-318-
Ms. Nemschoff concluded that the steps taken by SMP and SMHC
contrast sharply with those that would normally be expected from
a party undertaking such a transaction in a number of key areas,
including identification of the film titles and the rights being
acquired, warranties and representations regarding ownership,
chain of title, delivery materials, and recordation of the
transaction. She opined that the acquisition was conducted in a
manner that strongly suggests a lack of concern on SMP’s part
with respect to its ownership of the film titles or its ability
to exploit them. Instead, she observed that SMP apparently
adopted the relatively risky strategy of acquiring the film
titles with only minimal information as to the film titles
themselves, the rights being acquired, and the availability of
the physical materials necessary for their exploitation. Ms.
Nemschoff’s conclusions were based primarily, if not solely, on
her experience as an entertainment attorney.
b. Petitioner’s Arguments
In his motion in limine and on brief, petitioner argues that
we should exclude Ms. Nemschoff’s expert report and testimony
under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1993). First,
petitioner argues that Ms. Nemschoff’s report is unreliable
because it broadly asserts what is typical and customary with
respect to film-transfer transactions but fails to support that
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