Expert Witness AdmissibilityIntroduction:

On January 11, a Utah federal district court considered several motions in limine pertaining to the admissibility of expert witness testimony. See Memorandum Decision and Order and Second Amended Scheduling Order (“Memorandum”), Dutcher v. Bold Films LP, Case No. 2:15-cv-110-DB, (D. Utah, Jan. 11, 2019). The judge was faced with motions by both parties to exclude certain experts, and her decision was based on the Federal Rules of Evidence (FRE). See generally id. This article addresses the arguments advanced to preclude expert evidence as well as how the judge disposed of the issues.

Discussion:

(1). Defense Motion 1: Relevance: The defendants’ first motion in limine objecting to two plaintiff witnesses was based on relevance and dependability. See id., at 1-2. The experts intended to speak about whether substantial similarity was present in a copyright infringement lawsuit. See id.; See also Complaint, Dutcher v. Bold Films LP, Case no. 2:15-cv-110-DB-PMW, (Feb. 19, 2015). To support their motion, the defense argued that the experts’ “proposed testimony is unhelpful and irrelevant to the ordinary observer test for determining substantial similarity,” “the testimony is based on unreliable methodology,” and the “probative value…is substantially outweighed by the risk of jury confusion and undue prejudice.” Memorandum, supra, at 1.

According to the district court, FRE 702 permits expert witnesses to testify if their statements would help fact finders understand the evidence presented or establish information under certain conditions. See id., at 2 (citing FRE 702). To meet the requisite conditions, expert testimony must be “’based on sufficient facts or data’” and “’the product of reliable methods,’” and experts must “’reliably apply the principles and methods to the facts.’” Id. (quoting FRE 702).

In evaluating the objections, the court determined that FRE 702 was satisfied for several reasons. See id. First, the experts concerned could offer insight to jurors. See id.  With respect to the “reasonable observer” standard, the court believed that possible shortcomings of the witnesses could be pointed out via rigorous cross-examination and the defendants’ “own substantial similarity expert.” Id. Finally, the judge did not find the plaintiffs’ experts confusing or unduly prejudicial. See id. The court’s holding underscores the belief that with respect to FRE 702, the issues raised against the witnesses could be resolved by a jury, and the judge did not feel the need to act as a gatekeeper.

(2). Defense Motion 2: Reliability:

The second defense objection involved allegations that a witness’s testimony should be prohibited because it was “unreliable, not based on sufficient facts or data, and…its probative value [was] substantially outweighed by the risk of unfair prejudice, confusion of issues, and misleading the jury.” Id. The court dismissed the defense motion, determining that the testimony met the reliability and factual basis requirements of FRE 702. See id. The judge felt the defendants’ claims that the plaintiff’s expert selectively used particular information could be addressed by cross-examination, but those allegations did not necessarily demonstrate unreliability. See id. Once more, the court’s interpretation of FRE 702 appears to be lenient enough to allow expert testimony that meets the standards of the Rule, even if its usefulness or probative value is hotly contested.

(3). Plaintiff’s Motion: Relevance & Timely Disclosure: One motion in limine was brought by the plaintiff to bar specific testimony from a defense expert. See id., at 3. The plaintiff contended that a supplemental report and substantial supporting evidence for a witness’s opinion was not disclosed in a timely fashion. See id. The plaintiff argued that another expert should be excluded because the testimony concerned “prior art,” which allegedly was “a notion of novelty, rather than the relevant question of originality.” Id.

The judge noted that there had been some confusion incident to an amended scheduling order, that the defendants had timely disclosed the substance of the expert testimony in question, and that the plaintiff had adequate time to prepare for the defense witness’s evidence. See id. Regarding the “prior art” question, the court felt the supporting evidence and expert’s opinion were sufficient grounds to dismiss the motion in limine and establish relevance. See id.

 Conclusion:

The recent district court decision reveals certain patterns. In each request for exclusion, the judge erred on the side of construing FRE 702 liberally. See generally id. Attorneys may wish to craft strategies for matters of this nature and gauge the effectiveness of efforts to preclude expert testimony. In the instances before the Utah court, so long as some basis existed for inclusion of expert evidence, the judge held that other safeguards, such as cross-examination and competing experts, could remedy purported defects in testimony. See id. Federal practitioners should consider various ways to defeat adverse witnesses. Some strategies include fortifying motions in limine to exclude testimony, formulating robust cross-examinations to challenge experts, and retaining friendly witnesses who can speak with authority against adverse ones.