Industry-Specific Expert Witness Unnecessary In Economic Damages
An expert witness "need not be an expert in a particular field to offer an expert opinion on damages that is based on broadly applicable calculations and measurements", ruled Justice James Whittemore, in the ongoing ratings-tampering case, Nielsen Audio, Inc. v. Bubba Clem, et al., U.S. District Court M.D. Fla.
The ruling rejected Bubba Clem's challenge of Neilsen's economic damages expert witness, David Haas, who has an MBA with a specialization in management accounting and experienced in calculating damages in dozens of cases involving a variety of industries. Haas was retained by Nielsen to calculate the company's damages from Clem's efforts to inflate his radio show's ratings. Nielsen is claiming more than $1 million in damages and says that it has incurred more than $715,000 in legal expenses and over $40,000 in consulting fees.
Clem has admitted in part to paying a Nielsen survey participant $300 a month to help boost the ratings for his radio show, "Bubba the Love Sponge Clem". Nielsen survey participants are given a pager-like device to track when and what radio shows the participant listens to.
In trying to disqualify Haas as an expert witness, Clem claimed that Haas had no experience in the radio industry or the measurement of radio audiences.
Nielsen called Clem's challenge of Haas a "straw-man argument." Nielsen defended Haas saying that he had quantified the harm done to Nielsen's reputation and goodwill through an analysis of documents and interviews he conducted with Nielsen personnel regarding its contract renewal with Cox Media Group. Haas determined the harm suffered when Nielsen agreed to forego price increases in its 2017 renewal agreement with Cox, as well as foregoing price increases in new agreements with its customers. As well, Haas calculated expected future damages and the present value of future harm. Nielsen argued that such financial calculations required an expert witness (although not one with specific experience in the radio industry).
Justice Whittemore found that Clem did not show that specific experience in the radio industry was required to calculate Nielsen's damages. While Clem's rebuttal expert has experience in the radio industry, Justice Whittemore wrote that it does not diminish the relevance and reliability of Haas' opinion. Instead, the differences in radio industry experience "goes to the respective persuasiveness and weight of the two experts' opinions, which is an issue better addressed by a jury."
The trial is set for 2018.