United States District Court, S.D. New York
February 18, 2004.
B&G PLASTICS, INC., Plaintiff, -against- EASTERN CREATIVE INDUSTRIES, INC., Defendant
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM AND ORDER
This is a patent infringement case involving two corporations engaged
in the production and sale of pre-knotted neckties. The parties submitted
a Joint Pre-Trial Order to the Honorable Richard M. Berman on September
15, 2003, listing their trial exhibits and including the direct testimony
of their trial witnesses. Each party subsequently submitted a motion
in limine to exclude portions of witness testimony and various
documents. The defendant, Eastern Creative Industries, Inc. ("Eastern"),
has moved to exclude nine of the plaintiff's exhibits and to strike a
portion of the testimony of the president of B&G Plastics, Inc.
("B&G"), Chester Kolton. (Defendant Eastern's Motion to Not Admit
Into Evidence Nine of Plaintiff's Exhibits and to Strike a Portion of the
Testimony of Chester Kolton ("Def. Motion")). The plaintiff has
cross-moved to exclude testimony of Eastern's president, John Najarian.
(Plaintiff's Cross Motion in Limine to Exclude John Najarian's Hearsay
and Opinion Trial Testimony ("Pl. Motion")). For the following reasons,
both motions are denied.
The plaintiff and defendant are both New Jersey corporations that
produce and sell pre-knotted ties and the hangers that display those
ties. On February 6, 1998, B&G filed a complaint against Eastern,
alleging patent infringement of U.S. Patent No. 5,556,014 ("the `014
patent"), and tortious interference with business relations. (Complaint
("Compl."), ¶¶ 6, 16). The `014 patent was issued to B&G on
September 17, 1996, and is entitled "Hanger Composite for Display of
Neckties with Preformed Knots." (United States Patent Number 5,556,014,
attached as Exh. 1 to Compl.). B&G claimed that a competing hanger
marketed by Eastern infringed the `014 patent. B&G argued that
Eastern had modified one of its clips to enable that clip to be used with
a B&G hanger. The plaintiff claimed that using this modified clip
with a B&G hanger constituted direct infringement of the `014 patent.
In a Report and Recommendation that was later adopted by Judge Berman, I
found that there were disputed issues of material fact with regard to the
validity of the `014 patent, and recommended against granting summary
judgment on that issue. B&G Plastics, Inc. v. Eastern Creative
Industries, Inc., 269 F. Supp.2d 450, 471 (S.D.N.Y. 2003).
B&G's summary judgment motion for tortious interference with
business relations related to a different set of patents. The defendant
owns two patents, U.S. Patent No. 4,337,539 ("the `539 patent") and U.S.
Design Patent No. 267,289 ("the `289 patent"). B&G
Plastics, 269 F. Supp.2d at 465. The plaintiff's claim
involved a series of communications initiated by Eastern regarding
its `289 and `539 patents, which it believed were being infringed by
B&G. In March 1995, the defendant came to believe that B&G was
manufacturing and selling a neck-tie support clip that infringed the `289
and `539 patents. Id. at 466. After seeking the advice of
counsel, Eastern sent a letter dated March 29, 1995 ("the March letter"),
informing B&G that its clip "appears to be substantially identical"
to the clip covered by the `289 and `539 patents. Id. The
letter further stated that if B&G continued to make or sell the
infringing article, it and others involved "will all be named as party
defendants." Id. The defendant provided a copy of this letter
to Steinberg Neckwear, a customer of both B&G and Eastern, on April
3, 1995. Id.
In response to Eastern's letter, B&G sought opinion of its own
patent counsel and was informed that the B&G clip did not infringe
Eastern's patents, and furthermore that the `289 patent was invalid and
therefore B&G was unable to infringe it. Id. at 467.
B&G's counsel then shared this information with Eastern's attorney by
letter on April 11, 1995. Id. Despite the opinion of its
counsel that there was no infringement, B&G decided to issue a "hold
harmless" letter to its customers on April 13, 1995 (the "hold harmless
letter"). This letter informed customers that B&G would take
responsibility for paying "any and all monetary damages" that could
potentially arise if a judgment were entered against B&G "for
infringement of [the `539 or `289 patents]." Id.
After receiving the opinion of B&G's counsel, Eastern obtained
a second patent counsel, who advised it that B&G's clips did
not likely infringe on Eastern's patents. Id. After hearing
this, Eastern stopped pursuing an infringement claim against B&G.
Eastern also claimed that it advised Joseph Steinberg of Steinberg
Neckwear that it would not be bringing any infringement action against
Although it was satisfied that B&G's clips did not infringe its
patents, Eastern still believed that other companies were infringing.
Eastern therefore sent a letter to all of its customers on June 16, 1995
("the June letter"), stating that "[i]t is our understanding that one or
more companies are selling pretied neckties having a knot support
assembly which copies and infringes on the patented knot support assembly
of the ['539] patent." Id. The letter went on to state that
Eastern was "aware of another pre-tied necktie available in the
market-place having a different knot support assembly which does not
infringe on the ['539] patent." Id. According to Eastern, this
last paragraph was included to "cover  the units sold by B&G
Plastics and reduce  the likelihood of a claim being asserted against
[Eastern] by B&G that [Eastern's] notice letter implies that all
third-party units infringe on [its] patent." Id.*fn1
In its summary judgment motion, B&G claimed that the `289 patent
was invalid and that its business relationship with Steinberg Neckwear
was compromised when Eastern shared a copy of
the infringement letter with Steinberg. B&G asserted that
Eastern made the allegations in bad faith and that the letters
constituted tortious interference. Id. Additionally, B&G
asserted that after receiving the June letter from Eastern, customers
would assume that the infringing goods were made by B&G because of
the hold harmless letter B&G had issued to its customers earlier.
Id. In considering this claim, I found that there was not
sufficient evidence from which a reasonable jury could conclude that
Eastern had alleged patent infringement in bad faith. Without bad faith,
a requirement for a claim of tortious interference, B&G could not
support this claim. The plaintiff's motion for summary judgment on the
tortious interference claim was therefore denied. Id. at
Eastern, in turn, moved for summary judgment with respect to B&G's
patent infringement claim and the tortious interference claim. The
defendant claimed that there was no direct infringement of the `014
patent because of the existence of an implied license. Because the
validity of the `014 patent was a threshold consideration for determining
Eastern's motion i.e., if the `014 patent was found to be
invalid, it would follow as a matter of law that Eastern's use of its own
clip with B&G's hanger did not infringe it summary judgment
was denied on this claim. Id. at 471. Finally, I found that
B&G was not able to demonstrate that Eastern had acted in bad faith
in informing the industry of potential infringement of its patent, nor
was it able to show that it suffered any damages as a result.
Id. at 470-71. Accordingly,
the defendant's motion for summary judgment on the tortious
interference claim was granted. Id. at 471.
The purpose of a motion in limine is to allow the trial court
to rule in advance of trial on the admissibility and relevance of certain
anticipated evidence. See Luce v. United States, 469 U.S. 38,
41 n.4 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
1996); United States v. Paredes, 176 F. Supp.2d 192, 193
(S.D.N.Y. 2001). Evidence should be excluded on a motion in
limine only when the evidence is clearly inadmissible on all
potential grounds. See Baxter Diagnostics, Inc. v. Novatek Medical,
Inc., No. 94 Civ. 5220, 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25,
1998). To be admissible, evidence must be both relevant and reliable.
Evidence "having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence" is relevant.
Fed.R.Evid. 401; see Amorgianos v. National Railroad Passenger Corp.,
303 F.3d 256, 265 (2d Cir. 2002).
A. Defendant's Motions
1. Chester Kolton's Testimony
The defendant first moves to strike some of the testimony of Chester
Kolton on the ground that it is no longer relevant to the case. The
defendant has identified several portions of Mr. Kolton's testimony that
allegedly relate solely to the tortious interference claim that was
previously dismissed. Eastern reasons that it would be "an unnecessary
burden" to "have to deal with
allegations relating to tortious interference at trial." (Def.
Motion at 2).
The first portion of Mr. Kolton's testimony that the defendant has
identified relates to an exchange of letters between Eastern and B&G
regarding the `289 and `539 patents. Mr. Kolton testified that after
receiving the March letter from Eastern in which it accused B&G of
infringing its patents, B&G received an opinion from its patent
counsel that the new B&G clip would not infringe either of Eastern's
patents. (Def. Motion, Exh. A at 5). After receiving this opinion,
B&G's counsel responded to Eastern, denying the charges of
infringement and providing a copy of the opinion that had been given to
B&G regarding this issue. (Def. Motion, Exh. A at 5).
In the second selected portion of Mr. Kolton's testimony, he testifies
that in June, Eastern's own patent counsel informed it that the B&G
clip did not infringe Eastern's patents; yet "charges of infringement to
B&G's customers continued." (Def. Motion, Exh. A at 6). Mr. Kolton
makes several additional references to the fact that Eastern continued to
charge B&G and its customers with infringement of the `289 and `539
patents despite having received contrary information from its patent
counsel. (Def. Motion, Exh. A at 7, 9). According to Eastern, this
testimony "constitute [s] an attempt to retry factual issues (and in
particular the bona fides of Eastern's charges of infringement) that have
been resolved in Eastern's favor by Summary Judgment." (Def. Motion at
B&G asserts that Mr. Kolton's testimony does not relate only
to the tortious interference claim, but also to the inducement of
infringement claims that still remain in the case. (Plaintiff's Response
to Defendant's Motion to Not Admit and to Strike ("Pl. Resp. Memo.") at
2). The plaintiff argues that "[a] critical element of Defendant's
inducement was its charge that the B&G clips infringe one of
Defendant's patents, a charge which Defendant has never withdrawn. Thus,
portions of the direct testimony of Chester Kolton . . . necessarily
relate to charges of patent infringement asserted by Defendant against
Plaintiff and its customers." (Pl. Resp. Memo, at 2). The issue is thus
whether the selected portions of Mr. Kolton's testimony could be relevant
for the plaintiff's inducement claim, or whether they relate solely to
the previously dismissed claim of tortious interference.
B&G claims that Eastern infringed the `014 patent both directly,
through assembly of the defendant's clips with the plaintiff's hanger,
and indirectly, by selling its modified clip to customers with knowledge
that the clip would be assembled with B&G's patented hanger. B&G
asserts that by continuing to sell these clips, Eastern induced its
customers to infringe B&G's patent.
Direct infringement of a patent is governed by 35 U.S.C. § 271 (a),
Except as otherwise provided in this title,
whoever without authority makes, uses, offers to
sell, or sells any patented invention, within the
United States or imports into the United States
any patented invention during the term of the
patent therefor, infringes the patent.
Under section 271(b), one who "actively induces infringement of a
patent shall be liable as an infringer," and under section 271(c),
one who "sells . . . a material or apparatus for use in practicing a
patented process, constituting a material part of the invention, knowing
the same to be especially made or especially adapted for use in an
infringement of such patent . . . shall be liable as a contributory
infringer." A claim for inducement of infringement under section 271(b)
requires the plaintiff to prove that the accused infringer knowingly
aided and abetted another's direct infringement of the patent. See
Rodime PLC v. Seagate Technology, Inc., 174 F.3d 1294
, 1306 (Fed.
Cir. 1999). Additionally, "lability for either active inducement of
infringement or for contributory infringement is dependent upon the
existence of direct infringement." Joy Technologies, Inc. v. Flakt,
Inc., 6 F.3d 770
, 774 (Fed. Cir. 1993). Therefore, in order to
demonstrate inducement of infringement, B&G would need to establish
first, that using the modified Eastern clip with the B&G hanger
constituted direct infringement of B&G's patent, and second, that
Eastern "possessed specific intent to encourage another's infringement
and not merely that the defendant had knowledge of the acts alleged to
constitute inducement." Manville Sales Corp. v. Paramount
Systems, Inc., 917 F.2d 544
, 553 (Fed. Cir. 1990).
B&G contends that the assembly of Eastern's clip (the subject
matter of the `289 and `539 patents) with B&G's hanger constitutes a
direct infringement of the `014 patent. (Pl. Resp. Memo. at 7).
Accordingly, B&G claims that the attempts by Eastern to persuade
customers to utilize its clip instead of the clip offered by B&G
constituted inducement of infringement. (Pl. Resp. Memo, at 7-8).
Because it was a "two-party market" where customers were limited to using
a clip from either Eastern or B&G, urging customers not to use the
B&G clip necessarily encouraged them to use the clip produced by
Eastern. (Pl. Resp. Memo, at 7). Given this, B&G asserts that Mr.
Kolton's testimony is relevant to the issue of inducement since it
describes attempts by Eastern to persuade customers of both Eastern and
B&G not to purchase the plaintiff's clips. (Pl. Resp. Memo, at 7). If
a customer believed the warnings contained in Eastern's letters that
B&G was violating Eastern's patents, "the customer is left with only
the option of purchasing the clips from Eastern." (Pl. Resp. Memo, at 7).
The plaintiff claims that Mr. Kolton's testimony will demonstrate (1)
that Eastern knew (by reason of the letter from B&G's patent counsel
as well as later information received by its own counsel) that the `289
and `539 patents were invalid and (2) that despite having this knowledge,
Eastern induced its customers to use its clip instead of B&G's clip
which was protected by the `014 patent. Therefore, "Kolton's testimony as
to Eastern's charges of infringement made subsequent to receiving the
opinion of Eastern's own counsel that Plaintiff did not infringe its
patent are relevant to whether Eastern knowingly acted to induce its
customers to infringe." (Pl. Resp. Memo, at 8).
The defendant claims that B&G is attempting to "re-litigate a
matter (tortious interference) which has been resolved in Summary
Judgment adverse to B&G." (Defendant's Reply in Support of
Defendant's Motion to Not Admit and to Strike ("Def. Reply Memo.")
at 1). The defendant also argues that the exchanges Mr. Kolton describes
were part of "Eastern's attempt to assert its patent rights" and
therefore "activity which is legitimate as a matter of law." (Def. Reply
Memo, at 1). While the defendant is correct in its assertion that Mr.
Kolton's testimony would have been relevant to the issue of tortious
interference, that does not necessarily render it irrelevant to the issue
of inducement. The finder of fact will ultimately determine the validity
of each patent at issue and whether Eastern did induce other customers to
infringe B&G's patent. The fact that Mr. Kolton's testimony, standing
alone, would not be conclusive, does not render it inadmissible. See
Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 927
(2d Cir. 1977) ("Evidence need not be conclusive in order to be
Mr. Kolton's testimony could be relevant to the issue of whether
Eastern ever induced customers to infringe upon B&G's patent. His
testimony describes efforts Eastern made to persuade customers to use its
clip as opposed to B&G's. If it is shown that Eastern's patents were
in fact invalid and that Eastern had good reason to believe this to be
true, Mr. Kolton's testimony could help form the basis of the inducement
claim. Therefore, the defendant's motion to strike portions of Mr.
Kolton's testimony is denied.
2. Plaintiff's Documents
The defendant next moves to strike nine of the plaintiff's
exhibits listed in the pre-trial order on the ground that all
relate to the tortious interference claim. (Def. Motion at 2 & Exh.
B). The plaintiff claims that these documents "show Eastern's efforts to
urge customers to purchase its own clips rather than B&G's" and are
thus relevant to the inducement of infringement claim. (Pl. Resp. Memo,
at 9). The exhibits the defendant wishes to exclude are as follows:
(1) Exh. 9: March 29, 1995 letter from Eastern's
patent counsel to B&G charging that if B&G
were to market its clip it would infringe the `289
and `539 patents.
(2) Exh. 10: Letter dated April 3, 1995, to Joe
Steinberg from John Najarian enclosing a copy of
the March letter.
(3) Exh. 11: Letter dated April 11, 1995, from
B&G's patent counsel responding to the March
letter and enclosing copies of the
non-infringement opinion it gave to B&G.
(4) Exh. 12: B&G's hold harmless letter issued
to its customers.
(5) Exh. 13: List of manufacturers to whom the
hold harmless letter was sent.
(6) Exh. 16: Letter dated June 16, 1995, from
Eastern's patent counsel to John Najarian stating
that the B&G clip did not infringe Eastern's
(7) Exh. 17: Letter dated June 19, 1995, from John
Najarian to Together Crafts charging that certain
unidentified clips infringe the `539 patent, but
that others do not.
(8) Exh. 28: Letter dated August 8, 2000, from
Eastern's patent counsel to Tom [U]re and Dough
Baron of Castle Neckwear Co., charging
infringement of the `539 patent by a necktie
support assembly manufactured by Castle Neckwear.
(9) Exh. 29: Letter dated Sept. 28, 2001, from Mr.
Ure stating that the clip referred to in the
earlier letter was purchased from B&G in Hong
These documents relate to the same exchanges to which Mr. Kolton has
testified. Although they certainly were most relevant to the plaintiff's
tortious interference claim, they could be relevant to the inducement of
infringement claim as well. They could offer support for the plaintiff's
claim that Eastern knowingly urged other customers to infringe the
B&G patent. Based on the same rationale detailed above, these
documents should not be excluded.
B. Plaintiff's Motion*fn2
The plaintiff has cross-moved to exclude portions of the testimony of
Eastern's president, John Najarian. B&G claims this testimony "is
comprised of hearsay" and "includes opinion testimony." (Pl. Motion at
The plaintiff has identified several portions of Mr. Najarian's
testimony that allegedly constitute inadmissible hearsay. The testimony
the plaintiff objects to is as follows:
Line 42: At some point in 1994,
representatives from two of my customers, Mr. Joe
Steinberg of Steinberg Neckwear and Mr. Clem
Igarta of Castle Neckwear, informed me that K-mart
had adopted a B&G design and would only buy
clip-on ties having B&G hangers and clips.
This B&G design did not have two holes.
Instead, it had a single oval
hole in the lever arm of the clip, as I had
suggested to Mr. Schlags, along with the B&G
Line 43: Two months later, still in
1994, Mr. Steinberg contacted me and asked me to
put a single oval hole in the lever arm of my
Line 44: Mr. Steinberg said that he
needed my clips for use with his clip on ties,
with holes in the lever arms, because the clips he
had gotten from B&G were breaking.
Line 45: Mr. Steinberg also told me that
Mr. Kloeckner, the buyer for K-Mart, had informed
Mr. Steinberg that K-Mart had changed its mind,
and had indicated that it was alright [sic] for
Steinberg to buy and use Eastern clips in the
clip-on ties Steinberg made for K-Mart.
Line 49: Also in 1995, Mr. Igarta, the
production manger of my customer Castle Neckwear,
called me and stated that B&G clips were
breaking at the hinges, that the lever arms were
disengaging from spring, and that the lever arms
were snapping in half.
Line 50: Mr. Igarta informed me that
because of these flaws, K-Mart had said that
Castle could buy necktie knot forming clips from
(Pl. Motion at 3 & Exh. 1 at 11-13). These passages are all
included in the section of Mr. Najarian's testimony dealing with the
defendant's defense to B&G's infringement claim. Eastern claims that
B&G customers were granted an implied license upon purchasing the
B&G hanger to combine that hanger with any clip, regardless of the
manufacturer. Because of this implied license, Eastern asserts that its
customers could not have infringed B&G's patent. Mr. Najarian has
testified that in the fall of 1993, a representative from B&G
approached him to discuss modifying the lever arm of Eastern's tie clip
so that it would fit with B&G's new hanger. (Pl. Motion, Exh. 1 at
10). Although Mr. Najarian did not modify his clips initially, he
eventually did change the Eastern clip to enable it to be used with the
B&G hanger. He claims this
modification was made at the request of several customers,
including Mr.Steinberg and Mr. Igarta. (Pl. Motion, Exh. 1 at 11-13).
Hearsay is defined as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Unless
an exception applies, this type of statement is inadmissible.
Fed.R.Evid. 802. A statement not offered for its truth is not hearsay, and is
admissible if relevant and reliable.
Whether Mr. Najarian's testimony should be precluded depends on the
purpose for which it is being offered. The plaintiffs are correct in
their assertion that the selected statements would be hearsay if offered
as a factual predicate for the implied license defense. Mr. Najarian
would then be recounting the various exchanges as proof that B&G had
given customers an implied license to use other clips with its hanger.
Rule 801 would clearly prohibit that type of testimony as the finder of
fact would be forced to judge the reliability of the information without
the benefit of the initial declarant's testimony. The statements are
admissible, however, as circumstantial evidence of Mr. Najarian's state
of mind, since this is relevant to the issue of whether Eastern willfully
infringed the plaintiff's patent. To the extent that Mr. Najarian's
testimony is offered to demonstrate that he believed the customers to
have been given permission to use Eastern's clips with B&G's hanger,
it does not fall within the definition of hearsay as it is not being
offered to prove the
truth of the matter asserted. See Cary Oil Co. v. MG Refining
& Marketing, Inc., 257 F. Supp.2d 751, 762 (S.D.N.Y. 2003).
2. Opinion Testimony
The plaintiff also objects to several paragraphs of Mr. Najarian's
testimony on the ground that they consist of "improper opinion
testimony." (Pl. Motion at 4).*fn3 The plaintiff has identified two
paragraphs where Mr. Najarian is purportedly offering his opinion on
issues of validity and infringement despite the fact that he is not a
patent expert. (Pl. Motion at 4). Mr. Najarian testified as follows:
Line 31: In my opinion, removing a piece
of metal so that it does not get in the way of the
button in a folding tail plastic display hanger is
a design modification that would be taken by
anyone who has designed plastic display hangers
and necktie forming clips.
Line 83: It appears from all of these
ads and the web page, as well as from my
observations in the marketplace, that B&G has
always sold its tie clips and security hangers as
items which can be purchased either individually
(Pl. Motion, Exh. 1 at 9, 21).
Rule 701 of the Federal Rules of Evidence provides that "[i]f the
witness is not testifying as an expert, the witness' testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of
the witness, (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of
Rule 702." Lay opinion testimony is admissible when the inference is a
conclusion drawn from a series of personal observations over time. 4 Jack
B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence § 701.03 (Joseph M. McLaughlin, ed., 2d ed. 2003).
Courts have permitted lay witnesses to testify under Rule 701 to their
opinions when those opinions are based on a combination of their personal
observations of the incident in question and background information they
acquired through earlier personal observations. See Securitron
Magnalock Corp. v. Schnabolk, 65 F.3d 256, 265 (2d Cir. 1995) ("A
company president certainly is capable of projecting lost profits where
the projection is based on evidence of decreased sales."). Moreover, a
witness' experience and specialized knowledge obtained in his or her
vocation should certainly be taken into consideration. The fact that the
lay opinion testimony bears on the ultimate issue in the case does not
render it inadmissible. Fed.R.Evid. 704(a); see United States v.
Rea, 958 F.2d 1206, 1214-15 (2d Cir. 1992) ("Since neither
Rule 701 nor Rule 704(a) limits the subject matter of lay opinion testimony,
there is no theoretical prohibition against allowing lay witnesses to
give their opinions as to [the ultimate issue in the case]."). The
admissibility of Mr. Najarian's testimony therefore depends upon whether
it satisfies the rational-basis and helpfulness requirements of Rule 701.
The rational-basis requirement of Rule 701 "is the familiar requirement
of first-hand knowledge or observation." Liqhtfoot v. Union Carbide
Corp., 110 F.3d 898, 911 (2d Cir. 1997)(quoting Fed.R.Evid. 701
Advisory Committee Note, 1972 Proposed Rules). As the president of
B&G and someone who has been "involved in the design, manufacture and
marketing of neck-tie knot forming clips for over 40 years" (Pl. Motion,
Exh. 1 at 3), Mr. Najarian certainly has sufficient experience in the
industry to offer an opinion on his perception of the benefits of certain
design modifications as well as observations he has made about the tie
clip market. His opinion is based on both his observations of the clips
and hangers at issue and background information he has acquired about the
industry from his experience. As such, it is sufficiently reliable to be
offered under Rule 701.
Moreover, Mr. Najarian's testimony could be useful in helping the trier
of fact understand both the industry and the designs in question. "This
helpfulness requirement is designed to provide assurance against the
admission of opinions which would merely tell the jury what result to
reach." Liqhtfoot, 110 F.3d at 912 (internal quotations and
citations omitted). Although he is not an expert, Mr. Najarian's
testimony can be helpful in describing a specialized industry to the
trier of fact. His testimony is sufficiently helpful to be admissible.
For the reasons stated above, the defendant's motion in
limine and the plaintiff's cross-motion in limine are