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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BHI ENERGY I POWER §

SERVICES LLC, §

§

Plaintiff, §

§

V. § No. 3:22-cv-1981-L-BN

§

KVP HOLDINGS, LLC, §

KVP ENERGY SERVICES, LLC, §

POWER STANDARD LLC f/k/a KVP §

POWER LLC, DUSTIN COBLE, §

WELLBORN “ROSS” GLOVER, §

ROY GLOVER, and SHELBY §

WALKER, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff BHI Energy I Power Services LLC moves to strike the expert report 

and exclude the testimony of James Pooley. See Dkt. No. 78.

Defendants KVP Energy Services, LLC (“KVP”), KVP Holdings, LLC (“KVP 

Holdings”), and Power Standard, LLC, formerly known as KV Power, LLC (“Power 

Standard”) (collectively with KVP and KVP Holdings, the “Corporate Defendants”) 

and Dustin Coble, Wellborn “Ross” Glover, Roy Glover, and Shelby Walker 

(collectively, the “Individual Defendants” and, with the Corporate Defendants, 

“Defendants”) filed a response, see Dkt. No. 108-1, and BHI filed a reply, see Dkt. 

No. 125.

For the reasons explained below, the Court denies Plaintiff’s Motion to Strike 

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the Expert Report of and Exclude the Testimony of James Pooley [Dkt. No. 78]. See 

Jacked Up, L.L.C. v. Sara Lee Corp., 807 F. App’x 344, 346 n.2 (5th Cir. 2020) (the 

admissibility of an expert report is “a non-dispositive matter,” which can be 

“’‘referred to a magistrate judge to hear and decide’” under Federal Rule of Civil 

Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A)).

Background

On August 3, 2023, Defendants designated James Pooley as an expert witness 

to offer opinions concerning whether BHI took reasonable measures to protect its 

alleged trade secrets. See Dkt. No. 57. Pooley’s initial report did not include any 

opinions: 

I understand from counsel for Defendants that discovery is still ongoing 

and, to date, BHI has not identified the purported trade secrets that it 

alleges were misappropriated by any Defendant(s), nor has it provided 

any documents or information sufficient to allow me to assess whether 

BHI has implemented reasonable measures to protect its trade secrets. 

As a result, I have not yet been able to reach any opinions in this 

matter.

Dkt. No. 161-1 at 3. 

Pooley supplemented his report on September 18, 2023 and explained:

I understand from counsel for Defendants that discovery is still ongoing 

and, to date, BHI has not identified with particularity the purported 

trade secrets that it alleges were misappropriated by any Defendant(s), 

and it has provided some limited discovery comprising information 

relevant to my assessment of whether BHI has implemented reasonable 

measures to protect those alleged trade secrets. As a result, I have been 

able to form reliable, but tentative, opinions regarding that issue.

Dkt. No. 80-1 at 2; Dkt. No. 161-2 at 2 (same). 

Although discovery closed on November 2, 2023, the parties stipulated to 

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extend the deposition deadline beyond the close of discovery. 

Pooley was deposed on November 13, 2023. See Dkt. No. 87-2. 

On November 16, 2023, BHI filed a motion to strike Pooley’s supplemental 

expert report and exclude his testimony. See Dkt. No. 78.

BHI argues that (1) Pooley’s opinions invade the province of the fact finder, (2) 

Pooley has failed to demonstrate that his opinions and testimony are based on 

reliable methods, (3) Pooley’s opinions are based on insufficient facts, and (4) Pooley 

has failed to provide all materials and facts that he considered in forming his 

opinion. See Dkt. No. 79.

On December 5, 2023, Pooley supplemented his report a second time. See Dkt. 

No. 100-3 at 10-23; Dkt. No. 161-3 (same). Specifically, he supplemented his report 

to incorporate additional information not available until after his first supplemental 

report, including the transcripts of nineteen depositions, BHI’s supplemental 

interrogatory responses, and supplemental document production. See Dkt. No. 100-3 

at 25-42 (redline comparing first and second supplemental reports). “As a result,” 

Pooley stated, “I have been able to form reliable opinions regarding the issues in this 

report.” Dkt. No. 161-3 at 2.

Defendants then responded to the motion to strike, see Dkt. No. 108, and BHI 

filed a reply, see Dkt. No. 125.

Legal Standards

As another judge in this district recently laid out, 

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Federal Rule of Evidence 702 governs the admissibility of expert 

testimony as evidence. Rule 702 permits opinion testimony from a 

witness “qualified as an expert by knowledge, skill, experience, 

training, or education” if the expert’s knowledge will assist the trier of 

fact, and (1) “the testimony is based on sufficient facts or data;” (2) “the 

testimony is the product of reliable principles and methods;” and (3) 

[“the expert’s opinion reflects a reliable application of the principles and 

methods to the facts of the case.”]

Ramos v. Home Depot Inc., No. 3:20-cv-1768-X, 2022 WL 615023, at *1 (N.D. Tex. 

Mar. 1, 2022) (cleaned up); FED. R. EVID. 702 (as amended on December 1, 2023).

“In its gatekeeping role, the Court determines the admissibility of expert 

testimony based on Rule 702 and [Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 

579, 589 (1993),] and its progeny.” Jacked Up, LLC v. Sara Lee Corp., 291 F. Supp. 

3d 795, 800 (N.D. Tex. 2018), aff’d, No. 3:11-cv-3296-L, 2018 WL 2064126 (N.D. Tex. 

May 2, 2018). Under Rule 702 and Daubert,

[a]s a gatekeeper, this Court must permit only reliable and relevant 

testimony from qualified witnesses to be admitted as expert testimony. 

The party offering the expert testimony has the burden of proof, by a 

preponderance of evidence, to show that the testimony is reliable and 

relevant.

Ramos, 2022 WL 615023, at *1 (cleaned up); accord FED. R. EVID. 702 advisory 

committee's notes (2023 amendments). And “Daubert’s general holding – setting 

forth the trial judge’s general ‘gatekeeping’ obligation – applies not only to testimony 

based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other 

specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). 

Applying this analytical framework under Rule 702 and Daubert, a “court may 

admit proffered expert testimony only if the proponent, who bears the burden of 

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proof, demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the 

suit, and (3) the evidence is reliable.” Galvez v. KLLM Transp. Servs., LLC, 575 F. 

Supp. 3d 748, 759 (N.D. Tex. 2021); accord DeWolff, Boberg & Assocs., Inc. v. Pethick, 

No. 3:20-cv-3649-L, 2024 WL 1396267, at *3 (N.D. Tex. Mar. 31, 2024).

“First, an expert must be qualified. Before a district court may allow a witness 

to testify as an expert, it must be assured that the proffered witness is qualified to 

testify by virtue of his knowledge, skill, experience, training, or education.” Aircraft 

Holding Sols., LLC v. Learjet, Inc., No. 3:18-cv-823-D, 2022 WL 3019795, at *5 (N.D. 

Tex. July 29, 2022) (cleaned up). “The distinction between lay and expert witness 

testimony is that lay testimony results from a process of reasoning familiar in 

everyday life, while expert testimony results from a process of reasoning which can 

be mastered only by specialists in the field.” Holcombe, 516 F. Supp. 3d at 679-80 

(cleaned up); accord Arnold v. Allied Van Lines, Inc., No. SA-21-CV-00438-XR, 2022 

WL 2392875, at *18 (W.D. Tex. July 1, 2022) (“Testimony regarding first-hand, 

historical perceptions constitutes lay, not expert, opinion testimony.”). “A district 

court should refuse to allow an expert witness to testify if it finds that the witness is 

not qualified to testify in a particular field or on a given subject.” Aircraft Holding, 

2022 WL 3019795, at *5 (cleaned up).

And, if the expert is qualified, “Rule 702 charges trial courts to act as 

gate-keepers, making a ‘preliminary assessment of whether the reasoning or 

methodology underlying the testimony is scientifically valid and of whether that 

reasoning or methodology properly can be applied to the facts in issue. Expert 

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testimony must be both relevant and reliable to be admissible.” Hall v. State, No. CV 

H-21-1769, 2022 WL 2990912, at *4 (S.D. Tex. July 28, 2022) (cleaned up).

Expert testimony is relevant if it assists the trier of fact in 

understanding the evidence or determining a fact in issue. Federal Rule 

of Evidence 401 further clarifies that relevant evidence is evidence that 

has “any tendency to make a fact more or less probable than it would be 

without evidence” and “is of consequence in determining the action.”

Id. (cleaned up). “Relevance depends upon whether [the expert’s] reasoning or 

methodology properly can be applied to the facts in issue.” Aircraft Holding, 2022 

WL 3019795, at *6 (cleaned up); accord DeWolff, 2024 WL 1396267, at *4. “To be 

relevant, the expert’s reasoning or methodology [must] be properly applied to the 

facts in issue.” In re: Taxotere (Docetaxel) Prod. Liab. Litig., 26 F.4th 256, 268 (5th 

Cir. 2022) (cleaned up).

“When performing [the required gate-keeping Rule 702 and Daubert] analysis, 

the court’s main focus should be on determining whether the expert’s opinion will 

assist the trier of fact.” Puga v. RCX Sols., Inc., 922 F.3d 285, 293 (5th Cir. 2019). 

“Assisting the trier of fact means the trial judge ought to insist that a proffered 

expert bring to the jury more than the lawyers can offer in argument,” but “the 

helpfulness threshold is low: it is principally ... a matter of relevance.” Id. at 293-94 

(cleaned up); accord Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., No. 

CIV.A. 06-4262, 2009 WL 2356292, at *1 (E.D. La. July 28, 2009) (“[T]he Court must 

determine whether the expert’s reasoning or methodology ‘fits’ the facts of the case 

and whether it will thereby assist the trier of fact to understand the evidence, in 

other words, whether it is relevant.” (cleaned up)).

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As to reliability, the required “analysis applies to all aspects of an expert’s 

testimony: the methodology, the facts underlying the expert’s opinion, the link 

between the facts and the conclusion, et alia,” and “mandates that expert opinion be 

grounded in the methods and procedures of science.” Jacked Up, 291 F. Supp. 3d at 

801 (cleaned up). “Expert evidence that is not reliable at each and every step is not 

admissible.” Jacked Up, 807 F. App’x at 348 (cleaned up).

“Expert testimony is reliable if the reasoning or methodology underlying the 

testimony is scientifically valid.” Ramos, 2022 WL 615023, at *1 (cleaned up).

“Such testimony must be more than subjective belief or unsupported 

speculation.” Id. (cleaned up). “In other words, this Court need not admit testimony 

that is connected to existing data only by the ipse dixit [– that is, an unproven and 

unsupported assertion resting only on the authority –] of the expert.” Id. (cleaned 

up). “[W]ithout more than credentials and a subjective opinion, an expert’s testimony 

that ‘it is so’ is not admissible.” Holcombe, 516 F. Supp. 3d at 687 (cleaned up); 

accord Imperial Trading, 2009 WL 2356292, at *1 (“The reliability inquiry requires 

the Court to assess whether the reasoning or methodology underlying the expert’s 

testimony is valid. The aim is to exclude expert testimony based merely on subjective 

belief or unsupported speculation.” (cleaned up)).

“Experts are permitted to rely on assumptions when reaching their opinions,” 

but “those assumptions must have some factual basis in the record and an 

underlying rationale.” Jacked Up, 291 F. Supp. 3d at 807-07 (cleaned up). “But there 

is no requirement that an expert derive his opinion from firsthand knowledge or 

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observation.” Id. at 801 (cleaned up). More specifically, “[e]xperts are permitted to 

assume the fact of liability and opine about the extent of damages,” and “[a]n 

expert’s reliance on assumptions does not itself make the expert opinion unreliable 

or inadmissible.” ENGlobal U.S. Inc. v. Native Am. Servs. Corp., No. CV H-16-2746, 

2018 WL 1877015, at *8 (S.D. Tex. Apr. 19, 2018) (cleaned up).

And Federal Rule of Evidence 703 “permit[s] an expert witness to base his 

opinion on ‘facts or data ... that the expert has been made aware of or personally 

observed’ and to opine [and based his opinion] on inadmissible evidence if ‘experts in 

the particular field would reasonably rely on those kinds of facts or data in forming 

an opinion on the subject.’” Taxotere (Docetaxel) Prod. Liab. Litig., 26 F.4th at 269 & 

n.10 (cleaned up). More specifically, courts have concluded that, although a party’s 

damages expert “did not personally observe the facts or data in [another expert’s 

report], as a damages expert, he may rely on hearsay, including other expert reports, 

in forming his opinions.” ENGlobal, 2018 WL 1877015, at *11 (cleaned up).

Still, “Rule 702 and Daubert require an expert witness independently to 

validate or assess the basis for his or her assumptions,” and “[t]he party seeking to 

have the district court admit expert testimony must demonstrate that the expert’s 

findings and conclusions are based on the scientific method, and, therefore, are 

reliable,” which “requires some objective, independent validation of the expert’s 

methodology.” Taxotere (Docetaxel) Prod. Liab. Litig., 26 F.4th at 268 (cleaned up).

“Although the basis of an expert’s opinion usually goes to the weight and not 

the admissibility of expert testimony, in some cases the source upon which an 

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expert’s opinion relies is of such little weight that the jury should not be permitted to 

receive that opinion. In the words of the Third Circuit, the suggestion that the 

reasonableness of an expert’s reliance on facts or data to form his opinion is 

somehow an inappropriate inquiry under Rule 702 results from an unduly myopic 

interpretation of Rule 702 and ignores the mandate of Daubert that the district court 

must act as a gatekeeper.” Jacked Up, 807 F. App’x at 348 (cleaned up).

“In some circumstances, an expert might be able to rely on the estimates of 

others in constructing a hypothetical reality, but to do so, the expert must explain 

why he relied on such estimates and must demonstrate why he believed the 

estimates were reliable.” Id. at 348-49 (cleaned up).

And “[t]he expert’s assurances that he has utilized generally accepted 

scientific methodology is insufficient.” Taxotere (Docetaxel) Prod. Liab. Litig., 26 

F.4th at 268 (cleaned up).

“The Court normally analyzes questions of reliability using the five 

nonexclusive factors known as the Daubert factors, [which are: (1) whether the 

expert’s technique can be or has been tested; (2) whether the method has been 

subjected to peer review and publication; (3) the known or potential rate of error of a 

technique or theory when applied; (4) the existence and maintenance of standards 

and controls; and (5) the degree to which the technique or theory has been generally 

accepted in the scientific community].” Ramos, 2022 WL 615023, at *1 & n.11 

(cleaned up). “But these factors may or may not be pertinent in assessing reliability, 

depending on the nature of the issue, the expert’s particular expertise, and the 

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subject of [the] testimony.” Kim v. Nationwide Mut. Ins. Co., No. 3:21-cv-345-D, 2022 

WL 2670393, at *5 (N.D. Tex. July 11, 2022) (cleaned up).

“The point of this inquiry is to make certain that an expert, whether basing 

testimony upon professional studies or personal experience, employs in the 

courtroom the same level of intellectual rigor that characterizes the practice of an 

expert in the relevant field.” Holcombe, 516 F. Supp. 3d at 674 (cleaned up); accord

DeWolff, 2024 WL 1396267, at *4-*5.

“The Court also does not need to admit testimony based on indisputably 

wrong facts.” Ramos, 2022 WL 615023, at *1 (cleaned up). The United States Court 

of Appeals for the “Fifth Circuit has recognized that [t]he Daubert reliability analysis 

applies to, among other things, ‘the facts underlying the expert’s opinion,’” and “an 

opinion based on insufficient, erroneous information, fails the reliability standard.”

Jacked Up, 291 F. Supp. 3d at 802 (cleaned up). “And although the Daubert

reliability analysis is flexible and the proponent of the expert evidence need not 

satisfy every one of its factors, the existence of sufficient facts ... is in all instances 

mandatory.” Id. (cleaned up).

But, “[i]n conducting its analysis, the Court focuses on the reasonableness of 

the expert’s approach regarding the matter to which his testimony is relevant and 

not on the conclusions generated by the expert’s methodology.” Ramos, 2022 WL 

615023, at *1 (cleaned up). A motion to exclude is not properly based on an “objection 

that goes to whether [the proffered expert’s] opinion is correct, not whether it is 

reliable,” where “[t]he proponent need not prove to the judge that the expert’s 

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testimony is correct, but,” rather, “by a preponderance of the evidence that the 

testimony is reliable.” Aircraft Holding, 2022 WL 3019795, at *8 (cleaned up).

And, “[e]ven when a court rules that an expert’s testimony is reliable, this 

does not necessarily mean that contradictory expert testimony is unreliable.” United 

States v. Hodge, 933 F.3d 468, 477 (5th Cir. 2019), as revised (Aug. 9, 2019) (cleaned 

up). And, so, “[w]hen the parties’ experts rely on conflicting sets of facts, it is not the 

role of the trial court to evaluate the correctness of facts underlying one expert’s 

testimony.” ENGlobal, 2018 WL 1877015, at *8 (cleaned up).

Neither can the Court accept arguments that “urge[] the Court to establish an 

unattainable goalpost, essentially arguing that each item of expert testimony is 

unreliable insofar as it fails to conclusively prove [the expert testimony’s 

proponent’s] theory of its case or an element of a claim or defense,” and thereby 

“confus[e] admissibility with sufficiency, and sufficiency with certainty.” Holcombe, 

516 F. Supp. 3d at 675 (cleaned up). That “is not the standard for admissibility,” or 

“even the standard for success on the merits,” and “[i]t is not the Court’s role, in the 

context of a Daubert motion, to judge the conclusions that an expert’s analysis 

generates; the ultimate arbiter of disputes between conflicting opinions is the trier of 

fact.” Id.

“If, however, there is simply too great an analytical gap between the [basis for 

the expert opinion] and the opinion proffered, the court may exclude the testimony 

as unreliable.” Kim, 2022 WL 2670393, at *5 (cleaned up). For example, “the Court 

may exclude [an expert witness’s] analysis if the studies that he relies on are so 

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dissimilar to the facts presented that [the expert witness’s] opinions cannot be 

sufficiently supported by the studies.” Holcombe, 516 F. Supp. 3d at 675 (cleaned 

up).

“But the notion that expert testimony is only admissible to the extent that it is 

based on studies of identical individuals under identical circumstances would not 

only turn the ‘flexible’ inquiry envisioned under Rule 702 on its head, but such rigid 

constructions of reliability and relevance would defeat the very purpose of expert 

testimony: to help the trier of fact understand and evaluate the evidence.” Id. at 

676-77 (cleaned up). And, generally, an opposing party’s “doubts about the bases for 

[an expert’s] opinions do not render his opinions so unsupported as to create ‘too 

great an analytical gap’ between the evidence he relies on and his opinions.” Id. at 

675 (cleaned up).

The “evidentiary gates [provided by Rule 702 and Daubert] exist to keep out 

error that may impermissibly affect the jury” and “to protect juries from unreliable 

and irrelevant expert testimony.” Taxotere (Docetaxel) Prod. Liab. Litig., 26 F.4th at 

264, 268. But “[t]he court’s inquiry is flexible in that [t]he relevance and reliability of 

expert testimony turns upon its nature and the purpose for which its proponent 

offers it.” Aircraft Holding, 2022 WL 3019795, at *6 (cleaned up).

And, “[p]articularly in a jury trial setting, the court’s role under Rule 702 is 

not to weigh the expert testimony to the point of supplanting the jury’s fact-finding 

role – the court’s role is limited to ensuring that the evidence in dispute is at least 

sufficiently reliable and relevant to the issue so that it is appropriate for the jury’s 

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consideration. Thus, [w]hile the district court must act as a gatekeeper to exclude all 

irrelevant and unreliable expert testimony, the rejection of expert testimony is the 

exception rather than the rule.” United States v. Perry, 35 F.4th 293, 330 (5th Cir. 

2022) (cleaned up). 

And “[t]he Fifth Circuit has noted that [a]s a general rule, questions relating 

to the bases and sources of an expert’s opinion affect the weight to be assigned that 

opinion rather than its admissibility and should be left for the jury’s consideration,” 

and, “[a]ccordingly, [v]igorous 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.” Ramos, 2022 WL 615023, at *3 

(cleaned up); see also DeWolff, 2024 WL 1396267, at *5-*7.

Analysis

I. Pooley’s second supplement report is his first proper expert designation.

In its reply in support of its motion to strike, BHI adds a new argument: it 

contends Defendants did not properly designate Pooley until December 5, 2023, 

when Defendants disclosed Pooley’s second supplemental report. See Dkt. No. 125 at 

1-3. The Court agrees and, in a separate Memorandum Opinion and Order entered 

today, grants BHI’s motion to designate an expert to rebut Pooley’s second 

supplemental expert report and testimony. And BHI contends that this second 

supplemental report was disclosed well past the August 3, 2023 deadline and suffers 

from the same flaws as the tentative, first supplemental report that was BHI’s focus 

in the opening motion to strike. See id.

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A court generally will not consider arguments raised for the first time in a 

reply brief. See Cavazos v. JP Morgan Chase Bank, N.A., 388 F. App'x 398, 399 (5th 

Cir. 2010) (“‘[a]rguments raised for the first time in a reply brief, even by pro se 

litigants ... are waived’” (quoting United States v. Jackson, 426 F.3d 301, 304 n.2 (5th 

Cir. 2005)) (omission in original)); Digital Generation, Inc. v. Boring, 869 F. Supp. 2d 

761, 771 (N.D. Tex. 2012) (declining to consider new arguments raised in reply brief); 

Mid-Continent Cas. Co. v. Eland Energy, Inc., No. 3:06-cv-1576-D, 2008 WL 80760, 

at *3 n.4 (N.D. Tex. Jan. 8, 2008) (explaining that “this court has repeatedly held 

that it will not consider arguments raised for the first time in reply”). See generally

Penn. Gen. Ins. Co. v. Story, No. 3:03-cv-330-G, 2003 WL 21435511, at *1 (N.D. Tex. 

June 10, 2003) (quoting Springs Indus., Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 

238, 239-240 (N.D. Tex. 1991) (“The purpose of a reply brief under local rule 7.1(f), ‘is 

to rebut the nonmovant[s'] response, thereby persuading the court that the movant 

is entitled to the relief requested by the motion.’”)).

But the Court will exercise its discretion and consider the new arguments 

here because Pooley’s expert report has been a moving target. Because of the parties’ 

discovery disputes, Pooley has offered no opinions to tentative opinions to complete 

opinions. And Defendants designated the second supplemental report with Pooley’s 

complete opinions while the motion to strike was pending.

Federal Rule of Civil Procedure 26(a)(2)(A) requires parties to disclose “the 

identity of any witness it may use at trial to present evidence under Federal Rule of 

Evidence 702, 703, or 705.” FED. R. CIV. P. 26(a)(2)(A). The expert witness’s 

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designation must be accompanied by a written report that contains “a complete 

statement of all opinions the witness will express and the basis and reasons for 

them.” FED. R. CIV. P. 26(a)(2)(B)(i); accord Marquette Transportation Co. 

Gulf-Inland, L.L.C. v. Navigation Mar. Bulgare JSC, 87 F.4th 678, 687 (5th Cir. 

2023). “Failure to disclose such an opinion precludes the proffering party from using 

that information ‘at a trial, unless the failure was substantially justified or is 

harmless.’” Marquette, 87 F.4th at 687 (quoting FED. R. CIV. P. 37(c)(1)).

The tentative, first supplemental report is not a proper expert report because 

it is not a “complete” statement of Pooley’s opinions. See FED. R. CIV. P. 26(a)(2)(B)(i).

Were that all that Defendants had produced for Pooley, his reports and testimony 

would be subject to being stricken.

But Pooley’s second supplemental report is complete, and BHI does not 

challenge it as untimely – at least not beyond noting that his proper designation was 

first made months after the Court’s deadline. And the Court is allowing BHI’s 

rebuttal expert designation as timely for this same reason, and, so, any timing issue 

with Pooley’s designation is waived for failure to properly brief it and, in any event, 

harmless.

But BHI does challenge Pooley’s second supplemental report and his 

testimony as (1) invading the province of the fact finder, (2) failing to provide 

support that the methods he utilizes in forming his opinions are reliable, (3) being 

based on insufficient facts, and (4) failing to provide all materials and facts he 

considered in forming his opinion. See Dkt. No. 125 at 1, 3-6.

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The Court now turns to those challenges.

II. Pooley’s opinions do not invade the province of the finder of fact.

BHI contends that “Pooley can testify as an expert to the measures one may 

take to protect trade secrets” but “cannot reach a conclusion as to whether BHI’s 

measures were reasonable” because “[t]his is left for the finder of fact to determine.” 

Dkt. No. 79 at 2; see also Dkt. No. 125 at 4. BHI contends that, under Rule 702, “[a]n 

expert witness’s role in a case is to assist the finder of fact to understand the 

evidence or determine a fact issue” but that “[i]t is not an expert witness’s role to 

apply the facts of a case to the applicable law to reach a legal conclusion,” which “is 

left solely to the finder of fact.” Dkt. No. 125 at 3. According to BHI, “Pooley goes 

beyond assisting the fact finder and attempts to make the fact finder’s determination 

for them of whether BHI took reasonable steps to protect its trade secrets.” Id. at 4.

The Court cannot agree. BHI explains that “[a] determination of whether or 

not a party’s measures to protect its trade secrets were reasonable to guard its 

secrecy is a fact question.” Dkt. No. 79 at 2. Were it a question of law, BHI might 

have a winning argument. “[A]llowing an expert to give his opinion on the legal 

conclusions to be drawn from the evidence both invades the court’s province and is 

irrelevant.” Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983).

But, while “our legal system reserves to the trial judge the role of deciding the 

law for the benefit of the jury,” “experts [can] give their opinions on ultimate issues.” 

Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997).

And the Court finds that Pooley may permissibly do so here to assist the trier 

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of fact in understanding the evidence or determining a factual issue. See Proofpoint, 

Inc. v. Vade Secure, Inc., No. 19 Civ. 4238 (MMC), 2021 WL 2588974, at *2 (N.D. 

Cal. June 24, 2021) (permitting Pooley to testify as to plaintiffs’ failure to 

demonstrate reasonable efforts to protect trade secrets under similar facts); see also 

FMC Techs. v. Murphy, 679 S.W.3d 788, 801-05 (Tex. App. – Houston [1s Dist.] 2023, 

pet. filed) (affirming trial court’s decision to admit Pooley’s expert testimony 

regarding whether the plaintiff used reasonable measures to protect its alleged trade 

secrets).

III.Defendants have shown that Pooley’s methods are reliable.

BHI asserts that “Defendants have provided no support as to the reliability of 

the methods which Mr. Pooley utilized in forming his opinions.” Dkt. No. 79 at 4.

And, according to BHI, Defendant’s response to the motion to strike does not 

“address BHI’s argument that Mr. Pooley has failed to provide support that the 

methods he utilizes in forming his opinions are reliable” and instead offers a 

“recitation of Mr. Pooley’s background,” which “does not show that Mr. Pooley’s 

methods have been subjected to peer review or are generally accepted in the expert 

community.” Dkt. No. 125 at 4.

BHI reports that Pooley testified that, “despite having knowledge of other 

resources in the field, he relies solely on his own materials to form his methodology 

and opinions.” Id. According to BHI, Pooley and Defendants have not provided “any 

support that Mr. Pooley’s methodology is supported within the community or has 

been peer reviewed, and is thus reliable,” but rather “have shown nothing more than 

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Mr. Pooley wholeheartedly agrees with himself.” Id.

But, as Defendants contend, Pooley has “written the treatise on ‘Trade 

Secrets,’ and has published numerous books, articles, and newsletters on the same 

topic” and “based his opinions on a review of the ample materials disclosed in his 

reports (including case pleadings, the document productions of both sides, 

interrogatory responses, deposition transcripts, and interviews), in light of his 

experience, training, research, scholarship, and actual practice in the field of trade 

secret protection.” Dkt. No. 108-1 at 16 (cleaned up). And, Defendants argue, “BHI 

does not deny the reliability of the publications Mr. Pooley authored or co-authored 

that contributed to the lens of expertise through which he viewed the case materials” 

and “does not cite any authority in support of its dubious notion that an 

accomplished and widely sought-out expert in the field is not entitled to rely upon 

his own scholarly or professional publications in rendering an opinion.” Id. at 16.

BHI instead relies on two of the reliability factors that “are not definitive or 

exhaustive,” where “courts have discretion in determining which factors are most 

germane in light of the nature of the issue, the particular expertise, and the subject 

of the expert's testimony.” DeWolff, 2024 WL 1396267, at *4. But, for expert 

testimony on topics that lack “the exactness of hard science methodologies,” courts 

should consider factors such as the expert’s “professional experience, education, 

training, and observations.” United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 

2006). “Rule 702 does not prohibit an expert from reaching an opinion based on the 

expert’s experience,” and “[a] witness’s experience, studies and education, combined 

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with a review of the relevant materials can provide a reliable basis for expert 

testimony.” J.A. Lanier & Assocs., Inc. v. Robbins Electra Mgmt., LLC, No. 

4:21-CV-390, 2022 WL 1226966, at *4 (E.D. Tex. April 26, 2022) (citing and quoting 

Kumho, 526 U.S. at 156 (“no one denies that an expert might draw a conclusion from 

a set of observations based on extensive and specialized experience”)); accord FED. R.

EVID. 702, adv. comm. notes (2000) (“Nothing in this amendment is intended to 

suggest that experience alone – or experience in conjunction with other knowledge, 

skill, training or education – may not provide a sufficient foundation for expert 

testimony.”).

Here, even with the additional guidance provided through the 2023 

amendments to Rule 702’s reliability requirement, the Court finds that Defendants 

have met their burden to show that Pooley’s expert opinion, based on his experience, 

training, research, scholarship, and actual practice in the field of trade secret 

protection, reflects a reliable application of the principles and methods that he 

explains that he applied to the facts of the case. And any challenges can be 

addressed through vigorous cross-examination presentation of contrary evidence, 

including any rebuttal expert opinion, rather than exclusion.

IV.Pooley’s opinions are based on sufficient facts.

BHI argues Defendants have not shown that Pooley’s testimony is based on 

sufficient facts or data because Pooley has not spoken with any representative of 

BHI regarding the measures taken by BHI to protect its trade secrets and only 

interviewed two former BHI employees and, in doing so, did not discuss the actual 

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measures that BHI is taking to protect its trade secrets. See Dkt. No. 79 at 4-5; Dkt. 

No. 125 at 5.

For the reasons that Defendants persuasively explain, Pooley considered 

sufficient facts and data through, among other sources, deposition testimony, and 

these challenges, too, are properly directed to the weight of the evidence rather than 

its admissibility.

V. Pooley sufficiently disclosed facts and data considered in forming his opinions.

Federal Rule of Civil Procedure 26(a)(2)(B)(ii) also requires an expert report to 

contain “the facts or data considered by the witness in forming” his opinions. FED. R.

CIV. P. 26(a)(2)(B)(ii); accord Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 

378 (5th Cir. 2010) (“Rule 26(a)(2)(B) provides that when experts testify before a 

court, they must submit a report disclosing ‘the data or other information’ they have 

considered in reaching their conclusions.” (quoting FED. R. CIV. P. 26(a)(2)(B)(ii)); 

Kim v. Nationwide Mut. Ins. Co., 614 F. Supp. 3d 475, 484-85 (N.D. Tex. 2022) 

(finding a report contained “multiple deficiencies” under Rule 26(a)(2)(B)(ii)).

And Federal Rule of Civil Procedure “37(c)(1) provides that a party who fails 

to disclose the information required by Rule 26(a) ‘is not allowed to use that 

information or witness to supply evidence on a motion, at a hearing, or at a trial, 

unless the failure was substantially justified or is harmless.’ The Fifth Circuit 

applies a four factor test to determine whether the failure to disclose was 

substantially justified or whether exclusion is appropriate: ‘(1) the explanation for 

the failure to identify the [information]; (2) the importance of the [information]; (3) 

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potential prejudice in allowing the [information]; and (4) the availability of a 

continuance to cure such prejudice.’” Estech Sys. IP, LLC v. Carvana LLC, No. 

2:21-CV-00482-JRG-RSP, 2023 WL 2934920, at *4-*5 (E.D. Tex. Apr. 13, 2023) 

(quoting FED. R. CIV. P. 37(c)(1) and Majestic Oil, Inc., No. 21-20542, 2023 WL 

2549892, at *3 (5th Cir. Mar. 17, 2023) (in turn quoting Certain Underwriters at 

Lloyd's, London v. Axon Pressure Prod. Inc., 951 F.3d 248, 270 (5th Cir. 2020))).

Pooley’s second supplemental report states under “INFORMATION

CONSIDERED”:

In addition to the materials identified in Section IV of my 

original report, I have been given access to the entire set of documents 

produced by both parties in this lawsuit, BHI’s Supplemental 

Interrogatory Responses, BHI’s Objections and Responses to 

Defendants’ Second Set of Requests for Production, and have reviewed 

the deposition transcripts for Aaron Haygood, Brady McDonald, Jerrod 

Davis, Welborn “Ross” Glover, Roy Glover, Darrell Hallmark, Shelby 

Walker, Andew McCallum, Juanita Biasini, Ken Loynes (in his 

individual and corporate representative capacities), Ronald Davis, 

Brian Smith, and Dustin Coble. In addition, I have interviewed Darrell 

Hallmark and Ross Glover, former BHI employees who went on to work 

for KVP.

Dkt. No. 100-3 at 14. BHI describes these as only “generic statements”; complains 

that “Pooley’s report does not disclose exactly what Mr. Pooley looked at and 

considered” to enable BHI to know “what exactly he considered in forming his 

opinions”; and asserts that “BHI cannot know what exactly Mr. Pooley considered 

without access to his file,” including “Pooley’s notes of his interviews with Mr. 

Hallmark and Mr. Glover,” which “would be the only evidence of the facts and data 

that was discussed between Mr. Pooley and the interviewees” and that Pooley 

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“considered in forming his opinions.” Dkt. No. 125 at 5-6.

But BHI complains, at bottom, not of deficiencies in listing the sources on 

which Pooley relied but in Defendant’s failing to product all documents and facts 

that Pooley considered in forming his expert opinions. But that’s a ground for a 

motion to compel, not a motion to strike an expert’s opinion or testimony. And it is a 

ground that BHI belatedly sought to press in seeking leave to file a late motion to 

compel. See Dkt. No. 102-4 at 9-10. And the Court already denied BHI’s request for 

leave. See Dkt. No. 163.

Conclusion

The Court denies Plaintiff BHI Energy I Power Services LLC’s Motion to 

Strike the Expert Report and Exclude the Testimony of James Pooley [Dkt. No. 78].

SO ORDERED.

DATED: April 24, 2022

__________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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