Robocast Inc. v. Apple Inc., 1-11-cv-00235 (DED January 28, 2014, Order) (Andrews, J.)
Friday, January 31, 2014
Expert Testimony Based on Press Releases and Promotional Materials Excluded as Unreliable
The court granted defendant's motion in limine to exclude the testimony of plaintiff's internet advertising expert and the related opinions of plaintiff's damages expert. "[The internet advertising expert] concluded that Automated Browsing System ("ABS") advertising increases Click Through Rates ("CTR") an average of 33% over static advertising. [The expert] bases this conclusion on eleven internet sources . . . . Statistical information in press releases and other promotional materials is of doubtful reliability. . . . I only have to consider that the five sources have a wide spread (21% to 68%), which one would not expect if they were accurately measuring the same thing. I also consider that the 'statistics' have nothing approaching a sufficient explanation of what they are purporting to measure. There is nothing approaching an explanation of the circumstances surrounding the measurements. The measurements themselves are described imprecisely, and it is apparent that [plaintiff's expert] does not, for the most part, know what the measurement actually measured. Garbage in, garbage out. . . . [The expert's] underlying data was unreliable, and was unreliably applied, and I therefore exclude his testimony and any testimony for which it forms a foundation."