Mowder v. Permanent General Assurance Corporation of Ohio et al
Filing
125
Opinion and Order signed by Judge James S. Gwin on 4/25/14. The Court, as detailed in this Opinion and Order, denies Plaintiff Satija's motion to exclude the expert reports and related testimony of defendants' experts, grants in par t and denies in part defendants' motion to strike the testimony of plaintiff's expert, Robert Turner and denies as moot defendants' motion for leave to challenge Robert Turner's rebuttal report. (Related Docs. 73 , 84 , 91 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
RON SATIJA, Trustee of the Bankruptcy :
Estate of David Mowder and Heather
:
Lynette Mowder,
:
:
Plaintiff,
:
:
v.
:
:
PERMANENT GENERAL ASSURANCE :
CORPORATION OF OHIO et al.,
:
:
Defendants.
:
:
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CASE NO. 1:13-CV-00082
OPINION & ORDER
[Resolving Docs. 73, 84, & 91]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this copyright action, Plaintiff Ron Satija, the trustee of David Mowder’s bankruptcy
estate, moves to stop the testimony of Defendants’1/ two experts.2/ Defendants oppose the motion.
For the reasons that follow, the Court DENIES Plaintiff’s motion.
The Court also considers Defendants challenge to Plaintiff’s expert, Robert Turner.3/ Based
on the testimony provided at the hearing, the Court GRANTS IN PART and DENIES IN PART
Defendants’ motion to strike Turner’s testimony.4/ The Court DENIES Defendants’ motion for
leave to challenge Turner’s rebuttal report as moot.5/
1/
The complete list of Defendants is Permanent General Companies, Inc., Permanent General Assurance
Corporation of Ohio, Permanent General Assurance Corporation, PGA Service Corporation, PGC Holdings Corp.,
General Automobile Insurance Services of Ohio, Inc., General Automobile Insurance Services, Inc., General Automobile
Insurance Services of Texas, Inc., General Automobile Insurance Services of Louisiana, Inc., and General Automobile
Insurance Services of Georgia, Inc. The Court will refer to them collectively as Defendants or Permanent General.
2/
Doc. 84.
3/
Doc. 100.
4/
Doc. 73.
5/
Doc. 91.
Case No. 1:13-CV-00082
Gwin, J.
I. Procedural Background
The Court has recently issued an opinion detailing the factual background of this case and
incorporates that background by reference.6/
Defendants’ disclosed reports from two experts. William Baker, Ph.D., authored the first
report. The report gives opinions on the effectiveness of the of the General character on Defendants’
advertising and the percentage of Defendants’ profit attributable to the use of the General in its
advertisements.7/
Michael Einhorn, Ph.D., authored the second report. Dr. Einhorn’s report gives opinions on
the amount of Defendants’ profit that is attributable to the use of the General in Defendants’
advertisements.8/
Plaintiff says that both reports are unreliable and, in a footnote, challenges Dr. Einhorn’s
qualifications to render an opinion on valuation.9/ Defendants say that Plaintiff’s challenges are
questions of weight and not admissibility.10/
II. Legal Standard
Rule 702 of the Federal Rules of Evidence controls the admission of expert testimony. Under
Rule 702, testimony based on specialized knowledge is admissible if it “will help the trier of fact to
understand the evidence or to determine a fact in issue.”11/ The expert’s testimony must also be
“based on sufficient facts or data,” be “the product of reliable principles and methods,”and be the
6/
See Doc. 87 at 2-3.
7/
See generally Baker Rep.
8/
See generally Einhorn Rep.
9/
Doc. 84.
Doc. 100.
10/
11/
Fed. R. Evid. 702(a).
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Gwin, J.
product of reliable application of those principles and methods to the facts of the case.12/ “[T]he law
grants a district court the same broad latitude when [the district court] decides how to determine
reliability as it enjoys in respect to its ultimate reliability determination.”13/ But to qualify as an
expert witness, the expert must be qualified “by knowledge, skill, experience, training, or
education.”14/
As commentators have noted, Rule 702 liberalized the admissibility of expert testimony from
the earlier Frye standard.15/ Under this liberal approach, expert testimony is presumptively
admissible.16/
Further, experts need not confine their testimony to matters upon which they have personal
knowledge.17/ Experts may base their opinions on facts and data “experts in the particular field
would reasonably rely on . . . in forming an opinion on the subject.”18/
For the instant motions, the Court restricts itself to determining whether the experts’
purported testimony is admissible. To conduct this inquiry, the Court considers the parties’
objections.
III. Dr. William Baker
Dr. William Baker holds a master’s degree and Ph.D. in marketing from the University of
Florida.19/ He is currently a professor of marketing and chair of the marketing department at the
12/
Id. 702(b)-(d).
13/
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999).
14/
Fed. R. Evid. 702.
15/
See, e.g., Weinstein’s Federal Evidence § 702.02[1].
16/
Id.
17/
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993).
18/
Fed. R. Evid. 703.
19/
Baker Rep. at 1 ¶ 2.
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Gwin, J.
University of Akron.20/ He previously was a professor at San Diego State University and the
University of Vermont and a marketing executive at Nashville, Tennessee, business.21/
In this case, Dr. Baker gives an expert report expressing his agreement or disagreement with
Plaintiff’s expert, Dr. Barone.22/ Dr. Barone gave the opinion that Defendants’ use of the General
character had a significant positive influence on consumer purchases of insurance from Defendants
and that Defendants’ use of the General in its advertisements contributed to Defendants’ gross
revenue and profits.23/
Dr. Baker’s report begins by suggesting that Defendants’ investments in its advertising and
in the General character do not mean that the character has a significant and positive influence on
consumer decisions.24/ He says that the only way to definitively assess the impact is to conduct
“focused research,” which Plaintiff has not done.25/ Dr. Baker then criticizes Dr. Barone’s
methodology in determining the impact of the character through theoretical means.26/
The report then considers the results of four meta-analyses. Based on these meta-analyses,
Dr. Baker concludes that “the feelings generated by advertising have little effect on what people
think about the brand, what they remember about the brand, or their purchase intentions toward the
brand” and that any effect is “very small.”27/ He also concludes that “it is the message and not the
20/
Id.
21/
Id.
22/
Id. at 3 ¶ 9.
23/
See generally Barone Rep.
24/
Baker Rep. at 5-8.
25/
Id. at 8 ¶ 26.
Id. at 8-11.
26/
27/
Id.
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Gwin, J.
deliverer of that message that is most important.”28/ Taking all of the research he reviewed into
consideration, Dr. Baker gives the opinion that the overall impact of the General character “is
responsible for about 10% of the effectiveness of Permanent General advertising,” although that
effectiveness could 10% higher or 10% lower.29/
Plaintiff Satija says 1) that Dr. Baker’s use of meta-analyses renders his opinion unreliable,
2) that the range of positive impact Dr. Baker finds suggests he is engaging in “scientific
guesswork,” 3) that Dr. Baker did not appropriately respond to Dr. Barone’s report, and 4) that Dr.
Baker’s testimony would confuse the jury about the burdens of proof the parties bear.30/
The Court finds each objection loses.
First, Defendants correctly point out that the Sixth Circuit has cited meta-analytic studies
favorably as support for a conclusion.31/ The academic community also uses meta-analytic studies
for a variety of purposes.32/ Although meta-analysis have risks including those that Dr. Barone
identifies in his rebuttal report, those risks go to the weight that the jury should give Dr. Baker’s
testimony, not its admissibility.
Second, the range that Dr. Baker’s report yields does not mean he is engaged in scientific
guesswork. Dr. Baker applied his methodology to the available academic research and came up with
a confidence interval based on that research. The fact that the confidence interval is high may be a
reason for the jury to disagree with his approach, but it is not an indication that Dr. Baker did not
28/
Id. at 12-13 ¶ 37.
29/
Id. at 13-14 ¶ 39.
30/
Doc. 84 at 8-10.
See United States v. Deen, 706 F.3d 760, 769 n.6 (6th Cir. 2013).
31/
32/
Reference Manual on Scientific Evidence (Third) at 579 (2011), available at
http://www.fjc.gov/public/pdf.nsf/SciMan3D01.pdf/$file/SciMan3D01.pdf (“Meta-analysis, . . . a method for pooling
the results of multiple studies, sometimes can ameliorate concerns about random error.”).
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Case No. 1:13-CV-00082
Gwin, J.
apply his method reliably.
Third, the Court disagrees that Dr. Baker did not respond to Dr. Barone’s report. Dr. Baker
criticizes Dr. Barone’s theoretical approach to determining whether the use of the General had a
significant positive impact on consumers. And he uses a meta-analytic method to give the opinion
that, at most, the General has a 10% positive impact on consumer decisions to purchase insurance
from Defendants. Perhaps as importantly, he give the opinion that no expert could determine the
General’s exact impact without more data. This report contradicts Dr. Barone’s assertion that the
General has a significant positive impact on consumers and a large amount of revenues are related
to the use of the General.
Finally, the Court disagrees that Dr. Baker’s testimony will confuse the jury about the
burdens of proof. Dr. Baker challenges whether Plaintiff shows Defendant profited from using the
General. Dr. Baker says the General has little impact on consumer insurance choices. And Dr.
Baker also gives opinions regarding the character’s impact when compared with other advertising
factors. This is relevant to Defendants’ burden to show what profit is attributable to their use of the
General should they be found liable for copyright infringement.
Accordingly, the Court overrules Plaintiff’s objections to Dr. Baker.
IV. Dr. Michael Einhorn
Dr. Michael Einhorn has a Yale Ph.D. in economics.33/ He has testified in cases across the
country on damages valuation, including copyright cases. He has published peer reviewed articles.34/
The Court finds that he is qualified to testify as an expert on valuation of copyright damages and can
33/
Einhorn Rep. at App’x A.
34/
See id.
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give opinion evidence on what profits are attributable to the use of the General. The Court overrules
Plaintiff’s perfunctory objection.
In this case, Dr. Einhorn gives an expert opinion about the amount of Defendants’ profits that
can be attributed to the use of the General character.35/ Dr. Einhorn concludes that $105,446 is the
amount of Defendants’ profit attributable to the use of the General between 2010 and 2013.36/
To reach this conclusion, Dr. Einhorn finds that Permanent General’s revenue from 2010 to
2013 is $945,139,000.37/
From this revenue, Dr. Einhorn subtracts underwriting losses, of
$509,332,000, and operating expenses, of $422,913,000; this yields a final profit of $12,894,000.38/
Dr. Einhorn then apportions the amount of profit attributable to advertising by taking the
proportion of advertising expenses to overall expenses, or 33.7%.39/ Taking this proportion of the
overall profits yields $4,794,000 of profit attributable to advertising.40/
Dr. Einhorn finally reasons that Permanent General spends 2.2% of its advertising expenses
on artwork, so he finds that the profit attributable to the use of the General is 2.2% of the profit
attributable to advertising, or $105,446.41/
Plaintiff says that four errors on the report render it unreliable: 1) the fact that Dr. Einhorn
treated monetized revenue as an expense instead of revenue; 2) the fact that Dr. Einhorn deducted
all costs from Defendants’ revenue in calculating profit; 3) the fact that Dr. Einhorn used the
35/
Id. at 3 ¶ 1.1.
Id. at 6 ¶ 4.5.
36/
37/
Id. at 9 Table 1.
38/
Id.
39/
Id.
40/
Id.
41/
Id. at 11 ¶ 8.3.
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Gwin, J.
percentage of artwork expenses in Defendants’ overall expenses to calculate the proper amount of
profits attributable to the use of the character; and 4) the fact that Dr. Baker says no one can
definitively apportion the value of the character means all profits are inextricable intertwined and
inseparable.42/
The Court overrules these objections.
First, the Court credits Defendants’ representation that Dr. Einhorn’s treatment of monetized
revenue is consistent with Permanent General’s accounting.43/ Accordingly, the treatment of
monetized revenue is a source of disagreement between the experts that the jury can resolve.
Second, Defendants are permitted to deduct their expenses, including the expenses Plaintiff
challenges. Plaintiff’s suggestion that the Court should differentiate between direct costs and
indirect costs is incorrect and based on the faulty assumption that Permanent General sells
“infringing products.”44/ Permanent General does not sell infringing products; Permanent General
sells insurance with an advertisement that allegedly infringes Plaintiff’s copyright. Accordingly, all
expenses that “contribute to the production and sale” of Defendants’ products may be deducted.
Third, Plaintiff’s challenge to the method by which Dr. Einhorn allocates the profits
attributable to the use of the General should be made to the jury. Dr. Einhorn implicitly assumes that
every dollar spent in costs contributes equally to the profit received. The jury may or may not agree
with that approach, but it is a principled means of allocating profit and is reliably applied to the facts
of the case.
42/
Doc. 84 at 11-14.
43/
See Doc. 100 at 4.
44/
Doc. 84 at 12 (quoting In Design v. Lauren Knitwear Corp., 782 F. Supp. 824, 832 (S.D.N.Y. 1991)); see
also id. at 7 (listing cases).
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Finally, Plaintiff incorrectly argues that Dr. Baker gives the opinion that Permanent General
cannot determine the revenue attributable to the use of the General character and should, therefore,
pay all its profit to Plaintiff if a copyright infringement occurred. This misreads Dr. Baker’s opinion.
Dr. Baker says that without additional tests, no one can conclusively say what the impact of the
character is, but that “rendered opinions” may have “value” “depend[ing] on the extent to which said
opinions link conclusions to reliable data-driven research results.”45/ This merely means that no one
can give a precise value for the impact that character has on advertising; it does not mean that an
expert cannot determine the revenue attributable to the use of artwork.
For these reasons, the Court overrules Plaintiff’s objections to the testimony of Dr. Einhorn.
V. Robert Turner
In a previous order, this Court scheduled Defendants challenge to Plaintiff’s valuation expert,
Robert Turner for hearing.46/ The Court could not issue a final decision on the admissibility of
Turner’s testimony. In that order, the Court summarized Turner’s qualifications as an expert and the
analysis of his report.47/
At the hearing, Turner reiterated the analysis in his report. He said that he conducted
regression analysis to show that money spent on advertising increased Defendants’ revenues. No
big surprise. But going beyond the unexceptional finding that advertising expenditures increase
sales, Turner then concluded that all of Permanent General’s revenues were attributable to the use
of the General character. He reduces this only by the percentage of advertising that do not include
45/
Baker Rep. at 4 ¶ 13.
46/
Doc. 87 at 8-12.
47/
Id.
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the General.
Turner also suggested his opinion had some support from a Deloitte valuation performed to
justify a party’s Permanent General stock purchase. That Deloitte valuation gave a value for trade
marks and trade names, but never gave any separate valuation of the General character.
Turner admitted that his analysis does not account for any other parts of the advertisements
featuring the General character. He testified:
Q
And so, we're still with the advertising drives revenues is the basis of your
opinion, am I correct so far?
A
Statistically confirmed, yes.
Q
Okay. Now, I think you've also told us, you told me at your deposition, that
as far as you know, it would be possible to determine the value of that
component and that Dr. Barone might have been one of the people that could
have done that, isn't that correct?
A
Dr. Barone, Dr. Braker or Mr. Einhorn, you know, possibly anybody, or by
the way, management itself. Management has not done anything since 2000.
So management could have done it, but they didn't do it either.
Q
Isn't the -- is there anything out there that tells you, gives you any allocation
for any value for the cartoon character in the context of the General's
advertisements?
A
There's nothing out there that any of the experts of the company that have
done to try to segregate the value of the character, apart from, you know, the
overall bundle of the brand.
...
And while Dr. Turner acknowledged that other advertising elements contribute to sales—including
music, the website, the 1-800-GENERAL phone number, and most importantly insurance
pricing—but he still gives the opinion that revenues all resulted from the General character.
Dr. Turner summarized his opinion:
Q
But what I'm asking you is, can you as you stand here today, tell me that
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you've got any way of allocating the value of the General in the context of the
advertising in terms of a reasonable relationship, can you put a number on
that? Yes or no?
A
We did not run a survey or a study that would differentiate ads with or
without it.
The Court needs determine whether his opinion that the General Character alone drives sales is
reliable.
Defendants renewed their argument that Turner’s method of calculating revenues attributable
to the use of the General is unreliable because it is speculative in that it does not account for other
features of the advertisements featuring the General character.
For its argument, Plaintiff suggested that they had no burden to account for the impact of
other features, as the Estate argued in its brief.
The Estate’s argument that it bears absolutely no responsibility for showing a causal link
between the revenues and the use of the General loses.
17 U.S.C. § 504(b) establishes a methodology for proving that Defendant profited from any
copyright infringement. Section 504(b) requires the copyright owner to only present evidence “of
the infringer's gross revenue” from the infringement. The infringer must then show both “expenses”
but also the amount of the “profit attributable to factors other than the copyrighted work.”48/
The Sixth Circuit has held that the plaintiff in a copyright case seeking disgorgement of
profits must show a “reasonable relationship” between revenues and the act of infringement.49/ To
show this reasonable relationship, the plaintiff must present “non-speculative evidence . . . consistent
48/
17 U.S.C. § 504(b).
49/
Balsley v. LFP, Inc., 691 F.3d 747, 769 (6th Cir. 2012) (emphasis added).
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Gwin, J.
with general damages principles.”50/ This non-speculative evidence must include “some causal link
between the infringement and the particular profit stream before the burden-shifting provisions of
[17 U.S.C.] § 504(b) apply.”51/
But here, this begets the question: what profits did the infringement contribute to? Unlike
the defendant publisher in Balsley v. LPT, Inc., Defendants did not sell publications that included
Plaintiff’s copyrighted material. Defendants sold insurance. Even if the General Character helped
the advertising and even if the advertising helped insurance sales, is there a reliable basis for saying
the General Character resulted in all Permanent General’s sales?
The Fourth Circuit dealt with similar issues with a case where the plaintiff said that he held
a copyright on a logo used by the Baltimore Ravens.52/ The plaintiff then contended that § 504(b)
allowed him to present evidence of all Ravens sales, both merchandise and non-merchandise, and
required the Ravens to come forward with evidence negating the logo’s connection with other
revenue. The Fourth Circuit found that the plaintiff could not seek damages for non-merchandise
sale and then found that plaintiff offered only speculative evidence to show any connection of the
logo to merchandise sales:
We first consider whether any of the Non-Merchandise Revenues and the Excluded
Merchandise Revenues lacked a conceivable connection to the infringement. If so,
summary judgment in favor of the Defendants with respect to those revenues was
proper. Turning then to the remaining excluded revenues, we inquire whether,
despite the existence of a conceivable connection between those revenues and the
infringement, Bouchat offered only speculative evidence of such a causal link in
response to a properly supported motion for summary judgment. If so, then summary
50/
Thornton v. J Jargon Co., 580 F. Supp. 2d 1261, 1280 (M.D. Fla. 2008), quoted by Balsley, 691 F.3d at 770.
51/
Quantum Sys. Integrators, Inc. v. Sprint Nextel Corp., 338 F. App’x 329, 333 (4th Cir. 2009). The Sixth
Circuit has declined to require a causal connection requirement only “to the extent that such a label indicates a burden
higher than the one outlined” in the Balsley opinion. 691 F.3d at 769 n.6.
52/
Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (emphasis added).
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judgment in favor of the Defendants was appropriate with respect to these revenues
as well.53/
The court concluded that the plaintiff had not established a causal link between the logo and the
team’s non-merchandise revenues, even though the logo advertises and represents the team in all of
its business ventures.54/
Therefore, for Turner’s testimony to be admissible, he must have a non-speculative basis for
concluding that the amount of revenues he identifies is reasonably related to the use of the General.
And that requires a causal link between the infringing act and the revenue.
The Court finds that Turner’s opinion tying all of Permanent General’s revenue to the
Character does not satisfy this standard. Turner’s testimony that all of Permanent General’s revenue
flows solely from the General character is not reliable. The causal link between the use of the
General and Turner’s revenue range is too speculative to conclude that the amount of revenue Turner
identifies is reasonably related to the use of the General.
As the Court previously noted, the Balsley v. LPT, Inc. case does not require a different
result.55/ Unlike in Balsley, which Plaintiff relies on, Defendants did not sell any allegedly
copyrighted material. Instead, Plaintiff’s claim is that use of the General character in advertisements
encouraged consumers to purchase insurance.
This more tenuous link between the alleged infringement and revenue means that the amount
53/
Id. at 523-24; see also Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir. 2005) (“We have previously
determined that a literal interpretation of gross revenue in § 504(b) to include all profits produced by an infringer, no
matter the source, would be incorrect. Rather, gross revenue refers only to revenue reasonably related to the
infringement. The copyright owner thus has the burden of demonstrating some causal link between the infringement
and the particular profit stream before the burden-shifting provisions of§ 504(b) apply.” (citations omitted)).
54/
Bouchat, 346 F.3d at 524-25.
55/
Doc. 87 at 12.
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of revenue reasonably related to the alleged infringement is inherently more speculative.
Defendants’ advertising may have a causal link to revenues but Turner gives no reliable basis to find
that all of Permanent General’s revenues flowed from the General. Because Dr. Turner has no
reliable basis to attribute all of Defendant’s revenue to the General character, the Court grants
Defendant’s motion challenging that portion of Dr. Turner’s testimony.
Turner’s report reliably applies a reliable method to determining the causal link between
Defendants’ advertising and its revenues. It does not use a reliable method to determine that a causal
link exists between the General Character and all of Permanent General’s revenue.
Turner admits that he cannot compare the impacts of the various elements of the
advertisements on the effectiveness of the advertisements. Neither can Dr. Barone. Instead, by not
considering those other elements, Turner in effect allocates all of the effectiveness of Defendants’
advertisements to the use of the General and ignores the impacts of the other elements.
That one-hundred-percent allocation is speculative in light of other major elements of the
advertisement, such as price, Defendants’ 1-800 number, and Defendants’ jingle. This kind of
speculation does not demonstrate a reasonable relationship between the use of the character and the
amount of revenue Turner identifies.
In allocating all of the effectiveness of Defendants’ advertisements to the use of the General
without any basis to do so, Turner engages in speculation about the causal link between the use of
the General and Defendants’ revenue; therefore, his opinion as to the amount of revenue reasonably
related to the use of the General is not based on a reliable method.
The Court also finds that Turner’s treatment of the Deloitte report is similarly based on
speculation. First, the report is hearsay that is likely inadmissible. Second, the report does not
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Gwin, J.
differentiate among the different types of intangible assets being valued, and Turner can only
speculate about how much value the report assigns to the General.56/
Therefore, Turner may not testify about what revenue is reasonably related to or attributable
to Defendants’ use of the General.
However, the Court finds that Turner may testify concerning proper accounting procedures,
such as the classification of monetized revenue as profit or an expense, and may testify in rebuttal
to the testimony of Dr. Einhorn.
The Court also finds that Plaintiff may still offer evidence about what revenues are
reasonably related to the use of the General. Dr. Barone will testify that the General character has
a significant positive effect on the effectiveness of Defendants’ advertisements and that, therefore,
there is some reasonable relationship between the alleged infringement and Defendants’ profits.
Plaintiff may then present the amount of Defendants’ revenues as allowed by the Copyright Act and
rely on the jury to make a common-sense determination of the magnitude of the relationship.
VI. Conclusion
For the foregoing reasons, the Court DENIES Plaintiff’s motion.57/ The Court overrules
Plaintiff’s objections to the testimony of Drs. Baker and Einhorn.
The Court also GRANTS IN PART and DENIES IN PART Defendants’ motion to strike
the testimony of Robert Turner.58/ Turner may not testify about revenues “reasonably related to” or
“attributable to” Permanent General’s use of the General character, but he may testify as an expert
56/
The Court does not decide the question of whether Defendants’ previous parent corporation’s profit from the
sale of Defendants’ and their assets is a profit earned by Defendants and, therefore, recoverable under 17 U.S.C. § 504.
57/
Doc. 84.
58/
Doc. 73.
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in accounting to rebut Defendants’ evidence concerning valuation. The Court DENIES Defendants’
challenge to Turner’s rebuttal report as moot.59/
IT IS SO ORDERED
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: April 25, 2014
59/
Doc. 91.
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