-202-
In making his income projections, Mr. Wagner considered the
age of the EBD film titles in choosing between the higher mean
and lower median gross units shipped from the AMR data:
“Typically, this step in the process would have been performed
using the mean. However, the SMH titles were older; and
therefore; the number of gross shipments was determined to be
lower than the mean indication from the AMR data.” On this
basis, Mr. Wagner used the median gross units shipped and median
wholesale prices per unit that the AMR data suggested.
Nonetheless, it appears that most, if not all, of the 270 film
titles in the AMR data were recently produced. For this reason,
we are not persuaded that choosing the median over the mean gross
units shipped and wholesale prices per unit from the AMR data
properly accounts for the age of the EBD film titles. Instead,
the age of the EBD film titles suggests that the gross units
shipped and wholesale prices per unit for those film titles would
be at the lower end of the spectrum of the AMR data. Insofar as
Mr. Wagner relies on the median data, he has overstated his
projections.
Although Mr. Wagner did not assume any theatrical releases
(e.g., releases to movie theaters) in his expert report, in his
rebuttal report he points to certain data indicating that 16 of
the EBD film titles were theatrically released in the U.S.
domestic market and 22 of the film titles were theatrically
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