Expert Witness Profiler

Tag: summary judgment

  • Expert testimony regarding marketing practices of electronic cigarette and vape products passes the Daubert test

    Expert testimony regarding marketing practices of electronic cigarette and vape products passes the Daubert test

    This case involved the City of Chicago bringing an enforcement action against two Minnesota corporations, Equte LLC and Juishy LLC, as well as Jeffrey Evenmo. The City alleged that the Defendants violated several sections of the Municipal Code of Chicago related to the sale of tobacco and electronic cigarette products.  

    The City conducted an investigation which revealed that the corporate Defendants made 600 sales of electronic cigarette products and 100 sales of flavored liquid nicotine products to minors under the age of 21 in Chicago, in violation of city ordinances. The City then referred the case to the Corporation Counsel, which filed the enforcement action.  This enforcement action consisted of motions for partial summary judgment filed by both the City and the Defendant as well as the Defendants’ motion to exclude the testimony of City’s expert Sherry Emery about unfair marketing practices the Defendants engaged in by marketing tobacco products and accessories to minors in Chicago.

    Equte and Juishy were both Minnesota corporations with their principal places of business in Minnesota. Equte, which Evenmo created between 2013 and 2014, sold e-cigarettes, vaping products, and other nicotine products on a website with the domain name vapes.com. Equte had its own bank accounts, filed corporate tax returns between 2016 and 2018, and issued profit and loss statements between 2017 and 2019. Evenmo could not recall when he founded Juishy, which marketed and sold flavored liquid nicotine products on vapes.com and Juishy.com. Although Juishy also operated social media pages, it did not generate as many sales as Equte. Juishy never had its own bank account, owned any domain names, or employed anyone. Although Evenmo was the final decisionmaker for the Corporate Defendants, he did not oversee day-to-day operations at their warehouse. On February 17, 2021, before the City served Defendants with process, Evenmo, the Corporate Defendants’ sole owner and CEO, administratively terminated Juishy. Then on May 11, 2021, also before the City served Defendants, Equte sold its domain page vapes.com to an unrelated party.

    Public Health Expert Witness 

    Sherry L. Emery serves as a Senior Fellow in the Public Health Group and Director of the Health Media Collaboratory at NORC at the University of Chicago. She obtained her undergraduate degree in Political Economy from John Hopkins University. Dr. Emery went on to earn an MBA with a concentration in Business Economics from Columbia University. She later completed her PhD in City and Regional Planning at the University of North Carolina at Chapel Hill. With well over 100 articles published in peer-reviewed journals, Dr. Emery has established herself as a nationally recognized expert in tobacco control, media, and public health policy research.

    Discussions by the Court 

    The Defendants moved to dismiss the case, arguing the Court lacked jurisdiction and that the claims were barred by the statute of limitations. The Court denied the motion, finding jurisdiction was proper based on diversity of citizenship and the amount in controversy, and that the statute of limitations did not apply due to the City’s immunity when asserting public rights. 

    After the parties completed fact discovery, both sides moved for partial summary judgment. The Defendants argued the Court should reconsider its rulings on jurisdiction with the benefit of a full factual record. The Court declined to reexamine its initial decisions. Defendants also raised a challenge related to the statute of limitations, claiming that the City’s allegations were time-barred. The Court determined that though the Municipal Code of Chicago allowed for the imposition of a fine, the City’s claims were not time barred. The Court also agreed that though Evenmo was properly subject to its jurisdiction, he could not be held personally liable for any fines assessed against the Corporate Defendants under the theory that he was their alter ego or the Corporate Defendant’s violations of the Municipal Code of Chicago. 

    The City conceded, and the Court agreed, that the undisputed facts showed the Corporate Defendants violated the ordinances prohibiting sales of tobacco and flavored nicotine products to minors. Thus, the Court entered judgment for the City on those claims. The City also moved for summary judgment on its unfair business practices claim, arguing the corporate Defendants’ use of automatic age verification systems allowing sales to under 21 year olds violated the ordinance. The Court, however, found that the Corporate Defendants’ use of automatic age-verification systems cannot constitute an unfair business practice under the Illinois Consumer Fraud and Deceptive Business Practices Act and denied the City’s motion on that theory. 

    The Defendants filed a motion to exclude the testimony of Sherry Emery, an expert retained by the City to opine on the Corporate Defendants’ marketing of electronic cigarettes and vaping products to youth online and on social media. The Defendants argued that Emery’s report and testimony were irrelevant to any material issue in the case.  

    The Court explained that under the Federal Rules of Evidence and Daubert, an expert’s testimony is admissible if the expert is qualified, the methodology is reliable, and the testimony is relevant in that it will help the trier of fact understand the evidence or determine a fact at issue. The party seeking to admit the testimony must show it meets these requirements by a preponderance of the evidence. The Court noted that Daubert‘s specific factors for assessing reliability do not necessarily apply in every case, and that courts have wide latitude in performing the gatekeeping function for expert testimony. 

    The Defendants claimed Emery’s opinions were irrelevant because the City’s unfair business practices claim under the ordinance was limited to the code violations and failure to implement adequate age verification. The Court found this “misread” the City’s claims, as the City never acknowledged such a limitation and explicitly reserved the issue of whether the marketing violated the Municipal Code of Chicago for trial. 

    The Court explained that Emery’s report and opinions would help the jury determine whether the Corporate Defendants improperly marketed their products to minors under 21. The report extensively discussed the history of e-cigarette use, how companies leveraged social media to promote their products to youth, the use of flavors and themes that appeal to adolescents, and provided opinions that the Defendants’ social media marketing was potent with a youth audience. This would assist the jury in determining if the marketing efforts constituted an unfair business practice.  

    The Defendants pointed to Emery’s admission that she did not review sales or age data. The Court found she did not need such data to opine on the nature of the advertisements and social media marketing. The Defendants could challenge the conclusions on cross-examination, which is the appropriate means to attack admissible but shaky evidence. 

    Held 

    In conclusion, because Emery’s report and testimony were relevant assess whether or not Defendants engaged in unfair marketing practices by marketing tobacco products and accessories to minors in Chicago, the Court denied the motion to exclude her as an expert witness under Daubert and the Federal Rules of Evidence 702. The Court declined to reexamine its initial decisions but held that that Evenmo cannot be held personally liable for any fines assessed against the Corporate Defendants. The Court granted in part and denied in part the City’s motion for summary judgment stating that Corporate Defendants’ use of automatic age-verification systems did not violate the City’s ordinances.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    The Court applied the Federal Rules of Evidence 702 and Daubert standard to determine the admissibility of Emery’s expert testimony. Under this standard, the proponent of the expert evidence must show the expert is qualified, the methodology is reliable, and the testimony is relevant to issues in the case. 

    • Emery’s testimony was deemed relevant because her opinions on the Defendants’ social media marketing efforts which targeted the youth would help the jury evaluate whether the marketing practices in question constituted an unfair business practice that violated the city ordinance. 
    • The Defendants argued Emery’s opinions were irrelevant because of perceived limitations on the claim for violations of Municipal Code of Chicago. But the Court found the City did not actually place such limitations on the claim. 
    • The fact that Emery did not review sales or age data did not render her opinions irrelevant, as she opined on different issues regarding the nature of the marketing. Any limitations could be addressed on cross-examination. 

    Because relevance was established, the Court denied the motion to exclude Emery as an expert witness. Her opinions were found admissible under the Rules of Evidence and Daubert standards. 

  • California Court admits the testimony of film and television industry experts in copyright infringement action 

    California Court admits the testimony of film and television industry experts in copyright infringement action 

    This case involved claims of copyright infringement brought by WMTI Productions, WMTI Productions North, and The Next Season Company (Plaintiffs) against Kevin Healey, Propagate Content, and unnamed Does (Defendants). Plaintiffs alleged that certain episodes of Defendant’s shows Prank Encounters and Double Cross infringed on certain episodes of Plaintiff’s show Scare Tactics.

    Specifically, Plaintiffs alleged the following episodes infringed:

    • Prank Encounters “Camp Scarecrow” infringed Scare Tactics “Camp Kill”
    • Prank Encounters “Face Fears” infringed Scare Tactics “My Heart Belongs to Misery”
    • Prank Encounters “End of the Road” infringed Scare Tactics “Road Kill”
    • Prank Encounters “Split Party” infringed Scare Tactics “Send in the Clowns”
    • Prank Encounters “Graveyard Shift” infringed Scare Tactics “Bicentennialien”
    • Double Cross “Open House” infringed Scare Tactics “Room with a View”

    Defendants filed a motion for summary judgment arguing there was no genuine dispute of material fact on liability or damages. They also filed motions to exclude the testimony of Plaintiff’s proposed expert witnesses on liability (Paul Jackson) and damages (Tyler Massey).

    Film and Television Industry Experts

    Paul Jackson is a highly experienced film and television writer-producer, having worked in the industry since 1988. He has been a member of the Writers Guild of America since 1988, writing and producing numerous television series over his 30+ year career. His credits include serving as Executive Producer, Co-Executive Producer, Supervising Producer, and Consulting Producer on shows like Lois and Clark, Sliders, Charmed, She Spies, and When Calls the Heart. Since 1992, Jackson has arbitrated writing credits for the Writers Guild, which involves closely analyzing scripts and stories to determine the creative contributions of different writers. Through this work and his extensive experience as a “Writer-Staff” Producer, Jackson has developed expertise in comparing scripts and assessing similarities between stories, characters, sequencing, settings, and other elements. In this case, he was retained to analyze the alleged substantial similarities between Plaintiff’s Scare Tactics episodes and Defendant’s Prank Encounters and Double Cross episodes. Jackson provided detailed plot, character, sequence, setting, and mood comparisons between these works in his expert report, given his qualifications to conduct such analysis based on his 30+ years as a professional television writer and producer.

    Tyler Massey has over 20 years of experience in the film and television industry, including roles in international content distribution, acquisitions, licensing, and financial analysis. He has negotiated hundreds of deals for formats, finished productions, and media rights across broadcast, cable, SVOD, and AVOD platforms. Massey has extensive expertise in market valuation, revenue forecasting, and cost apportionment for television programming. He has worked for production companies, studios, and distribution firms, evaluating content sales strategies and revenue projections. In this case, Massey provided a damages analysis regarding lost revenues and brand value for Scott Hallock/WMTI based on alleged infringement and substitution of Defendant’s shows for a reboot of Scare Tactics. His industry experience qualifies him to opine on these matters.

    Discussions by the Court

    The Court denied Defendant’s motion for summary judgment on liability. The Court found there was a genuine dispute of material fact regarding substantial similarity under the extrinsic test, which looked at objective criteria like plot, themes, characters, etc. Plaintiff presented evidence about the selection and arrangement of unprotectable elements that could constitute an original work. The Court rejected Defendant’s argument that Plaintiff failed to properly invoke a selection and arrangement theory and found the allegations in the complaint gave adequate notice.

    The Court also denied summary judgment on damages. It found that Plaintiff presented evidence which supported at least some of their claimed damages categories tied to lost opportunities to monetize Scare Tactics due to the existence of Prank Encounters. For example, evidence indicated Netflix declined to exercise an option to produce new Scare Tactics episodes because its needs were satisfied after having acquired Prank Encounters around the same time.

    Defendant sought to exclude the expert opinions and testimony of Tyler Massey, Plaintiff’s proffered damages expert, on several grounds. First, Defendant asserted that Massey’s damages calculations had no relation to Plaintiff’s infringement allegations because he analyzed harm to the overall Scare Tactics format rather than damages resulting specifically from infringement of the six copyrighted segments at issue. However, the Court found that damages to the value of the broader Scare Tactics series were recoverable under 17 U.S. Code § 504, which allowed recovery for any harm caused by the infringement, not just harm to the intrinsic value of the copyrighted work. Second, Defendant argued that Massey’s testimony was unreliable because it relied on layers of speculation, including assuming Scare Tactics would have been rebooted if not for the existence of the show Prank Encounters. But the Court noted that assumptions are a necessary part of any damages calculation given the counterfactual nature of a world without infringement. As long as the assumptions were reasonable and grounded in evidence, any flaws went to the weight of Massey’s testimony rather than its admissibility. Third, Defendant sought to preclude Massey from opining on substantial similarity between the works accused of infringement and the asserted copyrighted works, an issue on which he lacked expertise. The Court agreed Massey could not offer his own opinion on similarity, but he could calculate damages based on the assumption that the works were substantially similar. Fourth, Defendant moved to exclude one category of Massey’s damages related to infringement of a wholly unrelated work, Joke’s On You, which seemed to stem from a settlement agreement rather than any copyright violation alleged in the case. Since this category did not arise from the claimed infringement, the Court excluded it. Aside from this one category, the Court otherwise denied exclusion of Massey’s damages calculations and held his assumptions and speculation permissible bases for expert testimony.

    Defendant separately sought to exclude the expert testimony of Paul Jackson, Plaintiff’s proposed witness on the similarities between the copyrighted Scare Tactics episodes and those of Defendant’s shows. Defendant argued Jackson failed to apply the extrinsic similarity test because he did not filter out non-expressive, unprotected elements before analyzing the works’ similarities. According to Defendant, this rendered Jackson’s opinion unreliable and unhelpful. However, the Court noted that wholesale filtering was not required under the selection-and-arrangement theory pursued by the Plaintiff, and in any event, Jackson’s similarity analysis methodology was valid and helpful to the factfinder. Which elements were protectable and which were unprotected scenes-a-faire was a factual issue for the jury to decide; Jackson could present his overall analysis, while Defendant could provide their own contradicting evidence on unprotected elements. Thus, Jackson’s failure to filter did not warrant exclusion but simply went to the weight the jury should accord his opinion. Defendant remained free to cross-examine Jackson and argue his testimony should receive little weight. But the Court denied exclusion of Jackson’s similarity analysis wholesale, finding his methodology sufficiently reliable despite the lack of filtering.

    Held

    The Court largely denied Defendant’s motion to exclude Plaintiff’s damages expert Tyler Massey, finding his assumptions and speculative damages calculations were permissible bases for expert testimony. The only exclusion was one category of damages unrelated to the asserted copyrights. Regarding Plaintiff’s liability expert Paul Jackson, the Court wholly denied Defendant’s motion to exclude his substantial similarity analysis. Despite Jackson’s failure to filter out unprotected elements, the court found his similarity analysis methodology was reliable and helpful to the factfinder. Any flaws in his approach went to the weight of Jackson’s testimony rather than its admissibility. Thus, aside from one minor carveout, the Court denied exclusion of the expert analyses of both Massey and Jackson. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    • The motion to exclude the expert testimony of Paul Jackson in regards to substantial similarity was denied by the court as his methodology was reliable despite failing to differentiate the unprotected elements. The flaws in the methodology of Jackson raised issues for cross-examination and not for exclusion. 
    • The motion to exclude the expert testimony of Tyler Massey was partially denied. Massey was permitted to make assumptions in relation to the calculation of hypothetical damages. Massey was prohibited from providing opinions in relation to substantial similarity, as he lacked expertise. The damages unrelated to the asserted copyrights were excluded from the testimony of Massey. 
    • Disagreements or flaws regarding the expert testimony are often ruled to go to the weight of the testimony rather than admissibility. 

    In summary, the key takeaways are that  disagreements and questionable methodology choices generally should not be the grounds for the wholesale exclusion of the expert. In such scenarios, the court favors cross-examination and contrary evidence to address the flaws in the testimony of the expert.

  • Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Legal Gavel and Scale - Symbol of Justice

    In this case, Plaintiff Jaketra Bryant is representing her minor son, C.B., who has Autism Spectrum Disorder (autism) and Attention Deficit Hyperactivity Disorder (ADHD). They are asserting claims of unlawful racial and disability-based discrimination against Calvary Christian School of Columbus, Georgia. The school is a private elementary school affiliated with Calvary Baptist Church, receiving state and federal funding. C.B. was enrolled in the Discovery School Program, a small instruction-based program for students with learning difficulties which had a 5:1 student-teacher ratio. To qualify, students needed an Individual Education Plan (IEP), a 504 Plan, or a psychological evaluation. C.B.’s evaluation diagnosed autism and ADHD, recommending specific accommodations. 

    At first, C.B. performed well academically. However, during his seventh year, he exhibited certain behavioral issues, including temper outbursts, class disruption, throwing objects and misusing his laptop. The school recommended Applied Behavioral Analysis (ABA) therapy and medication evaluation, which the Plaintiff did not pursue initially. C.B. and another student reported racial comments, but no action was taken. 

    After more such incidents, C.B. was suspended, and the school decided to shift him to virtual instruction due to his behavioral challenges. The school required completion of ABA therapy in a classroom setting for him to return to in-person classes. A therapy plan was devised by Kya Grier Williams involving in-person instruction and shadowing. The therapy plan included fifteen hours of in-person instruction at Calvary where an assistant would shadow C.B. during class to support implementation of the plan. Alternatively, Williams offered to train Calvary staff on ABA behavioral therapy techniques for free to help ensure that the therapy plan was implemented correctly. 

    Shortly after being briefed on the therapy plan, Headmaster Koan was reluctant to go through with the execution of the plan because it required C.B.’s return to campus in person without proof of his satisfactory progress. Since the headmaster was hesitant to implement it, it led to an impasse. The school eventually considered C.B. withdrawn as a student. 

    Overall, the case involves allegations of discrimination, inadequate support for C.B.’s special needs, racial comments, and disputes over the implementation of therapy and accommodations. 

    Behavioral Therapy Expert Witness

    Calvary School moved for summary judgment on all of Bryant’s claims under the 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

    Calvary also moved to exclude the expert testimony of Bryant’s expert Kya Grier Williams M.S., BCBA, LBA on individualized behavioral interventions alleging that her recommendations were wrong. 

    Williams is a licensed behavioral therapist, dedicated to and specializing in the treatment of behavioral issues in children and adolescent diagnosed with Autism and related Developmental Disorder, and Addiction and Compulsion in teens and adults.

    Discussion by the Court 

    The Court held that based on the facts of the case, though C.B did have a disability within the meaning of the Rehabilitation Act, Bryant does not seriously dispute that C.B. violated Calvary’s behavioral standards by throwing objects in class and misusing his laptop or contend that Calvary’s progressive disciplinary responses to each incident were atypical punishments when Bryant asserts that Calvary denied C.B. the following accommodations: enforcement of the positive reinforcement behavior plan in Ms. Cameron’s class, transferring C.B. to a teacher other than Ms. Cameron, and allowing C.B. to return to in-person classes at Calvary in the spring 2021 semester under the conditions of C.B.’s ABA behavioral therapy plan.

    The Court noted that Calvary incorporated sufficient adjustments such as:

    • Implementing all of C.B.’s psychologist’s recommendations, including his recommendation that C.B. be put on a behavior plan that incorporated positive rewards,
    • Adjusting the conditions of his dismissal to enable C.B. to return in person by fall 2021 without having to enroll in another school,
    • Allowing C.B. to continue attending Calvary through its virtual learning program for the rest of fall 2020 and
    • Even granted Bryant’s request to allow C.B. to continue learning virtually in spring 2021 in an effort to accommodate C.B.

    Based on the above, the Court granted Calvary’s summary judgment motion on Bryant’s Rehabilitation Act claims. 

    The Court also held that to establish a prima facie case of discrimination, Bryant must show that:

    1. C.B. is a member of a protected class
    2. He suffered an adverse action
    3. He was qualified to attend Calvary under Section 1981 of the U.S. Code and
    4. Calvary “treated ‘similarly situated’ [students] outside his class more favorably.”

    The parties do not dispute that C.B., a black male, is a member of a protected class, that he was qualified under Section 1981 of the U.S. Code or that he suffered an adverse action when Calvary dismissed him. The Court noted that to establish discrimination, Bryant must show that Calvary treated similarly situated individuals more favorably. A “similarly situated” comparator is typically someone who engaged in the same misconduct and had a similar disciplinary history as C.B.

    Bryant contended that the increasingly racially hostile environment at Calvary exacerbated C.B.’s disability manifestations, which led to his outbursts in class.The Court noted that this argument did not show that Calvary’s asserted reasons for dismissing C.B. were excessive or unjustified based on Calvary’s progressive discipline of C.B. after each behavioral incident (first checkmark, then suspension, then removal from in-person classes). 

    The Court also granted summary judgment on Bryant’s section 1981 claim. 

    Bryant further contends the following conduct is actionable racial harassment:

    1. Student comments in a virtual meeting about “God hating blacks and gays;”
    2. Director Jones’s comment to Bryant that C.B. needs to be careful or he “would end up with his hands behind his back;”
    3. Calvary’s repeated encouragement that Bryant have C.B. evaluated for medication; and
    4. Calvary forcing another black male student to withdraw from the school. 

    The Court found that this conduct did not rise to the level of actionable racial harassment. Although the comments made by the students were offensive and unacceptable and the Court understood how Director Jones’s comments could have been interpreted as insensitive, the Court found that these isolated comments were not sufficiently pervasive such that they effectively denied C.B. equal access to education. 

    Calvary School’s repeated insistence on evaluating C.B. could not be construed as objectively offensive or race-related conduct considering Calvary School wanted to effectively manage C.B.’s repeated classroom disruptions and also because Dr. Kevin Weis, C.B.’s treating doctor, had also recommended a physician’s evaluation for potential evaluation. 

    Moreover, when Bryant contended that Calvary forced another black male Discovery School student to withdraw from Calvary around the same time C.B. withdrew, she failed to back-up her claim with adequate evidence. Also, Bryant did not dispute that Calvary also expelled at least four white students and barred two others from in-person classes during C.B.’s time at the school. 

    The Court concluded that Calvary School was entitled to summary judgment on Bryant’s Title VI of the Civil Rights Act of 1964 claims. 

    Calvary School challenged the testimony of Plaintiff’s expert Kya Grier Williams arguing that Ms. Williams lacked adequate behavioral data to base her initial hypothesis on and to add to that she never tested her initial hypothesis. Moreover, Williams recommended that C.B. receive twenty hours of intensive, one-on-one behavioral services every week, for a six-month period. Essentially, she wanted CB to have a one-on-one shadow for half the school day in case he acted out again without taking into account the possibility that more intensive interventions can even have negative consequences as far as behavioral services or accommodations are concerned.  

    Held 

    The Court granted Calvary’s summary judgment motion on Bryant’s claims under Title VI of the Civil Rights Act of 1964, under Section 1981 of the U.S. Code and Section 504 of the Rehabilitation Act as a consequence of which it terminated Calvary’s motion to exclude Bryant’s expert Kya Grier Williams as moot. The Court entered the judgment in Defendant Calvary School’s favor stating that Plaintiff shall recover nothing of Defendant and Defendant shall also recover costs of this action. 

    Key Takeaway:

    In this case, the Court ruled in the Defendant’s favor and held that even though comments made by the students were offensive and the school’s conduct can possibly come across as insensitive in more than one instance, it does not constitute actionable harassment considering the school had made necessary adjustments in accordance with the psychological evaluation to accommodate C.B. and henceforth Williams’ testimony on individualized behavioral interventions submitted by the Plaintiff to substantiate its claims against the Defendant was no longer relevant for the Court to decide the issues involved in this case based on which the Court declared the Defendant’s motion to exclude Williams’ testimony moot.