Nimmer Expert Testimony Excluded: Copyright Treatise Authors As Expert Witnesses

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On June 16, 2011, the Ninth Circuit Court of Appeals upheld a district court’s decision to exclude the expert testimony of David Nimmer, current author of the well-known treatise Nimmer on Copyright Law.  Since taking over from his father, Melville Nimmer, as author of that treatise (more on that debacle some other time), David Nimmer has from time to time hired himself out as an expert witness in copyright cases.  Often times his “expert report” essentially reads more like a brief than a typical expert report, with a factual recitation relating to a topic like substantial similarity or protectability, then a summary of precedent, complete with citation of precedent and his own treatise leading up to Nimmer’s own legal conclusion based upon his application of his view of the facts to his view of the law.  I have always been somewhat dubious of this kind of “expert” evidence.  It seems to me that it seeks to supplant the role of the judge (with respect to the law) and jury (with respect to ultimate evaluations like substantial similarity), and also to coat pure attorney advocacy with the varnish of perceived (perhaps by a jury) independence and “expert” legitimacy.

Apparently, I am not alone.  In Gable v. NBC, the plaintiff was a writer who claimed that NBC’s series My Name is Earl infringed a screenplay he had written titled Karma.  At issue in the case, as in all copyright infringement cases, was whether the NBC series was substantially similar to Gable’s screenplay.  Normally, that issue would be resolved by a jury after reviewing both works (or by a judge if the works were either so similar or so dissimilar that no reasonable juror could decide otherwise).  In opposition to NBC’s motion for summary judgment, however, Gable hired Nimmer to submit an expert report which, according to Judge Wilson of the Central District of California, contained extensive comparisons of the two works, “a lengthy legal analysis of Ninth Circuit case law” and the ultimate opinion that “[b]ased on my review of Ninth Circuit case law, the facts at bar present a situation in which substantial similarity presents a triable issue of fact — a reasonable factfinder could conclude, based on all the circumstances, that defendants actionably copied from plaintiff’s screenplay.”

To me, this last quote appears to be strikingly similar to a judicial holding (or at least the conclusion of a legal brief).  Judge Wilson apparently saw it the same way, because he excluded the entirety of Nimmer’s testimony.  The Court held that Nimmer had not proven that he was qualified as an expert in literary analysis.  At most, he was an expert in copyright law and legal analysis.  But substantive legal analysis is the province of the court, not hired experts.  Judge Wilson also held that much of Nimmer’s “expert report” comprised legal conclusions and analyses and read like a “third legal brief.”  The court cited ample precedent for the proposition that experts may not properly give opinions on legal standards nor may they give legal conclusions based upon their own application of the law to the facts.  Finally, the court noted that even if the report had been considered, it was unpersuasive and that “the mere existence of dueling reports does not necessarily create a triable issue of fact.”

As noted above, the Ninth Circuit upheld this ruling, which seems eminently reasonable to me.  This is not to say that the author of a copyright treatise could never give proper expert testimony in a copyright infringement case.  A treatise author might have personal experience, apart from his or her status as author of a treatise alone, that could provide a basis for expert qualification.  But publication of a treatise falls short of the nomination and Senate confirmation required to serve the role of a federal judge.

Here is Judge Wilson’s opinion:

And the Ninth Circuit decision affirming: