Corbin Bernsen v. Innovative Legal Marketing, LLC

Filing 94

MEMORANDUM ORDER Granting re: 71 MOTION in Limine to Exclude Any Purported Expert Testimony of Defendant's Proposed Expert. Accordingly, Dinzler may not testify generally about the use of a spokesperson in advertising campaigns nor to how negative press coverage of the spokesperson unfavorably impacts consumers' impressions of products generally. Signed by Magistrate Judge Douglas E. Miller and filed on 10/31/12. (ldab, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CORBIN BERNSEN
Plaintiff,

ACTION NO. 2:11CV546

v.

INNOVATIVE LEGAL MARKETING, LLC,
Defendants.

MEMORANDUM ORDER

The Plaintiff, Corbin Bernsen, filed this action to recover damages from Defendant,

Innovative Legal Marketing, LLC ("ILM"), for breach of contract on a spokesperson agreement
under which Bernsen would promote law firms licensing ILM's Big Case advertising campaign.
ILM denies Bernsen's claims and counters that Bernsen breached the contract by doing things
which reflected unfavorably on ILM, its clients, and Bernsen. The matter is before the Court to
resolve Bernsen's motion to exclude ILM's expert witness. The matter is fully briefed and the

parties appeared by counsel for a telephonic hearing on October 26, 2012. For the reasons stated

during the hearing and set forth in detail below, the Court GRANTS Bernsen's motion.
Bernsen has moved to exclude Randy Dinzler as an expert. ILM designated Dinzler, who
has worked as a contract employee for the company, to testify as to how Bernsen's course of

actions negatively impacted his effectiveness as a spokesperson for ILM's Big Case Campaign,
as well as other opinions. Dinzler's testimony will be based on his experience in legal marketing

since 1995.

According to his disclosed expert report, Dinzler intends to offer general opinions about
the use and impact of a spokesperson in an advertising campaign and how Bernsen's conduct
impacted the Big Case Campaign. Originally, Dinzler was going to conduct focus groups to
provide support for his testimony regarding the impact of Bernsen's conduct. However, since

these focus groups have not been timely conducted, ILM concedes that Dinzler will not testify to

any specific impact Bernsen's actions may have had on the Big Case Campaign.1 Accordingly,
Bernsen's motion to exclude Dinzler's testimony about how Bersen's conduct impacted the Big
Case Campaign is GRANTED.

Although ILM concedes Dinzler lacks sufficient foundation to testify regarding the
impact of Bernsen's conduct on the Big Case Campaign, the company asserts that Dinzler should
still be permitted to testify to the general framework, and factors, by which marketing companies

evaluate a spokerperson's conduct. Therefore, Dinzler now intends to offer the following
challenged opinion as

summarized

from his expert report:

Advertising campaigns

use

spokespersons to "evoke[] attitudinal and emotional reactions from the potential consumers],"

and negative press coverage or events concerning the spokesperson "create an unfavorable
impression in the minds of potential consumers regarding the spokesperson's product." (ECF
No.72-1 at 3).

Bernsen contends that Dinzler is not sufficiently qualified to offer this opinion. In
addition, he argues that Dinzler's testimony will not assist the jury in its fact-finding role,

because a company's use of a spokesperson is not a complicated issue. Finally, he contends that

1 Bersen, in his Reply, acknowledges that ILM did not address whether Dinzler would testify to the effect Bernsen's
conduct "would likely have had" on "Bernsen's effectiveness as a spokesperson." (ECF No. 85 at 1). Bersen asserts
that such testimony should be excluded for the same reasons that Dinzler's testimony about whether Bernsen's

conduct did in fact impact the Big Case Campaign should be excluded. However, it appears to the Court, from
ILM's reply brief and the record, that ILM does not intend for Dinzler to testify to any potential impact Bernsen's
conduct may have had on the Big Case Campaign, and therefore, to the extent necessary Bernsen's motion is
GRANTED in this regard.

Dinzler's testimony is unduly prejudicial under Federal Rule of Evidence 403, because it would
unnecessarily confuse the jury. ILM counters that Dinzler's career in legal marketing, which has
included presentations about television marketing he delivered to both students and industry
groups, qualifies him by experience to make the proffered opinions. In addition, ILM suggests

that Dinzler's testimony explaining the factors a marketing company, such as ILM, should
consider in evaluating the conduct of a spokesperson will assist the jury in determining whether
Bernsen's conduct constituted a material breach.

After reviewing the parties' arguments and Dinzler's report, the Court finds that the
opinions cited above regarding the use of spokespersons in advertising campaigns and how
negative press coverage of the spokesperson impacts consumers' attitudes towards the product

are nothing more than Dinzler's explanation of common sense principles, and unlikely to assist
the jury. Moreover, his training and experience make him no more qualified to assert the general
impact spokespersons have on consumers than ILM's counsel or any other lay witness.
Accordingly, for the reasons set forth below and stated on the record, the undersigned GRANTS
Bersen's motion in limine to exclude Dinzler's opinion testimony.
ANALYSIS

Rule 702 of the Federal Rules of Evidence guides District Courts in determining the

admissibility of expert testimony.

United States v. Wilson. 484 F.3d 267, 274-75 (4th Cir.

2007). The Rule provides:

If scientific, technical or other specialized knowledge will assist
the tryer of fact to understand the evidence or to determine a fact in
issue,

a witness qualified as an expert by

knowledge,

skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.

Fed. R. Evid. 702

When expert testimony is challenged, the District Court serves as a gatekeeper to assess
whether the proffered evidence is reliable and relevant.

Kumho Tire Co. v. Carmichael. 526

U.S. 137, 141, 119 S.Ct. 1167 (1999). The gatekeeper function does not require that the Court

"determine that the proffered expert testimony is irrefutable or certainly correct" because expert
testimony is "subject to testing by vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof." United States v. Moreland. 437 F.3d
424, 431 (4th Cir. 2006) (quoting Daubert v. Merrell Dow Pharmaceuticals. Inc.. 509 U.S. 579,
596, 113 S.Ct. 2786 (1993).

There is no "mechanistic test for determining the reliability of an expert's proffered
testimony, rather 'the test of reliability is flexible and the law grants a district court the same

broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate
reliability determination.'" Peters-Martin v. Navistar Int. Trans. Corp.. 410 Fed. Appx. 612, 617
(4th Cir. 2011) (quoting United States v. Wilson. 484 F.3d 267, 274 (4th Cir. 2007) (other
citations omitted).

In this case, Dinzler's testimony is not strictly scientific in nature, but rather experiential.
As the Fourth Circuit noted in Wilson, "experiential expert testimony . . . does not 'rely on
anything like a scientific method.'"

As a result, it is not characterized by falsifiability or

refutability or testability like purely scientific testimony.
Daubert. 509 U.S. at 593, 113 S.Ct. at 2786).

Wilson. 484 F.3d at 274 (quoting

Nevertheless, the Court must still require an

experiential expert to "explain how [his] experience leads to the conclusion reached, why [his]
experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the

facts." Id. (quoting Fed. R. Evid. 702 Advisory Committee Note) (alterations in original).

A. Dinzler's training and experience do not inform his proffered testimony that
negative press coverage of the spokesperson unfavorably impacts consumers'
perceptions of the product.

This challenged opinion relates to Dinzler's view that negative press coverage or events
concerning spokespersons generally subtly impacts consumers' opinions of the spokeperson's

product. This opinion is allegedly undergirded by his belief that advertising campaigns use
spokespersons to make an emotional and attitudinal connection with consumers. The basis for
this testimony is Dinzler's experience in television production and marketing.

Dinzler does not have the education, training or experience necessary to inform these
opinions. Dinzler has not explained any training or experience which permits him to infer how

negative press coverage of the spokesperson impacts consumers' impressions of the product.

Dinzler's experience is based on his roughly seventeen years in television and film production.
However, he has no formal education in consumer behavior, and admits that he is not an expert
in behavioral science, psychology, or sociology. (ECF No. 72-2 at 4-5). Rather, his experience
relates to preparing video advertisements that appeal to consumers, not to understanding how a
spokesperson's outside activities impact consumers. He has not shown that he has adequate

training or experience to interpret, or forecast consumers' reactions to press coverage unrelated
to the services being promoted. In addition, Dinzler's contract role as ILM's chief creative

producer, suggests his general opinion testimony is unlikely to assist the fact finder in

understanding a disputed issue. The question to be determined is whether Bernsen's conduct had
the negative impact prohibited by the contract. Dinzler concedes he has no basis to testify about
this disputed issue. The Court, therefore, finds that Dinzler's proffered opinions are not likely to

assist the fact finder and not supported by his education, training or experience. Accordingly,

Dinzler may not testify generally about the use of a spokesperson in advertising campaigns nor
to

how

negative

press

coverage

of the

spokesperson

unfavorably

impacts

consumers'

impressions of products generally.

Douglas E. Milierii^

United States Magistrate Judge

DOUGLAS E. MILLER

UNITED STATES MAGISTRATE JUDGE
Norfolk, Virginia
October 31, 2012