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UMG Recordings, Inc. v. Grande Communications Networks LLC

United States District Court, W.D. Texas, Austin Division

July 16, 2019

UMG RECORDINGS, INC., et al.,
v.
GRANDE COMMUNICATIONS NETWORKS, LLC

          ORDER

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

         Before the Court are the following motions, along with all of their associated responses and replies:

• Grande's Motion to Exclude Proposed Expert Testimony of Robert A. Bardwell (Dkt. No. 210);
• Grande's Motion to Exclude Proposed Expert Testimony of Barbara Fredericksen-Cross (Dkt. No. 214);
• Grande's Motion to Exclude Proposed Expert Testimony of Dr. Terrence P. McGarty (Dkt. No. 221)
• Grande's Motion to Exclude Proposed Expert Testimony of William Lehr (Dkt. No. 228);
• UMG's Motion to Exclude Proposed Expert Testimony of Dr. Geoff Cohen (Dkt. No. 233); and
• UMG's Motion to Exclude Proposed Expert Testimony of Jonathan Kemmerer (Dkt. No. 265).

         The District Court referred the discovery dispute to the undersigned Magistrate Judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of Appendix C of the Local Rules.

         I. STANDARD

         Each of these motions are filed pursuant to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. See also, Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597-98 (1993). Rule 702 provides:

         A witness who is qualified as an expert by knowledge, 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. Under Rule 702, the trial court is to act as a “gatekeeper, ” making a “preliminary assessment of whether the reasoning or methodology [of an expert] properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93; see also Kumho Tire v. Carmichael, 526 U.S. 137, 147 (1999); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002). Daubert and its principles apply to both scientific and non-scientific expert testimony. Kumho Tire, 526 U.S. at 147. Experts need not be highly qualified to testify, and differences in expertise go to the weight of their testimony, not its admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009). Nonetheless, courts need not admit testimony that is based purely on the unsupported assertions of the expert. Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146 (1997); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

         In addition to being qualified in the relevant field, the methodology the expert used to form his or her opinion must be reliable. Daubert, 509 U.S. at 592-93; Moore, 151 F.3d at 276. “The expert's assurances that he [or she] has utilized generally accepted scientific methodology is insufficient.” Moore, 151 F.3d at 276. Even if the expert is qualified and the basis of his or her opinion is reliable, the underlying methodology must have been correctly applied to the case's particular facts to be admissible. Daubert, 509 U.S. at 593; Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). When a Rule 702 motions is filed, the party proffering the expert has the burden of establishing by a preponderance of the evidence that the expert's testimony is admissible. Daubert, 509 U.S. at 592 n.10; Johnson v. Arkema, Inc., 685 F.3d 452 (5th Cir. 2012). The proponent does not have to demonstrate that the testimony is correct, only that the expert is qualified and that the testimony is relevant and reliable. Moore, 151 F.3d at 276. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

         II. ANALYSIS

         A few caveats are in order before the Court addresses the merits of these motions. Though filed pursuant to Fed.R.Evid. 702 and Daubert, a significant portion of the grounds raised in these motions have little or no basis in Rule 702 or Daubert. For example, Grande objects to every single one of UMG's experts because, in their reports, they refer to actions taken by Grande subscribers with some variation of the word “infringe.” Whatever this argument is, it is definitely not a Daubert motion.[1] Because a motion regarding what words an expert (and presumably the lawyers and lay witnesses) may use at trial is not properly raised in a Rule 702 motion, the Court rejects that argument across the board, in each instance in which Grande raises it. Further, throughout their motions, the parties argue that various opinions are not relevant, for any number of reasons. But whether a particular statement or opinion of an expert is relevant to the case can be raised at trial, and is not something the Court need address under Daubert or Rule 702. Finally, much of what is contained in the parties' motions boils down to a simple disagreement with what a particular expert has concluded-that the expert is, in the objecting party's view, just plain wrong. Again, so long as the testimony is based on sufficient facts and data, and reliable methods, and would assist the jury in determining the facts, Rule 702 and Daubert permit it, even if the expert's conclusions are ultimately not persuasive to the jury.

         A. Grande's Motion to Exclude Robert A. ...


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