Garbage in Garbage out.

Olive v. Gen. Nutrition Cntrs. Inc., No. B279490 (D2d4 Nov. 4, 2018)

Plaintiff is a Model, suing a Client under Civil Code § 3344 for violating his right of publicity by allegedly unauthorized use of his likeness in Client’s advertising. Section 3344(a) permits a plaintiff to recover whatever profits are attributable to an unauthorized use. Plaintiff designated three different experts to testify on that topic, but the trial court granted motions in limine to exclude two of them because they offered “nearly data free and methodologically primitive” analyses.

Expert #1 attempted to calculate an appropriate royalty based on the Client’s overall revenue, offering that Model was entitled to a 3 percent royalty. To get there, Expert #1 looked at royalty rates charged by various celebrity endorsers, the CEO’s purported deposition testimony that the type of ad at issue has a 0-1% impact on revenue; and the Client’s overall increase in revenue over the relevant period of time. 

There weren’t reasonable conclusions to draw. Model is a relatively unknown person whose image was used, in conjunction with those many others, in some in-store advertising. The royalty rates being compared were for famous celebrities who were also permitting the use of their names in major endorsement campaigns. In context, the CEO’s statement was that in-store ads were almost worthless, such that it was not reasonable to attribute a full 1 percent of the Client’s revenue to the use of Model’s image (especially since, again, the campaign included images of many others). And Expert #1 offered no explanation as to why Client’s revenue growth was caused by the campaign, as opposed to just correlated with its timing.

It seems that Expert #2’s job was to be a calculator. He would take Expert #1’s royalty percentage (3 percent) apply it to the Client’s revenue ($2.4 billion) and then do some kind of apportionment analysis to come up with “profit.” He disclaimed having any view on the royalty percentage—he’s just relying on Expert #1. It’s not always improper for an expert to rely on some other opinion in coming to an opinion. See generally Evid. Code §§ 801(b), 803, 804. But if the opinion being relied on is itself too unreliable, a second expert cannot be used to launder the otherwise excludable testimony. And since Expert #2’s opinion was worthless without the royalty number, it was proper to exclude him.

Affirmed.