Whitmill v. Warner Bros. Entertainment Inc.

Filing 33

MOTION to Exclude Testimony and Declaration of Plaintiff's Expert Witness David Nimmer by Plaintiff S. Victor Whitmill. (Salsich, Peter)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
S. VICTOR WHITMILL,
Plaintiff,
v.
WARNER BROS. ENTERTAINMENT INC.,
Defendant.

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Civil Action No. 4:11-cv-752 CDP

PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY OF
DAVID NIMMER
Plaintiff S. Victor Whitmill respectfully requests that this Court exclude the purported
“expert testimony” of David Nimmer at the hearing on Plaintiff’s Motion for Preliminary
Injunction, and strike his 32-page “Declaration,” on the grounds that this testimony is nothing
more than thinly disguised legal argument and an attempt to circumvent the Court’s already
generous 40-page limit for Defendant’s brief, and is therefore improper and inadmissible expert
testimony. In support of this Motion, Plaintiff states as follows:
1. On Friday, May 20, 2011, Defendant Warner Bros. filed a 40-page Memorandum in
Opposition to Plaintiff’s Motion for Preliminary Injunction [doc. 29], after requesting and
receiving leave to file a brief in excess of the Court’s standard 15-page limit. LR 7-4.01(B).
2. In addition, Defendant also attached a 32-page “Declaration” from David Nimmer, a law
professor and practicing attorney in Los Angeles, California. This declaration followed
Defendant’s witness list [doc. 26], which identified Professor Nimmer and stated that “[h]e will
offer expert testimony that it is not possible to own a copyright created on another human being.”

3. While its form bears the title “Declaration” and includes a statement at the end that “the
foregoing is true and correct” “under penalty of perjury of the laws of the United States”, its
substance is 72 numbered paragraphs of entirely legal argument. This is not surprising given that
Professor Nimmer was retained by Warner Bros. through the Law Firm of Irell & Manella LLP,
with whom he is affiliated.
4.

This Court’s specific requirements clearly state that “Expert witnesses are not allowed to

opine on the law.” Catherine D. Perry, Requirements at ¶ 13(f).
5. Counsel for Plaintiff provided a copy of this Court’s Requirements regarding expert
testimony on the law to Defendant’s counsel, including local counsel, via email at 12:47 p.m. on
Friday, less than two hours after receiving Defendant’s witness list, informing them that Plaintiff
intended to file a Motion to Exclude and giving them an opportunity to reconsider Professor
Nimmer’s testimony and mitigate any costs associated with Professor Nimmer’s travel.
Defendant’s counsel made no reply to this email.
6.

The well-established law of this Circuit is entirely consistent with this Court’s

Requirements regarding the exclusion of expert testimony on the law. See, e.g., Police Ret. Sys.
of St. Louis v. Midwest Inv. Advisory Serv., Inc., 940 F.2d 351, 357 (8th Cir. 1991) (“. . . one of
the defendants' experts, Lee Pickard, a former head of the Securities and Exchange Commission's
Division of Market Regulations and a lawyer, was allowed to explain the reach and meaning of
§ 28(e) to the jury. This was error. Explaining the law is the judge's job. Pickard's extensive lawrelated expert testimony allowed him to usurp the judge's place.”); Farmland Indus. v. FrazierParrott Commodities, Inc., 871 F.2d 1402, 1409 (8th Cir. 1989) (“[W]e have no doubt that the
district court acted properly in ruling that Farmland's expert witness could not testify regarding
the requirements of law.”); Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357, 1360 (8th Cir.

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1990) (expert testimony should be exluded “if it so couched in legal conclusions that it supplies
the fact finder with no information other than what the witness believes the verdict should be.”);
Hogan v. Am. Tel. & Tel. Co., 812 F.2d 409, 411 (8th Cir. 1987) (“Opinion testimony is not
helpful to the factfinder if it is couched as a legal conclusion.”).
7.

Professor Nimmer’s Declaration contains pages and pages of legal citation and his

own evolving opinion of what copyright law should be — all of which is permissible legal
argument for counsel to make, but none of which is permissible expert testimony.
8.

Paragraph 25 of Professor Nimmer’s Declaration is a representative example of

his entirely legal opinions and affected judicial tone:
25. For all these reasons, human flesh cannot serve as the “medium of
expression” that Congress intended to embody legally protectable
authorship. For that reason, plaintiff’s claim of copyright over a tattoo on
Mike Tyson’s body must be summarily rejected.
Nimmer Declaration [doc. 29, Ex. 6] at ¶ 25.
9.

Similarly, paragraphs 70 and 72 of Professor Nimmer’s Declaration sum up his

legal conclusions — also very much in the voice of a judge:
70. For all these reasons, the count alleging copyright infringement in this
case is fatally deficient.
....
72. In any event, the Copyright Act as it stands today — not having been
amended to expressly grant protection to tattoos — affords no copyright
protection to that subject matter. For that reason, plaintiff Whitmill’s case
fails.
Nimmer Declaration [doc. 29, Ex. 6] at ¶¶ 70, 72.
10.

Professor Nimmer’s Declaration is nothing more than a preliminary draft of his

most recent law review article. Defendant’s witness statement makes it clear that it intends to put
Professor Nimmer on the witness stand for the sole purpose of lecturing this Court on his opinion

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of what copyright law should be. Accordingly, neither the Declaration nor Professor Nimmer’s
testimony should be permitted.
11.

Professor Nimmer’s “testimony” should also be excluded for the practical reason

that it unnecessarily lengthens an expedited proceeding under difficult time constraints.
WHEREFORE, Plaintiff respectfully requests that this Court exclude David Nimmer as
an expert witness in this case, and also exclude his 32-page Declaration [doc. 29, Ex. 6].
DATED: May 23, 2011
Respectfully submitted,
/s/ Pete Salsich III
Michael A. Kahn (#35411MO)
[e-mail]
Pete Salsich III (#44886MO)
[e-mail]
Geoff G. Gerber (#47097MO)
[e-mail]
The BrickHouse Law Group
PROFESSIONAL CORPORATION

1006 Olive Street, Ste. 303
St. Louis, Missouri 63101-2048
Tel: [phone]
Attorneys for plaintff

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was served via the Court’s electronic filing system on this 23rd day of May, 2011 on all counsel
of record, and by electronic mail upon the following.
Frederick J. Sperling
[e-mail]
SCHIFF HARDIN LLP
233 South Wacker Drive, Suite 6600
Chicago, IL 60606-6473
[phone]
[phone] (facsimile)
/s/ Pete Salsich III
Attorney for Plaintiff
S. Victor Whitmill

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