informed by [Allen’s] knowledge and experience.” Id. at 33. The Government
does not challenge this testimony as irrelevant, but as based in no reliable methodology, and as
not appreciative of the full factual record of the case. See U.S. Reply in Further Supp. of its Mot.
to Exclude (“U.S. Reply.”) at 16 n.9, ECF No. 109; U.S. Mot. at 42–43. The latter objection is
immaterial because the Government could confront Allen during cross-examination with any
30
portions of the factual record that it believes he has overlooked, Williams, 212 F.3d at 1310, but
the Court shares the Government’s concern about the lack of a proper foundation for opinion
testimony regarding whether Symantec met “reasonable industry standards.”
An expert need not employ a rigorous analytical methodology if the expert is instead
“qualified on the basis of his or her practical experience or training.” Rothe Dev., Inc., 107 F.
Supp. 3d at 196 (quoting Robinson, 75 F. Supp. 3d at 197). But “[i]f the witness is relying solely
or primarily on experience, then the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Fed. R. Evid. 702 advisory committee’s note; see
also Arias v. DynCorp., 928 F. Supp. 2d 10, 15–16 (D.D.C. 2013). Testimony of the sort that
Allen would provide must therefore be based on something more than mere reference to
“experience.” In United States v. Second Chance Body Armor, 289 F. Supp. 3d 145 (D.D.C.
2018), for instance, expert testimony was excluded in part because the expert “d[id] not cite any
accepted industry standards or relevant articles in either of his reports, relying instead solely on
documents and testimony from th[e] case.” Id. at 176. Similarly, when evaluating negligence,
courts generally do not accept expert testimony on what is reasonable practice in a given industry
based solely on an expert’s own evaluation. See, e.g. Beckwith v. Interstate Mgmt. Co., 82 F.
Supp. 3d 255, 262–64 (D.D.C. 2015) (declining to credit an expert declaration purporting to
articulate a standard of care in the hotel industry because it contained only “generalized
references to industry standards” but did not articulate “the substantive content of any standard
of care” (quotation and internal citations omitted)). In that context, “[t]he expert must proffer a
specific, articulable (and articulated) standard.” Briggs v. Wash. Metro. Area Transit Auth., 481
31
F.3d 839, 846 (D.C. Cir. 2007) (applying D.C. law) (quotation marks and internal citations
omitted).
Allen’s testimony about whether Symantec’s methodologies meet reasonable industry
standards will be excluded because it lacks a reliable basis. Allen testified that he did not look to
industry publications or peer-reviewed journals for the “reasonable industry standards” he
discusses in his report, but identified such standards based only on his own experience. Allen Tr.
at 364–65. He also fails to connect his evaluation of Symantec’s methods to his past experience
in the industry—the relevant sections of his Report only discuss Symantec and reference Allen’s
experience only in passing. See Allen Rep. at 25–48. It cites only to documents in the record
and does not even include any discussion of industry practices outside of Symantec’s own. This
testimony will therefore be excluded.
Finally, the Government challenges remaining opinions offered by Gormley not covered
by its previous objections. U.S. Mot. at 43–44. The first of these, concerning “Gormley’s
opinions as to what a reasonable contracting officer could have done or would have understood,”
id. at 43, has already been addressed. The second challenges “Gormley’s opinions on what is
reasonable to infer from the facts of the case.” Id. at 44. The Government does not identify any
particular testimony that it seeks to exclude on this basis, but the Court agrees, as it must, with
the cited Circuit precedent stating that “where the jury is just as competent to consider and weigh
the evidence as is an expert witness and just as well qualified to draw the necessary conclusions
therefrom, it is improper to use opinion evidence for the purpose.” Gilmore v. Palestinian
Interim Self-Government Auth., 843 F.3d 958, 973 (D.C. Cir. 2016) (quoting Henkel v. Varner,
138 F.2d 934, 935 (D.C. Cir. 1943)). The determining factor for whether Gormley is able to
testify as to inferences he has drawn will be the qualifying language in the quoted rule: it
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depends on whether the jury is “just as competent” to draw the same inference. Id. In its Reply,
the Government suggests that one piece of inferential reasoning that it would like excluded
involves conclusions Gormley draws from the phrase “see attached” in an email. U.S. Reply at
18 (citing Def.’s Opp’n at 28 (citing Gormley Rep. at 22)). The Court agrees that this inference
seems to depend on general familiarity with email communications much more than it does on
any industry-specific expertise. This is consequently not proper expert testimony. The Court
cannot say, though, that Gormley may draw no inferences from the facts of the case, because it
seems entirely possible that his experience with GSA Schedule contracts might allow him to
draw some inferences that the jury could not reach on its own. The Government will, of course,
have the opportunity to challenge any inferences through cross-examination and to cast doubt on
those not truly based in expertise.
III. CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Strike the Expert Designation and
Expert Testimony of Charles Harris, ECF No. 124, is GRANTED; the United States’ Motion to
Exclude Persons Designated by Symantec to Provide Expert Testimony, ECF No. 105, is
GRANTED IN PART AND DENIED IN PART; and the Defendant’s Motion for Leave to
Supplement the Record in Support of its Opposition to the United States’ Motion to Exclude,
ECF No. 118, is GRANTED. An order consistent with this Memorandum Opinion is separately
and contemporaneously issued.
Dated: March 30, 2020 RUDOLPH CONTRERAS
United States District Judge
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