UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Collision Communications, Inc.

v. Civil No. 20-cv-949-LM Opinion No.

P Nokia Solutions and Networks OY

ORDER

Plaintiff Collision Communications, Inc., brings claims against defendant

Nokia Solutions and Networks OY for breach of contract and breach of the implied

covenant of good faith and fair dealing. The parties’ dispute arises out of Collision

and Nokia’s negotiations toward a commercial technology partnership. In general,

Collision asserts that in June 2017 the parties formed a binding, $23 million oral

contract for Nokia to use Collision’s technology, which Nokia breached. Collision

also brings claims for promissory estoppel and quantum meruit based on the same

series of events.

Nokia moves to exclude the expert opinions of Justin McLean (doc. no. 161)

and Dr. Istvan Jonyer (doc. no. 162), who are, respectively, Collision’s designated

damages and software engineering experts. Collision moves (doc. no. 157) to

exclude portions of opinions proffered by Nokia’s designated damages expert,

William Scally.

Nokia’s motions to exclude Dr. Jonyer’s opinions and McLean’s opinions are

denied in part and denied without prejudice in part. Collision’s motion to exclude

portions of Scally’s opinions is granted. STANDARD OF REVIEW

Federal Rule of Evidence 702 is “[t]he touchstone for the admission of expert

testimony in federal court litigation . . . .” Crowe v. Marchand,

(1st

Cir. 2007). Under that rule, an expert witness may offer opinion testimony 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.

Fed. R. Evid. 702 (effective until December 1, 2023).1 The party who is the

proponent of the expert opinion bears the burden of showing that it is admissible by

a preponderance of the evidence. See Martinez v. United States,

(1st Cir. 2022); United States v. Tetioukhine,

(1st Cir. 2013); see also

Fed. R. Evid. 702 advisory committee’s note to 2023 amendment (explaining that

2023 changes “clarify and emphasize” that preponderance of the evidence standard

applies under Rule 702).

The trial judge serves as a “gatekeeper.” See Daubert v. Merrell Dow

Pharm., Inc.,

(1993). When an adverse party lodges an objection

1 On December 1, 2023, among other changes, the present language of Rule

702(d) will be amended and replaced with “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” This change “emphasize[s] that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology,” but does not impose “any new, specific procedures.” Fed. R. Evid. 702 advisory committee’s note to 2023 amendment. The result here is the same regardless of whether the pre- or post- 2023 amendment language is applied. 2 to expert testimony under Rule 702, the court must determine whether the

testimony satisfies the relevant foundational requirements. See

“There is an

important difference between what is unreliable support and what a trier of fact

may conclude is insufficient support for an expert’s conclusion.” Milward v. Acuity

Specialty Prods. Grp., Inc.,

, 15 (1st Cir. 2011). “Vigorous cross-

examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.” Daubert,

.2

BACKGROUND

The background facts of this case are more extensively set out in the court’s

recent order on Nokia’s motion for summary judgment. Doc. no. 208. In short,

Collision is a New Hampshire-based company that developed a software algorithm

which helps with the processing of cellular signals. Nokia produces, among other

products, base stations, which are devices that collect, process, and disseminate

cellular signals. This case relates to the alleged formation of a contract between

Collision and Nokia to integrate and license Collision’s technology for use in Nokia’s

base station to enhance the base station’s performance.

2 It does not appear that either party requested a hearing on the motions. As there is no novel issue here, the court did not deem a hearing necessary to decide the motions. There is no prescribed procedure for addressing Daubert motions. The First Circuit has held that a hearing is not required to determine the reliability of a proffered expert opinion so long as no novel issue is raised. See Gonzalez-Arroyo v. Drs.’ Ctr. Hosp. Bayamon, Inc.,

(1st Cir. 2022) (citing United States v. Phillipos,

(1st Cir. 2017); United States v. Pena,

, 111 n.4 (1st Cir. 2009)). 3 Collision asserts that as part of its performance under the alleged contract it

began implementing its software onto the hardware platform used by Nokia’s base

station. Collision undertook this work over a period of several months until the

parties’ discussions broke down. Nokia denies that any contract was formed, that it

ever made any binding promises, or that it owes Collision any damages. The court

granted in part and denied in part a motion for summary judgment filed by Nokia.

Collision’s remaining claims in this case are for breach of contract; breach of the

implied covenant of good faith and fair dealing; promissory estoppel; and quantum

meruit.

DISCUSSION

Nokia moves to exclude two of Collision’s proffered expert witnesses: its

software expert, Dr. Istvan Jonyer, and its damages expert, Justin McLean.

Collision moves to exclude testimony from Nokia’s damages expert, William Scally.

The court first addresses Nokia’s separate challenges to Dr. Jonyer’s and McLean’s

opinions, and then considers Collision’s challenges to Scally.

I. Nokia’s motion to exclude Dr. Jonyer

In support of its claims, Collision retained Dr. Jonyer to opine about the

status or progress of Collision’s work integrating its technology with Nokia’s base

stations; the amount of engineer time Collision dedicated to the integration project;

and Collision’s engineering team and process in relation to industry standards.

Nokia moves to exclude these opinions for assorted reasons.

4 A. Whether Dr. Jonyer’s opinion that the integration project was nearing completion should be excluded

To start, Nokia moves to exclude Dr. Jonyer’s opinion that the integration

project was nearing completion (1) because Dr. Jonyer is unqualified to give such an

opinion and (2) because Dr. Jonyer based his opinion “almost exclusively” on

information provided to him by Collision’s chief technology officer, Joe Farkas.

Collision objects and responds that “Dr. Jonyer’s education credentials and two-

decade career in the field of software development qualify him to provide his expert

opinion on the status of Collision’s software development project.” Doc. no. 173 at

13. Collision observes that “Dr. Jonyer has specific experience with porting and

integration projects—at least three separate times—including on cellular

technology projects.” Id.

1. Dr. Jonyer is qualified to opine about the progress of the integration project.

Nokia’s objection is premised on Dr. Jonyer’s lack of experience specific to

integration (or “porting”) of software to base stations. Dr. Jonyer, however,

disclosed sufficient education and experience in computer science and software

development to qualify him to opine on the status of the integration project. Dr.

Jonyer does not require extensive experience with cellular technology to opine about

the status of the integration project because such opinion relates to Collision’s

software development process. This process involves taking the existing algorithm

and the accompanying software optimizations and integrating them with the

computer hardware used by Nokia’s base station. The opinion does not pertain to

inventing new cellular technology or the efficacy of Collision’s technology. In other

5 words, Dr. Jonyer’s opinion about the project’s status is based primarily on his

experience in software engineering and not the intricacies of cellular technology.

Collision has shown by a preponderance of the evidence that Dr. Jonyer is qualified

to render an opinion about the project’s status. Whether Dr. Jonyer’s credibility is

affected by the extent or recency of his experience in a particular professional

subfield is a matter properly reserved for the jury.

2. Dr. Jonyer’s opinion is not inadmissible because he relied in part on information provided to him by Joe Farkas.

Collision has also shown by a preponderance of the evidence that Dr. Jonyer’s

opinion as to the project’s status is sufficiently reliable. An expert may rely on

hearsay evidence so long as he “form[s] his own opinions by applying his extensive

experience and a reliable methodology to the inadmissible materials.” Tr. of Bos.

Univ. v. Everlight Elecs. Co.,

(D. Mass. 2015) (quoting

United States v. Mejia,

(2d Cir. 2008), and citing Int’l Adhesive

Coating Co., Inc. v. Bolton Emerson Intern., Inc.,

(1st Cir. 1988)).

An expert thus cannot “parrot” or summarize the out-of-court statements of others.

(citing United States v. Brownlee,

(7th Cir. 2014)); United

States v. Luna,

(1st Cir. 2011) (“[T]he entirety of [the expert’s]

testimony cannot be the mere repetition of ‘the out-of-court statements of others.’”);

United States v. Cormier,

(1st Cir. 2006).

Contrary to Nokia’s argument, Dr. Jonyer’s does not merely repeat or

“parrot” Farkas’s statements as to the status of the integration project. In his

expert report, Dr. Jonyer explained that, in addition to speaking with Farkas, he

6 examined Collision’s records about the progress on the project and analyzed the

type of modifications that Collision’s engineers made to the project’s source code as

the project progressed. Applying his experience in the field as both a programmer

and manager of software engineering projects, Dr. Jonyer’s opinion was that the

project was nearing completion, meaning more specifically that the project had

reached a point where Collision needed to test the software “to make sure that it

integrated properly with” Nokia’s base station. See also doc. no. 162-3 at 19

(“[W]hat remains is ensuring that once these implemented technologies or ported

technologies are tested on the [base station], they work as expected and work in

conjunction with Nokia’s software.”). Dr. Jonyer’s opinion about the progress of the

project is based on all the information he gathered, including – but not limited to –

Farkas’s statements. As Dr. Jonyer stated in his deposition, rather than taking

Farkas’s word about the progress of the project, “the data was supporting [Farkas’s]

sentiment.” Doc. no. 162-3 at 18. To the extent Nokia wishes to argue that Dr.

Jonyer incorrectly weighed certain sources of information over others in reaching

his opinion, it is a matter for cross-examination and presentation of contrary

evidence, not exclusion.

B. Whether Dr. Jonyer’s opinion about the amount of time Collision engineers spent working on the integration project is unreliable.

Next, Nokia contends that Dr. Jonyer’s opinion about the time Collision

engineers spent working on the integration project is unreliable because Dr. Jonyer

based his opinion on incomplete data from time-tracking software known as “Jira.”

Collision responds that Nokia mischaracterizes Dr. Jonyer’s opinion, as he did not

7 opine about the precise amount of time that Collision’s engineers spent working on

the integration project nor did he rely solely on the Jira time-tracking logs. Rather,

Collision asserts that Dr. Jonyer only used the Jira time-tracking logs to help him

obtain a “rough understanding” of the relative amount of time that Collision was

working on different projects. To form his opinion, Dr. Jonyer also relied on

Collision’s source code repositories and version control records, issue-tracking data,

deposition testimony of witnesses, and discussions with Farkas.

As noted above, to be admissible an expert opinion must be, inter alia, “the

product of reliable principles and methods.” Fed. R. Evid. 702; United States v.

Jackson,

(1st Cir. 2023). This means the conclusions must be

rendered in a “scientifically sound” and “methodologically reliable fashion.”

Gonzalez-Arroyo,

. But the court must not conflate an opinion that

may rely on weak factual footing with an opinion that is “unreliable,” because the

former is admissible while the latter is not. See, e.g.,

(affirming district

court’s exclusion of expert who based opinions on “assumptions” about records but

did not actually review the pertinent records); Jackson,

–52

(affirming district court’s admission of expert who supported opinion with non-

specific references to books, periodicals, online research, databases, and notes

compiled by others); see also Fed. R. Evid. 702 advisory committee notes to 2023

amendments (explaining that the standard “does not permit the expert to make

claims that are unsupported by the expert’s basis and methodology”). An unreliable

opinion is based on the expert’s ipse dixit, meaning the expert’s unsupported

8 assertions. An opinion with a weak or questionable factual footing is admissible

because despite its arguable shortcomings it still has some factual footing. See

Gonzalez-Arroyo,

.

The question of reliability or support goes to the expert’s process for reaching

his opinion and not the conclusions themselves. See

Still, however, the court

must consider the expert’s conclusions to check that there is not “too great an

analytical gap between the data” and the conclusion. See

But the court cannot

invent these gaps or widen them. See id.; Gen. Elec. Co. v. Joiner,

(1997). In other words, an expert opinion is not inadmissible simply because the

court or a party’s lawyer can pose sensible questions challenging whether the

expert’s conclusions follow from the support he or she provided. See Milward, 639

F.3d at 23; see also Fed. R. Evid. 702 advisory committee notes to 2023

amendments (stating that the court is not required “to nitpick an expert’s opinion in

order to reach a perfect expression of what the basis and methodology can support”

and observing that “[t]he Rule 104(a) standard does not require perfection”).

Dr. Jonyer’s conclusions about the amount of time Collision spent working on

the integration project are sufficiently reliable to be admitted. Dr. Jonyer stated in

his expert report that he relied on more than just the incomplete time log data.

Indeed, Dr. Jonyer acknowledged in his expert report that it would be “improper to

treat the time logs as a definitive snapshot of every hour worked by every Collision

employee,” so he duly considered other evidence. Doc. no. 162-5 at 6 (Dr. Jonyer

supplemental opinion).

9 Specifically, in addition to the logs, Dr. Jonyer asserts that he analyzed

Collision’s records of each engineer’s contributions to the integration project’s source

code and considered Collision’s records about its progress on the integration project,

which were tracked by the Jira software in addition to the time logs.3 Dr. Jonyer

states that he also considered deposition testimony transcripts and information

obtained from Joe Farkas. Collision has shown by a preponderance of the evidence

that all this information – considered together by a person with qualifications like

those Dr. Jonyer possesses – can logically provide support to an opinion about the

amount of work Collision put into the integration project.

Dr. Jonyer’s opinion is not unreliable because there may be some inherent

uncertainty in Dr. Jonyer’s conclusion considering that some of the information he

relied on was incomplete.4 Nor is Dr. Jonyer’s opinion unreliable because Nokia can

identify arguments for why Dr. Jonyer’s opinion could be incorrect. To exclude an

expert opinion only because an argument against the opinion can be identified

exceeds the court’s “gatekeeper” role and invades the jury’s right to evaluate the

3 Doc. no. 162-4 at 68 (“Jira can be used for both time tracking and issue

tracking, and Collision used Jira for both of these purposes. Time tracking and issues tracking are both organized into projects, which can be cross-referenced. Issue tracking is done by opening tickets and associating them with a work unit, which could be New Features, Improvements, and Bugs (and other custom created issue types), which can be organized into ‘buckets’ called Epics. Tasks can also have sub- tasks.”).

4 In his deposition, Dr. Jonyer readily acknowledged that there is uncertainty

in his opinions. Cf. Fed. R. Evid. 702 advisory committee notes to 2023 amendments (“Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error.”). 10 opinion and Nokia’s criticisms for itself. See, e.g., Milward, 639 F.3d at 23. Indeed,

Nokia has disclosed a competing expert who reached a different opinion about the

amount of time Collision’s engineers worked on the integration project using much

of the same information. See doc. nos. 173-8 (Giulio Amodeo expert opinion stating

that he relied on “the documents, source code material, JIRA time logs, and related

information . . . .”); 162-5 at 6 (Dr. Jonyer supplemental opinion explaining

disagreements with Amodeo’s contrary opinion). It is up to the parties to present

their competing arguments for and against the other’s opinion to the jury, and for

the jury to decide which opinion is superior by assigning weight and credibility to

the expert testimony.

Nokia’s motion to exclude Dr. Jonyer’s opinion in this respect is denied.

C. Relevance of Dr. Jonyer’s opinion

Lastly, Nokia contends that Dr. Jonyer’s opinions about the adequacy of

Collision’s engineering process, its source code, and its engineering team with

reference to industry standards are irrelevant and would not help the trier of fact.

Collision responds that these opinions are relevant to its claims for damages based

on promissory estoppel and quantum meruit, for which Collision must establish an

entitlement to damages based on the work it performed.5 Collision also contends

that Nokia will argue that Collision had not completed much of the integration

project so Dr. Jonyer will rebut that argument.

5 Collision also contends that the opinions are relevant to its claim under the

New Hampshire Consumer Protection Act, RSA 358-A, but the court has now granted summary judgment in Nokia’s favor as to that claim. 11 Assuming that Collision’s representations about the issues for trial are

accurate, the court finds that Dr. Jonyer’s opinions on these subjects would be

relevant and helpful to the trier of fact. Nokia’s motion is denied without prejudice.

This ruling is in limine, so Nokia may renew its objection if the pretrial or trial

issues unfold in such a way that Dr. Jonyer’s opinions become, or are revealed to be,

irrelevant or unhelpful to the trier of fact.

II. Motion to exclude McLean’s opinions

Nokia also moves to exclude McLean’s opinions, which, generally stated, are

that Collision suffered approximately $23 million in expectation damages and $1.3

or $1.5 million in reliance damages6 and that Collision is entitled to various

amounts in prejudgment interest depending on the nature of damages awarded and

whether New Hampshire or Delaware statutory rates apply. Nokia contends that

McLean’s calculations are unreliable because he relied on Dr. Jonyer’s opinion and

because he added an “unsupported claim for delay damages.” Nokia also contends

that McLean’s opinion about the amount of prejudgment interest is a matter for the

court to determine, not the jury.

6 McLean calculated reliance damages, which he and the parties also sometimes refer to as “cost-based performance damages,” as a potential alternative to expectation damages.

12 A. Whether McLean’s damages calculations are unreliable because they rely on Dr. Jonyer’s calculations about the amount of time Collision’s engineers worked on the integration project

First, Nokia argues that the court should exclude McLean’s damages

calculations because he relies on Dr. Jonyer’s unreliable calculations about the

amount of time Collision spent working on the integration project. Nokia’s

argument is premised on the court excluding Dr. Jonyer’s opinion on the amount of

Collision time spent working on the project. Because the court has denied Nokia’s

motion to exclude that opinion, Nokia’s motion as to McLean is denied in this

respect as well.

B. Whether McLean’s opinions are unreliable because he added “an unsupported claim for delay damages” or because he overstated the amount of integration work that Collision actually performed

Nokia also asserts that Collision cannot recover damages after November

2017 because Collision was – at least by that time – “on notice that Nokia was not

moving forward” with the alleged June 6, 2017 oral contract. Doc. no. 161-1 at 7.

Nokia argues that McLean’s opinions that Collision accrued damages after that

time are thus improper.7 Nokia also contends that McLean lacked a sufficient basis

7 Nokia also contends that Collision did not allege a “theory of ‘delay damages’”

in its complaint. This argument lacks merit and warrants minimal discussion. Collision asked for damages flowing from the alleged breach of contract and “detrimental and consequential damages.” Doc. no. 54 ¶ 9. In the context of this case, the claimed “delay damages” – as Nokia calls them – are one piece of ordinary consequential damages. See Martin v. Phillips,

(1982) (characterizing “other damages attributable to delays, expenses, and inconvenience” as “consequential damages”). Beyond its allegations seeking damages for the conduct underlying its various causes of action, Collision was not required to further allege a specific theory of “delay damages” in its complaint. See Skinner v. Switzer,

to assume that Nokia caused delays in the integration project’s progress or to

assume that the integration project was 75% completed as of October 2018.

First, Nokia’s argument that McLean cannot opine about damages accruing

after November 2017 relies on the incorrect premise that the court has ruled that

damages accruing after November 2017 are invalid as a matter of law. The court

has made no such ruling. Nokia did not move to limit Collision to damages accrued

prior to November 2017 in its motion for summary judgment. And to limit Collision

as such now would be to prejudge the evidence before any has been submitted at

trial.

Second, Nokia’s argument that McLean provides no factual basis “for his

assumption that Nokia engaged in conduct that caused delays” likewise fails. Doc.

no. 161-1 at 9. As Nokia itself observes, McLean relied on facts indicating that

Nokia failed to provide a base station that Collision could have used to complete the

integration work more efficiently. Similarly, Nokia’s argument that McLean could

not rely on Farkas’s view about how much of the integration work was completed

fails because Farkas, as Collision’s chief technological officer and apparent manager

of the integration project, would have personal knowledge about Collision’s

progress. Nokia challenges whether these underlying facts are accurate, but

521, 530 (2011) (“[U]nder the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal argument.”). Furthermore, Nokia did not develop, and therefore waived, any argument that, in this case, the claimed “delay damages” are special damages which must be specifically stated per Federal Rule of Civil Procedure 9(g). 14 arguments about whether to accept the evidence underlying McLean’s opinions are

more appropriately directed to the jury. Nokia’s motion to exclude McLean’s expert

testimony is denied in this respect.8

C. Whether testimony about the amount of prejudgment interest will aid the trier of fact in determining an issue in dispute

Lastly, Nokia argues that McLean should not be permitted to opine about the

amount of prejudgment interest because that it is a matter dealt with after trial

and calculated by the court, not the jury. This issue appears to be moot, but the

parties’ briefs do not fully meet each other on the point. It is unclear whether

Collision concedes that McLean’s testimony about prejudgment interest should be

heard outside the jury’s presence and whether Nokia agrees to that concession. The

parties shall meet and discuss this matter prior to the pretrial conference and

resolve it among themselves. If the parties are unable to come to a resolution, the

court will discuss the matter at the final pretrial conference. Nokia’s motion is

denied without prejudice in this respect.

III. Motion to exclude Scally’s opinions

Lastly, Collision moves to exclude certain portions of the opinion of Nokia’s

designated damages expert, William Scally. Specifically, Collison argues that

Scally plans to opine about whether Nokia and Collision formed a legally binding

oral contract, as he criticizes Collision’s damages expert (McLean) for assuming that

8 Nokia also makes a conclusory and undeveloped assertion that McLean’s

calculation of damages is unreliable. Such undeveloped argument is insufficient to raise the matter for the court’s consideration and is therefore waived. 15 such contract existed. Nokia responds that Scally will not opine that “there was not

an oral agreement formed between the parties” but contends that Scally should be

permitted to “comment” that “there is overwhelming record evidence” that no oral

agreement was formed. Doc. no. 174 at 1, 4. Nokia asserts that Scally should be

allowed to “testify that McLean’s analysis falls short of what is expected of damages

experts by uncritically adopting an assumption that is clearly contradicted by the

record.” Id. at 1.

The court agrees with Collision that this is an improper subject for Scally’s

testimony. Scally cannot opine about what “is expected of damages experts” as that

is the court’s function as gatekeeper and then the jury’s function as the ultimate

finder of fact. Furthermore, opining that McLean’s damages analysis is flawed

because the existence of an oral agreement “is clearly contradicted by the record” is

no different than opining that “there was not an oral agreement formed by the

parties.” Said differently, Scally’s “comment on the record evidence” that no oral

agreement existed is “a legal opinion,” which is inadmissible. Doc. no. 174 at 5.

Of course, Scally may set forth what he has assumed the facts will show as

the basis for his opinion, just as McLean may set out his own assumptions of the

same. Further, Scally may criticize McLean’s opinion if he believes McLean failed

to address certain relevant facts in arriving at his opinion about damages. But

McLean neither professes expertise about, nor renders an opinion on, whether an

oral agreement existed, nor could he. Thus, it would be improper to permit Scally to

criticize McLean for assuming that an oral agreement was formed.

16 CONCLUSION

Collision’s motion to exclude portions of Scally’s planned expert testimony

(doc. no. 157) is granted. Nokia’s motions to exclude Dr. Jonyer’s testimony (doc. no.

162) and McLean’s testimony (doc. no. 161) are denied in part and denied without

prejudice in part.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge August 31, 2023

cc: Counsel of Record

17