UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

SARA HAWES, individually, and on behalf of 

all others similarly situated, 

Plaintiff, 

v. 

MACY’S WEST STORES, INC., 

Defendant. 

Case No. 1:17-cv-00754

Judge Timothy S. Black 

DEFENDANT’S MOTION TO STRIKE REPORT 

AND EXCLUDE OPINIONS OF MR. SEAN CORMIER 

Defendant Macy’s West Stores, Inc., through undersigned counsel, respectfully moves the 

Court for an Order striking the expert report and excluding the opinions of Plaintiff’s expert, Sean 

Cormier, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 

509 U.S. 579 (1993). 

For the reasons stated in the supporting Memorandum filed contemporaneously herewith 

and incorporated herein by this reference, Defendant respectfully requests that the Court strike the 

report and exclude the testimony of Sean Cormier as incomplete and unreliable. 

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2 

This the 3rd day of May, 2021. 

Respectfully submitted, 

 /s/ Beth A. Bryan 

Beth A. Bryan (Ohio Reg. 0082076) 

TAFT STETTINIUS & HOLLISTER LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202 

Phone: (513) 381-2838 

Fax: (513) 381-0205 

bryan@taftlaw.com

Jennifer K. Van Zant (pro hac vice) 

NC State Bar No. 21280

Andrew L. Rodenbough (pro hac vice) 

NC State Bar No. 46364

Ryan C. Fairchild (pro hac vice) 

N.C. State Bar No. 47729 

BROOKS, PIERCE, MCLENDON,

HUMPHREY & LEONARD, LLP 

230 North Elm Street 

2000 Renaissance Plaza 

Greensboro, NC 27401 

Telephone: (336) 373-8850 

Facsimile: (336) 378-1001 

jvanzant@brookspierce.com

arodenbough@brookspierce.com 

rfairchild@brookspierce.com 

Attorneys for Defendant 

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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

SARA HAWES, individually, and on behalf of 

all others similarly situated, 

Plaintiff, 

v. 

MACY’S WEST STORES, INC., 

Defendant. 

Case No. 1:17-cv-00754

Judge Timothy S. Black 

DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO STRIKE REPORT 

AND EXCLUDE OPINIONS OF SEAN CORMIER 

INTRODUCTION 

Plaintiff seeks to support her Motion for Class Certification with the expert opinions of 

Sean Cormier, an instructor at the Fashion Institute of Technology in New York. Plaintiff relies 

on Cormier, who had neither opined about nor tested the thread count of sheets until this litigation, 

to support her central theory of this putative class-action case: that Defendant has engaged in a 

pervasive scheme to inflate the thread count of sheets sold in its retail stores. Like the rest of 

Plaintiff’s class certification presentation, Cormier’s report is characterized by reliance on the 

allegations of Plaintiff’s pleadings despite the lack of evidentiary support for those contentions. 

These factual defects, combined with Cormier’s lack of qualifications, render his opinions 

improper, unreliable, and unhelpful to establish any elements of class certification. Accordingly, 

the Court should strike Cormier’s opinions and refuse to consider them at the class certification 

stage. 

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2 

FACTUAL BACKGROUND

Plaintiff retained Sean Cormier to offer opinions regarding the thread count of bedsheets—

specifically, regarding the chief value cotton (“CVC”) bedsheets supplied by AQ Textiles to 

Defendant Macy’s West Stores, Inc. Cormier is an instructor at the Fashion Institute of 

Technology (“FIT”) in New York City. Cormier Report 1. He earned an Associate’s Degree in 

“Textile Development and Marketing” from FIT in 1990. He also holds a Bachelor’s degree in 

business marketing and a Master’s degree in adult education from the University of Phoenix. 

Between roughly 1986 and 2014, Cormier was employed by different businesses in the 

textile industry. The companies for which he worked (most notably, women’s apparel company 

Liz Claiborne, where he worked for 16 years) did not manufacture or sell bedsheets;1 instead, they 

sold clothing and apparel products and slip covers for furniture. Ex. A, Transcript of Deposition 

of Sean Cormier (“Cormier Tr.”) 19:2-20:11, 26:2-21, 47:19-48:2. Cormier’s specific job 

functions were never related to the weaving of fabric; other than operating a hand loom as a student 

at FIT, he has no experience working with industrial looms. Cormier Tr. 24:1-10. In his work at 

those jobs, he worked and communicated with international textile testing labs such as SGS, 

Intertek, and CTL and trusted them to perform product testing. Cormier Tr. 52:21-54:23. He also 

found the labs to be “very nice and very professional.” Cormier Tr. 58:12-59:2. 

As part of his teaching at FIT, Cormier educates his students generally about ASTM 

International and the testing standards that ASTM promulgates, and sometimes has his students 

perform testing on textile materials in accordance with ASTM Standards. Cormier Tr. 38:22-

39:15. However, he has never had his students test bedsheets, with the exception of a single test 

1

 Liz Claiborne marketed bedsheets under its name at one point but, a third party handled the acquisition and 

management of the bedsheets. Thus, neither Liz Claiborne nor Cormier had any involvement with acquisition or 

management of the bedsheets, and Cormier’s role with Liz Claiborne was limited to apparel products. Cormier Tr. 

26:9-17. 

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for “hand feel.” Cormier Tr. 38:4-13, 41:10-42:19. While Cormier has performed thread-count 

tests himself, the first time that he ever tested the thread count of bed sheets was for his work in 

this litigation. Cormier Tr. 150:9-16. He is not a member of ASTM, and has never received 

training in applying ASTM standards. Cormier Tr. 144:14-146:2. 

In his report, Cormier opines: 

Macy’s Chief Value Cotton (CVC) sheets supplied by AQ Textiles do not have the 

thread counts represented by Macy’s on the marketing and labeling of the products 

to consumers; rather, the thread counts are significantly inflated because Macy’s 

chose to use a non-standard and unacceptable alternative counting method that is 

contrary to the well-established and long-standing industry standard as defined by 

the American Society of Testing Materials (ASTM) Committee 13 governing the 

calculation and advertisement of thread counts. As a result of the inflated thread 

counts on the packaging of the products, consumers purchase the products 

reasonably believing that they were purchasing a product with the stated thread 

count and which is of higher quality, durability, longevity, and/or softness, and/or 

better for sleeping, than products with a lower thread count. 

Cormier Report 3-4. 

He bases this opinion, in large part, on his understanding that AQ Textiles uses, and 

Defendant has adopted, a method of thread-count testing “requiring ‘independent’ labs to go 

beyond the industry standard and count fibers” (as opposed to counting the threads composed of 

fibers). Cormier Report 18. That assertion, however, finds no basis in the evidence. While 

Cormier repeatedly said at his deposition that Larry Queen, AQ’s president, had testified or made 

statements to that effect,2 Queen in fact flatly denied the idea that he (or anyone else) advocated 

for counting “fibers” instead of threads. Ex. B, Transcript of Deposition of Larry Queen, 62:14-

63:14; 68:8-12. Moreover, while Cormier claims to have reviewed an April 27, 2017 email sent 

from “AQ Textiles” to “SGS Testing Laboratories” in which AQ communicated its supposed 

“alternative counting method” to the testing laboratory, the email in question was actually sent 

2 See, e.g., Cormier Tr. 184:2-9, 222:16-224:1, 226:2-9. 

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from a representative of a company called “GCPL Experts” to Queen, with no testing lab involved 

at all. See Cormier Tr. 184:10-186:8 & Ex. 12. Even leaving aside that glaring error, Cormier’s 

claim that the email says anything about counting “fibers” (versus threads) is simply false. When 

faced with this reality in his deposition, Cormier could not identify any other evidence supporting 

his assertion that AQ Textiles or Defendant had required testing labs to count individual fibers, 

rather than threads. Cormier Tr. 226:2-11. 

In addition to his opinions regarding the purported “alternative method” for counting 

threads in bedsheets, Cormier also says that he tested the thread counts of the sheets purchased by 

Plaintiff Sara Hawes and three other sheet sets he purchased from a Macy’s store in New York 

City (a test he had never performed on bed sheets before) and found them lacking. Cormier Report 

17. Cormier admitted, however, that he failed to conduct the test as directed by the current version 

of the ASTM D3775 standard. Cormier Tr. 159:23-25. Specifically, instead of cutting five samples 

from the sheets to test, as provided in Section 9.1.1 of the standard, he tested only a single sample 

from each. Cormier Tr. 158:20-159:22, 236:24-240:3. In fact, in one instance, he casually counted 

only part of the sample, made up his mind that the thread count would be insufficient, and did not 

return to complete his count until a later date. Cormier Tr. 271:4-272:12. Cormier has not tested 

any sheet set other than the four referenced in his report. Cormier Tr. 247:12-14. Nor did he ask 

any independent testing lab with experience testing the thread count of bedsheets to confirm his 

calculations. 

Cormier’s failure to correctly perform thread-count tests pursuant to the ASTM D3775 

standard is unsurprising given his lack of familiarity with basic details relating to the standard. For 

example, in his report, he cites to a 2003 version of the standard, ASTM D3775-03. In his 

deposition, he said he thought a version from 2012 (D3775-12) was the current version of the 

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5 

standard; in fact, there have been multiple versions since then, with the most recent version (which 

is available for purchase on the ASTM’s website) denominated as D3775-17e1. See Cormier Tr. 

164:14-21 & Ex. 7; https://www.astm.org/Standards/D3775.htm (last visited May 3, 2021) 

(referencing, on ASTM website, D3775-17e1 as “active” standard). 

In addition to his unfamiliarity with the ASTM D3775 standard, Cormier also demonstrated 

a lack of knowledge regarding the sheet products supplied by AQ Textiles to Defendant. Those 

sheets are woven pursuant to a group of patents, including U.S. Patent No. 9,131,790 (the “ ’790 

patent”) that describe a process involving the simultaneous insertion of a number of polyester weft 

yarns into a single “shed” formed by the cotton warp yarns.3See Cormier Tr., Ex. 5. At his 

deposition, Cormier was not aware of that process, even though it was explicitly discussed in—

and the ‘790 patent was attached to—the April 27, 2017 email that he incorrectly claimed had been 

sent by AQ Textiles to a testing lab. Cormier Tr. 135:6-143:20, 190:19-192:2. In fact, he rejected 

the possibility that such a thing was even possible. Cormier Tr. 137:25-141:7. But Defendant’s 

expert, Tushar Ghosh, explains in his own report that his more thorough examination of the sheets 

at issue confirmed that they had been manufactured by a process like that described in the ‘790 

patent. See Expert Report of Tushar Ghosh (“Ghosh Report”) ¶ 29. Ghosh also details the 

numerous errors made by Cormier in analyzing the sheet products at issue. Ghosh Report ¶¶ 40-

46. 

Cormier has only testified twice as a purported expert witness: once at a deposition in a 

case in which he evaluated shoes, handbags, and shirts, and once at trial where he opined about 

the importance of research and development in the development and sale of apparel products. 

3

 A “shed” refers to the interlacing space between warp yarns through which the weft yarns are woven. See Ghosh 

Report ¶ 18. 

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6 

Cormier Tr. 6:3-8:20. Never, before this case, has he testified or opined, in any legal proceeding, 

regarding the manufacture, weaving, composition, or thread count of bedsheets. 

ARGUMENT 

I. Legal Standard 

A trial court has a duty to act as a “gatekeeper” by “ensuring that an expert’s testimony 

both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow 

Pharms., Inc., 509 U.S. 579, 597 (1993). A trial court therefore may only admit an expert witness’s 

testimony if it meets the requirements of Federal Rule of Evidence 702, meaning that (1) the 

expert’s specialized knowledge will help the trier of fact to understand the evidence or determine 

a fact in issue; (2) the testimony is based on sufficient data or facts; (3) the testimony is the product 

of reliable principles and methods; and (4) the expert has reliably applied the principles and 

methods reliably to the facts of the case. 

In performing its “rigorous analysis” of Rule 23’s requirements, a trial court “must resolve 

any material evidentiary disputes,” including those related to expert testimony. In re Polyurethane 

Foam Antitrust Litig., 314 F.R.D. 226, 236 (N.D. Ohio 2014). Daubert thus applies at the class 

certification stage when, as here, an expert’s report is “critical to class certification.” 4 Kondash v. 

Kia Motors Am., Inc., No. 1:15-CV-506, 2020 WL 5816228, at *6-7 (S.D. Ohio Sept. 30, 2020) 

(applying Daubert at class certification stage); see also In re Lamictal Direct Purchaser Antitrust 

4

 The Sixth Circuit has not yet definitively stated whether Daubert applies at class certification. See Hicks v. State 

Farm Fire & Cas. Co., 965 F.3d 452, 465 (6th Cir. 2020). Defendant respectfully submits that the better-reasoned 

decisions are those, such as Kondash, that apply the standard when a plaintiff relies on expert testimony to establish 

class certification. But even those courts that have concluded that a standard less exacting than Daubert governs at 

class certification nonetheless scrutinize whether an expert’s opinion is sufficiently reliable for purposes of Rule 

23. See e.g., In re Behr Dayton Thermal Prod., LLC, No. 3:08-CV-326, 2015 WL 13651286, at *6 (S.D. Ohio Feb. 

27, 2015) (“[A]t the class certification stage, the relevant inquiry is ‘whether an expert’s opinion [is] sufficiently 

reliable to admit for the purpose of proving or disproving Rule 23 criteria, such as commonality and predominance.’” 

(quoting Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 495 (C.D. Cal. 2012)). In any event, regardless of the 

standard this Court applies, Cormier’s opinions are not sufficiently reliable and should not be considered.

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Litig., 957 F.3d 184 (3d Cir. 2020) (finding trial court abused its discretion by failing to address 

challenge to plaintiffs’ expert report at class certification stage); Am. Honda Motor Co. v. Allen, 

600 F.3d 813, 815-16 (7th Cir. 2010) (requiring district court to resolve challenges to expert’s 

report prior to ruling on class certification when expert’s report is “critical to class certification”); 

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011) (“The parties dispute whether [a 

particular expert’s] testimony even met the standards for the admission of expert testimony under 

Federal Rule of Civil Procedure 702 and our Daubert case. The District Court concluded that 

Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 

We doubt that is so, but even if properly considered, [the expert’s] testimony does nothing to 

advance respondents’ case.” (emphasis added)). 

“In determining whether proffered expert testimony is admissible, district courts must 

make three inquires. First, the court must determine if the witness is qualified. Second, it must 

determine if the testimony is relevant. Third . . . the court must determine if the testimony is 

reliable.” Kondash, 2020 WL 5816228, at *4 (citing Babb v. Maryville Anesthesiologists P.C., 

942 F.3d 308, 316 (6th Cir. 2019)). Here, Cormier’s proffered testimony fails each of those three 

inquires. 

II. Cormier is not qualified to give opinions about the thread counts of bedsheets. 

Federal Rule of Evidence 702 allows only persons who are “qualified” by “knowledge, 

skill, experience, training, or education” to give expert testimony. Babb v. Maryville 

Anesthesiologists P.C., 942 F.3d 308, 316 (6th Cir. 2019) (quoting Fed. R. Evid. 702). “Because 

an expert’s qualifications bear upon whether he can offer special knowledge to the jury, 

the Daubert framework permits—indeed, encourages—a district judge to consider the 

qualifications of a witness.” United States v. Vitek Supply Corp., 144 F.3d 476, 486 (7th Cir. 1998). 

The decision of whether an expert is qualified—one that rests squarely within the trial court’s 

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discretion—depends not just on the expert’s own qualifications, but “on the specific facts and 

circumstances of the case.” Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624, 634 

(E.D.N.C. 2008). As a result, “the unremarkable observation that an expert may be qualified by 

experience does not mean that experience, standing alone, is a sufficient foundation rendering 

reliable any conceivable opinion the expert may express.” United States v. Frazier, 387 F.3d 1244, 

1261 (11th Cir. 2004); accord 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 6264.2, Westlaw (updated April 2021) (“Even where a witness has specialized 

knowledge, qualification to testify as an expert also requires that the area of the witness’s 

competence matches the subject matter of the witness’s testimony.”).

Applying those principles, numerous federal courts have disqualified experts where they 

lack experience with the specific subject matter of their proffered opinions and/or have developed 

such experience only for purposes of litigation. See, e.g., Berry v. City of Detroit, 25 F.3d 1342, 

1352-53 (6th Cir. 1994) (overturning trial court’s decision to qualify former sheriff “as an expert 

in the field of proper police policies and practices” because his credentials and experience did not 

qualify him to give specific opinions regarding police disciplinary procedures or use of deadly 

force); Redman v. John D. Brush & Co., 111 F.3d 1174, 1179 (4th Cir. 1997) (overturning 

admission of metallurgic engineer’s opinion testimony regarding failure of safe because expert 

“had never before analyzed a safe, engaged in the manufacture or design of safes, or received any 

training regarding safes” and “his only knowledge of safes was acquired in preparation for this 

trial”); In re Opus E., LLC, 528 B.R. 30, 59 (Bankr. D. Del. 2015), aff’d sub nom. In re: Opus E., 

LLC, No. 09-12261, 2016 WL 1298965 (D. Del. Mar. 31, 2016), aff’d sub nom. In re Opus E. 

LLC, 698 F. App’x 711 (3d Cir. 2017) (refusing to consider expert’s testimony where “his opinion 

was not generally accepted; he had never testified on this issue before, had not been qualified as 

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9 

an expert, and could point to no one who had relied on his expertise in this area”); Housley v. 

Orteck Int’l, Inc., 488 F. Supp. 2d 819, 825-27 (S.D. Iowa 2007) (disqualifying insurance adjuster 

offered as an expert on causation of tire accident where “[h]is highest degree obtained is a 

bachelors degree in economics, and he has no background in engineering” and he “had never 

adjusted a tire accident before”); Silva v. Am. Airlines, Inc., 960 F. Supp. 528, 531 (D.P.R. 1997) 

(refusing to admit engineer’s testimony regarding design of aircraft overhead bins where case “was 

the first for which he has served as an expert witness with regard to aircraft design,” purported 

expert “had no experience in the design, manufacturing or operation of an aircraft” before writing 

his opinion, and “he had never before analyzed the ergonomics of seating and overhead 

compartment arrangements of aircraft interiors”). 

Here, as in those numerous prior cases, Cormier’s testimony must be excluded because he 

is not qualified to opine regarding the specific subject of his opinions: testing the thread count of 

bedsheets. Cormier’s only degree remotely related to bedsheets is an associate’s degree from FIT 

in “textile development and marketing.” Cormier Report 1; Cormier Tr. 10:5-10. Although he 

worked for many years in the textile industry, the companies for which he worked did not 

manufacture or sell bedsheets;5 instead, they sold clothing and apparel products and slip covers for 

furniture. Cormier Tr. 19:2-20:11, 26:2-21, 47:19-48:2. Cormier has no experience working with 

the industrial looms that weave fabric. Cormier Tr. 24:1-10. He had never performed a thread 

count test on bedsheets prior to this lawsuit; nor does he have any publications or academic 

experience specific to bedsheets. See Cormier Report 19 (listing unrelated publications). 

Cormier’s lack of knowledge or curiosity regarding the products about which he purports 

to opine is also troubling. Cormier only tested four products, which he acknowledged was a “very 

5

 Again, with the exception of the bedsheets sold under the “Liz Claiborne” name with which Cormier had no 

involvement. 

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small sampling” of the ones potentially at issue. Cormier Tr. 248:4-10. He could not say exactly 

how many were at issue; his interpretation of the products at issue was, vaguely, “any sheet that 

contained a polyester yarn.” Cormier Tr. 248:15-24. Most concerning is his lack of experience 

with the specific manner of weaving the multi-pick-insertion sheets at issue, a process he knows 

absolutely nothing about. He did not review a critical patent describing the process (one that was 

discussed in, and attached to, a document he reviewed and referenced in his report). And after 

briefly reviewing the patent at his deposition, he insisted that the process was only “theoretical” 

and “not how we [meaning the textile industry] manufacture textiles.” Cormier Tr. 140:25-141:9. 

The problem, of course, is that Cormier has not demonstrated any knowledge of how “the textile 

industry” weaves bedsheets. 

Cormier’s lack of relevant expertise, his lack of previous work performing the analysis that 

he constructed specifically for this litigation, and his failure to demonstrate a basic understanding 

regarding the products at issue are fatal to any finding that he is qualified to offer the opinions he 

has put forward in this case. His general background in textiles may have helped him learn about 

bedsheets for purposes of this litigation, but as another district court has shrewdly observed, “an 

expert must have specific knowledge, not mere capacity to acquire knowledge.” Silva, 960 F. Supp. 

at 531. Because Cormier’s qualifications are insufficient, his opinions must be struck. 

III. Cormier’s proposed opinions will not assist the Court in determining any issue 

relevant to class certification. 

Even if an expert is qualified, they may only testify about “relevant matters within their 

expertise.” Babb, 942 F.3d at 316 (emphasis added). The second prong of this Court’s analysis, 

therefore, is to determine whether Cormier’s proposed opinions are relevant. In the specific 

context of class certification, in deciding whether to consider an expert report, a court therefore 

considers whether the opinions are relevant to the class certification inquiry. See, e.g., Schafer v. 

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State Farm & Fire Cas. Co., No. CIV.A. 06-8262, 2009 WL 799978, at *3 (E.D. La. Mar. 25, 

2009) (saying, in addressing challenge to expert testimony at class certification, that “this Court 

must determine whether Dr. Adrian is qualified as an expert, whether his methodology is 

adequately reliable, and whether his opinions are relevant to class certification”). 

Here, the record demonstrates that Cormier’s purported opinions are irrelevant to class 

certification. Cormier’s central opinion in this case is that it is improper to count fibers, as opposed 

to yarn, when conducting thread-count testing.6 But that is not disputed. No party in this case 

contends that individual fibers, which make up yarns, should be counted as threads. Indeed, as 

addressed above, Larry Queen directly rejected that idea in his deposition, and neither Cormier nor 

Plaintiff can point to any document where any person contends that “fibers” should be counted. 

As is more fully addressed in Defendant’s Brief opposing the motion for class certification, this is 

simply an illusory dispute created by Plaintiff in an attempt to invent a “common issue” for 

purposes of the Rule 23 analysis. Cormier’s opinion on this point therefore is not relevant to the 

class certification inquiry. 

Cormier also offers opinions about the thread count of specific sheet products he tested, 

but those opinions do not apply across all products in the class. The issue at class certification is 

not whether particular products have insufficient thread counts, but whether all of the products 

suffer from a common thread-count defect that can be resolved on a class-wide basis. See Fed. R. 

Civ. P. 23(a)(2). Cormier cannot opine on that subject, because he has only tested four of the 

6

 Cormier’s report also includes, as an “opinion,” the suggestion that AQ communicated to testing labs—and 

Defendant supposedly adopted—instructions about how to count threads. Cormier Report 6-7, 18. But this is not an 

“opinion”; it is a factual contention. To the extent Plaintiff is seeking to use Cormier as a vehicle to put forward 

factual evidence about the actions of AQ or Defendant, that is improper and Cormier’s statements on those subjects 

should not be treated as factual evidence. Cf. Williams v. Illinois, 567 U.S. 50, 108 (2012) (explaining that although 

expert may base testimony on hypothetical facts, party must establish those facts by admissible, independent 

evidence). 

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sheets at issue,7 and even accepting his own calculations as true, it is obvious that any thread-count 

defect is not “uniform.” See Cormier Report 17 (purporting to list “accurate” thread counts). 

Moreover, although Cormier has reviewed certain thread-count reports from independent testing 

labs, he has not reviewed them for all products at issue. Cormier Tr. 226:17-227:25. Nor has he 

offered any coherent basis on which his results could be extrapolated to products he did not test 

(in fact, he cannot even clearly identify what those products are). Cormier Tr. 227:5-20. Cormier’s 

opinions regarding the “accurate” thread counts of certain sheet sets, therefore, are similarly 

irrelevant as class certification. 

Because Cormier’s opinions are not relevant to class certification, his report should be 

struck. 

IV. Cormier’s opinions are not reliable. 

The final inquiry the Court must make is whether the expert’s opinion testimony is 

“reliable.” “An expert’s testimony is reliable if it is grounded in ‘scientific knowledge.’” 

Kondash, 2020 WL 5816228, at *4 (citing Daubert). This Court has previously recited the factors 

that Daubert instructed courts to consider in determining reliability, including 

(1) whether the theory or technique had been tested; (2) whether the theory or 

technique can be or has been peer reviewed or published; (3) the known or potential 

error rate; (4) the existence and maintenance of standards controlling the 

technique's operation; and (5) the general acceptance by the relevant scientific 

community and the testimony’s degree of acceptance therein. 

Id. The Sixth Circuit has further identified “red flags” that demonstrate a lack of reliability, 

including “improper extrapolation,” “reliance on anecdotal evidence,” “insufficient information 

about the case,” “failure to consider other possible causes,” and “lack of testing.” Id. at *5 (citing 

7

 As addressed below, to the extent Cormier purports to extrapolate his individual results to opine broadly about the 

thread count of all products purchased by the putative class, that opinion is not reliable and must be rejected. See 

Section IV. 

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Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009)). Expert testimony may also 

be suspect when it fails to demonstrate the expert’s “professional rigor” in reaching his ultimate 

opinion. See Dhillon v. Crown Controls Corp., 269 F.3d 865, 869-70 (7th Cir. 2001). 

Cormier’s analysis here suffers from several of these defects. First, his opinions appear to 

be predominately based on an understanding of the facts that is inconsistent with the actual factual 

record. As discussed above, Cormier places great importance on the idea that AQ Textiles 

supposedly advocates for counting “fibers” rather than yarns when testing the thread count of 

sheets. But there are no documents in the record that support that theory, and Cormier seems to 

have premised this idea on misconstruction of Queen’s deposition testimony and 

mischaracterization of an April 27, 2017 email sent to Queen that Cormier wrongly claimed Queen 

had sent.8 Cormier Tr. 185:5-190:18, Ex. 12. He also lacks a basic understanding of the way the 

sheet products at issue are manufactured, which further undermines the reliability of his 

conclusions regarding their thread count. See Cormier Tr. 135:10-141:18. 

Second, Cormier’s opinions relating to the thread count of the four sheets he tested are not 

the “product of reliable principles or methods” as required by Rule 702. Cormier acknowledges 

(and no party appears to dispute) that ASTM D3775 is the applicable standard for testing the thread 

count of bed sheets. Cormier admits that, instead of doing his testing like an “official test,” he did 

it informally, and not even all in one sitting. Cormier Tr. 158:20-159:25. Cormier offers no 

explanation for this, except to say that he did not feel did not need to be done like a “lab report.” 

Cormier Tr. 159:18-19. Cormier’s nonchalance about performing the test correctly—particularly 

given that he opines, without basis, that Defendant and AQ promote an “alternative” version of 

8

 As Dr. Ghosh points out in his report, even if Queen had sent the email to a testing lab, Cormier’s condemnation of 

the statements in the email is unfounded. Ghosh Report ¶ 37. 

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14 

that very test—smacks of the lack of “professional rigor” that concerned the Seventh Circuit in 

Dhillon. 

Third, Cormier’s thread-count testing is problematic because it was conducted solely for 

purposes of this litigation. The Sixth Circuit “has recognized for some time that expert testimony 

prepared solely for purposes of litigation, as opposed to testimony flowing naturally from an 

expert’s line of scientific research or technical work, should be viewed with some caution.” 

Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007). In analyzing such 

“prepared-solely-for-litigation” work, “[o]ne very significant fact to be considered is whether the 

experts are proposing to testify about matters growing naturally and directly out of research they 

have conducted independent of the litigation.” Id. (quoting Daubert v. Merrell Dow Pharms., 

Inc., 43 F.3d 1311, 1317-18 (9th Cir. 1995)). Here, Cormier had never before performed threadcount testing on bedsheets, and there is no evidence that he ever showed any professional interest 

or demonstrated any expertise in the subject prior to being engaged in this lawsuit. His opinions 

in this case are not an outgrowth of any academic research or study; they were simply adopted to 

support Plaintiff’s theory of the case. The prepared-for-litigation nature of Cormier’s opinions is 

therefore a further reason to doubt their reliability. 

Fourth, Cormier’s informal thread-count testing suffers from a lack of confirmation or 

review by any peer or other qualified professional. Given that Cormier did not feel he needed to 

perform his thread-count testing like a “lab report,” it begs the question of why Cormier (or 

Plaintiff’s counsel) did not send the sheets at issue for formal testing by an independent testing 

lab. That failure is particularly confusing given that Cormier attacks the independent test reports 

obtained by the sheets’ manufacturers as being tainted by “special instructions”9 communicated to 

9

 There is no evidence of such “special instructions.” 

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15 

the labs doing the tests—labs that Cormier himself characterized as professional and trustworthy. 

If that is the case, it would have presumably been simple for Cormier to obtain lab reports that 

were not similarly “tainted.” The fact that Plaintiff did not choose to obtain its own independent 

laboratory results not only casts suspicion on the veracity of Cormier’s own tests, but it leaves the 

test results obtained by the sheets’ manufacturers and produced by AQ Textiles (which confirm 

the stated thread count of the sheets) as the only independent lab reports.10

Fifth, Cormier has not explained what basis there is for extrapolating his testing of the four 

sheet sets he tested to the numerous other products Plaintiff seeks to bring within the ambit of the 

class claims. He does not opine that the products he tested are similar to those that he didn’t; nor 

did he state any basis he would have to make that determination based on the evidence he was 

presented by Plaintiff’s counsel. Instead, it appears that Cormier’s attempted extrapolation of his 

testing results is based almost solely on the specious theory—unsupported in the factual record—

that AQ Textiles and/or Defendant endorsed, and forced on independent testing labs, an 

“alternative” method of counting threads. That tenuous thread, standing alone, is insufficient to 

justify any extrapolation from the four informal tests Cormier performed to the conclusion that all 

of the sheet products Plaintiff seeks to bring within the ambit of the class. 

Finally, Cormier included language in his report, cribbed directly from Plaintiff’s Third 

Amended Complaint, to the effect that by supposedly inflating thread counts of the bedsheets at 

issue, Defendant deceived consumers into thinking they were buying sheets that were of better 

quality, more durable, and softer than what the consumers actually received. Compare Cormier 

Report 3-4 with Third Am. Compl. ¶ 142, DE 64. It is not clear whether Cormier actually means 

10 Tellingly, Plaintiff did not submit any of these reports as evidence in connection with either the Cormier Report or 

her Class Certification Motion. Defendant has submitted examples of these reports as exhibits to the Declaration of 

Larry Queen, filed contemporaneously herewith. 

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16 

to offer this opinion (or if that language even constitutes an “opinion”) but if he does, there is 

plainly no basis for him to do so. Cormier has not conducted any consumer surveys (Cormier Tr. 

253:20-21) and has not presented any evidence whatsoever that would allow him to compare the 

durability, quality, or softness of the sheets at issue to sheets having the “true” represented thread 

count (or any other sheets at all). Indeed, Plaintiff has put forth no evidence at all that would allow 

for a comparison of any kind between the sheets at issue in this lawsuit and other, hypothetical 

sheets that have “accurate” thread counts. Accordingly, any attempt by Cormier to restate the 

allegations of Plaintiff’s pleading as an opinion regarding the softness, durability, or quality of the 

sheets at issue must be rejected as unreliable. 

In summary, there are numerous factors that undercut the reliability of the opinions 

Cormier seeks to offer at class certification. As a result, his opinions should be struck and not 

considered by the Court in deciding Plaintiff’s Motion for Class Certification. 

CONCLUSION 

For the foregoing reasons, Defendant respectfully requests that the Court exclude Sean 

Cormier’s report and testimony in deciding Plaintiff’s Motion for Class Certification. 

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17 

This the 3rd day of May, 2021. 

Respectfully submitted, 

/s/ Beth A. Bryan

Beth A. Bryan (Ohio Reg. 0082076) 

TAFT STETTINIUS & HOLLISTER LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202 

Phone: (513) 381-2838 

Fax: (513) 381-0205 

bryan@taftlaw.com

Jennifer K. Van Zant (pro hac vice) 

NC State Bar No. 21280

Andrew L. Rodenbough (pro hac vice) 

NC State Bar No. 46364

Ryan C. Fairchild (pro hac vice) 

N.C. State Bar No. 47729 

BROOKS, PIERCE, MCLENDON,

HUMPHREY & LEONARD, LLP 

230 North Elm Street 

2000 Renaissance Plaza 

Greensboro, NC 27401 

Telephone: (336) 373-8850 

Facsimile: (336) 378-1001 

jvanzant@brookspierce.com

arodenbough@brookspierce.com 

rfairchild@brookspierce.com 

Attorneys for Defendant 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that the foregoing document was filed via the Court’s 

CM/ECF system, which will send electronic notification to all counsel of record. 

This the 3rd day of May, 2021. 

/s/ Beth A. Bryan 

Beth A. Bryan 

Case: 1:17-cv-00754-DRC Doc #: 92 Filed: 05/03/21 Page: 20 of 20 PAGEID #: 1797