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.
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