United States District Court, S.D. New York
For Beastie Boys, a New York Partnership, Michael Diamond, Adam Horovitz, Dechen Yauch, as Executor of the Estate of Adam Yauch, deceased, each individually and collectively d/b/a Brooklyn Dust Music, Plaintiffs: Theodore Conrad Max, Sheppard, Mullin, Richter & Hampton, LLP (NYC), New York, NY; Valentina Shenderovich, Sheppard Mullin Richter & Hampton LLP, New York, NY.
For Monster Energy Company, Defendant, ThirdParty Plaintiff: Adam M. Cohen, Linda Marie Dougherty, S. Reid Kahn, Tanya Claire Pohl, Kane Kessler, P.C., New York, NY.
OPINION & ORDER
Paul A. Engelmayer, United States District Judge.
Trial in the above-captioned case is scheduled to begin on Tuesday, May 27, 2014. Plaintiffs (the " Beastie Boys" ) seek to offer expert testimony from Lisa Thomas concerning (1) the fair market value of a license to use the musical composition and sound recordings included in the allegedly infringing video at issue in this case (the " Video" ) and (2) the fair market value of the implied endorsement allegedly created bye the use of the Beastie Boys' names and trademarks in the Video by defendant Monster Energy Company (" Monster" ). Thomas's testimony has been the subject of several motions in limine ; in response to the Court's rulings, the Beastie Boys have presented a modified expert report from Thomas. For the third time, Monster moves in limine to preclude Thomas's testimony. For the reasons that follow, that motion is denied, except to the extent that Thomas proposes to offer testimony based on the settlement agreement in GoldieBlox, Inc. v. Island Def Jam Music Group et al., Case No. 4.13-CV-05428-DMR (N.D. Cal. filed Nov. 21, 2013) (" GoldieBlox " ). The Court will not permit such testimony. See infra Section III.A.2.
I. Procedural Background
The Court assumes familiarity with the facts and prior history of this case, which has been the subject of a number of decisions, see Dkts. 51, 89, 90, 96, and briefly
recounts here only the background relevant to the instant motion. On February 13, 2014, Monster moved to preclude Thomas from testifying at trial. Dkt. 63. On March 6, 2014, after briefing, the Court denied Monster's motion, except that it directed that, for Thomas to testify, she would have to revise her report so as to no longer base its estimate of the value of the license and of the implied endorsement on a perpetual term of use, but instead on a term of use matching the approximately five weeks that Monster allegedly used the Beastie Boys' songs to promote its brand. Dkt. 89 (" Thomas I " ) at 5-7. The Court also allowed Monster to re-depose Thomas in light of her revised report. Id. at 7.
On March 19, 2014, after Thomas had revised her report, see Dkt. 92 Ex. B (" Revised Thomas Report" ), Monster again moved to preclude Thomas from testifying at trial, this time on the ground that the revised report did not comply with Thomas I . Dkt. 92. After briefing, the Court again denied Monster's motion:
Thomas's revised report, as explained by the Beastie Boys and by Thomas's declaration, appears to reflect a good faith effort to comply with the Court's March 6, 2014 order, and to remove the flawed assumption of a perpetual term of use which deprived Thomas's original report of the requisite " good grounds for [its] conclusions." Amorgianos v. AMTRAK., 303 F.3d 256, 267 (2d Cir. 2002). Although Monster is entitled to be skeptical of Thomas's conclusions, the Court no longer perceives methodological shortcomings that render Thomas's opinions inadmissible based on the principles articulated in Daubert v. Merrell Dow Pharms.., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. Monster is, of course, fully at liberty to develop--at Thomas's deposition and at trial--its argument that Thomas's conclusions are unpersuasive.
Dkt. 96 (" Thomas II " ).
On April 18, 2014, after Monster had re-deposed Thomas, see Dkt. 114 Ex. C. (" Thomas Supp. Dep." ), Monster again moved to preclude Thomas's testimony, Dkt. 109, and filed an accompanying memorandum of law, Dkt. 110 (" Monster Br." ). On April 25, 2014, the Beastie Boys filed a memorandum of law in opposition. Dkt. 113 (" Beastie Br." ). On April 28, 2014, the Court directed the parties to provide it with further details regarding the GoldieBlox settlement, which Thomas had identified as among the bases she relied upon in reaching her opinion about valuation. Dkt. 115. On April 30, 2014, the parties did so. Dkt. 117 (" Beastie GoldieBlox Letter" ); Dkt. 118 (" Monster GoldieBlox Letter" ).
II. Applicable Legal Standards
" [T]he Rules of Evidence . . . assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. The Court's task " is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). " [A] trial judge should exclude expert testimony if it is speculative or conjectural or based on assumptions that are 'so unrealistic and contradictory as to suggest bad faith' or to be in essence 'an apples and oranges comparison.'" Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213-14 (2d Cir. 2009) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21
(2d Cir. 1996)). Additionally, " [a]n expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion." Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006), aff'd on other grounds, 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008). Pursuant to Federal Rule of Evidence 403, the Court may also exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or ...