Cirrus Aviation Services, LLC v. Cirrus Design Corporation ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 GREAT WESTERN AIR, LLC doing business Case No. 2:16-CV-02656-JAD-EJY as CIRRUS AVIATION SERVICES, LLC, 5 Plaintiff/Counter-Defendant, ORDER 6 v. 7 CIRRUS DESIGN CORPORATION, 8 Defendant and Counter-Plaintiff. 9 10 Before the Court is Plaintiff Cirrus Aviation Services, LLC’s (“Cirrus Aviation”) Motion to 11 Strike Disclosure and Designation of Defendant/Counter-Claimant’s Non-Retained Expert Witness 12 Ben Kowalski (EFC No. 66); Cirrus Design Corporation’s (“Cirrus Design”) Memorandum in 13 Opposition to Plaintiff’s Motion to Strike Disclosure and Designation of 14 Defendant/Counterclaimant’s Non-Retained Expert Witness Ben Kowlaski (ECF No. 78); 15 Plaintiff/Counter-Defendant’s Reply in Support of Motion to Strike Disclosure and Designation of 16 Defendant/Counter-Claimant’s Non-Retained Expert Witness Ben Kowalski (ECF No. 83); 17 Counter-Plaintiff Cirrus Design Corporation’s Motion to Strike the Expert Testimony of Reza 18 Karamooz and Shai Cohen (ECF No. 67); Plaintiff’s Opposition to Defendant Cirrus Design 19 Corporation’s Motion to Strike the Expert Testimony of Reza Karamooz and Shai Cohen (ECF N0. 20 79); and, Counterclaim Plaintiff Cirrus Design Corporation’s Reply Memorandum of Law in 21 Support of its Daubert Motion and Motion to Strike the Expert Testimony of Reza Karamooz and 22 Shai Cohen (ECF No. 84). 23 I. BACKGROUND 24 The case before the Court involves a trademark dispute between Cirrus Aviation and Cirrus 25 Design. ECF No. 1. Cirrus Aviation seeks “a declaratory judgment that it does not infringe 26 trademark rights of … [Cirrus Design] in and to the term CIRRUS and that … [Cirrus Aviation’s] 27 concurrent use of the CIRRUS term in connection with unrelated services does not warrant a finding 1 of unfair competition.” Id. Cirrus Aviation describes itself as “in the business of providing private 2 airline charter flights and other related services in the aircraft charter industry.” Id. Cirrus Aviation 3 says that it first used the trademark CIRRUS in May 2007. Id. 4 Cirrus Design states it is “an innovator in the personal aircraft market” and has been since 5 the “1980s.” ECF No. 27. Cirrus Design states that it “has spent a considerable amount of resources 6 on marketing and advertising its products and services using the trademarks and service marks 7 described” in its Answer and Counterclaim. Id. Cirrus Design also states: “In addition to 8 manufacturing and selling personal aircraft and related products, Cirrus Design also provides 9 numerous aircraft-related services, such as aircraft inspection and repair services, flight instruction 10 and training, and aircraft insurance.” In September 2013, Cirrus Design applied for a U.S. service 11 mark registration for the mark “CIRRUS” for various services such as aircraft crew scheduling 12 services, providing employee leasing of aircraft flight crews, and business management services in 13 the nature of private aircraft management services. Id. Cirrus Design has used the name “Cirrus” 14 for “aircraft and structural parts thereof” since 1979. ECF No. 27 at 8, and Ex. C, p. 1. 15 Cirrus Design filed a Motion to Dismiss, which was denied on March 27, 2018 (ECF No. 16 26). On June 1, 2018, the Court entered a discovery plan and scheduling order (EFC No. 32) that 17 was subsequently extended four times with the last extension entered on August 2, 2019 (ECF No. 18 61). In each of the stipulations to extend discovery, dates for specific discovery related extensions 19 were identified. ECF Nos. 34, 43, 52, and 60. The initial expert disclosure deadline was extended 20 only once, from September 20, 2018 to December 19, 2018, through ECF No. 34 granted on 21 September 13, 2018 (ECF No. 35). The rebuttal expert deadline was extended twice, the second 22 time to January 25, 2019. ECF No. 45. The deadline to complete fact discovery was finally extended 23 to July 2, 2019. ECF No. 53. 24 a. Cirrus Aviation’s Motion to Strike. 25 Cirrus Aviation timely disclosed two experts on December 19, 2018. ECF No. 66 at 2:28. 26 Cirrus Design did not disclose any experts on that date. Id. at 3:1. On January 25, 2019, Cirrus 27 Design disclosed a single non-retained expert, Ben Kowalski (“Kowalski”), who is the Senior Vice 1 disclosure of Kowalski was untimely as he is offered as an expert for Cirrus Design’s Counterclaims 2 in chief, as well as a rebuttal expert to Cirrus Aviation’s initial experts. Id. at 3:4-7. Moreover, 3 Cirrus Aviation states that Cirrus Design’s disclosure does not meet the requirements of Fed. R. Civ. 4 P. 26(a)(2)(c) regarding non-retained experts because Cirrus Design did not include “any summary 5 of facts upon which Kowalski’s opinions would be based.” Id. at 3:8-9. The disclosure made by 6 Cirrus Design, referred to as Cirrus Aircraft in the below disclosure, states: 7 Cirrus Aircraft discloses that Ben Kowalski, Cirrus’s Senior Vice President of Sales & Marketing, will or may provide evidence under Federal Rules of 8 Evidence 702, 703, or 705, on the subjects of whether there is actual and/or likely confusion caused by plaintiff/counter-defendant Cirrus Aviation 9 Services, LLC’s use of trademarks and rights belonging to Cirrus Aircraft, and related issues. 10 A summary of the facts and opinions to which Mr. Kowalski is expected to 11 testify is as follows: Based upon his experience in the aviation industry, his work for Cirrus Aircraft, and specific information relating to the respective 12 activities of Plaintiff/Counter-Defendant Cirrus Aviation and Defendant/Counter-Claimant Cirrus Aircraft, Mr. Kowalski is expected to 13 testify that in his opinion and based on factual evidence Cirrus Aviation’s use of the Cirrus name and trademarks have caused actual confusion and is 14 likely to cause additional confusion, and that that confusion is harmful to Cirrus Aircraft. Customers in the Las Vegas market have confused the two 15 companies as a result of the similarity in names. 16 In addition, with respect to the expert witness reports disclosed by Plaintiff/Counter-Defendant Cirrus Aviation, Mr. Kowalski is expected to 17 testify that Mr. Karamooz’s opinion that Cirrus Aircraft’s aircraft are “generally not suitable for use as charter aircraft” is incorrect and 18 inconsistent with Cirrus Aircraft’s future business plans. Mr. Kowalski is further expected to testify that Mr. Cohen’s opinions regarding customers 19 and that the “target market for charter services providers[s] like Cirrus Aviation is wholly different than the target market for a purchaser of a small 20 Cirrus [] aircraft,” are also incorrect. 21 ECF No. 78 at 4. Cirrus Aviation asks that Kowalski be struck as both an initial and rebuttal expert. 22 In contrast to Cirrus Aviation’s contentions, Cirrus Design contends that Kowalski “was 23 disclosed as a fact witness at the outset of the case,” was timely disclosed as an expert, the summary 24 offered fairly describes Kowalski’s “opinions and the basis for them,” and the summary was 25 provided almost six months before the close of fact discovery. ECF No. 78 at 2:6-23. 26 b. Cirrus Design’s Motion to Strike Reza Karamooz and Shai Cohen. 27 On August 16, 2019, Cirrus Design filed its Motion to Strike experts Reza Karamooz 1 Aviation. Cirrus Design claims that these individuals offer “expert” testimony in the subject matter 2 of customer or consumer confusion, but that neither has the qualifications necessary to offer this 3 testimony and, moreover, that these opinions are unreliable. ECF No. 67 at 5, 7, 8, and 10. 4 Cirrus Aviation argues that “Mr. Cohen is presented as an expert from the perspective of a 5 customer/user of Defendant’s aircraft because he in fact is such a customer/user.” ECF No. 79 at 3. 6 His expertise is said to arise from six years as a licensed pilot and “his experience as a private pilot 7 with extensive time with Defendant’s own product.” Id. at 3. Cohen states in his report that he has 8 “flown approximately 160 hours in the SR22 [Cirrus Design] aircraft.” ECF No. 67-3 (Cohen 9 Report) at 1. Cohen also states that he has flown “approximately 387 hours” in other aircraft, and 10 that based on his time as a “private pilot and a businessman,” he has “become quite knowledgeable 11 about both aircraft and air travel.” Id. 12 “Karamooz is presented as an expert from the perspective of the aircraft charter industry.” 13 ECF No. 79 at 5. Karamooz’s expertise is said to arise from the fact that he is an engineer, the CEO 14 of LuckyJets since 2008, Chairman of the Nevada Department of Transportation’s Aviation 15 Technical Advisory Committee, and the founder and president of the Nevada Business Aviation 16 Association. ECF No. 67-3 (Karamooz Report) at 1-2. Karamooz offers opinions regarding “the 17 nature of the parties’ offerings under their respective trademarks.” Id. at 4 and 4-6. 18 II. DISCUSSION 19 a. Fed. R. Civ. P. Rule 702 and Expert Testimony Requirements. 20 Admissibility of expert testimony in a civil proceeding is governed by Fed. R. Evid. 702, 21 which states: 22 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 23 (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 24 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 25 reliably applied the principles and methods to the facts of the case. 26 In Barabin v. AsentJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014), the Ninth Circuit 27 explained that “[w]e have interpreted Rule 702 to require that expert testimony … be both relevant 1 requires “the evidence … logically advance a material aspect of the party’s case.” Id. (Citation 2 omitted.) Reliability encompasses “whether an expert’s testimony has a reliable basis in the 3 knowledge and experience of the relevant discipline.” Id. citing Kumbo Tire Co. Ltd. v. Carmichael, 4 526 U.S. 137, 149 (1999). “[E]videntiary reliability is based upon scientific validity.” Id. citing 5 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 n.9 (1993). 6 The Federal Rules of Evidence impose on trial courts a “gatekeeping” obligation to ensure 7 the relevance and reliability requirements are met. United States v. Hankey, 203 F.3d 1160, 1167 8 (9th Cir. 2000). The objective of the “gatekeeping” requirement is to make certain that an expert, 9 “whether basing testimony upon professional studies or personal experience, employs in the 10 courtroom the same level of intellectual rigor that characterizes the practice of an expert in the 11 relevant field.” Kumho Tire Co., Ltd., 526 U.S. at 152. The trial judge must make “some kind of” 12 reliability determination to fulfill the “gatekeeping” function. Mukhtar v. Cal. State Univ., Hayward, 13 299 F.3d 1053, 1066 (9th Cir. 2002), amended by 319 F.3d 1073, 1076 (9th Cir. 2003). 14 Trial courts have broad discretion in performing its gatekeeping function. Barabin, 740 F.3d 15 at 465 (citation omitted). The district court must “ensure that the proposed expert testimony is 16 relevant and will serve to aid the trier of fact. . . . Expert testimony assists the trier of fact when it 17 provides information beyond the common knowledge of the trier of fact.” United States v. Finley, 18 301 F.3d 1000, 1008 (9th Cir. 2002) (citing Daubert, 509 U.S. at 591–93). 19 The role of the Court is not to determine the “correctness of the expert’s conclusions but the 20 soundness of his methodology.” Id. citing Primiano v. Cook, 598, F.3d 558, 564 (9th Cir. 2010). 21 Nonetheless, “rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 22 Advisory Committee Notes (2000). Where an expert satisfies the Rule 702 standards, cross- 23 examination is the proper method of challenging the expert’s opinions. See e.g. U.S. Fidelity and 24 Guar. Co. v. Soco West, Inc., No. CV 04-29, 2006 WL 5230019, at *2 (D.Mont. April 21, 2006). 25 The Ninth Circuit has found opinions based on an expert’s experience to be properly 26 admitted. “When evaluating specialized or technical expert opinion testimony, the relevant 27 reliability concerns may focus upon personal knowledge or experience.” United States v. Sandoval– 1 quotations omitted)); PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., 2011 WL 2 5417090, at *8 (N.D.Cal. Oct. 27, 2011) (expert testimony grounded on the expert’s personal 3 knowledge and experience was admissible in light of his extensive background in the area); Toomey 4 v. Nextel Commc’ns, Inc., 2004 WL 5512967, at *8 (N.D.Cal. Sept. 23, 2004). 5 In Hangarter v. Provident Life & Accident Insurance Co., the court explained that when 6 discussing non-scientific testimony “the ‘Daubert factors (peer review, publication, potential error 7 rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on 8 the knowledge and experience of the expert, rather than the methodology behind it.’” 373 F.3d 998, 9 1017 (9th Cir. 2004) (quoting Hankey, 203 F.3d at 1169). “[T]he judge is supposed to screen the 10 jury from unreliable nonsense opinions, but not exclude opinions merely because they are 11 impeachable. The district court is not tasked with deciding whether the expert is right or wrong, just 12 whether his testimony has substance such that it would be helpful to a jury.” Alaska Rent-A-Car, 13 Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969-70 (9th Cir. 2013). Nonetheless, subject beliefs 14 and opinions are not proper expert testimony.1 15 In addition to evaluating relevance and reliability, a trial court must determine whether an 16 expert has “appropriate qualifications.” Hankey, 203 F.3d at 1168. A witness may testify to his 17 special knowledge so long as he is qualified as an expert based on any combination of knowledge, 18 skill, experience, training, or education. Wright v. United States, 280 F.Supp.2d 472, 478 (M.D.N.C. 19 2003). “Rule 702 contemplates a broad conception of expert qualifications.” Hangarter, 373 F.3d 20 at 1015 (citation omitted); Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (“[w]here the expert’s 21 qualifications are challenged, the test for exclusion is a strict one, and the purported expert must 22 have neither satisfactory knowledge, skill, experience, training nor education on the issue for which 23 the opinion is proffered”). 24 1 When considering reliability, a flexible concept, the U.S. Supreme Court suggests several factors for the Court 25 to consider, including: “1) whether a theory or technique can be tested; 2) whether it has been subjected to peer review and publication; 3) the known or potential error rate of the theory or technique; and 4) whether the theory or technique 26 enjoys general acceptance within the relevant scientific community.” Hankey, 203 F.3d at 1167 (citing Daubert, 509 U.S. at 592–94). But, whether these specific factors are “reasonable measures of reliability in a particular case is a 27 matter that the law grants the trial judge broad latitude to determine.” Barabin, 740 F.3d at 463 citing Kumho Tire, 526 1 b. Timeliness and Non-Retained Experts. 2 As discussed above, the discovery plan and scheduling order in this case was amended a 3 number of times with initial expert disclosures due on December 19, 2018, and rebuttal expert 4 disclosures due January 25, 2019. Cirrus Aviation claims that Cirrus Design’s disclosure of 5 Kowalski, on January 25, 2019, was really an untimely initial expert disclosure because Kowalski 6 will offer testimony about Cirrus Design’s counterclaims in chief as well as rebut the testimony of 7 Cirrus Aviation’s experts. 8 “Rule 26 of the Federal Rules of Civil Procedure requires the parties to disclose the identities 9 of each expert and, for retained experts, requires that the disclosure includes the experts’ written 10 reports.” Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (citing 11 Fed. R. Civ. P. 26(a)(2)). More specifically, Federal Rule of Civil Procedure 26 was amended in 12 2010 to add Rule 26(a)(2)(C) pertaining to disclosures required of non-retained experts—those not 13 required to provide a written report. However, even if an expert witness is not required to produce 14 a report, the expert must still provide a disclosure that must include “(i) the subject matter on which 15 the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and 16 (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 17 26(a)(2)(C). This Rule was “added to mandate summary disclosures of the opinions to be offered 18 by the expert . . . and . . . the facts supporting those opinions.” Flonnes v. Property & Cas. Ins. Co. 19 of Hartford, No.2:12-cv-01065, 2013 WL 2285224, at *2 (D. Nev. May 22, 2013) (citation and 20 internal quote marks omitted). As explained in Flonnes, “a summary is ordinarily understood to be 21 an abstract, abridgement, or compendium.” 2013 WL 2285224, at *3 (citation omitted). 22 Importantly, “[p]arties must make these expert disclosures at the times and in the sequence 23 that the court orders.” Goodman, 644 F.3d at 827. “Rule 26(e) does not create a loophole for a party 24 who wishes to revise its initial disclosures to its advantage after the deadline has passed.” Flonnes, 25 2013 WL 2285224, at *3 (internal quote marks and citation omitted). Federal Rule of Civil 26 Procedure “37(c)(1) gives teeth to these requirements by forbidding the use at trial of any 27 information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, 1 detail, the court in Yeti (at id.) cited Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) for the 2 proposition that the new Rule 37(c)(1) “clearly contemplates stricter adherence to discovery 3 requirements . . . .” Moreover, this Rule is “a self-executing, automatic sanction to provide a strong 4 inducement for disclosure of materials.” Yeti, 259 F.3d at 1106 (citations omitted). 5 There are two recognized exceptions to Rule 37(c)(1) harsh exclusion requirements. Id.; R 6 & O Const. Co. v. Rox Pro Intern. Group, Ltd., No. 2:09-cv-01749, 2011 WL 2923703, at *3 (D.Nev. 7 July 18, 2011). If a party violates these rules is able to demonstrate their failure was substantially 8 justified or harmless, then otherwise excludable evidence may be admitted. R & O Const. Co., 2011 9 WL 2923703, at *3 (citations omitted). The Court recognizes several factors to be considered when 10 deciding whether a violation of disclosure rules is substantially justified or harmless. Flonnes, 2013 11 WL 2285224, at *6. These include “(1) prejudice or surprise to the party against whom the evidence 12 is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the 13 trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence.” Id. (citation 14 omitted). 15 c. Cirrus Design’s Motion to Strike Cirrus Aviation’s Experts. 16 i. Motion to Strike Reza Karamooz. 17 Karamooz is an engineer, who spent eleven years as the CEO of a private jet broker company 18 that provides private jet charter services. ECF No. 67-3 (Karamooz Report) at 1. Karamooz is also 19 involved in numerous professional organizations in Nevada addressing the business of aviation. Id. 20 at 2. Karamooz reviewed materials related to the dispute before the Court, but also relied on 21 Wikipedia for some information on which he relied. Id. at 6. 22 Karamooz opines on page 4 of his report, at paragraph 12.a., that those who use charter 23 services, like those offered by Cirrus Aviation, “generally consist of high net-worth individuals who 24 are willing to consistently pay fees, in addition to other amounts, in excess of $3,000 to $6,000 per 25 hour to fly in the comfort of a private jet aircraft.” Id. at 4. According to Karamooz, a single cross 26 country private jet charter flight for eight individuals costs approximately $50,000 (or more); 27 customers of private jet charter flights are “high net worth individuals” seeking privacy that 1 commercial and large airline charters don’t offer; and, these customers are gained through personal 2 recommendations and referrals as well as through aircraft charter brokers network used by such 3 customers and their representatives. Id. at 5. 4 Karamooz opines in his opinion 12.b. that operators, such as Cirrus Aviation, market through 5 broker networks, as well as to other Part 135 operators, and compete for the same customers.2 Id., 6 opinion 12.b. Karamooz states in his opinion at paragraph 12.c. that Cirrus Design sells three small 7 aircrafts including the SR20, SR22, and the Vision SF50 Jet; and, based on his industry knowledge 8 and experience, those who buy these types of aircrafts are those seeking a plane for “personal and/or 9 recreational use.” Id., opinion 12.c. According to Karamooz, all Cirrus Design aircraft come 10 equipped with “an airframe parachute” for which Cirrus Design is well known and which often 11 motivates the purchaser. Id., opinion 12.d. With respect to Part 135 charter companies, Karamooz 12 states that there is only one SR20 aircraft used for charter flights. Id. at 6, opinion 12.e. There are 13 49 SR22 and no SF50 Jets used for charters “anywhere in the world.” Id. Karamooz cites Wikipedia, 14 citing the Air Charter Guide, as his source for this information. Id. Finally, Karamooz opines that, 15 to his knowledge, there are no Cirrus Design aircraft of any type available for charter in the state of 16 Nevada. Id., opinion 12.f. 17 In addition to the opinions offered in Karamooz’s written report, Karamooz testified that he 18 does not “see any confusion in the marketplace between” Cirrus Aviation and Cirrus Design. ECF 19 No. 67-5 at 45. Karamooz stated that this opinion was based on his “personal experience,” apparent 20 discussion with friends, and internet research. Id. at 45, 47-48, 50-51. Cirrus Design argues this 21 testimony is unreliable and encompasses the ultimate issue in this case rendering the opinion 22 inadmissible. ECF No. 67 at 11-12. 23 Karamooz spent eleven years as the CEO of a private jet charter broker company arranging 24 private jet services for clients flying to and from Las Vegas as well as other destinations in the U.S. 25 and Europe. ECF No. 67-3 (Karamooz Report) at 1. This experience has undoubtedly exposed 26 Karamooz to many customers and issues in the private jet charter travel industry rendering 27 1 Karamooz knowledgeable about (i) those seeking charter jet services, (ii) the cost of jet charter 2 services, (iii) those who fly on chartered jets wanting discretion and privacy not offered by 3 commercial airlines or large charter businesses, (iv) jet aircraft charter services competing for the 4 same customers and obtaining customers through referrals and recommendations, and, (iv) what type 5 of aircraft are available for charter in Nevada. This sufficiently qualifies Karamooz as an expert for 6 purposes of his opinion in paragraphs 12.a., 12.b., and 12.f. This, however, does not end the 7 question of admissibility, which is addressed further below. 8 Karamooz’s opinion 12.c. is not supported by Karamooz’s experiential expertise and 9 personal knowledge. Karamooz provides no evidence that he has substantial experience purchasing 10 aircraft for himself or others, and he does not otherwise state how he reached his opinion that 11 purchasers of Cirrus Design aircraft are generally looking for a personal or recreational-use plane. 12 Id. Further, Karamooz provides no sources reviewed and no facts upon which he relied when 13 forming this opinion. Id. And, Karamooz fails to explain, other than in a general and conclusory 14 fashion, how his expertise was applied to any facts at issue in this case. Id. Karamooz’s opinion in 15 paragraph 12.c. is not admissible. 16 Likewise, Karamooz fails to provide any support for his conclusion in opinion 12.d. 17 regarding what motivates individuals to purchase Cirrus Design aircraft. Id. In fact, purchasing 18 aircraft, and the motivations for doing so, are not at issue in this case. Cirrus Aviation states that 19 what is at issue is charter services, target customers, and marketing of charter services (among other 20 unidentified topics). ECF No. 79 at 15. Thus, the Court finds Cirrus Aviation has failed to 21 demonstrate how Karamooz’s expert opinion in paragraph 12.d. will assist the trier of fact in this 22 case. This opinion is not admissible. 23 The information in Karamooz’s opinion 12.e. is based on information from Wikipedia, which 24 is not a reliable source of data. Kole v. Astrue, No. CV 08-0411-LMB, 2010 WL 1338092, *6 n. 3 25 (D. Idaho Mar. 31, 2010); Nuton v. Astrue, No. SKG-08-1292, 2010 WL 1375297, *1 n. 1 (D. Md. 26 Mar. 30, 2010) (stating that, although a “useful research tool,” Wikipedia “is not a sufficiently 27 reliable or a recognized authority on medicine or medical practice”); Techradium, Inc. v. Blackboard 1 any validity of the content listed on its website, and is therefore not a reliable source of technical 2 information”); Capcom Co. v. MKR Group, Inc., No. C 08-0904 RS, 2008 WL 4661479 (N.D. Cal. 3 Oct. 10, 2008) (“The Wikipedia articles Capcom submits as a synopsis of these movies and video 4 games are similarly inappropriate for judicial notice”). Absent some semblance of reliability, 5 Karamooz’s opinion in paragraph 12.e. is not admissible. 6 The Court also finds Karamooz’s testimonial opinion, that he does not “see any confusion in 7 the marketplace between” Cirrus Aviation and Cirrus Design, is unreliable. ECF No. 67-5 at 45. 8 While Karamooz stated that this opinion was based on his “personal experience,” apparent 9 discussion with friends, and internet research (id. at 45, 47-48, 50-51), the basis for this opinion 10 proves unreliable. Unidentified internet research and anecdotal discussions with friends is 11 insufficient to establish the reliability the Court requires for admissibility. See Metro Indus., Inc. v. 12 Sammi Corp., 82 F.3d 839, 848 (9th Cir.1996); Gateway Contr. Servs., LLC v. Sagamore Health 13 Network, Inc., IP 01–1714–C–M/S, 2002 WL 731686, at *26 (S.D.Ind. Mar. 20, 2002) (excluding 14 expert report which was conclusory, based on data or facts gathered from discussions with plaintiff’s 15 employees or its counsel and not based on reliable principles and methods). Further, Karamooz’s 16 personal experience does not reach market research, consumer confusion, deceptive trade practices, 17 or survey experiences with consumer preferences. Karamooz simply fails to demonstrate the level 18 of intellectual rigor that characterizes the practice of an expert in the subject matter of marketplace 19 confusion—a key area at issue in this case. Kumho Tire Co., Ltd., 526 U.S. at 152 20 Returning to the remaining question before the Court—whether Karamooz’s opinions in 21 paragraphs 12.a., 12.b. and 12.f. are relevant to a material aspect of this dispute and, assuming they 22 are, whether the opinions offered by Karamooz will be helpful to the jury—the Court concludes as 23 follows. Karamooz’s personal, eleven years of experience running a jet charter broker company 24 (LuckyJet), providing a substantial basis for gaining expertise about the jet charter industry, its costs, 25 its customers, business referrals, and the aircraft charter broker network, are not the type subject to 26 Daubert factors such as peer review, publication, or potential error rate, but rather “testimony whose 27 1 reliability depends . . . heavily on the knowledge and experience of the expert” rendering them 2 reliable. Hangarter, 373 F.3d at 1017 (citation omitted).3 3 Karamooz’s opinion in paragraph 12.a. discusses who purchases jet charter flights, their cost, 4 and the motivation for such purchases. ECF No. 67-3 (Karamooz Report) at 4-5. This information 5 is likely beyond the ken of the jury. Moreover, the cost of charter jet flights and the motivation for 6 such purchases certainly could impact who comprises target customers as well as marketing to those 7 customers. These facts are reasonably related to issues of product/service confusion and deceptive 8 trade practices. Thus, the Court finds that Karamooz’s testimony, while certainly subject to vigorous 9 cross examination that could impact the weight of the testimony provided, is relevant and likely to 10 be helpful to the jury when deciding material issues of fact in dispute. Further, the last section of 11 Karamooz’s opinion 12.a. discusses the source of customers (customer and broker network 12 recommendations and referrals) and therefore is also relevant to whether and when there is a 13 likelihood of confusion over related goods and services at issue. As such, Karamooz’s opinion in 14 paragraph 12.a. is admissible. 15 Like the opinion regarding target customers discussed in Karamooz’s opinion in paragraph 16 12.a., his opinion in paragraph 12.b. pertains to promoting and marketing jet charter services, a field 17 in which Karamooz has operated for eleven years as a CEO. Facts pertaining to promotions and 18 marketing of jet charter aircraft services is directly related to the issues of confusion and deceptive 19 trade practices. Hence, the information offered by Karamooz in this opinion will be helpful to the 20 jury when considering material facts and evidence at issue in this case. 21 Karamooz’s opinion in paragraph 12.f. reflects the expert’s knowledge of any Cirrus Design 22 aircraft available for charter in Nevada, where he is involved in numerous organizations regarding 23 3 Cirrus Aviation points to AMF Inc. v. Sleekcraft Boats, which identifies eight factors courts consider when 24 deciding whether there is a likelihood of confusion over related goods, for purposes of evaluating the admissibility of Karamooz’s opinions. 599 F.2d 341 (9th Cir. 1979). These factors include (1) strength of the mark; (2) proximity of 25 the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and degree of care likely to be exercised by the purchaser; (7) the intent in selecting the mark; and, (8) the likelihood of 26 expansion of the product lines. Id. at 348-49 (citation omitted) (overruled on unrelated grounds, Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 810 n.19 (9th Cir. 2003)). However, as explained in Novalogic, Inc. v. Activision 27 Blizzard, 41 F.Supp.3d 885, 895, and 897 (C.D.Cal. 2013), even assuming the Sleekcraft factors apply in this case, Cirrus 1 charter aircraft. This subject matter is a bit more tangential than those subject matters appearing in 2 paragraphs 12.a., and 12.b. However, what aircraft is available for charter in Nevada is beyond the 3 knowledge of the jury, is relevant to the issues of marketing practices, and has potential impact on 4 the issue of confusion. Thus, although this opinion is subject to attack with contrary evidence, and 5 may play only a small role in the overall issues presented, the Court finds Karamooz’s opinion in 6 paragraph 12.f. admissible. 7 ii. Motion to Strike Shai Cohen 8 The Court summarizes Cohen’s written opinions as: (1) the Cirrus Design SR22 is a plane 9 “best suited for owner pilots to take relatively short trips with friends and family to nearby 10 locations”; (2) purchasing a new Cirrus Design SR22 is a decision that requires a great deal of 11 thought, planning, and money; (3) individuals who purchase planes do “a fair amount of research” 12 before deciding what aircraft to purchase; (4) individuals who purchase a Cirrus Design aircraft do 13 so for personal use and do not hire others to fly them; (5) individuals who charter private jets through 14 a company like Cirrus Aviation typically have high net worth, are not pilots, and do not “own their 15 own small aircraft”; and (6) “the target market for [a] charter service provider like Cirrus Aviation 16 is wholly different than the target market for a purchaser of a small Cirrus Design aircraft.” ECF 17 No. 67-3 (Cohen Report) at 1-2. 18 Cohen further opined in deposition testimony that there is no consumer confusion based on 19 his experience “being a pilot flying these little small aircrafts,” and his conclusion that he does not 20 “believe whatsoever that a guy who spends 20 grand to fly one way on a jet somewhere is the same 21 guy who flies single engine, slow airplane[s].” ECF No. 67-4 (excerpts from Cohen’s deposition) 22 at 33. Cohen further explained that he “has friends who fly jets” and that he could not get them 23 anywhere near the Cirrus Design aircraft he flies “because they look down on it.” Id. at 34. 24 Cohen’s qualifications, upon which he basis his ability to offer each of his stated opinions, 25 include his six years as a licensed pilot, 160 hours flying a SR22, 387 hours flying other aircraft, his 26 time as a businessman, and speaking to three individuals over the course of his experience as a pilot. 27 In deposition, Cohen offered more information regarding his background, but this information does 1 cannabis company, he did marketing for about 15 years for a large Las Vegas based strip club, before 2 pursuing his pilot’s license he had no interest in or knowledge of general aviation, he has been a 3 customer of Cirrus Aviation on three charter flights, and has never paid to be on a Cirrus Aviation 4 charter. Id. at 13, 15, 16, 22, 26, and 29. 5 Likewise, when asked in deposition to explain the basis for his opinion that there are two 6 distinct sets of customers involved in the aircraft industry at issue (“[o]ne spoiled and rich, and the 7 other guy loves to fly” id. at 34), Cohen stated the opinion was based upon him “knowing the two 8 types of people . . . from . . . his own experience.” Id. When asked if he looked at any professional 9 literature of other authority when forming his opinion, Cohen stated he “didn’t have to” because he 10 talks to “real people with real answers.” Id. When asked how many real people he spoke with, 11 Cohen stated “a handful,” ultimately admitting it was “[m]aybe three” individuals. Id. at 35. When 12 asked when he gathered the information from the three individuals with whom he spoke, Cohen 13 stated “[y]ears ago . . . over the course of years of being a pilot.” Id. Cohen also admitted he has 14 spoken to no one else, as he has “always” held the opinion that those who charter jets are “totally 15 against small, one-engine planes . . ..” Id. at 36. 16 The Court’s evaluation of Cohen’s expert opinions focuses on whether he possesses 17 specialized or technical information that is relevant and reliable based upon the personal knowledge 18 or experiences he has described. Sandoval–Mendoza, 472 F.3d at 655 (quoting Kumho Tire Co., 19 526 U.S. at 150 (internal quotations omitted)). If what Cohen offers are his subjective beliefs and 20 opinions, these will be struck as improper expert testimony. PixArt Imaging, Inc., 2011 WL 21 5417090, at *8. 22 Based on the number of hours (160) that Cohen has flown in the SR22 Cirrus Design aircraft, 23 he is qualified to offer his first opinion that this specific aircraft is best suited for short trips to nearby 24 locations with a small number of individuals. ECF No. 67-3 (Cohen Report) at 1. The Court’s 25 gatekeeping function is to ensure expert evidence “logically advance a material aspect of the party’s 26 case.” Barabin, 740 F.3d at 463. And, what is relevant to this cross trademark infringement action 27 is whether there is confusion, mistake, and deception among the relevant consuming public. This 1 best suited use is, at least potentially, helpful to determine the issue of confusion. While the weight 2 of this evidence is clearly subject to challenge through cross examination by Cirrus Design, the Court 3 is not in the position of deciding “the correctness” of Cohen’s opinion. Novalogic, Inc. v. Activision 4 Blizzard, 41 F.Supp.3d 885, 895 (C.D.Cal. 2013) (“[v]igorous cross-examination, presentation of 5 contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate 6 means of attacking shaky but admissible evidence”) (citing Daubert, 509 U.S. at 596). 7 With respect to all remaining opinions offered by Cohen (purchasing a new SR22 is a 8 decision requiring a lot of thought, planning, and money; individuals who purchase planes do “a fair 9 amount of research” before deciding what aircraft to purchase; those who purchase a Cirrus Design 10 aircraft do so for personal use and do not hire others to fly them; individuals who charter private jets 11 through a company like Cirrus Aviation typically have high net worth, are not pilots, and do not 12 “own their own small aircraft”; and “the target market for [a] charter service provider like Cirrus 13 Aviation is wholly different than the target market for a purchaser of a small Cirrus Design aircraft”), 14 he lacks the qualifications to testify to these conclusions. 15 Cohen offers his limited personal experience and no special knowledge that would render his 16 opinions reliable. In fact, Cohen admits these opinions are based solely on his six years as a pilot, 17 and three individuals to whom he spoke over those years. Whether the customer lists of Cirrus 18 Aviation and Cirrus Design overlap does not matter to Cohen. ECF No. 67-4 (Cohen Deposition) 19 at 37. Cohen has never flown or been a passenger in a Cirrus Design SF50. Id. at 36. Cohen has 20 flown on a couple of charter flights, but has done no marketing for Cirrus Aviation and reviewed no 21 published materials regarding consumer confusion as it pertains to trademark infringement or 22 deceptive trade practices because he “[d]idn’t have to.” ECF No. 67-4 (Cohen Deposition) at 34. 23 While an expert may be qualified based on knowledge and experience, the Court’s 24 “gatekeeping” function must ensure expert testimony is reliable such that whether the expert 25 testimony is based upon professional studies or personal experience, the expert brings intellectual 26 rigor to his analysis. Novalogic, 41 F.Supp.3d at 895; Kumho Tire Co., Ltd., 526 U.S. at 152. Cohen 27 has clearly developed strongly held personal beliefs based on his experience as a small aircraft pilot. 1 are no facts Cohen identifies to form the basis of his belief regarding the time or energy expended 2 when deciding to purchase an aircraft, and, in any event, this is not information that is clearly beyond 3 the ken of the average juror. Likewise, Cohen offers no basis for his belief that those who buy Cirrus 4 Design aircraft do so for personal use. Other than speaking to three individuals who were 5 disinterested in his single engine SR22 Cirrus Design aircraft, Cohen offers nothing to support his 6 conclusion regarding the distinction between the two customer groups he identifies—one rich and 7 spoiled and the other the “guy [who] loves to fly.” 8 Finally, with respect to Cohen’s final opinion—that is: “the target market for [a] charter 9 service provider like Cirrus Aviation is wholly different than the target market for a purchaser of a 10 small Cirrus Design aircraft”—Cohen offers no experience or personal knowledge on which he 11 draws this conclusion other than his strongly held belief that those who charter jets and those who 12 fly single aircraft have nothing whatsoever in common. 13 Therefore, the Court strikes Cohen’s expert opinions and report except to the extent he 14 provides his personal history with flying Cirrus Design SR22 aircraft and his opinion that this aircraft 15 is best suited for short trips to nearby locations with a small number of individuals. 16 d. Cirrus Aviation’s Motion to Strike Cirrus Design Non-Retained Expert Ben Kowalski 17 On page 8 of Cirrus Design’s opposition to Cirrus Aviation’s Motion to Strike, Cirrus Design 18 states, in pertinent part, that “[i]f Cirrus [Design’s] pending Daubert motion [to strike Cirrus 19 Aviation’s experts] is granted, the motion to strike Mr. Kowalski’s designation as a rebuttal expert 20 becomes moot. There will be nothing left for Mr. Kowalski to rebut.” ECF No. 78 at 8. To this 21 end, as discussed more fully below, the only expert testimony by Cirrus Aviation’s expert Karamooz 22 the Court finds qualified for admission is: 23 12.a. Cirrus Aviation Services, LLC is a Part 135 air charter operator that 24 provides aircraft charter services. The users of Part 135 air charter services offered by companies such as Cirrus Aviation generally consist of high net- 25 worth individuals who are willing to consistently pay fees in excess of $3,000 to $6,000 per hour to fly in the comfort of a private jet aircraft. In 26 addition to the hourly fees, there are daily minimums (generally a minimum of 2 hours per day are charged, regardless of hours flown), 7.5% Federal 27 Excise Tax, landing fees, ramp fees, fuel surcharges, and other related require discretion, privacy and a personalized level of service that 1 commercial airlines or larger airline charter businesses do not offer. These types of customers are often gained through personal recommendation and 2 referrals made by similar high net-worth individuals or through an aircraft charter broker network utilized by high net worth individuals or their 3 representatives. 4 12.b. Part 135 aircraft charter operators, such as Cirrus Aviation Services, LLC, promote their fleet and jet aircraft charter services, and market empty leg 5 availabilities to other Part 135 operators, and also to a sophisticated aircraft charter broker network. Such Part 135 aircraft charter operators have to 6 compete with other Part 135 aircraft charter operators to market to, attract and keep an exclusive list of highly sophisticated high net-worth individuals 7 who are accustomed to flying privately. 8 12.f. To my knowledge there are no[t] Cirrus Design aircraft of any type available for Part 135 charter in the State of Nevada. I am unaware of any 9 aircraft manufacturer that also offers Part 135 aircraft charter services. 10 ECF 67-3 (Karamooz report) at 5 and 6. The only expert testimony the Court finds properly qualified 11 for admission by Cohen is as follows: 12 I have flown approximately 160 hours in the SR22 aircraft over the past approximately six years . . .. It is best suited for owner pilots to take relatively short 13 trips with friends and family to nearby locations. 14 ECF No. 67-3 (Cohen Report) at 1. 15 As stated above, Cirrus Design offered Kowalski on January 25, 2019, “the deadline for 16 disclosure of rebuttal expert opinions” and at that time, “disclosed a concise summary of Mr. 17 Kowalski’s rebuttal opinions and the basis for them.” ECF No. 78 at 4. In paragraph 1 of the Cirrus 18 Design disclosure of Kowalski, it states that he “will or may provide evidence . . . on the subjects of 19 whether there is actual and/or likely confusion caused by . . . Cirrus Aviation Services, LLC’s use 20 of trademarks and rights belonging to Cirrus Aircraft, and related issues.” Id. In paragraph 2 of 21 Cirrus Design’s disclosure of Mr. Kowalski, it states that he “is expected to testify that . . . Cirrus 22 Aviation’s use of the Cirrus name and trademarks have caused actual confusion and is likely to cause 23 additional confusion, and that that confusion is harmful to Cirrus Aircraft.” Id. The disclosure goes 24 on to state that “[c]ustomers in the Las Vegas market have confused the two companies as a result 25 of the similarity in names.” Id. Kowalski’s summary of testimony also states that he is “expected 26 to testify that Karamooz’s “opinion that Cirrus Aircrafts [sic] are generally not suitable for use as 27 charter aircraft is incorrect.” Id. (internal quote marks omitted). Finally, Kowalski opines that 1 Cohen is also incorrect when he opines “that target market for charter services providers[s] [sic] like 2 Cirrus Aviation is wholly different than the target market for a purchaser of a small Cirrus [] aircraft 3 . . . .” Id. 4 Cirrus Design is clear that to the extent Kowalski is offered as a rebuttal expert, his rebuttal 5 opinions are “moot” if Cirrus Aviation’s experts are struck. Id. at 8. To this end, the Court finds 6 Kowalski’s rebuttal testimony, as it pertains to Karamooz’s opinion regarding Cirrus Aircraft’s 7 suitability for use as charter aircraft, and Cohen’s opinion regarding the target market for charter 8 services, are, in fact, moot because neither Karamooz nor Cohen will be permitted to testify to these 9 subject matters and, as such, there is nothing to rebut. Thus, Kowalski’s proposed rebuttal testimony 10 as it is summarized in paragraph 3 of Cirrus Design’s disclosure is struck as moot. 11 Further, neither Cohen nor Karamooz will offer expert opinions regarding “actual and/or 12 likely confusion caused by . . . the use of the ‘Cirrus’ name . . . .” That is, Kowalski’s deposition 13 testimony on the basis for reaching his opinion on this subject matter is unreliable. ECF No. 67-5 14 at 45, 46-48. Cohen’s testimony is also unreliable as he admits he did not need to review any 15 professional literature or other authority as he “talked to real people with real answers.” ECF no. 16 67-4 at 34. Given that this expert testimony will not be offered by Cirrus Aviation in its case in 17 chief, Kowalski’s rebuttal testimony on these subject matters is not appropriate and will not be 18 allowed. 19 As explained in R & O Const. Co., “[r]ebuttal expert reports necessitate a showing of facts 20 supporting the opposite conclusion of those at which the opposing party’s experts arrived in their 21 responsive reports.” 2011 WL 2923703, at *2 (citations and internal quote marks omitted). 22 “Rebuttal expert reports are proper if they contradict or rebut the subject matter of the affirmative 23 expert report.” Id. (citations omitted). Rebuttal expert reports “are not, however, the proper place 24 for presenting new arguments.” Id. (citations omitted). Thus, having concluded that Cirrus 25 Aviation’s experts will not offer testimony on the subjects Cirrus Design’s expert was offered to 26 contradict or rebut, Cirrus Design’s expert testimony is not proper and will be struck as moot. 27 1 With respect to whether Kowalski is also offered as an expert in Cirrus Design’s 2 counterclaims’ case in chief, the disclosure made by Cirrus Design suggests he is. Specifically, 3 Cirrus Design’s disclosure states, in the first two paragraphs, that Kowalski “will,” “may” or “is 4 expected to” testify to various opinions “based on factual evidence [sic] Cirrus Aviation’s use of the 5 Cirrus name and trademarks have caused actual confusion and is likely to cause additional confusion, 6 and that is confusion is harmful to Cirrus Aircraft [aka Cirrus Design].” ECF No. 78-5 at 1-2. These 7 disclosures, unlike the third paragraph of Cirrus Design’s disclosure (id. at 2) was not couched in 8 the terms of rebuttal to any expert testimony offered by Cirrus Aviation. Thus, the Court must 9 consider whether this portion of Cirrus Design’s January 25, 2019 Rule 26(a)(2)(C) witness 10 disclosure was untimely and, if so, whether the untimely disclosure is excusable. R & O Const. Co., 11 2011 WL 2923703, at *3. 12 There is no dispute that December 19, 2018 was the deadline for initial expert disclosures. 13 There is also no dispute that Cirrus Design made no disclosures on that date and that its expert, Ben 14 Kowalski, was not disclosed until the deadline for rebuttal experts on January 25, 2019. Having 15 received no advance notice that Kowalski would be used in an expert capacity or what subject 16 matters his expert testimony might cover, Cirrus Aviation did not have an opportunity to consider 17 whether to retain a separate rebuttal expert or issue a rebuttal expert report. Thus, Cirrus Design’s 18 untimely disclosure of Kowalski as an expert was prejudicial to Cirrus Aviation. Deposition of 19 Kowalski during the remaining discovery period does not cure this prejudice; nor does the deposition 20 of other witnesses offered by Cirrus Design. It is the denial of Cirrus Aviation’s timely ability to 21 offer a rebuttal expert to Kowalski that is material and prejudicial. 22 Cirrus Design nevertheless claims that disclosure of Kowalski was harmless because he “was 23 disclosed as a fact witness at the outset of this case.” ECF No. 78 at 1-2; see also id. at 3. Cirrus 24 Design cites to the declaration of David Y. Trevor, counsel for Cirrus Design Corporation, defined 25 as “Cirrus Aircraft” in paragraph 1 of Mr. Trevor’s declaration. ECF No. 78-1 ¶ 1. In paragraph 2 26 of Mr. Trevor’s declaration he states that “[a]ttached hereto as Exhibit 1 is a true and correct copy 27 of Cirrus Aircraft’s Initial Disclosures served on June 15, 2018.” Id. ¶ 2 (emphasis in original). 1 initial disclosures, not Cirrus Design’s (aka Cirrus Aircraft) initial disclosures. Kowalski is not 2 identified in this disclosure. Nor is Kowalski identified elsewhere as a fact witness in the exhibits 3 attached to Cirrus Design’s Opposition to Cirrus Aviation’s Motion to Strike Kowalski. ECF No. 4 78, generally. 5 Cirrus Design’s reliance on Amos v. Makita U.S.A., No. 2:09–cv–01304, 2011 WL 43092 6 (D. Nev. Jan. 6, 2011) is misplaced. As explained in Amos, allowing a party to “use the 30 day 7 deadline for disclosure of rebuttal experts as an extension of time for disclosing the lion’s share of 8 its expert information” is improper. Id. at *2 (citation omitted). Further, the court in Amos states 9 that “[a] party is not harmed where, even though an expert disclosure fails to satisfy Fed. R. Civ. P. 10 26, the party knew about the expert, knew about the content of the expert’s testimony, and had an 11 opportunity to depose the expert.” Id. at *4 (citation omitted) (emphasis added). Here, unlike in 12 Amos, Cirrus Aviation did not know Kowalski would be offered as an expert and did not know about 13 the content of Kowalski’s expert testimony before Kowalski was disclosed on January 25, 2019. 14 The untimely disclosure of Kowalski was not substantially justified, and Cirrus Design does not 15 argue it was, and was not harmless. Thus, even assuming the disclosure provided the information 16 required by Fed. R. Civ. P. 26(a)(2)(C), Cirrus Design has not met its burden “to show that the delay 17 was substantially justified or harmless.” Id. at *3. 18 “The Court should consider whether a sanction is proper under a five-factor test analyzing: 19 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 20 docket; (3) the risk of prejudice to the non-offending party; (4) the public policy favoring disposition 21 of cases on their merits; (5) the availability of less drastic sanctions.” Id. at *4 (citation omitted). 22 Here, the Court finds striking Kowalski as an expert is the appropriate sanction. The discovery 23 period is closed and has been since July 2, 2019. Reopening discovery to allow Cirrus Aviation to 24 obtain a rebuttal expert who would then have to be deposed would substantially delay the resolution 25 of this case. Moreover, a motion for summary judgment is currently pending and that too would be 26 impacted by reopening discovery likely leading to further delay. There is also a strong public interest 27 in preventing consumer confusion and protecting trademarks. Las Vegas Sands Corp. v. Fan Yu 1 Co., 907 F.Supp.2d 1042, 1067 (N.D. Cal. 2012) (“[p]reventing consumer confusion serves the 2 public interest and there is a strong policy in favor of protecting rights to trademarks”). In all, the 3 Court finds striking Kowalski, Cirrus Design’s expert, is the appropriate sanction in this case.4 4 III. CONCLUSION 5 For the foregoing reasons, 6 IT IS HEREBY ORDERED that Cirrus Aviation’s Motion to Strike Disclosure and 7 Designation of Defendant/Counterclaimant’s Non-Retained Expert Witness Ben Kowalski (EFC 8 No. 66) is GRANTED. 9 IT IS FURTHER ORDERED that Counterplaintiff Cirrus Design Corporation’s Motion to 10 Strike the Expert Testimony of Reza Karamooz and Shai Cohen (ECF No. 67) is GRANTED in part 11 and DENIED in part as follows: 12 • Cirrus Design’s Motion to Strike is denied to the extent that, 13 o Mr. Karamooz shall be allowed to testify to his opinions as stated in paragraphs 12.a., 14 12.b., and 12.f. of his report stating, respectively: 15 Cirrus Aviation Services, LLC is a Part 135 air charter operator that provides aircraft charter services. The users of Part 135 air charter services 16 offered by companies such as Cirrus Aviation generally consist of high net- worth individuals who are willing to consistently pay fees in excess of 17 $3,000 to $6,000 per hour to fly in the comfort of a private jet aircraft. In addition to the hourly fees, there are daily minimums (generally a minimum 18 of 2 hours per day are charged, regardless of hours flown), 7.5% Federal Excise Tax, landing fees, ramp fees, fuel surcharges, and other related 19 expenses, driving the cost of a single cross-country round trip flight on an 8 passenger private jet to about $50,000 or more. Many such customers 20 require discretion, privacy and a personalized level of service that commercial airlines or larger airline charter businesses do not offer. These 21 types of customers are often gained through personal recommendation and referrals made by similar high net-worth individuals or through an aircraft 22 charter broker network utilized by high net worth individuals or their representatives. 23 Part 135 aircraft charter operators, such as Cirrus Aviation Services, LLC, 24 promote their fleet and jet aircraft charter services, and market empty leg availabilities to other Part 135 operators, and also to a sophisticated aircraft 25 charter broker network. Such Part 135 aircraft charter operators have to 26 27 4 Nothing in this Order precludes Kowalski from appearing and testifying as a fact witness who, if properly compete with other Part 135 aircraft charter operators to market to, attract 1 and keep an exclusive list of highly sophisticated high net-worth individuals who are accustomed to flying privately. 2 To my knowledge there are no[t] Cirrus Design aircraft of any type 3 available for Part 135 charter in the State of Nevada. I am unaware of any aircraft manufacturer that also offers Part 135 aircraft charter services. 4 o Mr. Cohen shall be allowed to testify to his opinion that “I have flown approximately 5 160 hours in the SR22 aircraft over the past approximately six years . . .. It is best 6 suited for owner pilots to take relatively short trips with friends and family to nearby 7 locations” as stated in his report. 8 • Cirrus Design’s Motion to strike all remaining expert opinions offered by Messrs. 9 Karamooz and Cohen is GRANTED. 10 11 Dated this 4th day of December, 2019 12 13 14 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27