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Talley v. Time Inc.

United States District Court, W.D. Oklahoma

February 27, 2018

JOHN THOMAS TALLEY, Plaintiff,
v.
TIME, INC., d/b/a Sports Illustrated Magazine, et al., Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Daubert Motion in Limine and Motion to Strike Report of Terry J. Westemeir [Doc. No. 64], filed pursuant to Fed.R.Civ.P. 26(a)(2) and Fed.R.Evid. 702.[1] Defendants seek to exclude all testimony of Plaintiff's accounting expert, Terry J. Westemeir, because his report fails to satisfy the disclosure requirements of Rule 26(a)(2)(B). Further, Defendants assert that any testimony regarding the subject matter suggested by the report - the financial and economic impact of publishing the magazine article underlying Plaintiff's false light invasion of privacy claim - is inadmissible because Mr. Westemeir is not qualified as an expert in that area, he discloses no particular methodology for formulating his opinions, and his testimony would be irrelevant to the trial issues. Plaintiff has filed a timely response [Doc. No. 68], and Defendants have replied [Doc. No. 74]. The Motion is fully briefed and ripe for decision.

         Not cited in the Motion but argued in the supporting brief, Defendants first seek an order excluding evidence pursuant to Fed.R.Civ.P. 37(c)(1). See Defs.' Mot. at 4. This rule provides: “If a party fails to provide information or identify witnesses as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Defendants argue that Mr. Westemeir fails to disclose his expert opinions as required by Rule 26(a)(2)(B), and that Plaintiff has no justification for the nondisclosure and has prejudiced Defendants' ability to prepare a defense. This aspect of Defendants' Motion is subject to LCvR37.1, which provides: “With respect to all motions . . . relating to discovery pursuant to Fed.R.Civ.P. 26 through 37 and 45, the court shall refuse to hear any such motion or objection unless counsel for the movant first advises the court in writing that counsel personally have met and conferred in good faith and, after a sincere attempt to resolve differences, have been unable to reach an accord.”[2] Defendants' Motion fails to comply with LCvR37.1, and therefore, the Court declines to consider their request for a discovery sanction under Rule 37.

         Turning to Defendants' Daubert Motion, Plaintiff relies solely on the substance of Mr. Westemeir's report to satisfy Plaintiff's burden under the Federal Rules of Evidence to establish the admissibility of his expert's opinions. See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (“The proponent of expert testimony bears the burden of showing that its proffered expert's testimony is admissible.”). Thus, the alleged deficiencies in Mr. Westemeir's report are pertinent to the Court's analysis of Defendants' Motion, and a discussion of them is useful for this purpose.

         Mr. Westemeir prepared a report in the form of a letter to Plaintiff's counsel dated June 5, 2017, which was the final deadline for Plaintiff's expert disclosures. See 3/15/17 Order [Doc. No. 47]. In the introductory paragraph, Mr. Westemeir states:

It is my understanding that discovery in this matter is ongoing and much of the information necessary for me to conduct my analysis is not yet available. Therefore, I am submitting this as a preliminary report and reserve the right to amend this report, as necessary, as additional information and data become available.

See Def.'s Mot., Ex. 1 [Doc. No. 64-1] at 1.[3] Then, after stating background information regarding Sports Illustrated Magazine (apparently obtained from internet websites, such as Wickipedia, see id., Ex. A), and setting out a press release regarding the subject article, Mr. Westemeir states he has requested certain categories of information “[t]o perform my analysis and give opinion on the economic and financial impact of publishing the five-part SI investigative report” underlying Plaintiff's tort claim. Id. at 5. Mr. Westemeir proceeds by presenting a two-paragraph statement of “Analysis and Conclusion, ” which states in full as follows:

My analysis of the financial and economic impact of the publication of the five-part “The Dirty Game” investigative report (the “SI Report”) on Time, Inc. and SI is incomplete.
Information received will be analyzed to determine the effect of the promotion and publication of the SI Report on subscriptions, rack sales and advertising. Specifically,
• Analysis of subscription data will be designed to ascertain, conclude and opine on whether the SI Report had the effect of increasing or maintaining subscription levels.
• Analysis of subscription and rack sale data will be designed to ascertain, conclude and opine on whether SI sales were enhanced by the promotion and publication of the SI Report.
• Analysis of the financial data will be designed to ascertain, quantify, conclude and opine on the enhancement and contribution of profitability realized by the promotion and publication of the SI Report both in terms of the impact of the publication of the individual installments of the SI Report and in terms of the general enhancement and contribution to earnings.
• Analysis of advertising revenue and rate card data, for the SI Report and SI weekly issues, will be designed to ascertain, quantify, conclude and opine on the impact of advertising dollars gained by SI by promotion and publishing of the SI Report and determination and quantification of any short-term and/or long-term impact of advertising rates and revenues achieved by SI.
• Analysis of financial and advertising data will be designed to ascertain, quantify, conclude and opine on the impact of the SI Report on the print versions (parts one ...

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