United States ex rel. Westrick v. Second Chance Body Armor, Inc.

Citation: 289 F. Supp. 3d 145Docket: Civil Action No. 04–0280 (PLF)

Court: Court of Appeals for the D.C. Circuit; February 1, 2018; Federal Appellate Court

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The case, presided over by Judge Paul L. Friedman, involves a False Claims Act trial set for March 5, 2018. There are ten pending motions in limine aimed at excluding opinions and testimony from seven experts presented by the United States and three from defendants Toyobo Co. Ltd. and Toyobo America, Inc. A Daubert hearing for one of Toyobo's experts, Dr. Kazuyki Yabuki, occurred on January 23, 2018, with the parties opting to rely on submitted papers for the other motions. The Court has reviewed expert reports, Dr. Yabuki's testimony, as well as the parties’ arguments regarding the motions in limine. 

The legal standard for admitting expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which incorporates the principles established in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael. Trial judges serve as "gatekeepers" to ensure that only reliable and relevant expert testimony is presented. To admit expert testimony, the Court must determine that the expert's knowledge will assist in understanding the evidence and that the expert is qualified. The party introducing the expert must prove admissibility by a preponderance of the evidence. The Court maintains broad discretion in these determinations, focusing on evidentiary reliability and relevance, primarily examining the methodology and reasoning rather than the conclusions drawn. Factors influencing this assessment include the testability of the theory, peer review status, error rates, and general acceptance within the relevant scientific community.

The Court retains broad discretion in assessing the reliability of expert testimony, as established by precedent, emphasizing the flexibility of the reliability test (Gilmore v. Palestinian Interim Self-Gov't Auth.). It must also evaluate the relevance of testimony, ensuring it is connected to the case facts and beneficial for the factfinder (FTC v. Whole Foods Mkt. Inc., Daubert v. Merrell Dow Pharm. Inc.). The concept of "fit" is crucial, highlighting that scientific validity may vary based on context (Ambrosini v. Labarraqueque).

Toyobo seeks to exclude the testimony of seven U.S. proffered experts, with the current rulings pertaining specifically to United States ex rel. Westrick v. Second Chance Body Armor, Inc. Notably, the challenges to Dr. Allen L. Price and Dr. Bradley S. Field's testimonies are moot due to Toyobo's withdrawal of their designations. Following the Court's summary judgment ruling, both parties have also retracted arguments regarding Second Chance Body Armor's commercial warranty.

Dr. S. Leigh Phoenix, a tenured professor at Cornell University with expertise in mechanical and aerospace engineering, is presented by the United States to testify on the correlation between fiber properties and ballistic performance. His qualifications include a Doctorate in Theoretical and Applied Mechanics and extensive research on ballistic impact and related modeling techniques, supported by over one hundred peer-reviewed publications. Toyobo's motion to exclude Dr. Phoenix's opinions is contested by the United States, with both parties acknowledging his qualification but disputing the reliability of his opinions regarding ballistic applications and Toyobo's disclosures to body armor manufacturers. The Court's analysis will concentrate on the reliability and relevance of Dr. Phoenix's proposed testimony.

Dr. Phoenix asserts that fiber tensile strength significantly influences the ballistic performance of body armor; a notable decrease in tensile strength will adversely impact performance. Toyobo seeks to exclude Dr. Phoenix's ballistics-related opinions, claiming they lack reliability, fail to assist the jury, and encroach upon the jury's role. They argue that Dr. Phoenix relied solely on mathematical models without conducting empirical tests with real bullets, and that his models pertain only to a limited range of bulletproof vests while neglecting design and construction factors. Additionally, Toyobo points out that Dr. Phoenix lacks relevant experience in designing or manufacturing bulletproof vests, suggesting that admitting his testimony would unfairly prejudice them.

The Court, however, finds Dr. Phoenix's methodology sound and believes his insights will aid the jury in evaluating Zylon's suitability for bulletproof vests. His analysis, based on the tensile strength of Zylon fiber, is grounded in peer-reviewed ballistic modeling, which is accepted science. The Court concludes that Dr. Phoenix's lack of direct experience in vest design does not undermine the reliability of his assessments. Concerns about the absence of real bullet testing and the limitations of his models pertain to the weight of his testimony rather than its admissibility under Daubert or Rule 702. Therefore, the Court will allow Dr. Phoenix's opinions on ballistics and ballistic performance.

Separately, Toyobo attempts to exclude Dr. Phoenix's opinion regarding the durability of Second Chance’s used Zylon vests, arguing it relates to their durability. The United States clarifies that Dr. Phoenix critiques Second Chance's interpretation of their testing data rather than offering a durability opinion. However, Dr. Phoenix does suggest that some vests might not meet NIJ standards before five years based on a crude estimate. The Court decides to exclude this particular opinion due to its speculative nature.

In 2001, Toyobo conducted strength retention tests on thirteen spools of Zylon fiber under specific environmental conditions and shared the averaged results with body armor manufacturers. Dr. Phoenix critiques these disclosures, arguing they were misleading due to several factors: Toyobo averaged data instead of providing raw data for each spool, selectively used spools with favorable Na/P ratios, omitted outlier data, and delayed revealing the testing results. Toyobo aims to exclude Dr. Phoenix's opinions, claiming they are speculative and not grounded in reliable data-reporting standards. Toyobo further contends that Dr. Phoenix lacks relevant experience in fiber supply and bulletproof vest design, making his insights on Toyobo's internal knowledge and motives overly speculative and inappropriate for jury consideration. 

The Court will accept some of Dr. Phoenix's opinions while excluding others. It recognizes his methodology as reliable for comparing Toyobo's internal testing data with its public disclosures, asserting that his expertise allows him to interpret the data without direct experience in fiber supply. The Court permits Dr. Phoenix to explain the testing results, the nature of the disclosed data, and the time lapse between disclosures, while barring any opinions on Toyobo's intentions or knowledge regarding their disclosures, as these would be too speculative and directly impact the jury's determination of whether the disclosures were misleading.

Dr. Phoenix is restricted from providing opinions on Toyobo's knowledge of Zylon degradation, the rationale behind their testing decisions, the disclosure or withholding of data, and their motivations, whether business-related or otherwise. Citing precedents, the Court emphasizes that assertions about Toyobo's intent based solely on documents will also be excluded. Although there is evidence of marketing pressures affecting production rates, the jury is deemed capable of interpreting the evidence without Dr. Phoenix's insights. Additionally, opinions regarding whether Toyobo misled body armor manufacturers and the significance of information to them are also excluded, as Dr. Phoenix’s expertise in fiber properties does not extend to industry norms on data disclosure.

Regarding the opinions related to Dr. Kazuyuki Yabuki, Dr. Phoenix argues that the Na/P ratio significantly influences Zylon degradation, countering Dr. Yabuki's assertion of a weak correlation. Toyobo challenges Dr. Phoenix's qualifications, claiming he lacks the necessary background as a polymer chemist. However, the Court finds that Dr. Phoenix utilized a reliable methodology through mathematical modeling to analyze Toyobo's data on Na/P ratios and strength retention under specific conditions. Consequently, Dr. Phoenix's opinions in response to Dr. Yabuki will be allowed for jury consideration.

Dr. Alan J. Lesser, a tenured professor of polymer science at the University of Massachusetts, Amherst, has been presented by the United States as an expert in fiber properties and ballistic performance. He holds a Doctorate in Civil Engineering and has prior experience as a research scientist at Shell Development Company. Dr. Lesser's research focuses on the fracture and adhesion of fibers, as well as the environmental stress cracking and chemical degradation of polymers. He has authored ninety-four peer-reviewed papers, including ten on the environmental impacts on polymers and their fibers.

In this case, Dr. Lesser submitted a report on March 15, 2012, in which he asserts that Zylon fiber's mechanical and chemical fragility makes it unsuitable for bulletproof vests. Toyobo has filed a motion to exclude his opinions, arguing that Dr. Lesser lacks relevant ballistic experience and did not perform ballistic testing to substantiate his claims about Zylon fiber's behavior in vests. Toyobo also contends that Dr. Lesser's conclusions are based solely on a ballistic performance model developed by another expert, Phillip M. Cunniff.

The Court, however, has decided to admit Dr. Lesser's opinions regarding ballistic performance and Zylon's suitability for vests, citing his qualifications and reliable methodology. Dr. Lesser's analysis involved applying his fiber properties knowledge to assess Toyobo's degradation data in conjunction with the Cunniff model, which is peer-reviewed and accepted in the scientific community. The Court concluded that Dr. Lesser's insights would aid the jury in evaluating Zylon fiber's appropriateness for bulletproof vests, emphasizing that he does not simply replicate the Cunniff model but utilizes his expertise to compare results across different ballistic models. The Court also noted that expert witnesses may employ assistants in forming their opinions.

Expert involvement in the report is deemed a matter of weight rather than admissibility, regardless of the level of assistance from colleagues. Dr. Lesser's lack of experience in bulletproof vest design does not undermine his opinions on ballistic performance and Zylon's suitability, which the court will admit. Toyobo's objections regarding the absence of ballistic testing and limitations of the Cunniff model are similarly considered matters of weight. 

Toyobo's attempt to exclude Dr. Lesser's opinion about misleading disclosures to body armor manufacturers is addressed; he asserts that Toyobo overestimated Zylon's strength retention, misrepresented service life, and altered data presentation, which Toyobo claims is speculative. The court will admit some of Dr. Lesser's opinions while excluding others, affirming the reliability of his methodology in comparing Toyobo's internal testing data with disclosures. 

Dr. Lesser can explain the testing results and evaluate how a reasonable person might interpret Toyobo's disclosures, emphasizing how presentation changes hinder customer understanding of product service life. However, opinions regarding Toyobo's knowledge or intentions concerning disclosures will not be permitted, as they rely on speculation and would intrude upon jury considerations. This includes any assertions about Toyobo's awareness of Zylon degradation, motivations behind data presentation, or influences from its business operations, which the court deems outside the scope of Dr. Lesser's expertise.

The jury is capable of interpreting evidence related to Toyobo's quality control procedures without relying on Dr. Lesser's opinions, as he has not demonstrated specialized expertise in this area beyond reviewing internal documents. Toyobo lacks methods to control product concentration at delivery, making it impossible to ensure compliance with their specifications. The Court will exclude Dr. Lesser's testimony, particularly regarding whether Toyobo misled body armor manufacturers and the information they should have received, due to his insufficient expertise in the norms of disclosure in the fiber and ballistics industries.

Dr. David S. Brookstein, an expert in textile engineering with a background in high-performance fibers, has submitted an expert report asserting that Zylon is unsuitable for ballistic applications. Toyobo seeks to exclude his testimony, arguing that he lacks expertise in ballistics and has not conducted relevant testing to support his claims. The Court questions the reliability of Brookstein's methodology and finds many of his opinions to be conclusory, speculative, or inappropriate for expert testimony, particularly those attributing motives to Toyobo or describing their practices in negative terms.

The Court notes that Brookstein's opinions regarding Toyobo's disclosures will be excluded for similar reasons as those applied to Dr. Lesser and requests that if the United States intends to present Brookstein as an expert witness for limited purposes, it must specify which opinions will be offered for trial, followed by a further Daubert hearing to assess their admissibility.

Dr. Michael A. Riley is a body armor researcher and expert in ballistic testing of Zylon body armor, designated by the United States. He has a Doctorate in Civil Engineering and has been with the National Institute of Standards and Technology (NIST) since 1997, where he manages ballistic testing and advises on body armor standards. Dr. Riley provided a letter detailing his qualifications and opinions instead of a formal expert report, as he is not a retained expert.

Toyobo Co. seeks to exclude Dr. Riley's opinion that fiber suppliers should provide consistent products with specific documentation regarding production variations and aging effects. Toyobo argues that Dr. Riley lacks qualifications and a reliable basis for this opinion, citing his lack of direct experience with body armor manufacturers, weavers, and their expectations regarding purchasing specifications. They contend that Dr. Riley has not seen relevant purchasing specifications and that his background does not support his claims.

However, the Court finds Dr. Riley qualified to comment on the responsibilities of fiber suppliers due to his extensive oversight of ballistic testing and experience with Zylon fiber specifications. His prior discussions with fiber suppliers and procurement officials further bolster his credibility. The Court concludes that Toyobo's challenges to the specifics of Dr. Riley's conversations pertain to the weight of his testimony rather than its admissibility.

The Court recognizes Dr. Riley's expertise in safety standards as a solid foundation for his opinion, which is informed by relevant literature and discussions with three fiber suppliers. He asserts that fiber suppliers must provide products that consistently meet purchasing specifications over time, rather than claiming Toyobo failed to meet specific legal obligations. Although Dr. Riley lacks direct experience with fiber suppliers or bulletproof vest manufacturers, this is a matter of weight rather than admissibility, and Toyobo largely concurs with his view on the necessity for compliance with purchasing specifications, differing only on the opinion's scope.

Kirk Rice, presented as an expert by the United States in ballistic testing and Zylon body armor performance, does not have a formal expert report due to his non-retained status. He holds advanced degrees in chemical engineering and engineering administration and is the Supervisory Physical Scientist at NIST, managing body armor system research and developing performance standards. Toyobo seeks to exclude an opinion from Mr. Rice, which states that fiber suppliers like Toyobo should ensure their products meet purchasing specifications and provide documentation on material aging and production variations. Toyobo argues that Mr. Rice lacks the qualifications and reliable basis to comment on the supplier-weaver relationship or the responsibilities of fiber suppliers, emphasizing his limited practical experience and absence of direct communication with fiber suppliers regarding purchasing specifications.

Mr. Rice is deemed qualified to provide expert testimony regarding fiber suppliers' obligations to meet purchasing specifications, based on his role as the lead scientist on body armor systems and his extensive experience with fiber specifications. His opinion is supported by discussions with fiber suppliers and research on fiber degradation. Any objections from Toyobo regarding the timing and relevance of these conversations are considered issues of weight rather than admissibility. Mr. Rice asserts that fiber suppliers should consistently provide products that adhere to purchasing specifications, a view largely agreed upon by Toyobo, which only disputes the extent of his opinion. Consequently, the Court will admit Mr. Rice's testimony on this matter.

Joseph T. Anastasi, a certified public accountant and expert in forensic accounting, has submitted multiple expert reports, including a supplemental report approved by the Court. He has extensive experience, having worked with prominent firms like Deloitte and PricewaterhouseCoopers. Toyobo seeks to exclude Mr. Anastasi's opinions, claiming his methodology is flawed and that the U.S. payments to Second Chance do not reflect actual damages, as the products had some value. Toyobo argues that damages should be measured by the difference between the value of the goods received and their promised value. In contrast, the United States contends that Mr. Anastasi's role is to help the jury understand the sales data and its implications for quantifying damages.

Mr. Anastasi's analysis of sales data related to defective products is characterized as meticulous and reliable, aimed at assisting the jury. The United States asserts that under the False Claims Act, damages are determined by the amount paid for defective products, which are deemed valueless. The Court reviewed Mr. Anastasi's expert reports from March 2012, September 2012, and a supplemental report from December 2017. His analysis included sales made by Second Chance to U.S. agencies via the General Services Administration (GSA) and reimbursements under the Bulletproof Vest Partnership Act (BVP). 

For GSA sales, Mr. Anastasi examined 17,000 line items across twenty-three boxes of invoices, matching spreadsheets with supporting documents. He identified that most electronic sales records were backed by Second Chance invoices and made adjustments to correct discrepancies and overcharges. Regarding BVP reimbursements, he utilized calculations from Linda Hammond-Deckard but performed an independent analysis by employing random sampling techniques to verify the data. 

His December 2017 supplemental report included a payments analysis for federal sales under GSA contracts. The Court supports the United States’ view that Mr. Anastasi's methodologies are rigorous and beyond basic mathematics, involving thorough reviews of extensive documentation and forensic accounting techniques that accounted for errors and overcharges. Although he relied on Hammond-Deckard for BVP reimbursements, he independently validated the data, ensuring its accuracy. Overall, his approach is deemed appropriate for supporting expert testimony.

An expert witness may utilize assistants in developing their expert opinion, as affirmed in Sys. of Ind. Inc. v. CTS Corp. 285 F.3d at 612. Mr. Anastasi's analyses adhered to recognized forensic accounting methods and will aid the jury; therefore, his opinions and testimony are admissible at trial, with the caveat that the Court will delay ruling on whether U.S. payments or expenditures are the proper measure of damages in a False Claims Act case concerning defective products. This decision will follow a review of relevant court rulings and additional legal authority provided by the parties. Upcoming jury instructions, including those on damages, will reference applicable case law and standard practices.

Regarding Mr. Anastasi's testimony, the key issue is whether he can label his calculations as "damages." Dr. A.S. Abhiraman, a fiber scientist, is proposed as a rebuttal witness by the United States against Toyobo's expert, Herbert Heuchert, although Heuchert's testimony will not be permitted. The Court then examines Toyobo's expert witnesses, including Dr. Kazuyuki Yabuki, an industrial fiber researcher with extensive experience at Toyobo, including overseeing Zylon fiber development. Dr. Yabuki has served in various capacities at Toyobo and has published numerous articles on Zylon. He has been designated to rebut testimony from U.S. experts Dr. Phoenix, Dr. Lesser, and Dr. Brookstein, and has submitted a rebuttal report dated May 23, 2012. The United States has filed a motion concerning Yabuki's testimony.

Toyobo has filed a motion to exclude the entirety of Dr. Yabuki's opinions, which is opposed by Toyobo. The Court references opinions by section numbers from Dr. Yabuki's report. During a Daubert hearing on January 23, 2018, Dr. Yabuki provided testimony, and Toyobo withdrew Opinions Eight and Ten regarding the ZKP Project and the nature of disclosures, respectively. Opinion Eleven was partially withdrawn, retaining only the last two paragraphs on "Na/P ratio" and the use of Zylon vests in 2003. The United States raised three main objections to Dr. Yabuki's opinions: 

1. His reports were significantly influenced by other Toyobo employees’ expertise, which he allegedly accepted without independent verification.
2. He may not have read certain references in his report or did so many years ago.
3. His opinions on Toyobo's manufacturing and quality control systems lack factual fit since he does not know how these systems operated.

In response, Toyobo argues that Dr. Yabuki's reliance on other employees was appropriate as he directed their work and verified its accuracy. Toyobo asserts that Dr. Yabuki used a valid methodology based on his experience with Zylon fiber and that the employees' expertise closely aligned with his own. They contend that any shortcomings in reading references pertain to the weight of his opinions rather than their admissibility. After reviewing Dr. Yabuki's report and testimony, the Court will admit certain portions of his opinions while excluding others, acknowledging the United States' concerns but determining they do not apply uniformly across all of Dr. Yabuki's work. The Court will evaluate each opinion individually, starting with Opinion One, where Dr. Yabuki disputes the conclusions of Dr. Phoenix and Dr. Brookstein regarding "kink bands" in Zylon fiber, asserting they are not unique to Zylon and do not significantly impact tensile strength.

Dr. Yabuki asserts that Toyobo lacks control over the handling of Zylon fiber post-manufacturing, emphasizing that weavers and end-product manufacturers are best positioned to assess the effects of post-manufacturing processes on the fiber. He contends that Second Chance had sufficient information to factor in the impact of the weaving process when designing Zylon vests. The Court will allow the jury to consider Dr. Yabuki's first opinion regarding kink band formation and its potential to render Zylon defective, which is supported by a robust methodology rooted in his extensive experience with industrial fibers and referenced research. He notes that damage to fibers during weaving, including kink bands, is widely recognized in the ballistic industry and known to affect ballistic performance, which he can reliably assert based on his involvement in Zylon's development.

In his second opinion, Dr. Yabuki addresses the concerns raised by Dr. Lesser and Dr. Brookstein about microvoids, clarifying that these issues are not exclusive to Zylon and do not indicate a defect. He explains the formation of microvoids, compares them to those found in Kevlar, and critiques the analyses of his counterparts. He also emphasizes the necessity for end-product manufacturers to protect Zylon from moisture. The Court will admit this second opinion as well, noting that Dr. Yabuki's methodology is sound, supported by multiple research papers, and he collaborated with other Toyobo employees to verify certain data. Despite some reliance on colleagues' calculations and expertise, Dr. Yabuki maintains his own qualifications in the relevant scientific areas.

Dr. Murase, Dr. Kitigawa, and the author share similar specialties. The United States contends that Dr. Yabuki has previously read three references supporting Opinion Two; specifically, he read a book chapter by Young in 1990, the Northholt paper in 1990 or 1991 (though he may not have read it in full), and the Martin paper in 1998, which he re-examined for his report. The Court determines that Dr. Yabuki's familiarity with these references does not undermine the reliability of his opinion under the Daubert standard. The United States' attempt to challenge Dr. Yabuki's methodology based on the cited book chapter contradicting its intended use is viewed as an issue of weight rather than admissibility.

Regarding Opinion Three on Moisture Regain, Dr. Yabuki counters Dr. Lesser's and Dr. Brookstein's claims that moisture regain makes Zylon fiber defective, asserting that it is a common phenomenon in polymer chemistry. He states that manufacturers should design products to protect polymers from moisture. The Court permits certain aspects of Opinion Three, including Dr. Yabuki's opinions on Zylon fiber's moisture regain properties, sunlight exposure duration for degradation, Toyobo's control over Zylon fiber post-manufacturing, and protective measures for fiber by manufacturers. These conclusions stem from Dr. Yabuki's reliable methodology and expertise. However, the Court will exclude opinions related to Toyobo's quality control procedures and those of weavers, specifically barring him from asserting that a spool would be downgraded under Toyobo's quality control due to light-induced degradation.

Dr. Yabuki is not qualified to assert that weavers checked the fiber properties of Zylon upon arrival or that no shipments were rejected due to fiber properties being out of specification. His knowledge about Toyobo's quality control processes relies solely on information from Toyobo employees, lacking specialized expertise in the quality control of ballistic fibers. 

Opinions Four, Five, and Six from his report address residual phosphorus in Zylon fiber, which affects tensile strength and thermal degradation. Opinion Four disputes Dr. Brookstein's and Dr. Lesser's claims that Toyobo permits excessive phosphorus in Zylon. Opinion Five challenges the assertion that inadequate neutralization of residual phosphoric acid contributes to hydrolytic degradation. Opinion Six counters Dr. Lesser's assertion regarding residual phosphorus as a mono-aryl phosphate ester, claiming it does not catalyze hydrolysis.

The Court will admit these opinions based on Dr. Yabuki's reliable methodology and his experience, but will exclude specific statements from Opinions Four and Five regarding Toyobo's quality control procedures for neutralization. The evidence indicates that Toyobo's Zylon consistently met the target of 5,000 ppm or less for residual phosphorus, with one exception where the content was slightly above the threshold, and that fiber was not shipped for bullet-resistant applications. Additionally, Toyobo conducted regular checks on the fiber's color and chemical content during production to ensure proper neutralization and compliance with specified Na/P molar ratios.

Dr. Yabuki has not demonstrated specialized expertise in his field, relying primarily on Mr. Teramoto and specific Toyobo documents. The United States contends that Dr. Yabuki improperly cited a paper by Dr. Ying-Hung So and misrepresented Dr. So's research, which involves more complex processes than merely adding water to remove mono-aryl phosphate esters from PBO molecules. Despite these issues, the Court finds that the incorrect citation does not render Opinion Six unreliable under Daubert standards, deeming the objections regarding overstated findings to pertain to the weight of the evidence rather than its admissibility.

In Opinion Seven, Dr. Yabuki counters that criticisms from Dr. Phoenix, Dr. Lesser, and Dr. Brookstein regarding Zylon's susceptibility to strength loss over time are unfounded, asserting that all materials, including Zylon, degrade under certain conditions. He argues that Kevlar, like Zylon, is not considered sub-standard due to degradation and claims that hydrolysis rates can be mitigated if Zylon is protected from moisture. He supports this with a NIST study, indicating that proper moisture protection can prevent strength degradation.

The United States raises two objections: first, that the NIST study was published after Zylon was discontinued, and second, that Dr. Yabuki’s proposed moisture protection methods (using seaweed and aluminum film) may not apply to ballistic contexts, nor is it confirmed that Toyobo communicated moisture protection needs to manufacturers. Nonetheless, the Court admits Opinion Seven for jury consideration, recognizing that Dr. Yabuki's methodology, which integrates his fiber knowledge and relevant research, is sound, and his reliance on the later NIST study is acceptable as it corroborates established scientific principles he already understood.

Opinion Seven addresses the suitability of Zylon fiber for ballistic applications, with Dr. Yabuki offering suggestions about using seaweed and aluminum film to protect Zylon-based body armor from moisture. However, he does not claim these methods are feasible or communicated to manufacturers; his suggestions were responses to a question from U.S. counsel.

In Opinion Nine, Dr. Yabuki refutes claims by Dr. Lesser and Dr. Brookstein that the presence of red thread in Zylon indicates defects. He asserts there is no evidence that Second Chance used Zylon fabric with red thread and notes quality control measures by Toyobo, weavers, and manufacturers effectively identified and segregated non-conforming fibers. The Court will exclude this opinion, as it relies on Dr. Yabuki’s review of the record and information from Toyobo employees rather than specialized expertise in Toyobo's quality control processes.

In Opinion Eleven, Dr. Yabuki critiques Dr. Phoenix's correlation of Na/P ratio and strength retention, finding a weaker correlation upon re-plotting the same data. He also states that Second Chance continued to use Zylon in Triflex vests post-Toyobo's October 2003 disclosures. The Court will admit Dr. Yabuki's correlation analysis but exclude his commentary regarding Second Chance’s usage of Triflex vests after 2003, which is viewed as more argumentative than expert opinion.

The summary will capture the critical analyses and conclusions surrounding the opinions presented, including their admissibility and the basis for exclusion or acceptance by the Court.

Dr. Yabuki's Opinion Twelve asserts that Toyobo accurately managed data scatter in tensile strength measurements by averaging results, countering the views of Dr. Phoenix, Dr. Lesser, and Dr. Brookstein. The Court will admit this opinion but exclude the assertion that Toyobo's data handling aligns with JIS L1013 and ASTEM 0885, as Dr. Yabuki admitted he had not reviewed these standards recently and relied on Toyobo's internal quality control for compliance confirmation.

In Opinion Thirteen, Dr. Yabuki contends that the responsibility for Zylon's suitability lies with end-product manufacturers, specifically Second Chance, rather than Toyobo. He notes the diversity of end-product designs and states that fiber manufacturers cannot test their products for every design variation. While the Court will admit parts of this opinion, it will exclude statements regarding industry customs. Dr. Yabuki did not reference any authoritative sources to substantiate his claims about body armor manufacturers' practices, leading the Court to determine that his opinions lack a reliable methodological foundation and are speculative.

Dr. Robert M. Nowak, a polymer chemist with extensive experience at Dow Chemical and a doctorate in Chemistry, has been presented by Toyobo as a rebuttal witness to counter the arguments of Dr. Brookstein and Dr. Lesser.

Dr. Nowak has served as the President and CEO of the Michigan Molecular Institute for fifteen years and has authored eighteen papers on organic reaction mechanisms and reinforced plastics. He submitted a rebuttal report on May 23, 2012, in response to critiques regarding Zylon's suitability for ballistic applications due to its degradation issues. The United States has filed a motion to exclude several of Dr. Nowak's opinions, specifically Opinions One, Two, Three, Four, Five, and Twelve, as well as additional topics related to degradation comparisons involving Zylon fiber, product design considerations, testing relevance, and Toyobo's control post-shipment.

Opinions One and Two address the inherent degradation of all materials over time and argue that these vulnerabilities must be accounted for by manufacturers. Dr. Nowak's arguments include analogies between Zylon degradation and the degradation of human skin from sunlight and metal fatigue in aircraft parts. The United States contests that these analogies lack a reliable methodological basis and argue that Dr. Nowak's qualifications are insufficient for making such comparisons, as he is neither a medical doctor nor a metallurgist. They assert that his analogies could mislead the jury by suggesting that degradation issues are easily manageable. In contrast, Toyobo defends Dr. Nowak's comparisons as illustrative rather than direct analogies, asserting that his opinions are grounded in polymer chemistry.

Toyobo asserts that the examples provided were intended to demonstrate that while all materials experience degradation, they can still be utilized if the end-product manufacturer takes appropriate measures. The Court finds Dr. Nowak's comparisons admissible, as they serve to illustrate that all materials degrade over time and that this degradation can be managed during product design. Dr. Nowak employed a reliable methodology rooted in his expertise in polymer chemistry and fiber properties, allowing the jury to determine the relevance of his examples regarding material degradation. Notably, Dr. Nowak acknowledged the lack of analogy between the two materials discussed, reducing potential jury confusion.

The United States challenges Dr. Nowak's assertion that body armor manufacturers could leverage Zylon degradation data in their vest designs, claiming he did not address whether Toyobo provided adequate information for such designs. They argue that his suggestion that manufacturers would seek further information from Toyobo is unsupported, as Second Chance did not request additional testing. Nevertheless, the Court maintains that Dr. Nowak's assertion about the necessity of considering degradation in product design is admissible, viewing the United States' concerns as relevant to the weight of the evidence rather than its admissibility.

In Opinion Four, Dr. Nowak states that kink bands are commonly found in lyotropic LCPs, including Zylon, and do not significantly affect the mechanical properties over time. The United States seeks to exclude this opinion, arguing that Dr. Nowak incorrectly assumed Toyobo lacked control over Zylon fiber post-manufacturing. They assert that Toyobo was involved in the selection of weavers and collaborated with Second Chance in developing certain vests, contradicting Dr. Nowak's assumption. Furthermore, they contest Dr. Nowak's expertise, arguing he is not qualified to comment on the ballistics industry's awareness of weaving-related damage to Zylon. The Court, however, admits Opinion Four, concluding that Dr. Nowak’s extensive experience in polymer chemistry supports his analysis of kink bands' effect on Zylon's suitability for bulletproof vests. The United States' critiques regarding Toyobo's control over the fiber are deemed expressions of disagreement with Dr. Nowak's conclusions rather than valid challenges to his methodology.

Dr. Nowak's Opinion Five emphasizes the importance of end-product testing over laboratory studies of polymer hydrolysis, countering the United States' argument that such testing is less relevant. The U.S. seeks to exclude this opinion, citing inconsistencies with Dr. Nowak's earlier testimony regarding Second Chance's used vest testing. However, the Court allows Opinion Five, clarifying that Dr. Nowak does not claim end-product testing is "more important," and any inconsistencies may serve as grounds for cross-examination.

In Opinion Twelve, Dr. Nowak critiques Dr. Lesser and Dr. Brookstein's views on red thread and asserts that Toyobo's quality control effectively monitors production. The U.S. argues this opinion is speculative due to Dr. Nowak's lack of insight into Toyobo's quality control processes. The Court agrees and excludes Opinion Twelve, stating Dr. Nowak's testimony is not based on specialized expertise.

Herbert Heuchert, a consultant for Toyobo, has over thirty years in the tire manufacturing industry, holding various positions at Uniroyal Goodrich. His experience includes overseeing manufacturing and quality control for materials like Kevlar, and he now runs a consulting firm focusing on these areas. Heuchert submitted affirmative and rebuttal reports in response to Dr. Brookstein, addressing the roles of Toyobo and body armor manufacturers in the supply chain involving Zylon. The United States has moved to exclude Heuchert's opinions, which Toyobo opposes.

Mr. Heuchert asserts that Toyobo fulfilled its obligations as a raw material supplier and that both Toyobo and body armor manufacturers implemented suitable quality control measures. In his rebuttal to criticisms regarding Zylon fiber, he emphasizes that the vulnerabilities of raw materials should be addressed during the design and assembly phases of product development, claiming Toyobo effectively identified and isolated defective Zylon. The United States challenges Mr. Heuchert's qualifications, arguing that his experience is limited to the tire industry and does not translate to the ballistics field. They contend he has not demonstrated how his background relates to the manufacturing processes of high-performance fibers for bulletproof vests. Conversely, Toyobo argues that Mr. Heuchert's expertise in safety-related industries and quality control management systems is pertinent and beneficial for the jury's understanding of supplier-manufacturer relationships. However, the Court determines that Mr. Heuchert's opinions lack reliability and relevance, as he fails to connect his tire industry experience to the ballistics industry effectively. The Court references legal precedents highlighting the necessity for expert witnesses to clearly articulate the applicability of their experience to their opinions. Ultimately, the Court finds that mere similarities in safety concerns between industries do not suffice to establish a relevant connection.

Mr. Heuchert's reports lack citation of accepted industry standards or relevant articles, relying solely on case documents and testimony. Toyobo attempts to connect Heuchert's tire industry experience to his opinions on the ballistics industry through a chart, but this only highlights the disconnect between his experience and his assertions. For example, while Toyobo claims Heuchert's experience as a raw material supplier and end product manufacturer supports his opinion on durability testing, Heuchert fails to demonstrate how tire industry standards apply to ballistics. His general claims about safety-related products lack specificity and do not aid the jury in understanding the responsibilities of suppliers and manufacturers in the ballistics context. The court finds Heuchert's expertise too broad and irrelevant, leading to the exclusion of his opinions. The court will also admit and exclude certain opinions and testimonies from other expert witnesses, instructing counsel to prepare their experts accordingly. A separate order will be issued reflecting these decisions.

The document outlines various legal motions and responses involving expert testimony in a case involving the United States and Toyobo. The United States has filed motions to exclude the testimonies of several experts: Dr. A.S. Abhiraman, Dr. Kazuyuki Yabuki, Dr. Robert M. Nowak, and Herbert Heuchert, with corresponding oppositions and replies from Toyobo. A rebuttal report by Dr. Phoenix, along with a supplemental report by Dr. Brookstein, addresses opinions from withdrawn experts Dr. Allen Price and Dr. Field, and also includes responses to Heuchert's opinions. Since the Court intends to exclude Heuchert's testimony, it will not consider the related portions of Dr. Brookstein's report.

Toyobo has also sought to exclude opinions regarding Second Chance's commercial warranty from both Dr. Riley and Mr. Rice, which are no longer relevant. Mr. Anastasi has revised his calculations to align with a prior Court ruling, and Toyobo does not oppose these updates. Both parties reference numerous legal precedents, emphasizing the importance of the case United States v. Science Applications Int'l Corp. The Court is also considering Toyobo's motion in limine regarding damage measures and upcoming jury instructions. Additionally, the Court notes that the United States did not pursue depositions for certain employees, weakening its argument against cross-examination opportunities. The issue regarding Dr. Yabuki's testimony, which he agreed not to offer during his deposition, is set to be resolved through a joint stipulation, so the Court will not address it further.

Dr. Yabuki retracted a reference from his report—a PowerPoint by government expert Dr. Amanda Forster—indicating he had not reviewed it. The Court determined that this retraction alone does not render Opinion One unreliable under the Daubert standard. The Court decided to exclude Opinion Nine without addressing the United States' arguments regarding Herbert Heuchert's expert report or Hexcel Corporation documents mentioned in Dr. Yabuki's report. Additionally, the United States sought to exclude topics on which Dr. Nowak claimed he had no opinion during his deposition, identifying seventeen such topics in a Proposed Order. Due to the lack of clarity in the United States' request about which specific opinions to exclude, the parties must submit a joint stipulation detailing any remaining disputed opinions from Dr. Nowak's report. This ambiguity also pertains to the potential exclusion of Opinion Three, which the United States did not specifically address in its filings. Finally, the parties have retracted their arguments concerning Second Chance's commercial warranty.