Expert Witness Blog
Plaintiff sued defendant after parts supplied by defendant allegedly failed. The plaintiff hired a Semiconductors Expert Witness and Forensic Accounting Expert Witness to provide testimony, which was challenged by the defendant.
Facts: This case (Zykronix Inc. v. Conexant Systems, Inc. – United States District Court – District of Colorado March 22nd, 2018) involves a breach of contract. The plaintiff (Zykronix) sued the defendant (Conexant) for delivering malfunctioning chips to the plaintiff that were used in a home automation product. The chips created a noise that were emitted from the device and had to be replaced. Zykronix hired Semiconductors Expert Witness Frank Muscolino and Forensic Accounting Expert Witness Kyle Jacobson to provide testimony on their behalf. The defendants filed a motion to exclude these expert witnesses from providing testimony.
Discussion: Mr. Muscolino is said to testify that the chip is defective and failed after placed into the home automation product. Mr. Jacobson will testify on the reasonableness of some damage calculations as well as inflation rates and discount rates with respect to loss profits.
The defendant maintains that Mr. Muscolino’s testimony should be excluded because he did nothing to evaluate the device. The court agreed, stating that Mr. Muscolino does not provide any methodology to back up his opinion that the chip was defective and failed in the device. Even though he does testify that the the believed that the problem was “oxide breakdowns” or “hot electron injection”, Mr. Muscolino does not provide any detail as to how he came to his conclusions. Mr. Muscolino stated at this deposition that he looked at the device , plugged it in, and opined that it was defective. To be sure, that is not enough under Daubert to be admissible. Thus, the court opined that this testimony should be excluded.
The defendant also alleges that Mr. Jacobson should not be permitted to provide testimony regarding past warranty repair costs because that involves simple mathematics and an expert is not needed for that. In addition, the defendant alleges that Mr. Jacobson is not qualified to testify regarding the reasonableness of past repair costs. The court opined that Mr. Jacobson has specialized knowledge and experience beyond what an ordinary person would possess. Thus, the court opined that Mr. Jacobson will be allowed to testify about past costs associated with warranty repairs. However, the court did opine that Mr. Jacobson will not be allowed to testify about future warranty repair damages.
Conclusion: The motion to exclude the testimony of Frank Muscolino is granted and the motion to exclude the testimony of Kyle Jacobson is granted in part and denied in part.