CIT Limits Testimony of Gov't Witnesses in Customs Spat on Wearable Blanket Ahead of Trial

The Court of International Trade on Oct. 15 limited the scope of the testimony that will be offered by two of the government's witnesses in a customs spat on the classification of The Comfy, a wearable blanket imported by Cozy Comfort Co. Judge Stephen Vaden said fashion industry professional Patricia Concannon can testify only on topics related to the "sale, marketing, and merchandising of apparel," and that CBP national import specialist Renee Orsat "may not testify about opinions she formed during the Customs’ classification process."

Vaden also rejected the government's motion to exclude testimony from outerwear designer James Crumley, who was offered as an expert witness by Cozy Comfort. The judge rejected the government's attacks on Crumley's reliability, finding DOJ's claims to speak only to the weight the court should give to the testimony, rather than lead to its exclusion.

In the dispute, the government 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 parties disagree on three main facts: whether the item shields against "extreme cold"; how the good compares with the Snuggie, a similar item; and the product's "use factors."

The case was sent to a bench trial, ahead of which the parties traded challenges to the witnesses offered by the other side (see 2409250040). The trial will take place next week.

Cozy Comfort sought to exclude Concannon's testimony on the grounds that she's unqualified to speak on any of the three facts in dispute, given that her background is in sales and not garment design. Vaden agreed, finding that Concannon "lacks the expertise necessary to testify about whether The Comfy can protect against extreme cold," noting that such testimony "would be divorced from her expertise" in sales, marketing and merchandising.

Concannon has a bachelor's degree in apparel merchandising and has worked primarily in jobs where she "managed fashion non-profits or handled sales, communications, and buyer relations for fashion companies," the court found. Her only "notable experience with material design" came during an eight-month stint at a fashion company 13 years ago. Vaden said this "dated, short-term experience" doesn't qualify her as an expert.

The judge said Concannon can speak on the topics in dispute only insofar as she's discussing how The Comfy or related products are sold or marketed.

The government offered Orsat's testimony to detail Cozy Comfort's current and prior tariff classification protests and how her responsibilities apply to this matter. Orsat is responsible for heading 6110 rulings, among others. Cozy Comfort challenged Orsat's testimony on the grounds that she would speak about internal communications that were kept from the importer under the deliberative process privilege, arguing that the privilege can't be used as a "sword and a shield." DOJ said Orsat's testimony won't involve any information covered by the privilege.

Vaden disagreed, finding that Orsat's testimony "will touch on aspects of the deliberative process." Orsat's review of the importer's submissions and any responsibilities she had in this proceeding "all fall under the scope of her employment at Customs," which was "part of the steps Customs took internally to render a final classification decision about The Comfy." Orsat was "privy to much" of the agency's internal discussion and "also contributed" to that, the judge said.

This leads to an "impermissible, unfair situation for Cozy Comfort," whereby Orsat's testimony will lend insight into a classification process that is favorable to the government's litigation position, the judge said. As a result, the court limited Orsat's testimony, restricting her from speaking on "opinions she formed during the Customs’ classification process." The CBP employee is barred from talking about any opinions she once held about the item or her general responsibilities at CBP. She also can't "authenticate and recount the details of the Government’s final classification decision because that final decision was not shielded from discovery," the judge said.

However, Vaden said Orsat can testify about the company's prior protests as background information that satisfies the low threshold for relevant evidence. The judge also rejected Cozy Comfort's challenge that Orsat's testimony is expert, rather than lay opinion, testimony. Vaden said "Orsat is a witness with firsthand knowledge of The Comfy" and how and why it was classified under heading 6110. The topics outside the court's limitation "involve fact-based testimony derived from her personal knowledge of this case," the court held.

DOJ had its own evidentiary challenge, moving to exclude testimony offered by Cozy Comfort by James Crumley -- an outdoorsman who has developed various patents and trademarks on outerwear and outdoor apparel. In all, the government made five reliability challenges to Crumley's testimony.

Vaden rejected two such challenges, which said Crumley was unreliable since he changed his position on the product without explanation and is relying on his memory for key facts. The judge said these attacks go to the "weight the Court should give" the testimony, instead of the "actual methodological reliability and admissibility of his expert opinion."

Two other reliability attacks offered by the government alleged that Crumley didn't consider any facts developed in discovery and relied on an "irrelevant" version of The Snuggie when comparing the two items. Vaden disagreed, saying the claim Crumley didn't consider facts developed in discovery "is contradicted by the very deposition testimony the Government cites for support." The judge also said the only thing that matters is if the evidence Crumley relied on "sufficiently relates" to the present case, which it clearly did. Vaden also said the U.S. failed to introduce evidence showing The Snuggie version Crumley used "is no longer classified as a blanket for tariff purposes."

The government also challenged Crumley's testimony, saying it improperly rests on his personal experiences and opinions. Vaden said this argument "misunderstands" the relevant federal evidentiary rule, which establishes experience alone as an "adequate basis for reliable expertise."

(Cozy Comfort Co. v. U.S., Slip Op. 24-114, CIT # 22-00173, dated 10/15/24; Judge: Stephen Vaden; Attorneys: Christopher Duncan of Stein Shostak for plaintiff Cozy Comfort; Beverly Farrell for defendant U.S. government)