Plaintiff filed suit against defendant related to jokes used in a late night television show. Plaintiff hired a Mathematical Sciences Expert Witness. Defendant filed a motion to exclude this expert from testifying. The court granted the motion.
Facts: This case (Kaseberg v. Conaco, LLC et al – United States District Court – Southern District of California – April 16th, 2019) involves a claim by the plaintiff that the defendant allegedly stole jokes and used it on his late night television show. The plaintiff has hired David Barsky, Ph.D. (Mathematical Sciences Expert Witness) to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: Dr. Barsky will be offered as an expert to examine the pattern of jokes published by the plaintiff that appeared in the defendant’s monologues and specifically to examine whether this pattern suggested that this might be a chance occurrence. The defendants contend that Dr. Barsky’s opinion is unreliable for numerous reasons. The plaintiff states that there is nothing unreliable about Dr. Barsky’s methodology and, in any event, the defendants’ arguments go to the weight of the evidence, not their admissibility.
The court opines that it is undeniable that Dr. Barsky’s opinions were based on evidence furnished by plaintiff’s counsel and prepared for litigation and that Dr. Barsky’s statistical model was prepared solely for the purpose of testifying. In addition, there are additional problems with Dr. Barsky’s analysis that have been identified by the defendants. As an example, the defendants allege that Dr. Barsky’s opinion relies on multiple, baseless assumptions.
Also, the court notes that Dr. Barsky’s analysis is based on five similar or overlapping jokes. Dr. Barsksy also conceded that a change in the number of overlapped jokes would change his analysis and the resulting probabilities.
The court also opines that there is too great a gap between the data and the proffered opinion. The court notes that Dr. Barksy opines that it is unlikely that the defendant’s writers were independently developing the same jokes as the plaintiff. The court also states that the issue is compounded by Dr. Barsky’s apparent assumption that there were no other overlapping jokes during the arbitrarily defined periods examined, a fact that was neither tested nor verified by the plaintiff or Dr. Barsky.
The court finally opines that Dr. Barsky’s opinion is not only unreliable, but is also irrelevant.
Conclusion: The motion to exclude the expert witness testimony of David Barsky, Ph.D. is granted.