Expert Witnesses

Judge Burns continued: “In their opposition to the Motion [to exclude Albert], [d]efendants avoid the question of whether he authored any publications, stating 'a quick [I]nternet, Westlaw or Lexis search could resolve the inquiry for [p]laintiffs.' ' In view of the nature of Albert's expertise and proffered testimony, which is based primarily on his business experience, there is no great likelihood he has authored particularly relevant publications in the past [10] years that would form a part of his qualifications. Plaintiffs did not inquire about it when they deposed Albert. Because Albert has testified as an expert recently, it is likely he has a list of publications prepared. But if not, [d]efendants represent his publications are easily located online. The [c]ourt will therefore order production of this list, which appears likely to remedy the omission with no undue prejudice to [p]laintiffs. In view of the nature of the few publications located per [d]efendants' suggestions, it appears they will be largely irrelevant to his qualifications and the omission will be harmless.”

Albert had worked with a range of celebrities, not primarily athletes, though as the district judge pointed out “his work with athletes is still substantial.” The court then explained: “The transcript of Albert's deposition demonstrates he does not primarily concern himself with the details of the fields in which celebrities work ' whether actors, musicians, or athletes ' because, he says, the contracts concerning their endorsements are substantially similar. Bearing in mind his extensive experience, Albert would be in a position to know what information he or another person in his field would base opinions on.” Thus the court “conditionally” accepted Levy's position that “an expert in the area of celebrity endorsements would not need to obtain any particular expertise about the sport of golf as opposed to other sports or other fields of endeavor to be able to place a value on a golfer's endorsement and television commercial work.”

Judge Burns did exclude the expert testimony of two other individuals. Senior SAG advisor John McGuire along with John McGuinn, who had experience negotiating with SAG, were designated by the defendants to testify about “[s]ervices covered by the SAG Commercials Contract, intent and application of '46 of the 200 Commercials contract and related provisions.” The district judge found as to these individuals that “the [c]ourt need not reach the Rule 26 objection, because it finds these two witnesses' expert testimony would not be helpful to the [c]ourt. ' To the extent McGuinn and McGuire would testify as experts, their proffered testimony would explain the meaning of agreements themselves. (Motion, Exs. 3 and 5 (expert reports).) The meaning of agreements, however, is a question of law for the [c]ourt.”

Still, the court added: “This is not to say McGuire and McGuinn cannot testify at all, since it appears they have a good deal of relevant personal knowledge that could shed light on the meaning of the contractual terms. Rather, if they testify, it must be as percipient [i.e., first-hand] witnesses rather than experts.”

Motions to Exclude

The U.S. District Court for the Southern District of California denied a motion to exclude the expert testimony of a witness who has worked in advertising and celebrity endorsements for more than three decades. Callaway Golf Co. v. Screen Actors Guild (SAG), 07CV0373-LAB (WMc). At issue in the case over whether golf-equipment manufacturer Callaway was liable for contributions to guild health and pension plans was how much income from appearances in television commercials could be attributed to golf professionals' income.

The SAG defendants designated Jon Albert to testify as an expert on how much celebrities earn from TV commercials. The plaintiffs raised objections, citing missing details in Albert's curriculum vitae about cases in which he testified during the past four years and about publications he wrote during the past 10 years. But U.S. District Judge Larry Alan Burns noted: “Albert has disclosed high-profile cases he testified in, going back approximately 20 years, and mentions without giving dates that he testified in other lower-profile cases as well. Defendants represent that the list is complete. Normally the list of cases should include more detail, see , e.g. , Coleman v. Dydula , 190 F.R.D. 316, 318 (W.D.N.Y.1999), but the cases are listed with enough specificity that they are identifiable and the [c]ourt finds the omission harmless. Plaintiffs have pointed to no indication Albert testified as an expert in a case in the past four years that he has not disclosed as required under Rule 26(a)(2)(B)(v) [of the Federal Rules of Civil Procedure].”

Judge Burns continued: “In their opposition to the Motion [to exclude Albert], [d]efendants avoid the question of whether he authored any publications, stating 'a quick [I]nternet, Westlaw or Lexis search could resolve the inquiry for [p]laintiffs.' ' In view of the nature of Albert's expertise and proffered testimony, which is based primarily on his business experience, there is no great likelihood he has authored particularly relevant publications in the past [10] years that would form a part of his qualifications. Plaintiffs did not inquire about it when they deposed Albert. Because Albert has testified as an expert recently, it is likely he has a list of publications prepared. But if not, [d]efendants represent his publications are easily located online. The [c]ourt will therefore order production of this list, which appears likely to remedy the omission with no undue prejudice to [p]laintiffs. In view of the nature of the few publications located per [d]efendants' suggestions, it appears they will be largely irrelevant to his qualifications and the omission will be harmless.”

Albert had worked with a range of celebrities, not primarily athletes, though as the district judge pointed out “his work with athletes is still substantial.” The court then explained: “The transcript of Albert's deposition demonstrates he does not primarily concern himself with the details of the fields in which celebrities work ' whether actors, musicians, or athletes ' because, he says, the contracts concerning their endorsements are substantially similar. Bearing in mind his extensive experience, Albert would be in a position to know what information he or another person in his field would base opinions on.” Thus the court “conditionally” accepted Levy's position that “an expert in the area of celebrity endorsements would not need to obtain any particular expertise about the sport of golf as opposed to other sports or other fields of endeavor to be able to place a value on a golfer's endorsement and television commercial work.”

Judge Burns did exclude the expert testimony of two other individuals. Senior SAG advisor John McGuire along with John McGuinn, who had experience negotiating with SAG, were designated by the defendants to testify about “[s]ervices covered by the SAG Commercials Contract, intent and application of '46 of the 200 Commercials contract and related provisions.” The district judge found as to these individuals that “the [c]ourt need not reach the Rule 26 objection, because it finds these two witnesses' expert testimony would not be helpful to the [c]ourt. ' To the extent McGuinn and McGuire would testify as experts, their proffered testimony would explain the meaning of agreements themselves. (Motion, Exs. 3 and 5 (expert reports).) The meaning of agreements, however, is a question of law for the [c]ourt.”

Still, the court added: “This is not to say McGuire and McGuinn cannot testify at all, since it appears they have a good deal of relevant personal knowledge that could shed light on the meaning of the contractual terms. Rather, if they testify, it must be as percipient [i.e., first-hand] witnesses rather than experts.”