Today, Chief Judge Connolly issued a memorandum order in Stirista, LLC v. Skydeo Inc., C.A. No. 23-856-CFC denying a Daubert motion in part because it sought to exclude the expert's "opinions" rather than his "testimony."
The Court actually agreed that the expert's testimony ought to be excluded under Rule 702—if only the moving party had filed a better motion:
In its briefing filed in support of the motion, Stirista argues that "Mr. Kelleher's opinions and conclusions related to market confusion should be excluded [under Rule 702] as unqualified, unreliable, and unhelpful to a trier of fact." . . . Having read the parties' briefing on this question, I'm inclined to agree with Stirista. Mr. Kelleher is an expert in the field of accounting, not marketing; his opinion that "[t]here was no market confusion," D.I. 66-1 at 13, is conclusory and unsupported by any identified methodology, let alone a reasonable and reliable methodology employed by marketing experts; and his unsupported and conclusory opinions about alleged market confusion would not, in my view, help the jury. It thus seems clear that Rule 702 would preclude him from testifying at trial about his opinions on market confusion. But, as noted above, Stirista did not move to exclude Mr. Kelleher's testimony about those opinions.
As Chief Judge Connolly explained, the "opinions" in an expert report are not testimony, and are generally barred from admission anyway. He therefore denied the motion:
Stirista does not seek by its motion the exclusion of testimony. Rather Stirista seeks by its motion the exclusion of "certain opinions set forth in" Mr. Kelleher' s expert report. . . . Consistent with that request and the motion's title, the Proposed Order Stirista asks me to sign reads: "IT IS HEREBY ORDERED ... that Plaintiffs motion is GRANTED and [t]he portions of [Mr. Kelleher's expert report] related to market confusion highlighted in Ex. 1 to Plaintiffs brief are deemed stricken." . . .
Expert reports are classic hearsay and generally barred from admission at trial by Rule 802. . . . Expert reports are not testimony and do not implicate Rule 702. Rule 702 governs when "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify." Fed. R. Evid. 702.
Because Stirista's motion does not constitute an objection to expert testimony, it is not authorized by paragraph l0(b) of the Scheduling Order [regarding Daubert motions], and I will deny it for that reason.
Stirista, LLC v. Skydeo Inc., C.A. No. 23-856-CFC, at 1-2 (D. Del. Mar. 14, 2025).
The Court recognized that it could ignore the error, but declined to, noting that movant was a sophisticated party, and that there was a second error as well:
It might be asked: why not ignore the title and content of Stirista's motion and its proposed order and simply treat Stirista's briefing as laying out the relief that Stirista seeks? Two reasons. First, Stirista is a sophisticated party with sophisticated counsel, and is therefore responsible for "fram[ing] the issues for decision" for the Court. United States v. Sineneng-Smith, 590 U.S. 371,375 (2020). Second, and more importantly, the highlighted portions of the expert report attached as Exhibit 1 . . . that Stirista asks in its motion and proposed order to be "deemed stricken" are not limited to opinions about market confusion. Some of those opinions also concern damages, and Stirista does not argue in its briefing that Mr. Kelleher's opinions about damages are barred by Rule 702. . . . Thus, the motion and briefing do not align.
Id. at 3-4.
That has to be rough for the attorneys who filed the motion. It remains to be seen whether the Court will actually allow this testimony at trial, given that it recognized the testimony ought to be barred (but also that the deadline to move to exclude it has passed). Either way, this is a good example of the kind of precision attorneys need to have in their motions and briefs.
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