-319- assertion with a survey, proper sampling of the industry, or any other type of study among companies acquiring rights, or with any outside reliable source such as a treatise, contract form book, practice guide, or material she may have published. Relying upon Daubert and Kumho Tire, petitioner contends that Ms. Nemschoff’s legal practice and experience are insufficient to establish the requisite degree of reliability under rule 702, Federal Rules of Evidence. Petitioner contends that there is an insurmountable analytical gap between Ms. Nemschoff’s opinions as to what are typical and customary steps in transferring film rights and her conclusion that a failure to take such steps in the transaction with CDR indicates SMP’s lack of interest in acquiring and exploiting film rights. Finally, petitioner claims that certain flaws in Ms. Nemschoff’s legal practice and experience undermine her ability to comment on what is typical and customary in transfers of film rights. Notably, petitioner contends that Ms. Nemschoff has not identified how many times she has drafted or reviewed a contract or worked on matters involving films or film libraries. c. Court’s Analysis Personal experience and knowledge can be a reliable and valid basis for expert testimony in many cases. See Kumho Tire Co. v. Carmichael, supra at 150; United States v. Fredette, supra at 1239-1240; Groobert v. President of Georgetown Coll., 219 F.Page: Previous 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 Next
Last modified: May 25, 2011