Mitcheson v. El Antro LLC

• Decision Date: 02 December 2020
• Docket Number: No. CV-19-01598-PHX-GMS,CV-19-01598-PHX-GMS
• Parties: Dessie Mitcheson, et al., Plaintiffs, v. El Antro LLC, Defendant.
• Court: U.S. District Court — District of Arizona

Dessie Mitcheson, et al., Plaintiffs, v. El Antro LLC, Defendant.

No. CV-19-01598-PHX-GMS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

December 2, 2020

ORDER

Before the Court are Plaintiffs Dessie Mitcheson, Jessica Killings, Claudia Sampedro, Lina Posada, Jesse Golden, Rosie Jones and CJ Gibson ("Plaintiffs")' and Defendant El Antro LLC's ("Defendant") motions to strike seeking to exclude certain experts, (Motion to Strike the Expert Report and Testimony of Michael Einhorn Doc. 31; Motion to Strike Report and Testimony of Stephen Chamberlin Doc. 42; Motion to Strike Report and Testimony of Martin Buncher Doc. 43), and Cross Motions for Summary Judgment (Docs. 32, 34).¹

BACKGROUND

Defendant operates a nightclub in Phoenix, Arizona. Plaintiffs are seven professional models, actresses, and social media personalities who have appeared inmagazines such as Maxim, Playboy, American Curves, Nuts, and Wired. (Doc. 1 at 3-5.) They have modeled for brands such as Crest Toothpaste, Wonder Bra, and Monster Energy Drink, and have social media followings ranging from approximately 60,000 followers to over 2,000,000. Id. Plaintiffs allege that Defendant unlawfully posted or displayed their images and likeness fourteen times on its Facebook and Instagram pages to promote its Club. Id. at 8-9. Each of these images was from past photoshoots of the Plaintiffs.

Plaintiffs allege that Defendant's advertisements created the false impression that they were affiliated with, worked for, or endorsed Defendant's Club. Plaintiffs brought suit, claiming misappropriation of likeness and false light invasion of privacy under Arizona law, and false advertising and false association under the Lanham Act. Both sides now move for summary judgment on all claims.

The parties have also retained respective experts. Plaintiffs retained Martin Buncher to conduct a survey to measure the likelihood of consumer confusion resulting from Defendant's use of Plaintiffs' photographs. Defendants retained Michael Einhorn and Plaintiffs retained Stephen Chamberlin to testify as to damages. Both parties have moved to strike one another's experts.

DISCUSSION

I. Motions to Strike

A. Legal Standard

The Federal Rules of Evidence require this Court to decide preliminary questions about the qualification or admissibility of witness testimony. Fed. R. Evid. 104(a). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Further, a court must "ensure that any and all scientific testimony orevidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 (1993). Testimony is "relevant if the knowledge underlying it has a valid connection to the pertinent inquiry," and reliable if "it has a reliable basis in the knowledge and experience of the relevant discipline." Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). Ultimately, a court must ensure that "expert testimony, whether it is based on 'professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1035-36 (9th Cir. 2010) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1997)). "Rule 702 is applied consistent with 'the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony.'" Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993, 1004 (9th Cir.) (quoting Daubert, 509 U.S. at 588).

B. Analysis

1. Dr. Michael Einhorn

a. Qualifications

Rule 702 "contemplates a broad conception of expert qualifications." Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004). Because the standard is "intended to embrace more than a narrow definition of qualified expert," expert witnesses need only a "minimal foundation of knowledge, skill, and experience." Id.; Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994).

Dr. Einhorn has a Ph. D in microeconomics and has consulted on market valuations in intellectual property, entertainment, and technology matters since 2001. (Doc. 38-3 at 4.) These matters include providing expertise in lawsuits "involving over 135 models who have alleged right of publicity claims for unlawful use of their image." Id. He has also authored and published several articles in the areas of media, technology, and intellectual property. (Doc. 38-2 at 92.) He is therefore qualified to provide an opinion on valuations in this case. Plaintiffs' assertions that Dr. Einhorn lacks requisite experience in the modeling industry are undermined by his experience as an expert in the entertainmentindustry. Regardless, economists and evaluation experts may be permitted to testify in cases where they lack experience in the narrower industry at issue when they have relevant experience in valuation. See, e.g., People v. Kinder Morgan Energy Partners, 159 F. Supp. 3d 1182, 1190 (S.D. Cal. 2016) (declining to find and expert was unqualified because he lacked experience in the field at issue because he had "provided market analyses in a wide variety of industries."); Abu-Lughod v. Calis, No. CV132792DMGGJSX, 2015 WL 12731921, at *2 (C.D. Cal. July 1, 2015) (finding expert's experience as an economist and analyst in several other fields sufficient to establish that he was qualified to give an opinion about the video game industry, even though he had not done so before). Dr. Einhorn is therefore qualified to offer an opinion on the value of Plaintiffs' services.

b. Reliability

"The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted." Fed. R. Evid. 702 Committee Notes on Rules 2000 Amendments. "The expert's testimony must be grounded in an accepted body of learning or experience in the expert's field, and the expert must explain how the conclusion is so grounded." Id.

Dr. Einhorn's testimony appears to be sufficiently grounded and well-reasoned to be admitted. He explains several sources of information which form the basis of his opinion—the contracts Plaintiffs' produced in discovery, 19 modeling contracts that he has examined in other cases, a search of "working day rates" of models to identify several websites of companies that hire and pay lingerie models. Although Plaintiffs characterize this process as simply "googling," considering sources such as the modeling contracts he has worked with in the past and the rates that similar employers currently offer is not a facially ungrounded technique. Dr. Einhorn's report thus adequately explains the bases underlying his opinion. In combination with his above experience in valuation, these evaluations are sufficiently reliable. See Yeager v. AT&T Mobility, LLC, No. CIVS072517KJMGGH, 2012 WL 13041995, at *4 (E.D. Cal. May 30, 2012) (finding expert sufficiently reliable where he estimated the value of celebrity endorsements byreferring "mentally to thousands of documents" and contracts with which he had been involved).

Plaintiffs' core objections concern the weight of Dr. Einhorn's testimony rather than reliability. "Disputes as to the strength of [an expert's] credentials, faults in his use of [a particular] methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility, of his testimony." Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)). For example, Plaintiffs challenge Dr. Einhorn's use of a "final" rate, rather than a pre-negotiated rate unrelated to the number of images a model produces. (Doc. 31 at 13.) But his use of these values in the estimation is a matter of methodology. As Dr. Einhorn's report represents that it is based upon several modeling contracts and other research on rates in the industry, whether these rates most accurately reflect the facts at hand will be an issue of fact which can be addressed at trial through cross examination. Similarly, Plaintiffs' objection to Dr. Einhorn's use of undisclosed contracts from other cases does not establish unreliability. See Vaughn v. City of Los Angeles, No. CV1603086ABAJWX, 2017 WL 8786868, at *3 (C.D. Cal. Oct. 30, 2017) (finding expert reliable and specifying that objections that the expert relied on undisclosed facts and based opinion on only limited documents "go to weight, not admissibility").² Thus, although Plaintiffs' claim that estimates formed with data from contracts other than the Plaintiffs' cannot account for the unique value and experience of each model, these questions do not negate that Dr. Einhorn's methodology is sufficiently explained and can go to the evidence's weight.

c. Helpful to the Trier of Fact

Expert testimony must be helpful to the trier of fact to be properly admitted. This "requirement relates primarily to relevance. It requires the district court to make a preliminary determination as to whether the scientific knowledge can be applied to facts ofthe case at hand." United States v. Rincon, 28 F.3d 921, 925 (9th Cir. 1994) (internal citation omitted). "For an expert's testimony to help the trier of fact understand the evidence, 'the subject matter at issue must be beyond the common knowledge of the average layman.'" Mata v. Or. Health Auth., 739 F. App'x 370, 372 (9th Cir. 2018) (quoting United States v. Finley...