UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 24-114

Before the Court in Cozy Comfort Company, LLC v. United States, Court No. 1:22-cv-00173 (SAV), Slip Op. 24-114 (October 15, 2024) were motions in limine submitted by both parties. The Court of International Trade reviewed this action pursuant to its 28 U.S.C. Section 1581(a) jurisdictional authority.

At issue was the admissibility of certain testimony about the subject merchandise, The Comfy®, whose classification under HTS heading 6110 covering “[s]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted,” is being contested in the litigation. The court partially granted Cozy Comfort’s Motion in Limine to exclude the testimony of Patricia Concannon, an expert in marketing, and of Rennee Orsat, an import specialist. The court denied the government’s Motion in Limine to exclude testimony of James Crumley, an avid hunter, fisherman, and camper who designed and developed patents and trademarks for outerwear, including jackets, sweatshirts, pullovers, and blankets.

The Court decided to partially admit Ms. Concannon’s testimony so long as it is limited to topics related to the sale, marketing, and merchandising of apparel because of the witness’s expertise which is limited to marketing, sale, and merchandising of apparel. The Court did not permit the government’s witness to testify about whether The Comfy® protects from extreme cold or how The Comfy® compares to a similar garment, the Snuggie®. The Court rejected the government’s argument that Ms. Concannon’s testimony should be considered as an expert in apparel sales, marketing, and merchandising rather than as an expert in construction of outerwear. The Court, instead, agreed with Plaintiff in that the witness lacks the expertise necessary to testify about the product’s capacity to protect against extreme cold because that testimony requires knowledge of material design or material science and the witness’s education and work experience almost exclusively involve apparel sales, marketing, and merchandising. For the same reasons, the court found that the witness is not qualified to speak on the comparison between The Comfy® and the Snuggie® because this involves knowledge about how both products are comparable in design, physical characteristics, and use. The Court noted that Ms. Concannon’s testimony may nevertheless relate to how the products’ design, physical characteristics, and uses would be sold, marketed, or merchandised. The Court also disallowed any testimony as to the application of certain factors found in the case GRK Canada, Ltd. v. United States. 761 F.3d 1354 (Fed. Cir. 2014) which stands for the proposition that “when use is relevant for tariff classification, the Court’s inquiry should include a product’s physical characteristics, what features the article has for typical users, how it was designed and for what objectives, and how it is marketed.” Id. at 1358. The Court said that an expert in marketing, sales, and merchandising may only testify from observations about how a product is sold, marketed, or merchandise. For this reason, Ms. Concannon’s  testimony about The Comfy®’s physical characteristics and design falls outside of her expertise and her testimony is impermissible at trial.

In its Motion in Limine, Plaintiff had put forth many arguments about the reliability of Ms. Concannon’s testimony. As to relevancy, the Court noted that to be admissible, expert testimony must also be reliable as per the Federal Rules of Evidence, but that reliability should not be confused with credibility. See i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed. Cir. 2010). So long as the methodology is sound, or the non-scientific experts justify reliability through their experience, rather than methodology, and the evidence relied upon sufficiently relates to the case at hand, then disputes about the relevancy or accuracy of the testimony should go to how much weigh the court gives to the testimony and not to whether the court admits the testimony. However, these arguments became moot given the Court’s limitations on those aspects of the expert’s testimony. The Court finally said that Ms. Concannon’s testimony should be assessed not for her methods but as a non-scientific expert whose reliability comes from such experience.

The government intends to call Ms. Orsat to testify as to her responsibilities as a specialist within Customs’ National Commodity Specialist Division. This witness reviewed the subject merchandise and similar merchandise at issue in Cozy Comfort’s prior tariff classification protest and planned to testify based on her knowledge of the product and its features that The Comfy® functions as a garment and lacks the features to protect from extreme cold. Cozy Comfort argued that Ms. Orsat should not be allowed to testify because this testimony would relate to her consultations with and advice to other Customs personnel regarding the classification of the merchandise or Cozy Comfort submissions concerning the classification of the subject merchandise because the Government withheld such testimony and redacted underlying documents on the basis of the deliberative process privilege. Plaintiff argued that permitting Ms. Orsat to testify on these matters would constitute trial by surprise and run afoul of our adversarial system by allowing parties to leverage the civil discovery privileges defensively during discovery and offensively during trial. Generally, parties may not use a privilege as both a sword and a shield. See In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1303 (Fed. Cir. 2006). Here, the testimony of the import specialist witness will touch on aspects of the deliberative process that Customs went through to classify the merchandise which is the subject of the litigation, The Comfy®. The testimony would provide information about the internal processes gone into Customs’ classification of the product, details which would remain unknown to the plaintiff and the court. Thus, the court found this testimony to create an impermissible and unfair situation for Cozy Comfort. Ms. Orsat’s testimony is inadmissible as to any opinions formed during the Customs’ classification process. This decision made plaintiff’s argument that Ms. Orsat’s testimony would interfere with the Court’s ability to review this case de novo become moot.

Plaintiff argued that Ms. Orsat’s testimony about the prior protests should be inadmissible because it concerns different merchandise given a modification to The Comfy®. However, the Court agreed with the government, who argued that the article, though modified, was virtually identical and thus pertinent to understanding the imported merchandise. Lastly, Cozy Comfort argued that Ms. Orsat should be barred from testifying in this case because she will offer “expert, rather than lay witness testimony” as to the meaning of the ultimate phrase at issue: extreme cold. On this point, the Court also agreed with the government, who characterized Ms. Orsat’s testimony as a witness with firsthand knowledge of The Comfy®, how it was classified by Customs, and why it was classified under heading 6110.

Finally, the court denied the government’s motion to exclude Mr. Crumley’s testimony on the basis that his testimony is unreliable. The Court disagreed with the Government’s contention that Mr. Crumley is not an expert because he relies on his personal experience. The Court held that Mr. Crumley was qualified to offer his opinion about garment design and material, especially as they relate to garments designed for outdoor use during inclement weather given that he has “designed and developed patents and trademarks for outerwear,” has “worked with numerous garment and outerwear companies,” and has invented his own camouflage pattern.