                                             Slip Op. 11-150

                 UNITED STATES COURT OF INTERNATIONAL TRADE



 VICTORIA’S SECRET DIRECT, LLC

                         Plaintiff,
                                                     Before: Timothy C. Stanceu, Judge
                  v.

 UNITED STATES,                                      Court No. 07-00347

                         Defendant.



                                      OPINION AND ORDER

[Denying defendant’s motion in limine to preclude certain testimony and exclude certain
evidence prior to trial in an action requiring the court to determine the tariff classification of an
imported article of women’s apparel]

                                                                        Dated: December 5, 2011

        Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, for movant and defendant United States. With her on
the brief were Tony West, Assistant Attorney General, and Barbara S. Williams, Attorney in
Charge, International Trade Field Office.

       Francis P. Hadfield, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New
York, NY, for plaintiff. With her on the brief were Robert B. Silverman and Alan R. Klestadt.

        Stanceu, Judge: In this case involving the tariff classification of an imported article of

women’s apparel that has been described as a “Bra Top,” Joint Pretrial Order, Schedule C ¶ 10

(Nov. 29, 2011), ECF No. 53, defendant moves to preclude plaintiff’s lay witness, Ms. Christina

Trainer, from testifying at trial or, in the alternative, to preclude this witness from testifying

“with respect to the subject merchandise as to the fit, feel, support, design, function or any other

category that is within her expertise as a fit model.” Def.’s Mot. in Limine 2, 5 (Dec. 1, 2011),
Court No. 07-00347                                                                              Page 2

ECF No. 54 (“Def.’s Mot.”). Defendant also moves to preclude any testimony and exclude any

evidence “relating to the November 23, 2009 fitting of the subject merchandise because it is

irrelevant to these actions, constitutes hearsay and will not assist the Court in determining the

proper classification of the merchandise.” Def.’s Mot. 5.

        With respect to plaintiff’s intention to call Ms. Trainer as a witness, defendant argues that

Ms. Trainer, a “fit model,” is an expert “[w]ith respect to describing the fit, support and design

features of a bra or top” and that “[p]laintiffs are seeking to have Ms. Trainer testify at trial in the

guise of a fact witness but based on her fit model expertise.” Id. at 2. Because plaintiff did not

provide defendant the notification required by USCIT Rule 26(a)(2) for an expert witness and

did not provide an expert witness report, defendant seeks to preclude Ms. Trainer’s testimony

according to USCIT Rules 26 and 37. Id. Characterizing as a violation of the Court’s rules the

failure to provide an expert witness notification or report, defendant argues that “[t]he party

facing USCIT Rule 37 sanctions bears the burden of proving the harmlessness of its violation.”

Id. at 4.

        The court must deny defendant’s motion to the extent the motion seeks to prohibit

Ms. Trainer from testifying on any subject. Defendant is correct that Federal Rule of Evidence

(“FRE”) 701 is intended to prevent a party’s use of a lay witness as a means of circumventing

the procedural requirements governing expert witness testimony.1 Nevertheless, the court finds


        1
           Federal Rule of Evidence 701 states that
       If a witness is not testifying as an expert, testimony in the form of an opinion is
       limited to one that is:
       (a) rationally based on the witness’s perception;
       (b) helpful to clearly understanding the witness’s testimony or to determining a fact
       in issue; and
                                                                                        (continued...)
Court No. 07-00347                                                                             Page 3

nothing in the Court’s rules or the Federal Rules of Evidence prohibiting plaintiff from calling

Ms. Trainer as a fact witness, despite whatever expertise Ms. Trainer may or may not possess as

a result of her experience as a fit model. FRE 701 contemplates that a witness testifying as other

than an expert may offer opinion testimony in certain circumstances and does not prohibit an

appearance at trial based on the witness’s qualifications. Defendant, therefore, is incorrect both

in its allegation that plaintiff has committed a violation of USCIT Rule 26(a)(2) and in its

conclusion that Ms. Trainer must not be permitted to testify at trial.

       Defendant moves in the alternative for an order under which Ms. Trainer would not be

permitted to testify “with respect to the subject merchandise as to the fit, feel, support, design,

function or any other category that is within her expertise as a fit model,” arguing that “[a]ny

such testimony would constitute improper expert testimony in view of Ms. Trainer’s expertise as

a fit model.” Def.’s Mot. 5. Referring to plaintiff’s having employed Ms. Trainer to wear a

sample of the merchandise at issue and other garments on November 23, 2009, defendant seeks

to confine any testimony of the witness “to simply the facts surrounding her November 23, 2009

fitting and the facts relating to what fit models do.” Id.

       Defendant’s proposed limitations on the scope of any testimony of Ms. Trainer are overly

restrictive. The court will permit Ms. Trainer to present any testimony in the form of opinions

that is allowed under the FREs and, specifically, under FRE 701, i.e., opinions that are

“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the

witness’s testimony or determining a fact in issue; and (c) not based on scientific, technical, or


       1
        (...continued)
      (c) not based on scientific, technical, or other specialized knowledge within the
      scope of Rule 702.
Court No. 07-00347                                                                           Page 4

other specialized knowledge within the scope of Rule 702.” With respect to the limitation in

FRE 701(c) related to “specialized knowledge within the scope of Rule 702,” defendant’s motion

identifies only in the vaguest of terms the subject or subjects on which defendant alleges

Ms. Trainer to possess such knowledge. In determining what opinion testimony is permissible

under FRE 701, a court must distinguish between the broad scope comprised of all the

knowledge a person acquires as a result of employment in a given field and the much narrower

scope of specialized knowledge or expertise that would fall within the scope of FRE 702. As the

notes pertaining to the amendments to FRE 701 in 2000 clarify, the rule as amended

“incorporates the distinctions set forth in State v. Brown, 836 S.W.2d 530, 549 (1992),”

specifically, the distinction between lay and expert witness testimony 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.’” Fed. R. Evid. 701,

2000 amendment notes. Under this standard, the court must reject defendant’s argument that any

testimony Ms. Trainer offers that is beyond facts surrounding the fitting and facts relating to

what fit models do necessarily must be excluded as expert witness testimony.

       Defendant also moves to prevent all testimony, including that of plaintiff’s expert

Ms. Alexandra Armillas, and exclude all evidence relating to the November 23, 2009 fitting of

garments to Ms. Trainer. “The government objects to the introduction of any testimony or

evidence relating to the November 23, 2009 fitting of the subject merchandise because it is

irrelevant to these actions, constitutes hearsay and will not assist the Court in determining the

proper classification of the merchandise.” Def.’s Mot. 5.
Court No. 07-00347                                                                            Page 5

       Defendant’s first argument is that plaintiff’s testing of the subject merchandise on Ms.

Trainer was limited to a garment in Ms. Trainer’s size, size medium, even though the subject

merchandise was imported in all sizes from extra small to extra large. Id. at 6. Therefore,

according to defendant, the data resulting from such testing is “incomplete data” on which the

court “should not rely . . . in assessing the proper classification of the subject merchandise.” Id.

Defendant fails to put forth a convincing argument as to why the court must conclude that

testimony and evidence related to the November 23, 2009 fitting is either irrelevant or so

unreliable as to preclude its introduction at trial. Based on the parties’ proposed pre-trial order,

other submissions of the parties, and the court’s pre-trial consultations with the parties, the court

must presume that how, and to what degree, the subject merchandise performed the body support

function claimed for it are at issue in this case. The court must conclude, further, that data and

testimony related to the testing of a medium-sized garment on Ms. Trainer, whom the parties

agree is a fit model of a specific garment size, is relevant to those issues.

       Defendant argues, second, that the evidence from the fitting is irrelevant for purposes of

FRE 4012 because “[w]hether the articles provide support is not in dispute so no evidence will

make that determination more or less probable.” Id. This argument oversimplifies the issues

upon which the parties remain in dispute. The parties’ joint statement of uncontested facts does

not justify defendant’s assertion that no dispute exists with respect to any issue relating to the

support the imported garment provides to the wearer. See Joint Pretrial Order, Schedule C.




       2
          Federal Rule of Evidence 401 states that “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.”
Court No. 07-00347                                                                             Page 6

       Third, defendant argues that, through testimony and evidence on the fitting of other

articles that U.S. Customs and Border Protection would classify as brassieres, plaintiff is

attempting to “bootstrap” the classification of the subject merchandise to these dissimilar

articles. Def.’s Mot. 7. Defendant maintains, citing General Rules of Interpretation and the

Additional U.S. Rules of Interpretation, HTSUS, and various judicial decisions, that long-

standing precedent counsels against the court’s comparing “an article to another dissimilar

article in an effort to properly classify it.” Id. This argument fails to convince the court that

plaintiff’s witnesses must be prohibited, on relevance grounds, from giving any testimony that

pertains to the support provided by garments other than the specific merchandise at issue in this

case. Subject to the FREs, plaintiff should be permitted to introduce evidence in an attempt to

establish as a fact that the garment at issue provides support to the wearer comparable to that

provided by garments that plaintiff claims are recognized, either in common parlance or in the

apparel industry, as brassieres.

       Finally, defendant argues that the court must exclude as hearsay, prior to trial, all

evidence consisting of measurements obtained during the November 23, 2009 fitting involving

Ms. Trainer. Id. at 8. The court disagrees. Plaintiff proposes to call as witnesses individuals

who took measurements at the fitting or observed the process by which the measurements were

taken. Subject to the FREs, these witnesses will be permitted to testify concerning the events

that occurred at the fitting, based on their observations and recollections. Any documentary

exhibits that plaintiff seeks to admit as evidence during the examination of the witnesses will be

admitted to the record provided they are entitled to admission under the FREs. Defendant’s

generalized attempt to exclude prior to trial all evidence pertaining to the measuring of the fit
Court No. 07-00347                                                                            Page 7

model and the results of that measuring is overly inclusive and without basis at this time.

Defendant argues, further, that “the concern with admitting hearsay is amplified because the best

evidence of the measurements has been destroyed.” Id. This objection is based on an

unwarranted presumption that all evidence pertaining to the measuring conducted on the fit

model must be excluded as hearsay. Moreover, the best evidence rule does not support this

objection because plaintiff proposes to elicit testimony regarding the results of the November 23,

2009 fitting. Any ruling on the admissibility of documents relating to the measuring is

premature at this time.

                                             ORDER

       Upon consideration of Defendant’s Motion in Limine (Dec. 1, 2011), ECF No. 54

(“defendant’s motion”), the response thereto, and all papers and proceedings herein, and upon

due deliberation, it is hereby

       ORDERED that defendant’s motion be, and hereby is, DENIED.

                                                             /s/ Timothy C. Stanceu
                                                             Timothy C. Stanceu, Judge

Dated: December 5, 2011
       New York, New York
