Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00583-Gl\/IS Document 102 Filed 09/06/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re INACOM CORP., etal., Bankruptcy Case No. O0-2426 (PJW)
H\IACOM CORP., on behalf of all affiliated Civil Action No. 04-583 GMS
Debtors, Adversary Case No. 02-3500 (PJ W)
— Plaintiff,
v.
[Related to Docket Nos. 79 and 94]
LEXMARK INTERNATIONAL, INC.,
Defendant.
PLAINTIFF'S REPLY RE ITS MOTION IN LIMIN E TO EXCLUDE THE EXPERT
TESTIMONY OF KEVIN SARKISIAN AT TIME OF TRIAL
Mr. Sarkisian has stated, at two separate depositions that he does not know, and may
never have known the ordinary payment terms in the Defendant's industry. His "expert"
testimony concerning such practices among Defendant's competitors cannot be admitted. See
Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d. 408, 414 (3d Cir. 2002) (abuse of discretion to
admit expert testimony based on assumptions lacking any foundation in the record).
The Opposition's contrary suggestion, without citation to any deposition testimony, that
Mr. Sarkisian "remained informed about the payment terms offered by Lexmark's competitors"
is simply false, clearly refuted by testimony from Mr. Sarkisian, who:
a. Was g aware of the specific tenns constituting industry standards for
payment of any other manufacturer/seller of printers in the time frame of 1998, 1999 and 2000;
(Sarkisian Depo., p. 19, lns. 8-22; p. 22, lns. 15-23, Exhibit A hereto).
b. May never have known the terms and practices common in Defendant's
industry; and (Sarkisian Depo., p. 22, lns. 15-23, Exhibit A hereto).
c. Carmot offer any knowledge as to competitors' terms or how they
compared to Defendant's; (Sarkisian Depo, p. 25, lns. 2-17, Exhibit A hereto).
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Defendant attempts to divert attention by implying that Mr. Sarkisian was knowledgeable
concerning terms "offered by other companies through its membership with Riemer Credit
Reporting Services". In fact, however, Mr. Sarkisian's testimony regarding Riemer Credit was
that "I don't recall specifically what people [Competitors] were offering Inacom and in general
what they were offering their other customers." See Sarkisian Depo., p. 26, lns. 4-21, Exhibit A
hereto. The Opposition lacks all credibility in light of Mr. Sarkesian's actual testimony.
As cited in the Motion, the Third Circuit demands that evidence presented by a defendant
on industry standards must be specific, supported by data, and more than merely "broad
estimates." See In re APS Holiday Corp., 282 B.R. 795, 804 (Bankr. D. Del. 2002). Defendant
does not dispute the legal standard cited in the Motion, and it is clear that Mr. Sarkisian cannot
provide general or even a broad estimate as to the payment terms commonly used by
manufacturers of printers. See In re Sacred Heart Hospital, 200 B.R. 114, 117 (E.D. Pa. 1996).
As a final assertion, Defendant claims "Inacom and Lexmark are members of the same
industry", attempting to admit Mr. Sarkesian's testimony through apparent exception language
found in In re Global Tissue. 302 B.R. 808 (D. Del. 2003). The effort is, however, unsupported
in fact and law.
First, Plaintiff and Defendant did not operate in the same industry. Lexmark is a
manufacturer of computer printers, while Inacom offered information technology and
networking services. See Sarkisian Depo., p.13, ln. 16-p.l4, ln 18.; p. 17, ln. 15- p.18, Exhibit A
hereto. See Gollin expert witness report, Exhibit B hereto. When asked to name Lexmark's
competitor, Mr. Sarkisian understandably did not mention Inacom. See Sarkisian Depo., p. l 3,
ln. 16-p.14, ln 18.; p. 17, ln. 15- p.18, Exhibit A hereto.
Second, even assuming arguendo that Inacom did manufacture printers, Global Tissue
would still not admit Mr. Sarkesian's testimony, for the court accepted testimony of of
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the defendant's employees on the industry standards, lg only after they presented "significant
evidence concerning the payment standard in the. .. industry for their other customers." 302 B.R.
at 811, 813. Here, Mr. Sarkisian could only testify as to generalizations without specificity as to
Lexmark's dealings with its own customers. See Sarkisian Depo., p. 121, ln. 21- p.122, ln. 23;
Exhibit C hereto. Unlike Global Tissue, where significant evidence of specific payment
practices for customers was provided by the defendant's employees, Mr. Sarkisian appeared at
his deposition with no records and no evidence of payment practices of Defendant's customers,
Sarkisian Depo., p.6, lns. 9-23, Exhibit A hereto, despite Plaintiffs request therefore. See
Exhibit D hereto. Mr. Sarkisian's "expe1t" testimony is not "properly grounded, well-reasoned
and not speculative" and should be excluded. In re Unisys, 173 F. 3d. 145, fii 9 (3rd Cir. 1999).
Dated: September L 2005 PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
Laé Davis Jones (Bar No. 2436) E
Sandra G. McLamb (Bar No. 4283)
919 North Market Street, 16th Floor
P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courier 19801)
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Andrew W. Caine (CA Bar No. 110345)
Jeffrey P. Nolan (CA Bar No. 158923)
10100 Santa Monica Blvd., 11th Floor
Los Angeles, Califomia 90067-4100
Telephone: (310) 277-6910
Facsimile: (310) 201-0760
Counsel for the Plaintiffs/Debtors
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