United States District Court, D. Nevada
GREAT WESTERN AIR, LLC doing business as CIRRUS AVIATION SERVICES, LLC, Plaintiff/Counter-Defendant,
CIRRUS DESIGN CORPORATION, Defendant and Counter-Plaintiff.
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Cirrus Aviation Services, LLC's
(“Cirrus Aviation”) Motion to Strike Disclosure
and Designation of Defendant/Counter-Claimant's
Non-Retained Expert Witness Ben Kowalski (EFC No. 66); Cirrus
Design Corporation's (“Cirrus Design”)
Memorandum in Opposition to Plaintiff's Motion to Strike
Disclosure and Designation of Defendant/Counterclaimant's
Non-Retained Expert Witness Ben Kowlaski (ECF No. 78);
Plaintiff/Counter-Defendant's Reply in Support of Motion
to Strike Disclosure and Designation of
Defendant/Counter-Claimant's Non-Retained Expert Witness
Ben Kowalski (ECF No. 83); Counter-Plaintiff Cirrus Design
Corporation's Motion to Strike the Expert Testimony of
Reza Karamooz and Shai Cohen (ECF No. 67); Plaintiff's
Opposition to Defendant Cirrus Design Corporation's
Motion to Strike the Expert Testimony of Reza Karamooz and
Shai Cohen (ECF N0. 79); and, Counterclaim Plaintiff Cirrus
Design Corporation's Reply Memorandum of Law in Support
of its Daubert Motion and Motion to Strike the Expert
Testimony of Reza Karamooz and Shai Cohen (ECF No. 84).
case before the Court involves a trademark dispute between
Cirrus Aviation and Cirrus Design. ECF No. 1. Cirrus Aviation
seeks “a declaratory judgment that it does not infringe
trademark rights of … [Cirrus Design] in and to the
term CIRRUS and that … [Cirrus Aviation's]
concurrent use of the CIRRUS term in connection with
unrelated services does not warrant a finding of unfair
competition.” Id. Cirrus Aviation describes
itself as “in the business of providing private airline
charter flights and other related services in the aircraft
charter industry.” Id. Cirrus Aviation says
that it first used the trademark CIRRUS in May 2007.
Design states it is “an innovator in the personal
aircraft market” and has been since the
“1980s.” ECF No. 27. Cirrus Design states that it
“has spent a considerable amount of resources on
marketing and advertising its products and services using the
trademarks and service marks described” in its Answer
and Counterclaim. Id. Cirrus Design also states:
“In addition to manufacturing and selling personal
aircraft and related products, Cirrus Design also provides
numerous aircraft-related services, such as aircraft
inspection and repair services, flight instruction and
training, and aircraft insurance.” In September 2013,
Cirrus Design applied for a U.S. service mark registration
for the mark “CIRRUS” for various services such
as aircraft crew scheduling services, providing employee
leasing of aircraft flight crews, and business management
services in the nature of private aircraft management
services. Id. Cirrus Design has used the name
“Cirrus” for “aircraft and structural parts
thereof” since 1979. ECF No. 27 at 8, and Ex. C, p. 1.
Design filed a Motion to Dismiss, which was denied on March
27, 2018 (ECF No. 26). On June 1, 2018, the Court entered a
discovery plan and scheduling order (EFC No. 32) that was
subsequently extended four times with the last extension
entered on August 2, 2019 (ECF No. 61). In each of the
stipulations to extend discovery, dates for specific
discovery related extensions were identified. ECF Nos. 34,
43, 52, and 60. The initial expert disclosure deadline was
extended only once, from September 20, 2018 to December 19,
2018, through ECF No. 34 granted on September 13, 2018 (ECF
No. 35). The rebuttal expert deadline was extended twice, the
second time to January 25, 2019. ECF No. 45. The deadline to
complete fact discovery was finally extended to July 2, 2019.
ECF No. 53.
Cirrus Aviation's Motion to Strike.
Aviation timely disclosed two experts on December 19, 2018.
ECF No. 66 at 2:28. Cirrus Design did not disclose any
experts on that date. Id. at 3:1. On January 25,
2019, Cirrus Design disclosed a single non-retained expert,
Ben Kowalski (“Kowalski”), who is the Senior Vice
President of Sales & Marketing for Cirrus Design.
Id. at 3:4-6. Cirrus Aviation asserts that the
disclosure of Kowalski was untimely as he is offered as an
expert for Cirrus Design's Counterclaims in chief, as
well as a rebuttal expert to Cirrus Aviation's initial
experts. Id. at 3:4-7. Moreover, Cirrus Aviation
states that Cirrus Design's disclosure does not meet the
requirements of Fed.R.Civ.P. 26(a)(2)(c) regarding
non-retained experts because Cirrus Design did not include
“any summary of facts upon which Kowalski's
opinions would be based.” Id. at 3:8-9. The
disclosure made by Cirrus Design, referred to as Cirrus
Aircraft in the below disclosure, states:
Cirrus Aircraft discloses that Ben Kowalski, Cirrus's
Senior Vice President of Sales & Marketing, will or may
provide evidence under Federal Rules of Evidence 702, 703, or
705, on the subjects of whether there is actual and/or likely
confusion caused by plaintiff/counter-defendant Cirrus
Aviation Services, LLC's use of trademarks and rights
belonging to Cirrus Aircraft, and related issues.
A summary of the facts and opinions to which Mr. Kowalski is
expected to testify is as follows: Based upon his experience
in the aviation industry, his work for Cirrus Aircraft, and
specific information relating to the respective activities of
Plaintiff/Counter-Defendant Cirrus Aviation and
Defendant/Counter-Claimant Cirrus Aircraft, Mr. Kowalski is
expected to 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 likely to
cause additional confusion, and that that confusion is
harmful to Cirrus Aircraft. Customers in the Las Vegas market
have confused the two companies as a result of the similarity
In addition, with respect to the expert witness reports
disclosed by Plaintiff/Counter-Defendant Cirrus Aviation, Mr.
Kowalski is expected to testify that Mr. Karamooz's
opinion that Cirrus Aircraft's aircraft are
“generally not suitable for use as charter
aircraft” is incorrect and inconsistent with Cirrus
Aircraft's future business plans. Mr. Kowalski is further
expected to testify that Mr. Cohen's opinions regarding
customers 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
Cirrus  aircraft, ” are also incorrect.
ECF No. 78 at 4. Cirrus Aviation asks that Kowalski be struck
as both an initial and rebuttal expert.
contrast to Cirrus Aviation's contentions, Cirrus Design
contends that Kowalski “was disclosed as a fact witness
at the outset of the case, ” was timely disclosed as an
expert, the summary offered fairly describes Kowalski's
“opinions and the basis for them, ” and the
summary was provided almost six months before the close of
fact discovery. ECF No. 78 at 2:6-23.
Cirrus Design's Motion to Strike Reza Karamooz and
August 16, 2019, Cirrus Design filed its Motion to Strike
experts Reza Karamooz (“Karamooz”) and Shai Cohen
(“Cohen”) who were retained and timely disclosed
by Cirrus Aviation. Cirrus Design claims that these
individuals offer “expert” testimony in the
subject matter of customer or consumer confusion, but that
neither has the qualifications necessary to offer this
testimony and, moreover, that these opinions are unreliable.
ECF No. 67 at 5, 7, 8, and 10.
Aviation argues that “Mr. Cohen is presented as an
expert from the perspective of a customer/user of
Defendant's aircraft because he in fact is such a
customer/user.” ECF No. 79 at 3. His expertise is said
to arise from six years as a licensed pilot and “his
experience as a private pilot with extensive time with
Defendant's own product.” Id. at 3. Cohen
states in his report that he has “flown approximately
160 hours in the SR22 [Cirrus Design] aircraft.” ECF
No. 67-3 (Cohen Report) at 1. Cohen also states that he has
flown “approximately 387 hours” in other
aircraft, and that based on his time as a “private
pilot and a businessman, ” he has “become quite
knowledgeable about both aircraft and air travel.”
is presented as an expert from the perspective of the
aircraft charter industry.” ECF No. 79 at 5.
Karamooz's expertise is said to arise from the fact that
he is an engineer, the CEO of LuckyJets since 2008, Chairman
of the Nevada Department of Transportation's Aviation
Technical Advisory Committee, and the founder and president
of the Nevada Business Aviation Association. ECF No. 67-3
(Karamooz Report) at 1-2. Karamooz offers opinions regarding
“the nature of the parties' offerings under their
respective trademarks.” Id. at 4 and 4-6.
Fed. R. Civ. P. Rule 702 and Expert Testimony
of expert testimony in a civil proceeding is governed by
Fed.R.Evid. 702, which states:
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: (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.
Barabin v. AsentJohnson, Inc., 740 F.3d 457, 463
(9th Cir. 2014), the Ninth Circuit explained that “[w]e
have interpreted Rule 702 to require that expert testimony
… be both relevant and reliable.” (Internal
citations and quote marks omitted.) Relevancy, as stated by
the court, requires “the evidence … logically
advance a material aspect of the party's case.”
Id. (Citation omitted.) Reliability encompasses
“whether an expert's testimony has a reliable basis
in the knowledge and experience of the relevant
discipline.” Id. citing Kumbo Tire Co. Ltd. v.
Carmichael, 526 U.S. 137, 149 (1999).
“[E]videntiary reliability is based upon scientific
validity.” Id. citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 590 n.9 (1993).
Federal Rules of Evidence impose on trial courts a
“gatekeeping” obligation to ensure the relevance
and reliability requirements are met. United States v.
Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). The
objective of the “gatekeeping” requirement is to
make certain that an expert, “whether basing testimony
upon professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Kumho Tire Co., Ltd., 526 U.S. at 152.
The trial judge must make “some kind of”
reliability determination to fulfill the
“gatekeeping” function. Mukhtar v. Cal. State
Univ., Hayward, 299 F.3d 1053, 1066 (9th Cir. 2002),
amended by319 F.3d 1073, 1076 (9th Cir. 2003).
courts have broad discretion in performing its gatekeeping
function. Barabin, 740 F.3d at 465 (citation
omitted). The district court must “ensure that
the proposed expert testimony is relevant and will serve to
aid the trier of fact. . . . Expert testimony assists the
trier of fact when it provides information beyond the common
knowledge of the trier of fact.” United States v.
Finley, 301 F.3d 1000, 1008 (9th Cir. 2002) (citing
Daubert, 509 U.S. at 591-93).
role of the Court is not to determine the “correctness
of the expert's conclusions but the soundness of his
methodology.” Id. citing Primiano v.
Cook, 598, F.3d 558, 564 (9th Cir. 2010). Nonetheless,
“rejection of expert testimony is the exception rather
than the rule.” Fed.R.Evid. 702 Advisory Committee
Notes (2000). Where an expert satisfies the Rule 702
standards, cross-examination is the proper method of
challenging the expert's opinions. See e.g.
U.S. Fidelity and Guar. Co. v. Soco West, Inc., No.
CV 04-29, 2006 WL 5230019, at *2 (D.Mont. April 21, 2006).
Ninth Circuit has found opinions based on an expert's
experience to be properly admitted. “When evaluating
specialized or technical expert opinion testimony, the
relevant reliability concerns may focus upon personal
knowledge or experience.” United States v.
Sandoval- Mendoza, 472 F.3d 645, 655 (9th Cir.2006)
(quoting Kumho Tire Co., 526 U.S. at 150 (internal
quotations omitted)); PixArt Imaging, Inc. v. Avago Tech.
Gen. IP (Singapore) Pte. Ltd., 2011 WL 5417090, at *8
(N.D.Cal. Oct. 27, 2011) (expert testimony grounded on the
expert's personal knowledge and experience was admissible
in light of his extensive background in the area); Toomey
v. Nextel Commc'ns, Inc., 2004 WL 5512967, at *8
(N.D.Cal. Sept. 23, 2004).
Hangarter v. Provident Life & Accident Insurance
Co., the court explained that when discussing
non-scientific testimony “the ‘Daubert
factors (peer review, publication, potential error rate,
etc.) simply are not applicable to this kind of testimony,
whose reliability depends heavily on the knowledge and
experience of the expert, rather than the methodology behind
it.'” 373 F.3d 998, 1017 (9th Cir. 2004) (quoting
Hankey, 203 F.3d at 1169). “[T]he judge is
supposed to screen the jury from unreliable nonsense
opinions, but not exclude opinions merely because they are
impeachable. The district court is not tasked with deciding
whether the expert is right or wrong, just whether his
testimony has substance such that it would be helpful to a
jury.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp.,
Inc., 738 F.3d 960, 969-70 (9th Cir. 2013). Nonetheless,
subject beliefs and opinions are not proper expert
addition to evaluating relevance and reliability, a trial
court must determine whether an expert has “appropriate
qualifications.” Hankey, 203 F.3d at 1168. A
witness may testify to his special knowledge so long as he is
qualified as an expert based on any combination of knowledge,
skill, experience, training, or education. Wright v.
United States,280 F.Supp.2d 472, 478 (M.D. N.C. 2003).
“Rule 702 contemplates a broad conception of expert
qualifications.” Hangarter, 373 F.3d at 1015
(citation omitted); Kopf v. Skyrm,993 F.2d 374, 377
(4th Cir. 1993) (“[w]here the expert's
qualifications are challenged, the test for exclusion is a