CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 1 of 64
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`
`FURNITUREDEALER.NET, INC,
`
`
`
`v.
`
`AMAZON.COM, INC, and COA, INC.
`d/b/a COASTER COMPANY OF AMERICA
`
`
`
`
`Defendant.
`
`Plaintiff,
`
`
`
`
`Civil No. 18-232 (JRT/HB)
`
`
`MEMORANDUM OPINION AND ORDER
`ON MOTIONS TO EXCLUDE
`
`
`
`
`Christopher K. Larus, Ellen Levish, Francois Ecclesiaste, Jessica Lee Gutierrez,
`& John K. Harting, ROBINS KAPLAN LLP, 800 LaSalle Avenue, Suite 2800,
`Minneapolis MN 55402, for plaintiff;
`
`Adam R. Steinert, Laura L. Myers, & Nirmani Chethana Perera,
`FREDRICKSON & BYRON, PA, 200 South Sixth Street, Suite 4000,
`Minneapolis, MN 55402; Allyson R. Bennett, Joseph C. Gratz, & Vera Ranieri,
`DURIE TANGRI LLP, 217 Leidesdorff Street, San Francisco, CA 94111, for
`Defendant Amazon.Com, Inc;
`
`Anna Tobin & Holley C. M. Horrell, GREENE ESPEL PLLP, 222 South Ninth
`Street, Suite 2200, Minneapolis, MN 55402; Daniel M. Cislo, Kelly W.
`Cunningham, Mark D. Nielsen, Peter S. Veregge, & Rebecca Makitalo, CISLO
`& THOMAS LLP, 12100 Wilshire Boulevard, Suite 1700, Los Angeles, CA
`90028; Robert J. Gilbertson, FORSGREN FISHER MCCALMONT DEMAREA
`TYSVER LLP, 225 South Sixth Street, Suite 1750, Minneapolis, MN 55402, for
`Defendant COA, Inc.
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`Plaintiff, Furnituredealer.net (“FDN”), commenced this lawsuit against Defendants
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`Amazon.com (“Amazon”) and COA, Inc. d/b/a/ Coaster Company of America (“Coaster”)
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`asserting copyright infringement and violations of the Digital Millennium Copyright Act
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`(“DMCA”) against both Defendants and a breach of contract claim against Coaster. The
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`claims arise from a dispute over the use of product descriptions FDN wrote for Coaster
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`(the “FDN Descriptions”) on Amazon product detail pages. The parties have each retained
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`experts and have now filed Motions to Exclude.
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`
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`FDN filed Motions to Exclude expert opinions offered by Brian Buss, Gordon
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`Everest, Ralph Oman, and Dr. George John. The Court will grant in part and deny in part
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`FDN’s Motion to Exclude portions of the report and opinions of Brian Buss. Portions of
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`Buss’s quantitative apportionment analysis are too subjective, but the Court will allow
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`Coaster thirty days to amend Buss’s expert report to correct the errors identified herein.
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`The remainder of the challenged portions of Buss’s expert report are admissible. FDN’s
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`Motion to Exclude Gordon Everest’s report and opinions is granted because Everest’s
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`testimony is unnecessary as the Court determined in its Summary Judgment Order that
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`fraud is required under 18 U.S.C. § 411(b). The Court will grant FDN’s Motion to Exclude
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`both the initial and rebuttal expert reports of Ralph Oman as they are littered with
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`impermissible legal analysis and conclusions. Lastly, FDN’s Motion to Exclude portions of
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`Dr. George John’s report is denied because John utilized the correct legal standard for
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`nexus.
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`As to Defendants’ Motion to Exclude, the Court will grant in part and deny in part
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`the motion. The following opinions from Hochman are inadmissible: (1) opinions on
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`substantial similarity; (2) portions of his opinions on Defendants’ state of mind,
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`motivations, and intent; and (3) opinions on direct, contributory, and vicarious copyright
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`CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 3 of 64
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`infringement. The remainder of his testimony is admissible at this stage. There are only
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`two sentences of Degen’s reports and opinions that are inadmissible because they
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`impermissibly opine on Defendants’ state of mind. Hughes’ testimony is inadmissible
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`because it is unnecessary.
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`BACKGROUND
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`FACTUAL BACKGROUND
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`I.
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`The Court adopts in full the factual summary contained in its Summary Judgment
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`Order and summarizes herein. (Order Cross Mots. Summ. J., March 25, 2022, Docket No.
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`706.) In 2010, Coaster and FDN entered into an agreement where FDN agreed to build
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`and host a website for Coaster which would feature Coaster’s product catalog and an
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`integrated dealer locator. (Decl. John Harting Supp. FDN’s Mot. Partial Summ. J. (“1st
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`Harting Decl.”), Ex. 3, May 14, 2021, Docket No. 512.) As part of this agreement, FDN
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`would create and enhance product descriptions of Coaster’s furniture, known as the FDN
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`Descriptions. (Id.; Decl. John Harting Opp. Defs’ Mot. Summ. J. Copyright Claim, (“2nd
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`Harting Decl.”), Ex. 11, at 123:12–22; Ex. 15, at 55:3–56:10, June 25, 2021, Docket No
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`545.) FDN housed the FDN Descriptions, along with other relevant product information,
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`on two different automated databases: the Content Management System (“CMS”) and
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`FDealer. (Decl. Samuel J. Zeitlin Supp. Defs.’ Mot. Summ. J. Copyright Claim, Ex. 15, at
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`57:19–25, May 14, 2021, Docket No. 494.)
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`FDN then displayed the FDN Descriptions on product detail pages on
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`www.coasterfurniture.com along with two separate copyright notices. (2nd Harting Decl.,
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`Ex. 8 at 123:4–124:21, 127:5–20; Decl. Moon Hee Lee Supp. Defs.’ Mot. Summ. J. 1202
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`Claims, Ex. 5, May 14, 2021, Docket No. 504.) In 2015, FDN applied for a copyright
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`registration in the CMS database, which housed the FDN Descriptions, under the title
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`“Automated database of furniture catalogs and collections (photographs and text).”
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`(Zeitlin Decl., Ex. 27.) After several communications between the Copyright Office and
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`FDN, the Copyright Office granted FDN a copyright with the effective date of registration
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`listed as September 22, 2015. (Zeitlin Decl., Ex. 27.)
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`In 2014, Coaster contracted with Amazon to sell its products. (1st Harting Decl., Ex.
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`22.) In order to create product detail pages for the Coaster products on Amazon.com,
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`Amazon scraped product information from www.coasterfurniture.com, including the FDN
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`Descriptions. (1st Harting Decl., Exs. 22, 34, 37, & 85.) Beginning in 2013, FDN discovered
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`that hundreds of separate Amazon detail pages contained FDN Descriptions. (Lee Decl.,
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`Exs. 21–22; 1st Harting Decl., Ex. 40.) FDN sued Amazon alleging copyright infringement.
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`(Compl., Jan. 25, 2018, Docket No. 1.) Six months later, Amazon removed approximately
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`2,000 FDN Descriptions from its database. (Decl. John Harting Opp. Defs.’ Mot. Summ. J.
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`1202 Claims (“3rd Harting Decl.”), Ex. 37 at 16–17, June 26, 2021, Docket No. 574.)
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`CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 5 of 64
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`PROCEDURAL HISTORY
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`II.
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`FDN filed this lawsuit against Amazon in 2018, later pleading in Coaster as a party.
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`(Compl.; Am. Compl., May 14, 2018, Docket No. 6.) The parties completed expert
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`discovery by April 23, 2021. They then filed Cross Motions for Summary Judgment along
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`with five Motions to Exclude testimony from a seven different experts. (Mot. Exclude
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`Buss, May 14, 2021, Docket No. 436; Mot. Exclude Everest, May 14, 2021, Docket No. 444;
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`Mot. Exclude Oman, May 14, 2021, Docket No. 460; Mot. Exclude Dr. George John, May
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`14, 2021, Docket No. 468; Mot. Exclude Hochman, Degen, Hughes, May 14, 2021, Docket
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`No. 476.)
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`DISCUSSION
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`
`STANDARD OF REVIEW
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`I.
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`Federal Rule of Evidence 702 governs the admissibility of expert testimony and
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`provides the following:
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`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;
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`(c) the testimony is the product of reliable principles and
`methods; and
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`(d) the expert has reliably applied the principles and methods
`to the facts of the case.
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`Fed. R. Evid. 702. The district court has a gate-keeping obligation to make certain
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`that all testimony admitted under Rule 702 satisfies these prerequisites and that “any and
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`all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert
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`v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). The proponent of the expert
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`testimony has the burden of establishing by a preponderance of the evidence that the
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`expert is qualified, that his or her methodology is scientifically valid, and that “the
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`reasoning or methodology in question is applied properly to the facts in issue.” Marmo
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`v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757–58 (8th Cir. 2006). Expert testimony is
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`inadmissible if it is “speculative, unsupported by sufficient facts, or contrary to the facts
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`of the case.” Id. at 757.
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`“[T]he trial judge must have considerable leeway in deciding in a particular case how
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`to go about determining whether particular expert testimony is reliable.” Kumho Tire v.
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`Carmichael, 526 U.S. 137, 152 (1999). However, the Eighth Circuit has held that “[c]ourts
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`should resolve doubts regarding the usefulness of an expert’s testimony in favor of
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`admissibility.” Marmo, 457 F.3d at 758. “As a general rule, the factual basis of an expert
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`opinion goes to the credibility of the testimony, not the admissibility, and it is up to the
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`opposing party to examine the factual basis for the opinion in cross-examination.”
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`Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988). “Only if [an] expert’s
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`opinion is so fundamentally unsupported that it can offer no assistance to the jury must
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`such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929–30 (8th Cir.
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`2001) (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)).
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`II.
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`ANALYSIS
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`A. FDN’s Motion to Exclude Portions of Brian Buss’s Expert Report
`and Opinions (Docket No. 436)
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`Buss was retained as a rebuttal expert by Coaster to respond to portions of FDN’s
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`opening expert reports and to offer his own opinion on certain damages limitations.
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`(Decl. John Harting Supp. Mot. Exclude Buss (“Harting/Buss Decl.”), Ex. 1 (“Buss Expert
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`Report”), May 14, 2021, Docket No. 438.) FDN has filed a motion to exclude the following
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`portions of Buss’s report: (1) opinions on the “nexus” between the alleged infringement
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`and gross revenues; (2) the apportionment analysis; and (3) Buss’s use of the phrase
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`“more derivative.” (Memo. Supp. FDN’s Mot. Exclude Buss, at 3, May 14, 2021, Docket
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`No. 437.)
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`
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`1.
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`Buss’s Nexus Opinion
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`The Copyright Act provides that if an infringer is found liable for copyright
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`infringement, a copyright owner is entitled to recover actual damages suffered and any
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`profits of the infringer attributed to the infringement. 17 U.S.C. § 504(b). “In establishing
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`the infringer’s profits, the copyright owner is required to present proof only of the
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`infringer’s gross revenue, and the infringer is required to prove his or her deductible
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`expenses and the elements of profit attributable to factors other than the copyrighted
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`work.” Id. The copyright owner has the initial burden of establishing that there exists a
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`“nexus” between the infringement and the infringer’s profits. Andreas v. Volkswagen of
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`Am., Inc., 336 F.3d 789, 796 (8th Cir. 2003). In other words, the copyright owner must
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`show that the infringed work “contributed to” the profits of the infringer. Id. at 797.
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`Buss does not claim there no nexus between the infringement and Defendants’
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`profit but instead opines that FDN has failed to meet the burden of nexus required under
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`the statute. (Harting/Buss Decl., Ex. 2 (“Buss Dep.”) at 122:13–22.) FDN asks the Court
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`to exclude this nexus opinion for two reasons. First, FDN asserts that Buss is solely
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`rebutting its expert Carl Degen, but since Degen never opined on nexus, Buss’s opinion is
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`outside the scope of the expert reports and should be excluded. Second, FDN states that
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`Buss’s report should be excluded because he applied the wrong legal standard for nexus
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`and therefore his opinion is unreliable.
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`a. Rebuttal of the Incorrect Expert
`
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`Buss’s rebuttal expert report states that “[he] was not asked to review and rebut
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`the ‘Hochman Report[.]’” (Buss Expert Report at 12.) Rather, Buss writes that he is
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`rebutting Degen’s expert report. (Buss Expert Report at 16–18.) FDN asserts that only
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`Hochman opines on nexus, Degen’s report never even mentions the word nexus, and
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`therefore, Buss’s opinion should be excluded because his rebuttal to Degen is irrelevant.
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`See UnitedHealth Grp. v. Columbia Cas. Co., No. 05-cv-1289, 2011 WL 13186677, at *2 (D.
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`Minn. Sept. 6, 2011) (“[R]ebuttal reports are, however, excludable if they exceed the
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`scope of the matter experts addressed.”). FDN is incorrect for two reasons.
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`First, while true that Buss only formally states he is rebutting Degen, Buss
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`functionally rebuts Hochman’s opinion as well. Buss listed Hochman’s report as a
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`document he relied upon, and Buss engaged with exhibits that Hochman used in his own
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`report on nexus. (Buss Expert Report at 13, 17 & Ex. A.) Further, Buss stated that while
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`he was not asked to rebut Hochman’s report, he “did consider statements in the Hochman
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`Report addressing the claim of independent economic value.” (Buss Expert Report at 12.)
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`FDN impliedly asserts that because Buss did not formally state he was rebutting
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`Hochman’s expert report he is barred from addressing or rebutting that report entirely.
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`FDN’s assertion is not supported in the law nor has FDN made a persuasive case for the
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`Court to implement such a rule. The Court sees no reason to prioritize form over function
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`on a Daubert motion as this type of rule cuts against the liberal nature of the standard.
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`Thus, the Court finds that Buss did functionally rebut Hochman.
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`Next, contrary to FDN’s claims, Degen does opine on nexus even if he does not
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`explicitly use that term. Nexus can be understood as a link between the infringer’s profits
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`and the copyrighted work, so any opinion on how that copyrighted work contributed to
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`the infringer’s profits is an opinion on nexus regardless of whether the term nexus was
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`used. Degen’s expert report discusses this type of link.
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`One section of Degen’s report is titled “Defendants’ Benefits From Using FDN’s
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`Copyright-Protected Product Descriptions” which discusses the “benefits using FDN’s
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`copyright-protected product descriptions have on attracting customers . . . as well as
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`influencing customers’ ultimate purchase decisions (i.e. conversion rate).” (Degen Expert
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`Report, at ¶¶ 208–15.) Additionally, Degen’s Appendix E includes a column which lists
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`the dollar amount of Amazon and Coaster’s revenues that can be attributable to the
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`infringement. (Decl. Francoise Ecclesiaste Opp. Mot. Exclude Hochman, Degen, Hughes,
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`Ex. 24 (“Appendix E”), June 26, 2021, Docket No. 578.) These portions of Degen’s expert
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`report can reasonably be interpreted as his opinion that the infringement contributed to
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`the infringer’s profits, or in other words, nexus. Simply because Degen did not use the
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`term nexus or because he was not retained to primarily opine on nexus does not mean
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`that Buss could not reply to his opinions on the topic. Both of FDN’s arguments fail to
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`look at the actual substance of the expert reports and asks the Court to exclude testimony
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`simply because the experts did not use what FDN deemed to be the proper phrasing.
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`Buss’s nexus opinion does not fall outside the scope of the expert reports it addressed
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`and will be helpful to the trier of fact.
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`b. Appropriate Legal Standard
`
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`FDN’s second argument for exclusion of Buss’s nexus opinion centers on its
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`assertion that Buss employed the incorrect legal standard. Based on the parties’ vigorous
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`dispute on this issue, one would think they disagree on what the legal standard for nexus
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`is. However, upon closer examination, the parties advocate for very similar standards.
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`Courts have phrased their definition of nexus in a variety of ways. The Eighth
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`Circuit has articulated the standard for nexus as a “casual connection” between the
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`profits and the copyrighted work or, in other words, that the work “contributed to” the
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`profits. Andreas, 336 F.3d at 797. The same standard has been employed in this district.
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`Honeywell Int’l Inc. v. ICM Controls Corp., No. 11-cv-569, 2017 WL 374901, at *5 (D. Minn.
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`Jan. 26, 2017). And other circuits, in citing Andreas, have held that a copyright owner
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`must show that the revenues are “reasonably related” to the infringement. Beasley v.
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`LFP, Inc., 691 F.3d 747, 770 n.6 (6th Cir. 2012); Thornton v. J. Jargon Co., 580 F. Supp. 2d
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`1261, 1279–80 (M.D. Fla. 2008). Neither party disputes that, based upon this case law,
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`the standard for nexus requires a showing of causation that is less stringent than “but-
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`for” causation.1
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`The case law also establishes that nexus cannot be met by demonstrating a merely
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`theoretical relationship between the alleged infringement and the profits. A copyright
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`owner must present more than “mere speculation” that the copyrighted work
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`contributed to profits. Andreas, 336 F.3d at 796. Courts must be careful to “guard against
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`a plaintiff[ ] claiming the defendant’s profit from something only feebly connected to the
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`infringement.” Honeywell, 2017 WL 374907, at *6 n.5; Fair Issac Corp. v. Fed. Ins. Co., 447
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`F. Supp. 3d 857, 877 (D. Minn. 2020) (“[T]he revenue stream must bear a legally significant
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`relationship to the infringement.”). Thus, while a copyright owner need not show “but-
`
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`1 Though Coaster cites to a case that does apply a but-for causation standard, see Tri-
`Marketing, Inc. v. Mainstream Marketing Services, Inc., No. 09-13, 2010 WL 1924456 (D. Minn.
`May 12, 2010), Coaster cited this case for its discussion of the evidentiary requirements of nexus,
`not to assert that the causation must be but-for.
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`for” causation in proving nexus, the copyright owner also must present concrete evidence
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`of that causation that crosses the line from mere speculation into plausibility.
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`Buss recited this correct legal standard as his opinions on nexus are rooted in an
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`understanding that nexus can be established by showing a “connection,” “causal
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`connection,” or a “causal link” or that the copyrighted work was a “contributing factor”
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`to profits. (Buss Expert Report at 10 n.34, 18–19.) One particular factor considered by
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`Buss needs further analysis.
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`One of the factors Buss looked at was whether FDN’s experts had shown that the
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`infringement “resulted in sales that would not have otherwise occurred” which can be
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`interpreted as a “but-for” analysis. (Buss Expert Report at 18.) This was, however, just
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`one factor that Buss reviewed in reaching his overall conclusions on nexus. His nexus
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`opinion did not depend solely on whether FDN had shown that the infringement led to
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`sales. (Buss Dep. at 119:14–120:9 (clarifying this was just one of the types of data he
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`looked to in his analysis); Buss Expert Report at 18 (listing several factors FDN’s experts
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`would have had to establish to prove a connection.)) Contemplation of this one factor
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`does not transform his entire analysis of nexus into improper expert testimony. Because
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`Buss employed the correct standard for nexus, his opinion on this issue is admissible. FDN
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`is free to challenge the weight and credibility of Buss’s opinions, but these challenges are
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`more appropriate at a later stage. Thus, the Court will not exclude Buss’s nexus opinions.
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`2.
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`Buss’s Apportionment Analysis
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`Once a copyright owner has established a nexus, the infringer may reduce their
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`potential damages by demonstrating the existence of elements of their profit that are
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`attributable to factors other than the copyrighted work. 17 U.S.C. § 504(b); Andreas, 336
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`F.3d at 796. This is known as an apportionment analysis.
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`Buss opines on apportionment, providing his opinion on the amount of Coaster’s
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`profits that can be attributed to the infringement of the FDN Descriptions.2 (Buss Expert
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`Report at 22–26.) Buss’s apportionment opinion was based on a 17-factor apportionment
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`test. (Decl. Brian Buss, Ex. 1 (“Schedule 7”), June 25, 2021, Docket No. 537.) To each
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`factor, Buss assigned a score standing for the level of connection between the
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`infringement and that particular factor. (Id. at 4–5.) Buss did not explicitly define what
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`each score stood
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`for
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`in his report, however, under the column “Greater
`
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`2 In a footnote, FDN argues that the statute requires Buss to identify elements of profit
`attributable to factors other than the infringement, and since Buss did the opposite, opining on
`which portion of the profit is attributable to the infringement, his opinion should be excluded.
`FDN over generalizes Buss’s opinion. Buss identifies several factors that contributed to Coaster’s
`profit other than the FDN Descriptions. (Buss Expert Report at 25 (“These observations indicate
`components of the FDN Text are not key factors in Coaster’s ability to generate revenue and
`profits. Other elements of the Amazon product pages, other marketing activities, familiarity with
`the Amazon and Coaster brands, supply chain relationships and physical assets have greater
`contribution to profits than the alleged infringement of the FDN Text.”).) Furthermore, its
`argument points out a distinction that ultimately makes no difference. Identifying that the FDN
`Descriptions contributed to no more than 5% of Coaster’s profits, necessarily implies the
`corollary analysis that other factors contributed to the remainder of Coaster’s profits. Any
`conclusion that infringement contributed 5% to the profits requires the conclusion that other
`factors must have contributed 95%. Therefore, calculating it either way is permissible under the
`statute.
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`Apportionment %” located in Schedule 7, he would use the term “None” when a factor
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`was assigned 1, and “Low” when a factor was assigned a 2. (Schedule 7 at 4–5.) Buss
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`stated in his deposition that a score of 1 meant there was no connection between the
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`factor and the infringement, a score of 2 meant a low connection, and so on. (Buss Dep.
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`at 219:4–19.) Buss then took the scores of each of the 17-factors and calculated a total
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`score from which he determined that the FDN Descriptions contributed to no more than
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`5% of the total infringer profits. (Buss Expert Report at 25.) Buss provided an explanation
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`on how he reached this 5% of profits number in his deposition but omitted such detail
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`from his expert report. (Buss Dep. at 220:19–223:6.)
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`FDN seeks to exclude Buss’s quantitative apportionment opinion which consists of
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`the opinions discussed above—the scores of 1-5 assigned to each of the 17-factors and
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`his final percentage calculation. FDN also asks the Court to exclude Buss’s use of the term
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`“more derivative” when describing the relationship between the FDN Descriptions and
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`the descriptions originally provided to FDN by Coaster. (Schedule 7, at 5.)
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`a. Quantitative Apportionment Opinion
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`FDN asks the Court to exclude the quantitative portions of Buss’s expert report
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`because they are too speculative and unreliable. Buss’s report omits his methodology for
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`assigning the scores of 1-5 to each of the 17-factors. His report also does not explain how
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`he used those scores to then reach his ultimate calculation of a 5% apportionment rate.
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`The only mention of Buss’s methodology appears in his deposition testimony.
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`Fahmy v. Jay-Z provides the Court with some guidance. 2015 WL 5680299, at *2
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`(C.D. Cal. Sept. 24, 2015). In Fahmy, a copyright infringement case involving a particular
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`song, the defendants presented an expert to opine on apportionment. Id. That expert
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`identified six factors which drove the success of the song, including the alleged
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`infringement used in the song. Id. The expert then assigned percentages to each factor,
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`which he asserted represented his professional opinion on the extent to which the
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`success of the song could be attributed to that particular factor. Id. at *3. Upon a Daubert
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`motion, the court allowed the expert to testify about the specific factors he identified but
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`excluded the percentage ranges because: (1) the expert failed to explain how he
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`calculated the percentage numbers; (2) the expert admitted in his deposition that he
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`could not speculate on whether someone could replicate his analysis; (3) the expert’s
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`method was not peer reviewed; and (4) the opinion would mislead the jury given the
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`complexity of apportionment. Id. at *4.
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`Several of the factors in Fahmy are likewise relevant here and render Buss’s
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`quantitative apportionment opinions too subjective to allow them to be presented to the
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`jury as is. Like the expert in Fahmy, Buss does not explain his methodology for assigning
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`scores and calculating the final percentage. Buss admitted in his deposition testimony
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`that assigning scores is a “subjective analysis” akin to “you know it when you see it[.]”
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`(Buss Dep. at 220:1–17.) Further, the use of the scoring ranges and the ultimate
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`percentage determination would mislead and confuse the jury on several counts. First,
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`CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 16 of 64
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`because Buss argues that the amount of revenue that can be apportioned to the alleged
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`infringement is no greater than 5%, a jury may interpret this as an absolute ceiling. This
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`could
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`impermissibly cabin the
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`jury
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`in their apportionment analysis.
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` Second,
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`apportionment is an incredibly complex issue and could result in the jury attaching undue
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`weight to Buss’s opinion as an expert.
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`Unlike the expert in Fahmy though, Buss’s method has been peer-reviewed and
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`previously admitted by courts. Buss’s apportionment analysis appeared in a chapter of a
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`book published by Business Valuation Resources LLC and a peer-reviewed journal called
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`“The Value Examiner.” (Buss Decl. Opp. Mot. Exclude, ¶¶ 12, 13, & Ex. 4, June 25, 2021,
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`Docket No. 536.) Buss’s similar apportionment analyses have been admitted in two other
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`cases: Stockdale Investment Group, Inc. v. Stockdale Capital Partners, LLC, No. 18-cv-2949
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`(S.D. Tex.) and Gianni Versace S.r.l. v. Fashion Nova, Inc., No. 19-10074 (C.D. Cal.). Though
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`Buss’s apportionment analysis has been peer-reviewed, his quantitative apportionment
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`analysis is impermissibly subjective. As his opinion currently stands, it is inadmissible.
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`However, because Buss’s method has been peer-reviewed and published, the
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`Court will allow Coaster thirty days to amend and re-submit Buss’s expert report to rectify
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`the subjectivity issues. In particular, any amended expert report must address the
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`method used to assign scores to each of the 17-factors and must detail how he calculated
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`a final percentage of apportionment. The Court will then address any remaining concerns
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`FDN has with the amended expert report on a motion in limine.
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`CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 17 of 64
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`b. Buss’s Use of Term “More Derivative”
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`FDN asserts that Buss’s opinion that the FDN Descriptions were “more derivative”
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`of Coaster’s original product descriptions should be excluded because this opinion
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`constitutes inadmissible speculation, is not helpful or relevant to the trier of fact, and
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`lacks foundation.
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`Buss uses this term in Schedule 7 and his expert report, stating that one of his key
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`observations is that the “FDN Text is derived from product specifications provided by
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`Coaster.” (Schedule 7 at 5; Buss Expert Report at 24.) Buss clarified that he did not intend
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`the use of that term to convey any legal meaning. (Buss Dep. at 250:12–251:16.) Rather,
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`he asserts he only meant to convey the point that the FDN Descriptions were based on
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`product descriptions sent to FDN from Coaster.
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`Buss’s use of the term was not in a legal sense and is the result of inartful lawyering.
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`The fact that the FDN Descriptions were created based on information provided by
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`Coaster is relevant to Buss’s apportionment analysis and would ultimately be helpful to
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`the trier of fact. But the use of the term derivative certainly has legal connotations that
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`could confuse a jury. As such, the Court can properly deal with this issue by either issuing
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`a limiting instruction or addressing it in a motion in limine. For now, the Court will deny
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`FDN’s request to exclude Buss’s opinion regarding the “more derivative’ nature of the
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`FDN Descriptions.
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`CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 18 of 64
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`In sum, the Court will grant in part and deny in part FDN’s Motion to Exclude
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`portions of Buss’s rebuttal expert report.
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`B. FDN’S Motion to Exclude Gordon Everest’s Expert Report and
`Opinions (Docket No. 444)
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`Gordon Everest’s expert report focuses on the differences between the database
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`schemas of CMS and FDealer–that is, the way they classify, categorize, order, group,
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`place, and arrange data. The Court has concluded on summary judgment that in order to
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`overcome the presumption of validity, a defendant must show fraud under § 411(b).
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`(Order Cross Mots. Summ. J. at 26–33.) Section 411(b) does not invalidate a copyright
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`registration if a plaintiff can prove that the inaccurate information in a copyright
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`registration was included in good faith. (Id. at 31–32.) Defendants have not argued that
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`the use of data from FDealer, rather than CMS, rose to the level of fraud. Instead, they
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`argue that FDN knew the information was inaccurate because the schemas between the
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`two databases were different. Since the Court finds that the use of data from FDealer
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`instead of CMS was made in good faith, Everest’s testimony regarding the differences
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`between the schemas is unnecessary. Therefore, the Court will grant FDN’s Motion to
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`Exclude Everest’s expert report and opinions.3
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`3 As the Court noted in its Order on Summary Judgment, Defendants are not precluded
`from presenting evidence of fraud committed by FDN in filing their copyright registration. If
`Defendants choose to argue that FDN acted fraudulently under § 411(b) they may submit a
`revised version of Everest’s testimony that discusses how his opinions are relevant to a
`determination of fraud within thirty days of the filing of this Order. The Court will then consider
`any objections to that amended testimony on a motion in limine.
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`CASE 0:18-cv-00232-JRT-HB Doc. 707 Filed 03/25/22 Page 19 of 64
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`C. FDN’S Motion to Exclude Ralph Oman’s Expert Reports and
`Opinions (Docket No. 460)
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`Ralph Oman is an expert witness for Coaster who claims to opine on both the legal
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`and technical inadequacies of FDN’s copyright. Oman was the Register of Copyrights at
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`the U.S. Copyright Office from 1985-1993 and is now a professor in patent and intellectual
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`property law at George Washington University School of Law. (Decl. Francois Ecclesiaste
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`Supp. Mot. Exclude Oman (“Ecclesiaste/Oman Decl.”), Ex. 1 (“Oman Initial Report”) at 2,
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`May 14, 2021, Docket No. 462.) Oman authored an initial and a rebuttal expert report.
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`FDN has asked the Court to exclude the entirety of both reports.
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`1.
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`Oman’s Initial Expert Report
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`[E]xpert testimony on legal matters is not admissible, but rather matters of law are
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`for the trial judge, and it is the judge’s job to instruct the jury on them.” Thomas v. Barze,
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`57 F. Supp. 3d 1040, 1059 (D. Minn. 2014) (quoting S. Pine Helicopters, Inc. v. Phoenix
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`Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003) (cleaned up). “Opinions that
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`merely tell the jury what