Capture Eleven LLC v. Otter Products, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:20-cv-02551-CNS-KLM
consolidated with 1:21-cv-00068-CNS-KLM
THE CAPTURE ELEVEN GROUP, a California corporation,
Plaintiff/Counter-Defendant,
v.
OTTER PRODUCTS, LLC, a Colorado limited liability company,
Defendant/Counter-Plaintiff/Cross-Claimant,
v.
VERITY HOSKINS PRODUCTION, INC.,
Third-Party Defendant.
ORDER
This matter comes before the Court on: (1) Plaintiff The Capture Eleven Group’s Motion
to Exclude Testimony of Gary Elsner (ECF No. 178); (2) Defendants’ Motion to Strike David
Drews’ Improper Rebuttal on Causal Nexus (ECF No. 180); (3) Defendants’ Motion to Exclude
Certain Opinions of David Drews (ECF No. 182); and (4) Plaintiff The Capture Eleven Group’s
Motion to Exclude Testimony of Kevin M. Arst (ECF No. 186).
I. BACKGROUND
This case arises out of a copyright dispute involving several sets of photographs taken by
Justin L’Heureux at Otter’s behest between 2016 and 2018, most of which were taken after the
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parties’ written contract was terminated. The instant motions were all filed on February 6, 2023,
and are now fully briefed (ECF Nos. 178, 180, 182, 186). A jury trial is set to commence on March
4, 2024 (ECF No. 248).
II. LEGAL STANDARDS
A. Fed. R. Evid. 702
Federal Rule of Evidence 702 governs the admissibility of expert testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590–91 (1993).
The party submitting the expert’s testimony must show by a preponderance of the evidence that
the testimony is admissible. See, e.g., Bethel v. Berkshire Hathaway Homestate Ins. Co., No. 17-
CV-01456-CMA-KLM, 2022 WL 1037572, at *2 (D. Colo. Apr. 1, 2022). To determine whether
expert testimony is admissible, a court must determine whether: (1) the expert is qualified; (2) the
expert’s proffered opinion is reliable; (3) the expert’s testimony is relevant; and (4) the proffered
testimony will assist the trier of fact. See id. at *2; 103 Invs. I, L.P. v. Square D Co., 470 F.3d 985,
990 (10th Cir. 2006); United States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006).
An expert is qualified if they have the “knowledge, skill, experience, training, or education”
to render an opinion. Roe v. FCA US LLC, 42 F.4th 1175, 1180 (10th Cir. 2020) (citing Fed. R.
Evid. 702). An expert’s testimony is reliable if the methodology employed by the expert is based
on “sufficient data, sound methods, and the facts of the case.” Id. (citation omitted). The expert’s
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testimony must be scientifically sound, but “absolute certainty” is not required. Dodge v. Cotter
Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (quotation omitted). Testimony is relevant if it
“logically advances a material aspect” of the case and has a “valid scientific connection” to the
case’s disputed facts. Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 n.2 (10th Cir. 2005)
(citation omitted). The court looks to other non-exclusive factors to determine if the testimony will
assist the jury: (1) whether the testimony is relevant; (2) whether it is within the juror’s common
knowledge and experience; and (3) whether it will usurp the juror’s role of evaluating a witness’s
credibility. 	Rodriguez-Felix, 450 F.3d at 1123 (citation omitted). Doubts about the testimony’s
usefulness should be resolved in favor of admissibility unless such factors (e.g., time or surprise)
weigh in favor of exclusion. See Robinson v. Missouri Pac. R. Co., 16 F.3d 1083, 1090 (10th Cir.
1994) (quotation omitted).
B. Fed. R. Civ. P. 26
Under Rule 26(a), a party is required to make expert disclosures “at the times and in the
sequences the court orders.” Fed. R. Civ. P. 26(a)(2)(D). These disclosures must include, among
other things, “a complete statement of all opinions the witness will express and the basis and
reasons for them,” “the facts or data considered by the witness,” and “any exhibits that will be
used to summarize or support them.” See Fed. R. Civ. P. 26(a)(2)(B).
Under Rule 37(c), if a party fails to provide information per the requirements of either Rule
26(a) or 26(e), the party may not use that information to supply evidence at trial unless the failure
to disclose was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). The Court has broad
discretion in determining whether the Rule 26 violation was substantially justified or harmless,
and the court need not make explicit findings on this issue. Woodworker’s Supply, Inc. v. Principal
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Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (citations omitted). When exercising its
discretion, the Court looks to several factors: “(1) the prejudice and surprise to the party against
whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to
which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or
willfulness.” Id. “A trial court has considerable discretion to determine an appropriate sanction
under Rule 37 and the particular circumstances of a given case.” Cartel Asset Mgmt. v. Ocwen Fin.
Corp., No. 01-CV-01644-REB-CBS, 2010 WL 502721, at *17 (D. Colo. Feb. 8, 2010) (citation
omitted).
III. ANALYSIS
A. Defendants’ Industry Expert Gary Elsner (ECF No. 178)
For several reasons, Plaintiff moves to exclude the opinions and testimony of Gary Elsner,
Defendants’ expert on industry standards and licensing practices in the field of commercial
photography (see ECF No. 178). The Court finds none of these reasons compelling.
Plaintiff begins by arguing that Mr. Elsner lacks the requisite qualifications to opine on
industry standards for licensing “assignment photography”—the type of photography at issue in
this 	case—because 	the 	bulk 	of 	Mr. 	Elsner’s 	career 	has 	instead 	centered 	around 	“stock
photography” (id. at 3–7). Even assuming that the distinction between these two photography types
makes a difference for licensing purposes, the Court remains unconvinced that this distinction
warrants exclusion. This is so because an expert’s specialization within his general field of
expertise generally is not required—instead, courts will look to whether the proffered testimony is
“within the reasonable confines” of the expert’s subject area. Ralston v. Smith & Nephew Richards,
Inc., 275 F.3d 965, 970 (10th Cir. 2001). “[A] lack of specialization does not affect the
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admissibility of [the expert] opinion, but only its weight.” Id. at 971 (citation omitted). “The trial
court should not exclude expert testimony simply because the court feels that the proffered witness
is not the most qualified or does not have the specialization considered most appropriate by the
court.” Lovato v. Burlington N. & Santa Fe Ry. Co., No. CIV.A. 00-RB-2584CBS, 2002 WL
1424599, at *3 (D. Colo. June 24, 2002).
Here, the Court finds that Mr. Elsner’s opinions on industry standards and licensing
practices are within the reasonable confines of the subject area of his expertise, to wit, commercial
photography. 	That 	Mr. 	Elsner 	may 	have 	limited 	professional 	experience 	in 	assignment
photography would not prevent him from testifying about how photographs are licensed in this
industry, particularly since the relevant standard is not whether an expert has identical experience
to the underlying circumstances of the case, but whether his “technical, or other specialized
knowledge will help the trier of fact to understand the evidence or determine a fact in issue.” Fed.
R. Evid. 702(a). To the extent Plaintiff argue that Mr. Elsner’s experience with stock photography
is too attenuated from the assignment photography at issue in this case, that is a matter “opposing
counsel can no doubt highlight on cross-examination, and which bears on the weight or credibility
of [Mr. Elsner’s] opinions, but not on their admissibility.” O’Sullivan v. Geico Cas. Co., 233
F.Supp.3d 917, 924 (D. Colo. 2017). The Court therefore denies Plaintiff’s motion on this ground.
Plaintiff further argues that Mr. Elsner’s opinions are neither supported by sufficient facts
or data nor based on any reliable methodology, chiefly because Mr. Elsner bases his opinions on
(i) industry standards, and (ii) his review of written invoices and licenses from the parties’ prior
dealings with other clients (see ECF No. 178 at 7–10). Closely related, Plaintiff goes on to argue
that Mr. Elsner’s opinions—in particular, that Defendants had an implied license to unlimited use
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of Plaintiff’s photographs—must be excluded as contrary to copyright law (see id. at 10–12).
Again, the Court is unpersuaded. Pertinent here, the analysis of reliability and methodology is
flexible and varies depending on the type of expert and the field in which they work. See Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). And of note, where a nonscientific expert’s
testimony is concerned, “the relevant reliability concerns may focus upon personal knowledge or
experience.” Id. at 150; see also Fed. R. Evid. 702, Advisory Committee Notes to 2000
Amendments (“Nothing in this amendment is intended to suggest that experience alone—or
experience in conjunction with other knowledge, skill, training or education—may not provide a
sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly
contemplates that an expert may be qualified on the basis of experience.”)
Here, the Court notes 	that Mr. Elsner purports to have expertise in commercial
photography—a field he has worked in since 1963 (ECF No. 179-1, ¶ 4). In that time, Mr. Elsner
gained professional experience consulting on industry practices, including negotiating image
licenses, reviewing and approving photo agencies’ licensing transactions, and providing trainings
to others on licensing models and pricing (see id., ¶¶ 3–12, 14–18). The Court finds it sufficiently
clear from the overall content and organization of Mr. Elsner’s report that his methodology
amounts to applying his experience with the photography industry to conclude that Mr. L’Heureux
had granted Defendants an implied license to the images at issue in this case. This method is, as a
general matter, sufficiently reliable for Mr. Elsner to offer admissible testimony under Rule 702.
To the extent that Plaintiff perceives any shortcomings in Mr. Elsner’s assessment of the relevant
industry standards or the documents he relied on in forming his opinions, these are matters for
cross-examination, not bases for broad exclusion of Mr. Elsner’s testimony. See Daubert, 509 U.S.
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at 595 (“Vigorous cross-examination, presentation of contrary evidence and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”). Similarly, if, based on prevailing copyright law, Plaintiff disputes the correctness of
Mr. Elsner’s conclusions as to the existence of an implied license, such conclusions need not be
“indisputably correct” in order to be admissible; instead, these are appropriate fodder for cross-
examination. See Miller v. Secura Ins. Co., No. 22-cv-00037-KLM, 2023 WL 4364157, at *8 (D.
Colo. July 6, 2023) (citing Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir.
2004)). The Court therefore denies Plaintiff’s motion on this ground as well.
Finally, Plaintiff argues that Mr. Elsner should be prohibited from testifying regarding the
parties’ intent or meeting of the minds (see ECF No. 178 at 12–13). True enough, “Rule 702 does
not allow an expert witness to speculate as to the intent or state of mind of the parties.” Pinon Sun
Condo. Ass’n, Inc. v. Atain Specialty Ins. Co., No. 17-cv-01595-CMA-NRN, 2020 WL 1452166,
at *8 (D. Colo. Mar. 25, 2020). But as Plaintiff itself points out, “Mr. Elsner admitted that he had
no basis to speak regarding intent, that he could not do so, and represented that he would not be
offering such opinions” (ECF No. 178 at 12). Although Mr. Elsner has yet to offer any opinions
or testimony speculating on either party’s knowledge, motivations, intent, state of mind, or
purposes, and Mr. Elsner has repeatedly made assurances that he would not offer such testimony,
Plaintiff nevertheless seeks a preemptive order excluding this testimony on the basis that “Mr.
Elsner should be held to his word” (id. at 13). At this time, the Court declines Plaintiff’s invitation
to exclude hypothetical testimony. However, if at trial Mr. Elsner’s (or indeed, any other expert’s)
testimony veers into improper opinions on a party’s intent or state of mind, the Court will revisit
its ruling at that time.
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Based on the foregoing, the Court DENIES Plaintiff’s motion as to Mr. Elsner in its
entirety.
B. Timeliness of Expert David Drews’ Rebuttal Opinions (ECF No. 180)
Defendants move to strike those portions of David Drews’ rebuttal report that relate to
causal nexus (see ECF No. 180). In particular, pursuant to their Joint Stipulation Proposing
Revised Scheduling Order Deadlines, the parties agreed upon a “second rebuttal expert disclosure”
deadline of January 6, 2023, limited to “solely addressing matters for which the party does not
have the burden of proof” (ECF No. 136 at 2). Here, Defendants argue that Plaintiff violated the
scheduling order by improperly introducing new opinions relating to causal nexus—an issue on
which Plaintiff bears the burden of proof—in Mr. Drews’ two “second rebuttal” reports of January
10, 2023, and January 20, 2023. Defendants further argue that the inclusion of these new causal
nexus opinions renders Mr. Drews’ rebuttal report “per se untimely” (id. at 3). The Court disagrees.
To be sure, Defendants correctly point out that “a scheduling order is not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded by counsel without peril” (ECF No.
226 at 9 (quoting Anderson v. Seven Falls Co., No. 12-cv-01490-RM-CBS, 2013 WL 3771300, at
*7 (D. Colo. July 18, 2013))). But for two reasons, the Court finds that striking Mr. Drews’ rebuttal
report for violating the parties’ scheduling order is unwarranted. First, contrary to Defendants’
insistence, Mr. Drews’ rebuttal report is not “untimely.” Although the parties originally stipulated
to a second rebuttal expert disclosure deadline of January 6, 2023, the Court granted a two-week
extension of this deadline to January 20, 2023, meaning that Mr. Drews’ two reports served on
January 10th and 20th were in fact timely (see ECF No. 246).
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Second and more importantly, the Court agrees with Plaintiff that Mr. Drews’ opinions
relating to causal nexus in his rebuttal reports were supplements to his original opinion as
contemplated (and, in fact, required) by Rule 26(e) (see ECF No. 204 at 2, 5–7). Of note, the Court
had recent occasion to address a similar motion to strike Defendants’ expert, Robert Zeithammer
(see ECF No. 174). In that motion, Plaintiff argued that Dr. Zeithammer had withheld relevant
survey data in violation of Rule 26(a)(2)(B), producing it in an “errata” notice only after Plaintiff’s
opposing expert had criticized his survey in her rebuttal report (id. at 2). Later during a hearing,
the Court denied Plaintiff’s motion, reasoning that Dr. Zeithammer had permissibly relied on
Plaintiff’s expert’s rebuttal report to review his own report, noticed an error, and formed a
supplemental opinion correcting that error (see ECF No. 246). That reasoning also applies here.
Pursuant to Rule 26(e)(1)(A) and (2), an expert must supplement or correct his report if he “learns
in some material respect the [report] is incomplete or incorrect.” And here, following a rebuttal
report issued by Defendants’ opposing expert, Mr. Drews set forth a brief, two-page supplemental
discussion of causal nexus in his reports of January 10th and 20th. The Court finds that this was a
timely Rule 26(e) supplement to correct Mr. Drews’ original causal nexus opinion in response to
new information brought to light by Defendants’ expert.
Accordingly, the Court DENIES Defendants’ motion to strike Mr. Drews’ opinions.
C. Plaintiff’s Damages Expert David Drews (ECF No. 182)
Separately, Defendants move to exclude Mr. Drews’ opinions relating to the calculation of
actual damages and the existence of a causal nexus, arguing that Mr. Drews lacks the necessary
qualifications to render such opinions, and that he failed to apply reliable methodologies to the
facts of this case (see ECF No. 182). Once more, the Court is unpersuaded.
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Defendants first take issue with the means with which Mr. Drews supports his calculation
of actual damages for the use of Mr. L’Heureux’s photographs on Otter’s packaging. More
specifically, Mr. Drews (i) relies on the “Plaintiff Comparables,” a set of 25 invoices or contracts
from the same approximate time period as the alleged infringement in this case that cover similar
photography services and/or granting of usage rights; and (ii) excludes from the Plaintiff
Comparables any prior invoices between the parties in this case (see id. at 6–12). According to
Defendants, Mr. Drews neither elucidates nor applies any methodology to justify his reliance on
the precise set of invoices and contracts that comprise the Plaintiff Comparables (see id.). But here,
the Court agrees with Plaintiff that the methodology underlying Mr. Drews’ reliance on the
Plaintiff Comparables was sufficiently clear from his report. In particular, the report indicated that
Mr. Drews calculated actual damages in this case “based on a real-world assessment of the fees
that [Plaintiff] has negotiated for similar usage rights and/or customized photo shoots,” looking
specifically at:
• 	Comparable invoices/contracts generated where “a separate customized photo shoot was
necessary for each new product that was to be featured,” which Mr. Drews used to
calculate damages for “the Infringed Works that were included on the packages of [Otter]
products not included in the original intended use when the photo shoots took place”; and
• 	Comparable invoices/contracts negotiated for “additional usage for existing images,
including use on websites,” which Mr. Drews used to calculate damages for “the Infringed
Works [whose] use was limited to digital use one, such as webpages or social media.”
(See ECF No. 177-4 at 25, 27, 29–30). Given these explanations, Mr. Drews’ reliance on the
Plaintiff Comparables in his damages calculations (and his further categorization of the Plaintiff
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Comparables based on photoshoot type or client size) is a proper subject for cross-examination,
not a basis for wholesale exclusion. See Daubert, 509 U.S. at 595; see also Cook v. Rockwell
Intern. Corp., 580 F.Supp.2d 1071, 1085 (D. Colo. 2006) (as long as expert testimony satisfies
the standard set forth in Daubert, “it is up to the jury to decide whether the expert used the best
or most reliable methodology, what weight to accord to his testimony and which of competing
experts’ opinions should be credited”).
Defendants further challenge Mr. Drews’ opinion regarding the existence of a causal nexus
in this case, arguing both that the opinion is conclusory and that he is unqualified to proffer such
an opinion. The Court disagrees. Regarding the opinion itself, and as noted above, Mr. Drews’
affirmative expert report contains a short discussion about causal nexus that Mr. Drews later
supplemented in his rebuttal report (see ECF No. 177-4 at 22; ECF No. 177-5 at 22–24; ECF No.
177-6 at 22–24). And while he does so only briefly, Mr. Drews does conclude that a causal nexus
exists, supported by reasons for his conclusion—namely, that (i) Mr. L’Heureux’s photographs
appear on the packaging of the Otter products “and thus are part of the items actually sold”; (ii)
Defendants’ own internal packaging/branding analysis showed that Mr. L’Heureux’s photographs
influenced 	consumer purchasing decisions; and (iii) Defendants’ former creative director
attributed Defendants’ marketing success to Mr. L’Heureux’s photographs (ECF No. 177-4 at 22).
Although a close call, the Court finds that Mr. Drews’ causal nexus opinion is sufficiently reliable
in view of the facts he relies upon. See Daubert, 509 U.S. at 590 (testimony is reliable where it is
“supported by appropriate validation—i.e., ‘good grounds,’ based on what is known); Gomez v.
Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995) (reliable testimony does not require
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“absolute certainty,” but demands only that the testimony “be based on facts which enable [the
expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation”).
Respecting Mr. Drews’ expert qualifications, Defendants argue that while the causal nexus
inquiry requires Plaintiff to show that the infringement influenced consumer purchasing decisions
in a manner leading to increased profits for Defendants, Mr. Drews is “not an expert in marketing,”
nor is he an expert on “the impact of imagery on packaging, packaging design, or the role of
packaging [in] selling products” (ECF No. 182 at 13–14). As Plaintiffs point out, however, Mr.
Drews is “a licensing expert with expertise in valuation of intellectual property” (ECF No. 213 at
8). Mr. Drews’ expert report details over 35 years of cumulative experience in IP valuation,
including that he has published literature and taught courses on monetary remedies in IP cases,
and that he has previously “testified on many occasions in litigation and arbitration involving
damages calculations [in IP cases] . . . , and [has] been accepted by numerous courts as an expert
witness in this regard” (ECF No. 177-4 at 5–6, 64–70). Based on the foregoing, the Court finds
that Mr. Drews’ professional experience qualifies him to opine on the existence of a causal nexus,
at least to the extent that this predicate inquiry is part and parcel of the calculation of indirect profit
damages (an area in which he is indisputably qualified to opine).
For these reasons, the Court DENIES the motion to exclude Mr. Drews’ opinions.
D. Defendants’ Damages Expert Kevin M. Arst (ECF No. 186)
Finally, Plaintiff moves to exclude the opinions and testimony of Defendants’ damages
expert, Kevin M. Arst, to the extent they relate to apportionment for profit disgorgement or to the
existence of a causal nexus (see ECF No. 186). The Court rejects the motion in its entirety.
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Plaintiff 	first 	argues 	that 	Mr. 	Arst’s 	opinions 	regarding 	apportionment 	for 	profit
disgorgement should be excluded because they are unsupported by sufficient facts, data, or
methodology. More specifically, Plaintiff argues that Mr. Arst “provides no basis for his opinions
except for his reliance on the opinions of Dr. Zeithammer,” whose opinions were also “deficient
in myriad ways” and were the subject of a separate, concurrently filed motion to exclude (id. at 2–
3; see also ECF No. 184). In effect, to the extent that Dr. Zeithammer’s opinions are excluded,
Plaintiff requests that Mr. Arst’s opinions also be excluded (ECF No. 186 at 3). The Court,
however, has already denied Plaintiff’s motion to exclude Dr. Zeithammer’s testimony, finding
his survey methodology to be sufficiently reliable under Daubert (see ECF No. 246). Here, even
if Plaintiff finds fault with Dr. Zeithammer’s surveys and any conclusions to be drawn therefrom,
Mr. Arst’s reliance on Dr. Zeithammer’s opinions does not supply a basis to exclude Mr. Arst’s
opinions. Indeed, it is entirely appropriate for Mr. Arst to rely on a survey analysis conducted by
another expert, when coming to his own independent conclusion in areas he is suitably qualified
to opine, to wit, damages. See Bullock v. Daimler Trucks N. Am., No. 08-cv-00491-PAB-MEH,
2010 WL 4135330, at *2 (D. Colo. Sept. 30, 2010); Mitchell v. Rosenthal, No. 1:20-cv-00778-
RBJ, 2022 WL 16962263, at *5 (D. Colo. Oct. 11, 2022). The Court therefore denies Plaintiff’s
motion on this ground.
Separate but related, Plaintiff argues that Mr. Arst’s opinions should be excluded because
they are predicated on a misunderstanding of the law governing causal nexus. According to
Plaintiff, while Mr. Arst’s report expresses skepticism that the use of Mr. L’Heureux’s
photographs on Otter’s packaging drove consumer sales, the law of causal nexus does not require
a claimant to show what specific attributes of a product did or did not contribute to consumers’
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purchasing decisions (see ECF No. 186 at 3–5 (citing Wood v. Houghton Mifflin Harcourt Publi’g
Co., 589 F.Supp.2d 1230, 1245 (D. Colo. 2008))). Having reviewed those portions of Mr. Arst’s
report referenced by Plaintiff, the Court finds his opinions to be consistent with the relevant law.
As here, a copyright claimant seeking to recover “indirect profits” damages—i.e., profits
for sales of something other than a product that itself infringes—must demonstrate that “the
infringement at least partially caused the profits that the infringer generated as a result of the
infringement.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 711 (9th Cir. 2004); see 17
U.S.C. § 504(b). To be sure, as Defendants correctly observe, “establishing a causal nexus does
not require the plaintiff to put a . . . buyer on the stand to testify that she bought the product at
issue specifically because of the infringement” (ECF No. 186 at 3 (quoting Wood, 589 F.Supp.2d
at 1245)). Short of this, however, a claimant still must demonstrate that the infringing acts had
some effect on defendant’s revenue resulting from product sales. Mackie v. Rieser, 296 F.3d 909,
915 (9th Cir. 2002); accord Polar Bear Prods., 384 F.3d at 714–15 (requiring, to demonstrate a
link between the infringement and sales revenue, some showing “that the infringement may have
actually influenced the purchasing decisions of those that bought” the accused products). This is
the precise inquiry to which Mr. Arst’s report is directed—by analyzing consumer surveys, market
share data, and similar research (see ECF 187-1 at 29–38), Mr. Arst both engages in the
foundational causal nexus analysis required for Plaintiff’s claim for indirect profits damages, and
he directly rebuts and challenges Mr. Drews’ conclusions on the same. This analysis is supported
by the law governing causal nexus, and it is well within the ambit of permissible expert testimony.
See Fed. R. Evid. 702(a) (expert testimony may be admitted where it “will help the trier of fact to
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understand the evidence or to determine a fact in issue”). Accordingly, the Court denies Plaintiff’s
motion on this ground as well.
Based on the foregoing, the Court DENIES Plaintiff’s motion as to Mr. Arst in its entirety.
IV. CONCLUSION
In light of the above analysis, the Court ORDERS as follows:
1. 	Plaintiff The Capture Eleven Group’s Motion to Exclude Testimony of Gary Elsner is
DENIED (ECF No. 178);
2. 	Defendants’ Motion to Strike David Drews’ Improper Rebuttal on Causal Nexus is
DENIED (ECF No. 180);
3. 	Defendants’ Motion to Exclude Certain Opinions of David Drews is DENIED (ECF No.
182); and
4. 	Plaintiff The Capture Eleven Group’s Motion to Exclude Testimony of Kevin M. Arst is
DENIED (ECF No. 186).
DATED this 7th day of August 2023.
BY THE COURT:
___________________________________
Charlotte N. Sweeney
United States District Judge
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