Plaintiff Toby Pack, a CSX employee, applied for leave under the Family and Medical Leave Act (FMLA) due to chronic kidney stones. Although CSX initially approved Pack’s application, it subsequently charged him with FMLA misuse and terminated him.
Pack sued, alleging that CSX fired him in retaliation for his taking FMLA leave. Pack intended to offer the expert testimony of Beth De Lima, but CSX argued that De Lima’s testimony should be excluded.
Human Resources Expert Witness
Beth B. De Lima has extensive experience in developing and implementing HR programs and policies that relate to federal and state employment legislation. She has been assisting corporate, non-profit, and governmental clients with HR policy development and implementation since 1992.
She has worked closely with clients to establish and maintain compliance with federal and state employment legislation, including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
De Lima’s report touches on several topics, including employees’ legal rights under the FMLA and employers’ legal obligations under the FMLA.
A. Relevance
The jury in this case will be asked to determine whether CSX terminated Pack in retaliation for Pack’s use of FMLA leave. CSX argued that De Lima’s opinion is not relevant to that question.
The Court agreed. CSX’s alleged noncompliance with industry standards did not make it any more likely that CSX retaliated against Pack. If CSX had deviated from its own standard procedures in investigating Pack, that might be probative of retaliation.
But CSX having different procedures from other companies did not show that CSX’s explanation for terminating Pack is “unworthy of credence.”
B. Reliability
In her report, De Lima said that the industry standards to which she alludes are “set forth by the Society for Human Resource Management.” But the report never cited specific documents or guidance promulgated by this organization. During her deposition, De Lima confirmed that the standards on which she relied are “written down.” However, when asked which of the sources in her bibliography support her opinions, she was unable to provide an answer. Instead, she asserted that the FMLA itself supports her opinions. When asked which part of the FMLA supports her opinions, she said “it’s not clear.”
In his supplemental briefing, Pack identified five publications from The Society for Human Resources Management which he claims supported De Lima’s opinion. But the supplement never asserted that De Lima actually relied on those publications in forming her opinion and none of the publications are included in De Lima’s bibliography.
Since neither Pack nor De Lima has identified the basis for De Lima’s testimony, they are too unreliable to be admitted under Federal Rule of Evidence 702. Even if De Lima’s opinion were relevant, the Court would exclude it under Rule 702.
Held
The Court granted Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Plaintiff’s expert Beth De Lima.
Key Takeaway
Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.
Case Details:
Case Caption:
Pack V. CSX Transportation, Inc.
Docket Number:
3:24cv688
Court Name:
United States District Court, West Virginia Southern
Plaintiffs Shosh Yonay and Yuval Yonay (collectively “Plaintiffs”) are the widow and son of Ehud Yonay (“Yonay”), the author of a magazine article “Top Guns” (the “Article”) published in California Magazine on April 21, 1983. The Article is an account of the experiences of F-14 pilots and radio intercept officers as they undergo training at the Navy’s Fighter Weapons School (known as “Top Gun”). After the Article’s publication, Defendant Paramount Pictures Corporation (“Defendant”) and Yonay executed an Assignment of Rights, dated May 18, 1983, assigning to Defendant the motion picture rights to the Article. The Assignment of Rights also required Defendant to credit Yonay on the film of any motion picture photoplay that is produced under the Assignment of Rights and substantially based upon or adapted from the Article or any version or adaptation thereof.
In 1986, Defendant released the motion picture “Top Gun” (the “Original Film”). Yonay received a “suggested by” credit. The story follows fictional characters Pete (“Maverick”) Mitchell and Nick (“Goose”) Bradshaw as they train at the Top Gun Naval Fighter Weapons School.
On January 23, 2018, after Yonay’s death, Plaintiffs sent Defendant a Notice of Termination (“Notice”) terminating Defendant’s rights to the Article pursuant to 17 U.S.C. § 203(a), effective January 24, 2020. On May 27, 2022, Defendant released the sequel to the Original Film, “Top Gun: Maverick” (the “Sequel”) without crediting Yonay. The film grossed $1.496 billion worldwide, making it the second-highest-grossing film of 2022. It also won Best Film from the National Board of Review and was also named one of the top-ten films of 2022 by the American Film Institute.
Plaintiffs commenced this action on June 6, 2022, and pursued claims of breach of contract, declaratory relief, and copyright infringement against the Defendants.
Motions to exclude
Plaintiffs alleged that Defendant breached the Assignment of Rights by not crediting Yonay in the Sequel. They also alleged that the Sequel infringed Plaintiffs’ copyright because “key elements” in the Sequel were substantially similar to the Article. Plaintiffs also sought a declaration that the Sequel was a “derivative” of the Article and that Defendant “did not have any rights to make, exploit, or distribute” the Sequel.
Plaintiffs relied on the expert testimony of Henry Bean to support their contention that the Article and Sequel were substantially similar. Defendant relied on the expert testimony of Andrew Craig and James McDonald to support its contention that the two works were not substantially similar. The parties moved to exclude the testimony of their respective expert witnesses pursuant to Rule 702 of the Federal Rules of Evidence.
Film and Movie Production Expert Witnesses
Henry Bean has significant teaching experience relating to writing, including writing for the motion picture and television industries. He is a former adjunct professor at Columbia University’s graduate film school and New York University’s Tisch School of the Arts. He has been been writing as a writer of novels, stories and of theatrical film and television productions for the past five decades.
James McDonald is a story analyst and consultant on screenwriting and writer-credit issues for motion pictures. He holds a Bachelor of Arts in Communications from Stanford University and an M.F.A. in Directing for Film & TV from the UCLA Film School. Over the last five decades, he has worked for every major studio and several other studios and production companies. In that time, he has read and analyzed more than 10,000 submissions for feature film development. He spent two years as vice president in charge of development for an independent production company. As a producer, with partners, he put three feature film projects into development at studios and production companies.
Andrew Craig is a Commanding Officer in the Navy Reserve, as well as a former Top Gun instructor. In January 2022, he qualified as the Navy Reserve’s first Commanding Officer of the Virtual Adversary Replication Modeling and Intelligence Translation Team (VARMITT). VARMITT analyzes intelligence collected on threat countries and replicates the behaviors of their pilots during large scale simulation exercises.
In his civilian life, he holds an FAA Airline Transport Rating and is a 737NG pilot for Delta Air Lines, flying international and domestic routes.
Discussion by the Court
Plaintiff’s Expert Henry Bean
Henry Bean opined that there were numerous similarities between the Article and the Sequel. However, the Court observed that Bean failed to filter out the elements of the Article and Sequel that were not protected by copyright law (i.e., facts), which rendered his opinions unhelpful and inadmissible.
Therefore, Bean’s opinions were also unhelpful to the extent he provided a subjective, rather than objective, comparison of the Article and Sequel.
To sum it up, subjective comparison of two works — referred to as the “intrinsic test” – is done with “no expert assistance. For example, when comparing the dialogue in the Sequel to that in the Article, Bean cited excerpts from the Article and wrote: “Those exact words may not have appeared in [the Original Film or the Sequel], yet one felt them informing a lot of the dizzying and dazzling aerial footage of both films, especially in the Sequel . . . .”
Moreover, Bean admitted that his report did not identify a single instance in which any of the words or spoken language appearing in the Article also appeared in Maverick.
To conclude, the Court held that Bean’s opinions were unhelpful and did not meet the standards for admissibility set forth in Rule 702.
Defendant’s Expert Andrew Craig
Craig expressed two main opinions about the accuracy of the Article. First, he opined that Yonay factually and accurately described the Top Gun program, including: (a) “training that TOPGUN students received,” (b) the “personalities and characteristics of TOPGUN students and graduates,” (c) the “process of becoming a TOPGUN instructor” and “the instructors’ limited combat experience,” (d) the “camaraderie and close connections that formed at TOPGUN,” (e) the “social life at TOPGUN,” (f) the “occasional tension between Navy leadership and TOPGUN instructors.” Second, he opined that the Article accurately and factually described the experience of flying a fighter jet, mechanical components and characteristics of fighter jets, and physics concepts that applied to fighter jets.
Craig also referenced facts that were confirmed to him by other naval aviators, and facts that he learned from viewing historical photographs and conducting research in the Navy’s Archives. Plaintiffs took issue with these references, arguing that Craig’s reports should be excluded because they contained hearsay.
Plaintiffs claimed infringement of a journalistic Article describing a highly-specialized, elite Navy training program about which few members of the military, let alone civilians, had personal knowledge. Craig’s opinions would assist the Court by clarifying the factual elements of the Article by filtering out any substantial similarity analysis between the Article and Top Gun: Maverick (“Maverick”).
Plaintiffs also contended that Craig’s opinions were unhelpful, and that Craig was not qualified to opine on literary similarities between the Article and Sequel. The Court was unpersuaded by these arguments. As an initial matter, Craig did not opine on literary similarities; rather, he opined on the factual elements of the Article as historical facts. The Court refused to exclude his opinions because they helped the Court filter out the unprotected, factual elements of the Article and Sequel to assess whether they were substantially similar.
Defendant’s Rebuttal Expert James McDonald
Plaintiffs and Defendant each sought summary judgment on all three of Plaintiffs’ claims: copyright infringement, declaratory relief, and breach of contract. The Court affirmed Defendant’s entitlement to summary judgment on Plaintiffs Shosh Yonay and Yuval Yonay’s (collectively, “Plaintiffs”) claims for breach of contract, declaratory relief, and copyright infringement.
As a matter of fact, the Court did not rely on James McDonald’s rebuttal expert report or testimony in ruling on the parties’ cross-motions for summary judgment.
Held
To conclude, the Court granted the Defendant’s motion to exclude the testimony of Plaintiff’s expert Henry Bean but denied the Plaintiff’s motion to exclude the testimony of Defendant’s expert Andrew Craig. Moreover, the Court declared the Plaintiff’s motion to exclude the expert report and testimony of James McDonald moot.
The Court entered the final decision on April 5, 2024, ruling in favor of the Defendants.
Key Takeaways:
Subjective Comparison: The Court held that Bean’s opinions were also unhelpful to the extent he provided a subjective, rather than objective, comparison of the Article and Sequel. Subjective comparison of two works — referred to as the “intrinsic test” – is done with “no expert assistance.
Helpfulness: Expert Andrew Craig viewed historical photographs and conducted research in the Navy’s Archives. He opined on the factual elements of the Article as historical facts which helped the Court filter out the unprotected, factual elements of the Article and Sequel to assess whether they were substantially similar.
Copyright Infringement: Henry Bean himself admitted that his report did not identify a single instance in which any of the words or spoken language appearing in the Article also appeared in Maverick. It did not help the Court in filtering out elements of the Article and Sequel that copyright law protected.
Case Details:
Case Caption:
Shosh Yonay Et Al V. Paramount Pictures Corporation Et Al
