Importer, US Trade Evidentiary Challenges in Customs Spat on Wearable Blanket

The U.S. filed a pair of motions, one seeking to exclude expert testimony from garment and outdoor textile design professional James Crumley and the other looking to scratch a total of 14 other exhibits from the importer. Cozy Comfort sought to exclude testimony from CBP employee Renee Orsat -- a week after also moving to dismiss the testimony of sales and marketing lecturer Patricia Concannon (see 2409180014).

In the dispute, 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 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."

Cozy Comfort offered the testimony of Crumley, who has experience making hunting garments more usable and efficient, to speak to whether The Comfy protects from extreme cold, whether it's an oversize garment and whether it's a blanket.

In response, the U.S. said Crumley "is of no assistance" since his testimony solely relies on his own personal experiences and opinions, which "is not sufficient to establish the reliability of that opinion." The government said the court "cannot simply take Mr. Crumley's word for it." The U.S. added that Crumley's testimony should not be heard, since he didn't review any of the information developed during discovery in this matter and changed his position on the entire topic. During a separate case, Crumley referred to the item as a garment but now says it's a blanket -- changing his stance "without explanation," the U.S. said.

The U.S. also sought to scrap numerous exhibits from Cozy Comfort for a combination of authenticity, relevance, hearsay and other issues. For instance, the government said a sample of a Snuggie was irrelevant, since the 2017 CIT case classifying a Snuggie as a blanket looked at a Snuggie entered in 2009, while the offered sample has a 2023 copyright date.

Certain exhibits, including depictions of The Comfy being displayed for sale collected for litigation purposes should be excluded on hearsay grounds due to a "lack of trustworthiness," the brief said. The displays "suffer from being partially cut off and lacking a URL or date," and other exhibits, such as a single customer review on Amazon or a document showing net sales from 2018-22, "are also inherently unreliable" since they were prepared after the dispute began.

The U.S. pointed to other faults in Cozy Comfort's exhibits, including a patent that should have been included in the company's response to the government's discovery request made over two years ago. The patent comes a year after the close of discovery but clearly falls within the bounds of the government's document production request, the brief said. Also, photos of The Comfy for sale aren't "probative of any of the issues for trial, as no percipient witness has been identified who took these photographs," the brief said.

Meanwhile, Cozy Comfort sought to exclude Orsat's testimony for a variety of reasons, the first centered around the government's exertion of privilege over Orsat's previous communications during discovery. The importer said the U.S. asserted "deliberative process privilege" over at least 43 documents involving Orsat but "intends to call Ms. Orsat to testify at trial anyway." The importer said this amounts to "trial by surprise," and prevented the company from "developing deposition testimony or fully examining underlying documents that would ostensibly support (or perhaps challenge) Ms. Orsat's proposed trial testimony."

Cozy Comfort also said Orsat should be barred from testifying about her experience as a National Import Specialist in charge of 6110 classification decisions, since deference to CBP "is not implicated by the Court's review." The briefing speaks for itself and is purely a legal question, the company said.

The importer additionally claimed that Orsat's testimony on the company's prior imports is irrelevant since it doesn't concern the same merchandise, and it's "abundantly clear" that Orsat will give expert, rather than lay witness, testimony. Since the U.S. failed to adhere to the expert witness disclosure requirements, Orsat's testimony should be scrapped, the brief said.