Marvel Worldwide, Inc. et al v. Kirby et al

Filing 69

DECLARATION of Sabrina A. Perelman in Support re: 67 MOTION in Limine to Exclude the Expert Report and Testimony of Mark Evanier.. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Quinn, James)

Marvel Worldwide, Inc. et al v. Kirby et al

Doc. 69 Att. 4

EXHIBIT 4

Dockets.Justia.com

B-1
- VOLUME B 2 3 4 5 6 7 8 IN RE: : Chapter 11 Case IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE

MARVEL ENTERTAINMENT GROUP INC., THE : ASHER CANDY COMPANY, FLEER CORP.,
FRANK L. FLEER CORP., HEROES WORLD : Case No. 97-638-REM

DISTRIBUTION INC., MALIBU COMICS
ENTERTAINMENT INC., MARVEL CHARACTERS:

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INC., MARVEL DIRECT MARKETING INC., and SKYBOX INTERNATIONAL INC. Debtors.

Wilmington, Delaware
Tuesday, November 16, 1999
At 10:05 a.m.

BEFORE:

HONORABLE RODERICK R. McKELVIE, U.S.D.C.J.

APPEARANCES: PEPPER HAMILTON LLP BY: DAVID B. STRATTON, ESQ. -andBATTLE FOWLER LLP BY: DAVID FLEISCHER, ESQ. and
JODI KLEINICK, ESQ. (New York, New York) Counsel for Marvel Enterprises,

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Brian P. Gaffigan Official Court Reporter

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B-211 Evanier - direct it would seem to be that because someone alleges that they have rights, they have the rights. And, I don't think this complaint offers anything more than that. It's just utterly irrelevant. THE COURT: I don't think you can use an expert as a vehicle to testify about specific examples of other disputes between Marvel and other parties. He could testify about industry practice or whatever else it is that you have put the other side on notice he is going to testify to but,
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for example, I don't think he is in a position to testify about what third parties told him for the purpose of me taking it as being the truth, taken for the truth of the matter asserted except to the extent that it goes to hearsay that he would rely on to testify about industry practices and procedures. MR. DILIBERTO: That is what he -THE COURT: I hope you understand the distinction I'm trying to draw, because I think an expert is entitled to ly on hearsay, but I don't think you are entitled to put an xpert on to establish facts, particular facts in dispute or articular facts the other side does dispute except to the extent you would otherwise look on them on matters under Rule 703 as an expert. MR. DILIBERTO: Okay. I understand. THE COURT: So why don't you back up and head in

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E-213 Evanier - direct
THE COURT: No, I don't. What I'm trying to say

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hat it's typical an expert gets on the stand and under Rule 703 can rely on hearsay for the purpose of bolstering opinions the expert offers, but it's not too typical. An

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expert gets on the stand and you use the expert, lawyers may attribute that as not too typical, it gets into evidence. The expert establishes what happens in a particular case with particular individuals for the purpose of establishing that

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as being true for me to take it as true. If you look at it from my perspective, I don't think that I can rely on this witness for the purpose of finding as a matter of fact that the events he testified to n fact happened, in part because the other side has no real ability to cross-examine the principal actors in the incident. And, so I don't think it's consistent with the Rule 11 as to allow him or try to use him to establish certain facts I would end up finding. If you would look at the opinion, I wonder if I could cite this witness for those facts as being true. I don't think I could. I don't think t's consistent with the Rules of Evidence. So what you want to do, what I was suggesting is you want to back up, you want to establish through this witness the general concepts of industry practice that you think that he wants to establish, and then he might set examples from his experience and from his knowledge of the

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3-214 Evanier - direct community of what he relies on to show that general industry
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practice, if that is the direction you are headed. BY MR. DILIBERTO:

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Q.

Okay. Mr. Evanier, in the late 1960s through December

31, 1977, are you aware of any custom or practice in the
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comic book industry that gave comic book companies ownership of materials they published? A. On only a company-by-company basis, what specific

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companies may have issued. MR. FLEISCHER: Your Honor, I'll object to this because it's beyond the scope of the report. Mr. Evanier, in his report, gave opinions on that subject matter but was unspecific as to time. And in his deposition, he indicated that his report was not time specific. And, therefore, any testimony that he gives with respect to these time specific questions would be beyond the scope of his report. THE COURT: Overruled. MR. DILIBERTO: Thank you, your Honor. BY MR. DILIBERTO: Q. A. Q. You were saying? Where was I? I'm lost. Okay. Yes. The question was, are you aware of any

comic book industry custom or practice between the late 1960s to December 31 of 1977 that would have given comic book companies ownership of any characters and stories that they

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B-240 Evanier - direct companies trying to induce creators to assign rights to the companies; is that correct? A. Q. Yes, I did. And based on the facts you just stated, what opinion

does that render regarding comic book companies using their economic powers to induce creators to assign rights to comic book companies? MR. FLEISCHER: Objection, competence. MR. PETRICH: I'm going to add hearsay, your
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Honor, and move to strike. This is all based on what Jack Kirby said happened. THE COURT: Again, I don't think I'm going to be able to, if I have to make findings of fact, I don't think I would be able to cite this witness's testimony for the purpose of making this finding. That is, it doesn't have, it's just not consistent with the Rules of Evidence that I can rely on what he is saying what happened in particular instances for the purpose of determining that it in fact did happen. Why don't we stop for the night, start again tomorrow morning at 9:00 o'clock. MR. DILIBERTO: All right. Thank you. THE COURT: All right? I'll rely on local counsel to get people out of the building. You know how to get out afterhours. You push the red button at the front

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