Hayden v. 2K Games, Inc. et al

Filing 152

Opinion and Order For reasons set forth in this order, Plaintiff Hayden's motion to Exclude the Expert Testimony of Dr. E. Deborah Jay is denied. (Related Documents 88 & 89 ). Judge Christopher A. Boyko on 5/20/2022. (L,Ja)

Case: 1:17-cv-02635-CAB Doc #: 152 Filed: 05/20/22 1 of 7. PageID #: 13051

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES HAYDEN,
Plaintiff,
vs.
2K GAMES, INC., et al.,
Defendants.

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CASE NO. 1:17CV2635
SENIOR JUDGE
CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, SR. J.:
This matter comes before the Court upon the Motion (ECF DKT #88*SEALED &
ECF DKT #89 *PUBLIC VERSION) of Plaintiff James Hayden to Exclude the Expert
Testimony of Dr. E. Deborah Jay. For the following reasons, the Motion is denied.
I. BACKGROUND
Plaintiff James Hayden filed his original Complaint on December 18, 2017. His
Fourth Amended Complaint was filed on August 19, 2019, alleging copyright infringement by
Defendants 2K Games, Inc. and Take-Two Interactive Software, Inc. Defendant Take-Two is
a worldwide developer, publisher and marketer of interactive entertainment and video games.

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Plaintiff alleges that he is the tattoo artist who inked the copyrighted tattoos on NBA players
Danny Green, LeBron James and Tristan Thompson, individuals depicted in Take-Two’s
popular basketball simulation series NBA 2K.
E. Deborah Jay, Ph.D. has over 40 years of experience conducting surveys of all types,
including more than 400 surveys in legal cases. Before founding her own survey research
company, Jay Survey Strategics, Dr. Jay served for 23 years as President and CEO of Field
Research Corporation, a highly respected marketing and opinion research firm. She has also
served as the chair of the Council of American Survey Research Organizations, a trade
association representing over 100 survey research companies, as well as the Standards
Committee for the American Association for Public Opinion Research, a professional society
of over 2,000 survey researchers. In addition, Dr. Jay is widely published in the area of
survey methodology.
Jay Survey Strategics was retained by Defendants 2K Games, Inc. and Take-Two
Interactive Software, Inc. to conduct a survey with a nationwide representative sample of
individuals who had purchased a relevant NBA 2K video game. The purpose of the NBA 2K
Survey was to determine the reasons for buying an NBA 2K video game, and whether the
tattoos on LeBron James, Danny Green, or Tristan Thompson were a reason why consumers
bought an NBA 2K video game.
On May 20, 2021, Dr. Jay provided her Expert Report, Survey and Declaration on
behalf of Defendants. (ECF DKT #88-2*SEALED). The NBA 2K Survey was conducted
between October 8 and October 29, 2019, using an online questionnaire completed by a
nationwide representative sample of individuals age 16 to 55 who purchased NBA 2K16,

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2K17, 2K18, 2K19, 2K20 or 2K Mobile in the past five years. In all, 8,523
randomly-selected individuals were screened for eligibility and of these, 520 (6%) qualified
for the NBA 2K Survey. The 520 survey respondents were asked up to four sets of questions,
which included open-ended questions (questions that required survey respondents to answer
in their own words) and closed-ended questions (questions that required survey respondents
to select from a set of response categories), asking the respondents their reasons for buying an
NBA 2K
video game.
In Dr. Jay’s opinion, the NBA 2K Survey strongly supports the conclusions that:
a) consumers bought the relevant NBA 2K video games for numerous reasons, principally
that they like basketball; b) no consumers bought the relevant NBA 2K video games
for the tattoos on LeBron James, Danny Green, or Tristan Thompson, let alone the tattoos at
issue in this case; and c) there is no link between the sales of the NBA 2K video games and
their depiction of the tattoos on LeBron James, Danny Green, or Tristan Thompson. (ECF
DKT #88-2*SEALED at 11).
Plaintiff moves for the exclusion of Dr. Jay’s opinions and survey results because they
are unreliable, misleading and more prejudicial than probative. Her survey disregards wellknown guidelines for open-ended questions. Moreover, the closed-ended questions do not
cure the flaws, but rather introduce more flaws by offering respondents too many options.
Plaintiff contends that Dr. Jay’s survey methodology, at best, identifies the top reasons
respondents bought the NBA 2K games; but does not reliably test whether the Hayden
Tattoos were a reason why respondents bought Defendants’ NBA video games.

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Defendants respond that Dr. Jay’s survey follows recognized methodologies and
satisfies the standards of reliability and relevancy. Plaintiff’s criticisms of Dr. Jay’s survey
questions ignore the fact that open-ended questions are inherently non-leading. The use of
fewer choices in the closed-ended questions, as Plaintiff suggests, would be leading and
unreliable. Dr. Jay’s survey provided the respondents with “ample opportunity to identify the
Tattoos as a reason they purchased the game.” (Defendants’ Opposition, ECF DKT #115 at
6). The closed-ended question portion gave respondents the option of selecting, “the
depiction of the NBA players’ face, body or other aspects of their appearance,” as a reason for
their purchase. The survey questionnaire gave respondents the ability to indicate that they did
not know the answer; and to insure accuracy, Dr. Jay included a control question. Defendants
counter Plaintiff’s objection that the survey did not permit the response that NBA 2K was
purchased because of all the tattoos on all of the players in the game; and Defendants insist
that the only relevant inquiry is whether any consumers purchased NBA 2K for the tattoos
that Plaintiff actually inked.
II. LAW AND ANALYSIS
Expert Testimony
Pursuant to Federal Rule of Evidence 702, an expert by virtue of knowledge, skill,
experience, training or education may provide testimony to assist the trier of fact to
understand the evidence or to determine a fact in issue if the expert testimony is based on
sufficient facts or data; the testimony is the product of reliable principles and methods; and
the expert has applied the principles and methods reliably to the facts of the case.
The standard set in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

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(1993) requires “that an expert’s opinion be based on a foundation grounded in the actual
facts of the case, that the opinion is valid according to the discipline that furnished the base of
special knowledge, and that the expert appropriately “fits” the facts of the case into the
theories and methods he or she espouses.” Redmond v. United States, 194 F.Supp.3d 606,
615 (E.D. Mich. 2016) (citing Daubert, 509 U.S. at 591-93). “[E]xpert testimony is not
admissible unless it will be helpful to the factfinder.” Redmond, id. Expert testimony is not
helpful when it is unreliable or irrelevant or “when it merely deals with a proposition that is
not beyond the ken of common knowledge.” Id. “The proponent of expert testimony must
establish all the foundational elements of admissibility by a preponderance of proof.” Nelson
v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert, 509 U.S. at 592
n.10).
The objective of Daubert’s “gatekeeping” function is to ensure the reliability and
relevancy of expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999). The Supreme Court has held this “gatekeeping” obligation applies not only to
scientific testimony, but to all expert testimony. Id. at 147. Courts are not required to hold a
formal hearing on Daubert challenges. See Greenwell v. Boatwright, 184 F.3d 492, 498 (6th
Cir.1999). “[N]o matter how good” experts' “credentials” may be, they are “not permitted to
speculate.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010) quoting Goebel v.
Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000).
To reiterate, an expert may testify in the form of an opinion if it will assist the trier of
fact and if the testimony is the product of reliable principles and methods. Federal Rule of
Evidence 702; Redmond, 194 F.Supp.3d at 614-615. The Court finds, upon consideration of

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Dr. Jay’s Report, Survey and Declaration, that her opinions are reliable, relevant and helpful
to the factfinder.
Surveys
“A survey need not be perfectly conducted for testimony concerning its results
to be admissible. So long as the expert's testimony and the underlying survey
have probative value after all the survey's deficiencies are taken into account,
testimony concerning the results of the survey that meets the basic
requirements of usefulness and reliability is admissible into evidence, and the
trier of fact may accord it the weight it deems proper.” In re Whirlpool Corp.
Front-Loading Washer Products Liability Litigation, 45 F.Supp.3d 724, 754
(N.D.Ohio 2014), quoting 4 Weinstein's Federal Evidence § 702.06[3] (2nd ed.
1997).
“The important thing is not that experts reach the right conclusion, but that they reach
it via a sound methodology.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 675 (6th Cir. 2010);
see also Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997) (“[c]hallenges to survey
methodology go to the weight of a given survey, not its admissibility.”).
“The relevant case law counsels that—subject to the Court's overriding gatekeeping
function under Daubert — errors in survey methodology are more properly directed against
the weight a jury should give the survey, rather than overall admissibility.” Innovation
Ventures, LLC v. NVE, Inc., 90 F.Supp.3d 703,720–21 (E.D. Mich. 2015) (citations omitted).
See also Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 518 (6th Cir. 2007).
Although Plaintiff has identified potential weaknesses in Dr. Jay’s survey and opinion,
“the proper venue for challenging these weaknesses is cross-examination, not exclusion.” In
re Whirlpool, 45 F.Supp.3d at 763.
III. CONCLUSION
Ever mindful of its gatekeeping obligations, but equally careful not to usurp the role of

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the jury, the Court denies the Motion (ECF DKT #88*SEALED & ECF DKT #89 *PUBLIC
VERSION) of Plaintiff James Hayden to Exclude the Expert Testimony of Dr. E. Deborah
Jay.

IT IS SO ORDERED.
DATE: May 20, 2022

s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge

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