SMD Software, Inc. v. Emove, Inc., 2014 WL 1807809, No. 5:08–CV–403 (E.D.N.C. May 7, 2014)
The court denied reconsideration of its ruling excluding references to potentially applicable law by plaintiffs’ expert, Dr. Didow. Opinion testimony stating a legal standard or drawing a legal conclusion by applying the law to the facts is generally inadmissible; it doesn’t aid the jury. There’s already a legal expert in the courtroom: the judge. And opinions that tell the jury what result to reach are inadmissible.
Here, Dr. Didow couldn’t testify about potentially applicable legal standards, such as a method of calculating damages under the Lanham Act used in another circuit, or a statement that the Marketing Research Association warns that “cases of comparative advertising that explicitly mention the competitor often result in a presumption of irreparable injury.” Opining about applicable legal standards, and certain specific holdings or summaries of holdings by other courts, would be inadmissible where unhelpful to the jury or where they posed a threat of confusing the jury as to the relevant standards.
Plaintiffs anticipated that Dr. Didow would testify about (1) the basic obligations of advertisers when choosing to engage in comparative advertising, explaining the industry standard as informed by FTC regulations, the American Association of Advertising Agencies’ guidelines and the Marketing Research Association’s guidelines; (2) the purposes behind these industry standards; (3) the existence of the Lanham Act and how it influences these industry standards, including the potential application of a presumption of injury to a competitor who is specifically mentioned in comparative advertising; and (4) the general advice within the industry on how to avoid liability, including that compliance with certain affirmative steps is recommended in order to avoid liability for false advertising.
A witness may refer to the law in some ways. The line between inadmissible testimony about what the law is and permissible expert testimony about standard industry practice is not always clear. Dr. Didow could testify as to “industry standards relating to comparative advertising, the existence of the Lanham Act, or general industry advice on how to avoid liability.” But he couldn’t testify about the law governing this case, including testimony that there is a potential for application of presumptions of injury in cases involving comparative advertising. Dr. Didow also couldn’t testify that the Lanham Act influences industry standards by stating the legal standard under the parts of the Lanham Act at issue in this case. Thus, statements about the influence of the Lanham Act on industry standards would be closely scrutinized. The court declined to preclude Dr. Didow from testifying about industry standards regarding claim substantiation, but would allow timely objections at trial.