Importer Wants to Ditch Gov't Witness Ahead of Trial on Classification of Wearable Blanket

Importer Cozy Comfort Co. moved on Sept. 17 to exclude the testimony of sales and marketing lecturer Patricia Concannon regarding the tariff classification of The Comfy, a wearable blanket. The motion was issued ahead of a bench trial on the classification of the item (Cozy Comfort Company v. U.S., CIT # 22-00173).

Cozy Comfort said Concannon "is not an expert qualified to opine on" whether The Comfy "protects against 'extreme cold,'" how The Comfy compares to the Snuggie and the use of factors identified by the U.S. Court of Appeals for the Federal Circuit at issue in this case. Concannon conceded to not being a garment or blanket designer or a "weather expert nor an expert in 'extreme cold' or articles that protect from 'extreme cold,'" the importer said.

Instead, Concannon, a witness offered by the government, has a background in business-to-business sales and marketing. "Tellingly, Ms. Concannon has never been retained by any party or admitted by any court to opine on any issue, claim, or matter at any point in a legal dispute, customs-related, design-related, fashion-related, garment-related, or otherwise," the brief said.

The Court of International Trade in June sent the case to trial to sort out the classification dispute (see 2406130028). The U.S. classified The Comfy under Harmonized Tariff Schedule heading 6110 as a pullover or similar article, while Cozy Comfort said the garment should be classified under either heading 6301 as a blanket, heading 6307 as "other made-up textile articles" or heading 6114 as "other garments."

The court said the parties disagree on three main facts: whether The Comfy "protects against extreme cold"; how The Comfy compares with the Snuggie, a similar item; and the product's "use factors." The U.S. offered Concannon as a witness for the trial.

The importer said it's "unclear why Defendant retained Ms. Concannon." She's "not an expert on the construction of outerwear," isn't an "expert in the construction of cold weather garments," isn't a "textile expert," has never created a garment, lacks any meteorological experience to determine "extreme cold," has never designed a pullover or blanket, teaches business courses instead of apparel-design courses and "has never published a peer-reviews article," the brief said.

Cozy Comfort added that Concannon "fails to describe the methodology she used to 'determine' that The Comfy does not protect against the 'extreme cold.'" To the extent there is a methodology, "it amounts to simply knowing, as any layperson would, what constitutes 'extreme cold,'" the brief said.

The importer said Concannon compared The Comfy and the Snuggie "without ever physically examining the Snuggie or comparing the fabric used to make the Snuggie to those used to make The Comfy." And while Concannon did say The Comfy is a "garment," she didn't "conduct any market research on The Comfy," consider what consumers thought of the product or carry out any consumer opinion research.