From approximately January 1995 through 1997, Plaintiff Robert Wheeler was in the band “Throwin Stones.” In January 1995, Throwin Stones recorded the songs for its only studio album. One of those songs was called Coffee.
He alleged that John Mellencamp’s song Key West Intermezzo (I Saw You First) (“Key West”) copied the song Coffee.
Plaintiff retained Dr. Pablo D. Herrera Veitia as an expert musicologist to provide an analysis of the musical compositions Coffee and Key West Intermezzo (I Saw You First).
He purported to be an expert in “music theory, melodic analysis, sound design, and digital audio evaluation.” Based on his analysis, he posited that there were “clear and verifiable correspondences between” Coffee and Key West. According to him, the “alignment in lyrical placement and musical structure reinforced the impression of deliberate creative correspondence rather than coincidence.”
Musicology Expert Witness
Dr. Pablo Demetrio Herrera Veitia holds a Ph.D. in social anthropology and a master’s degree in sound design.
Herrera Veitia is an accomplished sound designer andcmusic producer, with extensive experience in critical listening, sample creation, and detailed
sonic analysis.
Discussion by the Court
To begin with, Plaintiff only offered to produce Herrera for a single hour, even though the Federal Rules permit depositions to last up to seven hours absent leave of the Court. It should be noted that Herrera is the only expert musicologist for whom Plaintiff produced a Rule 26(a)(2)(B) report, he is the only expert witness who could be permitted to testify for Plaintiff at trial. His opinions and testimony are therefore critical to Plaintiff’s case. Despite his importance, Plaintiff unilaterally refused to make him available for more than one hour.
Moreover, the record did not demonstrate that Plaintiff used his best efforts to ensure that Herrera would be able to meaningfully participate in the one hour for which he was made available considering Plaintiff knew in advance that Herrera was located in Cuba and had a poor internet connection. Despite this advance knowledge, it does not appear that Plaintiff took any steps to help mitigate these connectivity issues.
Additionally, after Herrera disconnected several times and gave incomprehensible responses due to his poor connection, Plaintiff offered to meet and confer with defense counsel to reschedule the deposition. Yet, not only did he refuse to reschedule the deposition, he did not even attempt to meet and confer with defense counsel to identify alternative dates. Under these circumstances, Plaintiff did not use his best efforts to produce Herrera for a rescheduled deposition after what was effectively a useless hour.
Based on all of this, the Court concluded that Plaintiff’s failure to produce Herrera for a meaningful deposition was not harmless.
Moreover, Defendants and their expert have non-frivolous criticisms and questions about Herrera’s background, methodology, and conclusions.
Held
The Court granted Defendants’ motion to exclude the testimony of Dr. Pablo Demetrio Herrera Veitia.
Key Takeaway
Allowing Plaintiff to rely on Herrera’s reports and opinions when Defendants have been deprived of an opportunity to meaningfully depose him would be highly prejudicial. The Court concurred with Defendants that the appropriate sanction for the violation was exclusion. Defendants were not able to subject Herrera’s opinions to the adversary process, and there was no cure once discovery had closed and trial was set to begin in a matter of weeks.
Case Details:
| Case Caption: | Wheeler V. Mellencamp |
| Docket Number: | 2:24cv10176 |
| Court Name: | United States District Court, California Central |
| Order Date: | February 11, 2026 |
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