Daubert: Expert Testimony Based on Experience

By Joshua Fruchter, Esq
The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) requires trial courts to ensure that expert testimony admitted is reliable. Perhaps one of the trickier contexts in which courts must apply this standard is expert testimony based on experience.  To be sure, the Advisory Committee Notes to Rule 702 of the Federal Rules of Evidence recognize that “[s]ome types of expert testimony will not rely on anything like a scientific method [and] . . . [i]n certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” Nevertheless, because expert testimony based on experience poses a higher risk of conclusory opinions, an expert relying on experience must “explain how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”

With these principles in mind, the District Court for the Southern District of New York, in Reach Music Publishing, Inc. v. Warner Chappell Music, Inc., 2013 WL 6767806 (S.D.N.Y., December 23, 2013), recently evaluated the admissibility of a report authored by an attorney concerning custom and practice in the music publishing industry based on his extensive experience negotiating songwriter and similar agreements.

The facts in Reach Music were fairly straightforward. David Reeves was a songwriter who co-wrote compositions for the musical group Run-D.M.C. In May 1988, Reeves signed a “songwriter agreement” (the “1988 Agreement”) that, unbeknownst to him, transferred his rights in certain compositions to an entity called Protoons. Reeves did not retain a copy of the 1988 Agreement.
Nearly twenty years later, in July 2007, Reeves assigned his rights in these same compositions to an entity called Reach Global. Extensive due diligence by Reach Global did not turn up the 1988 Agreement or any other evidence of Protoons’ prior interest in the compositions, and accordingly Reach Global paid $55,000 to Reeves for the assignment.

They’re Playing Our Song

Subsequently, the CEO of Reach Global, Michael Closter, communicated with one of Protoons’ attorneys, Mark Levinsohn, after Reach Global learned that an affiliate of Protoons was using the compositions that Reeves had assigned.  Levinsohn advised Closter that Reeves had signed away all of his rights in the compositions to Protoons, but repeatedly refused to provide any documentation or other evidence of this fact, or even to confirm whether a written agreement with Reeves existed.
Reeves and Reach Global ultimately sued Protoons, and Protoons  thereafter produced the 1988 Agreement during discovery. After Reach Global’s suit was dismissed, Protoons filed a counterclaim against Reach Global and its affiliates for tortious interference with the 1988 Agreement for inducing Reeves to sue Protoons in violation of a covenant not to sue in the 1988 Agreement.

To defeat the tortious interference claim under New York state law, Reach Global needed to prove that it did not have “actual knowledge” of the 1988 Agreement at the time when it induced Reeves to sue Protoons. To that end, Reach Global presented the testimony of Robert Allen, a lawyer with more than 18 years of contracting experience in the music publishing industry.  In a written report, Allen stated that, based on his professional experience, Levinsohn’s statements and conduct in response to Reach Global’s inquiries about Protoons’ rights in Reeves’ compositions were contrary to the custom and practice in the music publishing industry. Specifically, Allen stated that he had “never” encountered an attorney who behaved as Levinsohn had in asserting a client’s ownership in a composition, while withholding the documentation evidencing such ownership until compelled to produce it during discovery after a lawsuit was filed. Indeed, Allen opined that Levinsohn’s statements and conduct were more consistent with that of a music publisher who does not actually own the copyright he claims to own.

Protoons moved to strike Allen’s report, but the Court denied the motion. It found Allen’s report relevant insofar as if it were the custom and practice in the music publishing industry to provide copies of a contract upon inquiry by a party such as Reach Global, then Levinsohn’s failure to provide a copy of the 1988 Agreement to Closter likely led Closter to conclude that no such agreement actually existed. In which case, Protoons would be unable to establish the “actual knowledge” element of its tortious interference claim.

The Court also found Allen’s expert testimony reliable considering the report explained how Allen’s experience led to his conclusion that it is the custom and practice in the music publishing industry to provide documentation to demonstrate a copyright holder’s rights under the circumstances involving Closter and Levinsohn.

Please share your thoughts. Have you ever been involved with either opposing, or moving for the admission of expert testimony based on experience? What was the outcome?

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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