In this breach-of-contract suit stemming from an exclusive license to present a live touring show of the popular children’s show, CoComelon, Plaintiff/Counterclaim Defendant CCM Touring LLC and Counterclaim Defendant S2BN Entertainment Corporation (“S2BN”) (collectively, the “CCM Parties”) sought to exclude the opinions and testimony of Eric Grilly and George Wade, experts for Defendant/Counterclaimant Moonbug Entertainment Ltd. and Counterclaimant Treasure Studio Inc.
The Moonbug Parties also sought to exclude certain opinions and testimony of Michael Olsen and Felix Barrett, experts for the CCM Parties.
Entertainment Industry Expert Witnesses
Eric Grilly is a seasoned live entertainment executive who has worked in the live entertainment industry for over twenty years and in the live family
entertainment and touring section for over fifteen years.
George Wade is an expert in the licensing of intellectual property rights, specializing in live entertainment licensing practices. Wade has over 44 years of experience in the location-based entertainment industry and has worked in the acquisition and licensing of intellectual property for location-based entertainment applications for the past three decades.
Michael Olsen has worked exclusively in the entertainment industries since 1979, during which time he has worked on more than 500 live shows and productions and gained experience in virtually every facet of a live production.
Felix Barrett is the founder and artistic director of a British theater company that specializes in participatory and immersive productions and is well-known for creating “Sleep No More,” a retelling of Shakespeare’s “Macbeth.”
Discussion by the Court
A. Eric Grilly
First Opinion
First, the CCM Parties argued that Grilly’s opinion as to Moonbug’s lost royalty revenues is actually a “lost profits” opinion that should be excluded because it “improperly relies on speculative financial projections instead of the actual financial performance of two live CoComelon tours.”
Grilly based his opinion on financial projections created by others, which he did not independently verify in the context of projecting future earnings for a new business venture.
To be sure, an expert’s use of assumptions or projections in calculating lost profits is not necessarily fatal, if the assumptions or projections are reliable. But, here, Grilly took no steps to independently assess the reliability of the projections prepared by CCM or Round Room, or the assumptions relied on in preparing those projections.
Second Opinion
Next, the CCM Parties attacked Grilly’s opinion that CCM failed to use its best endeavors to tour CoComelon Live. Grilly opined that CCM failed to tour CoComelon Live consistent with industry practice concerning the frequency of live family entertainment shows.
However, testimony about industry norms and customs in this regard is likely to help a jury evaluate the ultimate issues in the case, not confuse it, because Moonbug contends that the failure of CCM to use its best endeavors to tour—i.e. to tour consistent with industry practice—amounts to a breach of the agreement or a breach of the covenant of good faith and fair dealing.
Third Opinion
Additionally, the CCM Parties misstate Grilly’s testimony when they argue that he opines that CCM breached the best endeavors provision of the CoComelon Live Agreement. But Grilly never opined that CCM breached the agreement. Nor does Grilly opine that CCM breached any best endeavors clause in the contract. Instead, Grilly offered testimony about the industry custom for the frequency with which live family shows typically tour and ultimately opines that CCM’s touring plan did not align with those industry practices.
Consequently, the Court found that Grilly’s testimony on whether CCM used best endeavors to tour CoComelon Live—as understood in industry parlance—is admissible.
Fourth Opinion
Finally, Grilly opined that CoComelon Live did not make a profit because its operational expenses were too high. Moonbug concedes that Grilly “cannot testify” that the high operational costs “is the reason that CCM ultimately stopped touring.”
But Grilly has not opined that the high operational costs are the reason CCM stopped touring. Instead, Grilly opined that the high operational costs were the reason the tour did not make a profit and was not successful.
That the tour’s operational costs were high and led to financial losses is well within Grilly’s area expertise and permissible expert testimony.
In sum, the Court found all of Grilly’s opinions are admissible, save for his lost royalties opinion.
B. George Wade
First Opinion
First, the CCM Parties attacked Wade’s assertion that “the central question is whether CoComelon Party Time should be considered a singular immersive experience or classified as a live theatrical offering.” The CCM Parties argued that this question is irrelevant and will not assist the trier of fact.
Wade opined that CoComelon Party Time is “a singular immersive experience” and not a “show.” He opined that industry practice distinguishes between “show” rights and “immersive” rights. Wade’s opinion goes to whether CoComelon Party Time is of the same ilk of entertainment offering as CoComelon Live, such that it was a “show” and thus part of the exclusive rights granted under the agreement. Therefore, the Court found that Wade’s testimony is relevant and helpful to the jury.
Second Opinion
Second, the CCM Parties aver that Wade “improperly interprets the evidence” by opining that Moonbug mitigated the risks of consumer confusion through “routing insulation.”
The CCM Parties provided no authority to support their contention that Wade’s opinion about Moonbug’s risk mitigation (or lack thereof) must be excluded because he purportedly ignored two pieces of evidence favorable to the CCM Parties. To the contrary, an expert need not agree with “witness testimony concerning the objects of his analysis.”
Third Opinion
Third, the CCM Parties contended that Wade improperly opined on a party’s mental state. Specifically, the CCM Parties pointed to Wade’s opinion that “S2BN appears to be aware of the distinction between theatrical shows (like CoComelon Live) and immersive experiences (like CoComelon Party Time and CoComelon Play Date) and how they utilize different rights.”
Wade opined that the CCM Parties “appeared to be aware” of the distinction between theatrical shows and immersive experiences in a way that is “consistent with industry custom.”
This opinion is impermissible because Wade goes beyond the bounds of explaining what another party in the relevant industry would have commonly understood based on industry practice. Instead, Wade extrapolates from the factual record that he believes the CCM Parties were purportedly aware of a distinction between a show and an immersive experience, relying on documents for which he has no personal knowledge. The Court held that Wade is speculating on a party’s mental state and usurping the jury’s role of interpreting the evidence and drawing inferences and conclusions from that evidence.
Fourth Opinion
Finally, the CCM Parties faulted Wade for including “irrelevant and unhelpful information” in his report, such as a historical overview of amusement parks, a discussion of the impact of the industrial revolution on amusement parks, a discussion of the impact of virtual and augmented reality on immersive experiences, and a forecast of the future of location-based entertainment, among other things.
Experts may explain background material to the extent it is relevant to their analyses and useful to the jury, and any excessive factual narration can be curtailed at trial.
Wade’s testimony in this regard offers a backdrop of the industry at issue—the live entertainment or “location-based entertainment industry”—and provides context for his opinion as to the regular customs and practices of that industry.
Of course, to the extent Wade at trial provides such historical testimony and the testimony is excessive, duplicative, or irrelevant, the CCM Parties may object, but it is not a basis for exclusion at this stage.
Accordingly, the Court found all of Wade’s opinions are admissible, except his testimony as to the CCM Parties’ awareness of the distinction between theatrical shows and immersive experiences.
C. Michael Olsen
Qualification
The Moonbug Parties argued that Olsen is not qualified to opine on “licensing practices within the live touring industry” or “matters related to the actual planning of a tour (such as tour routing, touring cadence, or the meaning of ‘show’ within the industry and whether that meaning includes ‘immersive experiences’).”
The Court held that Olsen’s general live entertainment industry experience, with regards to theatrical shows and concerts, coupled with Olsen’s specific experience at Round Room with live touring family shows specifically, suffice to permit him to testify as an expert here.
Legal Conclusions
The Moonbug Parties accused Olsen of providing improper legal conclusions concerning the interpretation of the CoComelon Live Agreement.
Experts are permitted to testify about the “custom and usage” of terms in a particular industry. In addition to the customary usage of industry terms, experts may also testify about whether a party’s actions comport with industry customs and standards. However, Olsen overstepped his role by opining on a question for the jury—namely, whether Moonbug breached the right of exclusivity, rendering CCM’s decision to stop touring reasonable.
D. Felix Barrett
The Moonbug Parties attacked only Barrett’s third opinion—that immersive experiences implicate different rights from live shows—on the grounds that it is an improper legal conclusion.
Barrett responded to Wade’s opinion, explaining that in his experience, immersive experiences and live shows do not involve separate rights unless there are express contractual provisions saying so.
That opinion directly responded to Wade’s opinion that the two types of productions involve distinct rights, and it also addresses what Wade believes is industry practice. As the CCM Parties correctly argue, the Moonbug Parties cannot simultaneously argue that Wade is offering testimony about industry custom while attacking the CCM Parties’ expert as impermissibly offering a legal conclusion. At bottom, Wade and Barrett are both offering the same type of opinion about the industry custom surrounding the rights associated with two types of productions. Because Barrett exclusively discusses customs, standards, and generalities surrounding the rights associated with different types of productions, the Court found this testimony both helpful to the jury and admissible.
Held
- The Court granted in part and denied in part the CCM Parties’ motion to exclude the testimony of Eric Grilly and George Wade.
- The Court granted in part and denied in part the Moonbug Parties’ motion to strike the testimony of Michael Olsen and Felix Barrett.
Key Takeaway
It is well settled that an expert cannot offer evidence about a party’s state of mind. An expert’s testimony must be directed to matters within the witness’ scientific, technical, or specialized knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert’s help.
Case Details:
| Case Caption: | CCM Touring LLC v. Moonbug Entertainment Ltd. |
| Docket Number: | 1:23cv7116 |
| Court Name: | United States District Court, New York Southern |
| Order Date: | March 27, 2026 |
Leave a Reply