IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-00630-DME-MEH
NETQUOTE, INC., a Colorado corporation,
Plaintiff,
v.
BRANDON BYRD, an internet user making use of the IP Addresses 64.136.27.226 and
64.136.26.227, and
MOSTCHOICE.COM, INC., a Georgia corporation,
Defendants.
NETQUOTE’S SUR-REPLY TO DEFENDANTS’
MOTION TO EXCLUDE EXPERT TESTIMONY
Plaintiff NetQuote, Inc. (“NetQuote”), through counsel, respectfully submits its Surreply
to the Motion to Exclude Expert Testimony (the “Daubert Motion”) filed by Defendants
MostChoice.com, Inc. and Brandon Byrd (collectively, “MostChoice”).
INTRODUCTION
Neither the Expert Witness Report of Mark Zyla (“Zyla”), submitted by MostChoice in
support of its Daubert Motion,1 nor his deposition testimony provide any basis for excluding the
expert opinions of Stephen A. Duree (“Duree”). Rather, Zyla offers merely a critique of Duree’s
methodology and alternative damages calculation. Such a challenge does not go to the
1 On October 1, 2007, Duree issued his Report on NetQuote’s Damages Resulting from Byrd/MostChoice
Submission of Malicious Applications to NetQuote and the Related Effects on NetQuote and its Business (“Duree
Report”). On December 14, 2007, MostChoice filed its Daubert Motion. On January 22, 2008, after receiving two
extensions of the deadline for disclosing its expert, MostChoice produced its Expert Witness Report (the “Zyla
Report”). On January 23, 2008, MostChoice submitted the Zyla Report to the Court, and on February 4, 2008, the
Court gave NetQuote leave to file this sur-reply.
Netquote Inc. v. Byrd
Doc. 201
Dockets.Justia.com
2
admissibility of Duree’s opinions under Daubert. It creates a “battle of expert witnesses” for the
jury to decide and, accordingly, MostChoice’s Daubert Motion should be denied.
ANALYSIS
A.
Use of the Quist Report
1.
Zyla’s Testimony Demonstrates that Duree’s Use of the Quist Report Was
Appropriate.
Zyla and MostChoice generally take issue with Duree’s use of the Quist Report in his
analysis. (