Share It

Friday, April 22, 2011

Marvel Worldwide, Inc. et al v. Kirby et al - Problems With Hearsay


More on the Marvel vs Jack Kirby's estate court case..  In the current issue of The Jack Kirby Collector, issue #56, John Morrow makes mention of the case and the issues that surrounded his deposition.  Primary amongst them was the fact that while the lawyers for both sides had, “…boxes of reference materials (including copies of lots of Kirby Collector articles, I might add!), and laptops hooked up to the Internet for quick and easy reference to anything they needed.  Me? I had bupkus. I wasn’t allowed to bring any notes or reference materials - it was just me and my memory. Real fair, huh?”  Giving a deposition from memory only is a daunting task, especially when the people asking you questions have access to all of your notes, all of your articles and can easily catch you out on a contradiction, it’s one of the reasons why you have to research your material before going in, something Morrow states he didn’t do.  Preparation is half the battle won.

Law courts are intimidating for most people, for those not used to them or the legal process, merely walking into a court, let alone giving a formal deposition, can be somewhat daunting.  Generally there’s no histrionics, such as what we see on the TV, no people screaming for the truth and no-one on the stand pointing to a villain and sobbing that they did it.  There’s nobody screaming “Objection!!” at the top of their lungs and abusing the judge.  On the whole court cases are cold and sterile, and the trick is to weed out the grist and find the juicy stuff to report on.  If you read an entire court case from beginning to end, you’ll soon discover that pages and pages, hours upon hours, are devoted to the most minute details surrounding points of law.   Frankly it’s a tedious process at best, and the more complex or important the case, the longer it takes as each side wants to prevail.  I can remember reading the court documents for a famous, and now largely forgotten, case involving a suspected German war criminal who’d been ‘found’ in South Australia in the late 1980s.  The documents ran for over 3,000 single spaced, one sided pages, out of which a good half was devoted to legal arguments over jurisdiction, the validity of the case and the amount of time that had passed between the alleged crimes and the present day.  The rest wasn’t much better, which is why most people only read the judges summaries delivered at the end of the cases.

John also goes on to state, “Just today, I found out that Marvel filed a motion to try to get my entire deposition kicked out. I’m trying not to take it personally, as I assume it’s standard procedure to do that in these kinds of cases, but apparently something I said didn’t sit well with them.”  It wasn’t so much as something he said, but more what he didn’t actually observe.  It’s not so much that John said something so damaging that Marvel’s lawyers need to have his deposition thrown out, it’s more that he’s relying on second hand accounts of events.  The Kirby’s lawyer, Marc Toberoff, fired back with a strong argument for John Morrow’s testimony to remain intact, but Marvel’s lawyers really went on the attack when they responded to Toberoff’s argument.  When you read what they had to say about John Morrow and Mark Evanier it’s damning, complete with veiled accusations of plagiarism, sloppy research, opinion over real fact and a sense of general ignorance.  It’s hard to believe that both men could be attacked in such a manner, but some of this is clearly directed towards Marc Toberoff, as evidenced in the Kirby family depositions where the Marvel lawyers lost patience with him and his ploys. 

Calling for depositions to be excluded is an automatic ploy – indeed if Toberoff thought he could get away with asking for Stan Lee’s deposition to be excluded then he would, but Stan is the only direct link left to how Kirby worked at Marvel, as he was there and saw the process.  As it stands Evanier and Morrow were always walking on that knife’s edge because, out of all of those deposed (Roy Thomas, John Romita, Stan Lee, Larry Lieber and the Kirby children) they were the only two who would be testifying as to what they’ve heard and not seen firsthand.  Hearsay evidence, as it’s called, is always fraught with danger.  For those who might not be fully aware of what hearsay evidence is, this is a legal definition.  Hearsay evidence is the evidence of those who relate, not what they know themselves, but what they have heard from others.   It’s as simple as that.  Generally speaking hearsay is not admissible as valid evidence.  As with anything legal, there are ways around hearsay, and ways to have it admitted into the record.  The way that Toberoff will be asking that Evanier and Morrow’s hearsay evidence to be introduced is by virtue of Kirby telling them what they know – which is the case with Evanier.  Where Evanier might slip up is if he continues to introduce hearsay about living people, such as Stan Lee.  The rules of hearsay do allow for living people to have the claim made to them in order to repudiate it.  Death bed confessions can be admitted as hearsay, which is a throw back to the days when people confessed their sins upon the moment of death, for fear that if they didn’t, they’d go straight to Hell.  That rule won’t apply here.

One thing that clearly rankles the Marvel lawyers with Toberoff’s counter replies must surely be the following lines, which appear in a lot of responses. 
“Moreover, the testimony of Evanier and Morrow is clearly admissible. See Docket Nos. 84-88. That this paragraph refers to events outside the Time Period does not mean it has no probative value. Marvel itself relies on testimony from the individuals John Romita and Roy Thomas, who did not work with Marvel during the Time Period.”
Where Marvel appears to have the upper hand is, although Romita and Thomas didn’t work at Marvel at the time period in question, John Morrow wasn’t born and Mark Evanier was a babe in arms during that period.  Thus Romita and Thomas would be expected to have a bit more credibility and knowledge as they did work at Marvel, and for Stan Lee, shortly after the time period.  Toberoff’s wording is almost comical – he expects the court to ignore testimony from those who were there, and regard it as hearsay, but yet admit the testimony of those who weren’t there.

If John Morrow does take the stand to defend Jack Kirby, and I’m sure he will – hell, I would if I were him or had the chance – then he can expect a lot more objections involving the word hearsay.  Hopefully it won’t come to that, because, as an expert on Jack Kirby, I’d depend on John Morrow over Mark Evanier any day of the week, if only because Morrow has published enough interviews and factual documents to show that Kirby’s memory was just as flawed as Stan Lees when the push came to the shove and, unlike Evainer, has demonstrated a level of public impartiality, to a degree.  By Marvel arguing that Morrow is not qualified to testify because the bulk of his knowledge comes from his reading and studies just don’t hold water.   However the fact that Morrow admitted he didn’t do any factual research before entering the court will go against him – here’s a hint for John, if you are called upon, read everything around this case, both pro and con, and when you’re asked you can answer from either side of the fence, and not just from the Kirby side of things.  You’ll stand a better chance and come across as a far more credible witness.

Here's the transcript of the motion filed.



PLAINTIFFS’ AND COUNTERCLAIM-DEFENDANTS’ REPLY MEMORANDUM OF
LAW IN FURTHER SUPPORT OF THEIR MOTIONS TO EXCLUDE THE EXPERT
REPORTS AND TESTIMONY OF MARK EVANIER AND JOHN MORROW

PRELIMINARY STATEMENT
Ignoring their inability to establish the threshold requirements for expert admissibility – reliability and relevance – Defendants instead focus solely on the general principle that experts may, in certain limited circumstances, rely on hearsay. However, under the Federal Rules of Evidence, experts may only rely on hearsay as a basis to form their opinions through their reliable expertise; they may not simply repeat such hearsay as the substance of their opinions. In short, a party may not convert inadmissible hearsay or otherwise improper factual narratives or opinions on motivation and credibility into admissible evidence simply by calling it expert testimony and asserting that it will help the trier of fact.
Yet, this is precisely what Defendants seek to do with their self-styled experts Mark Evanier and John Morrow. Defendants ask the Court to ignore the fact that both Evanier and Morrow explicitly conceded that they used no accepted methodology whatsoever and there is no way to test their conclusions, and to rely instead on testimony of “industry custom and practice” that was not even within the scope of their assignments. The “weight of the evidence” comes into play only after relevance and reliability are established. Having failed to establish either, the testimony of Evanier and Morrow should be disregarded. Contrary to Defendants’ stated concerns (Docket No. 86 (“Evanier Opp.”) at 21-23), the Court is fully capable of determining whether the Works were created for hire without the testimony of either Evanier or Morrow.
ARGUMENT
Reliability and relevance are threshold requirements that must be met before an expert’s opinions are admitted. See Royal Ins. Co. of Am. v. Joseph Daniel Constr., Inc., 208 F. Supp. 2d 423, 426 (S.D.N.Y. 2002) (McMahon, J.). In its gate-keeping function under Rule 702, the Court must exclude expert testimony that fails to meet these thresholds, including on summary judgment. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309, 311 (2d Cir. 2008). Defendants fail to show that the testimony of either Evanier or Morrow is reliable or admissible, so it should be excluded. See DiBella v. Hopkins, 403 F.3d 102, 121 (2d Cir. 2005) (court has broad discretion to exclude expert testimony that does not meet requirements); Bourjaily v. United States, 483 U.S. 171, 175 (19 87) (party offering expert testimony must prove admissibility by preponderance of evidence). 
EVANIER’S AND MORROW’S PROFFERED OPINIONS ARE INADMISSIBLE
The Opinions Of Both Evanier And Morrow Are Wholly Unreliable.
Both Evanier and Morrow should be precluded from testifying because Defendants have failed to show either of their opinions satisfies the core element of reliability; in fact, Defendants all but ignore the requirement that expert testimony be based on reliable methodology to be admissible. E.g., Daubert, 509 U.S. at 590; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). But as Defendants’ own cases confirm, “an expert’s testimony is only admissible if the Court finds that it is reliable.” Ji v. Bose Corp., 538 F. Supp. 2d 354, 358 (D. Mass. 2008) (emphasis added). Neither Morrow’s nor Evanier’s opinions are based on any methodology, let alone one sufficient to meet either the Daubert or Kumho standards.
Evanier conceded his only “methodology” was to use “common sense” and that he came by his opinions by “mak[ing] a value judgment . . . [and] believ[ing] the version [of events] that seems to be the most consistent.” See Declaration of Sabrina A. Perelman (“Perelman Decl.”) Ex. 2 at 51:9-21, 61:4-8. Morrow’s only methodology was to draw upon what he had read or heard about in interviews. See Declaration of David Fleischer (“Fleischer Decl.”) Ex. B at 17:17-18:12, 133:15-135:17. Neither of them conducted any independent analysis, nor did they bother to review any of the relevant documents or deposition testimony in the case. Perelman Decl. Ex. 2 at 10:11-13, 15:10-16, 18:1-10, 21:21-25, 30:1-14, 51:22-53:19, 54:15-25; Fleischer Decl. Ex. B at 17:17-18:12; 133:15-135:17. Indeed, both Evanier and Morrow conceded there was no way to test their opinions for reliability. See Perelman Decl. Ex. 2 at 30:15-22 (“I don’t know of any way to test this kind of thing.”); Fleischer Decl. Ex. B at 135:18-136:12. While Evanier and Morrow certainly are not limited to the record to form the basis of their opinions, one would presume and expect they would at least consider it.
Rather than address this lack of methodology, Defendants devote many pages to Evanier’s and Morrow’s “experience” in an attempt to show they are somehow qualified. See Evanier Opp. at 3-6, 12; Docket No. 84 (“Morrow Opp.”) at 2-4. But that general experience, even if credited, cannot qualify either to offer a specific factual narrative of events from fifty years ago – before Evanier met Kirby, and before Morrow was even born – nor is it reliably applied to the facts in the case. See Fed. R. Evid. 702 advisory committee’s note. Indeed, exposition of historical facts does not qualify as “technical or specialized knowledge,” and there are no possible credentials that could qualify a person to testify as to purely factual matters based on hearsay and speculation. See Member Servs., Inc. v. Sec. Mut. Life Ins. Co. of N.Y., No. 3:06- cv-1164 (TJM/DEP), 2010 WL 3907489, at *26 (N.D.N.Y. Sept. 30, 2010). Moreover, this case concerns particular Works, from a specific Time Period; Defendants fail to show how Evanier’s or Morrow’s experience qualifies them to testify on those very circumscribed issues.
Nor can Defendants rehabilitate Evanier by claiming he is a “percipient” witness. Evanier Opp. at 15 (noting “re-imagined” Thor story). Evanier concededly lacks any personal knowledge of Kirby’s dealings with Marvel during the Time Period, or any of the circumstances of the Works’ creation, so his testimony is incompetent – as a fact or expert witness – and will shed no light on the relevant issues. Defendants cannot shore up Evanier’s deficiencies as an expert with so-called “percipient” knowledge of information not disclosed in his report. Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 182 (S.D.N.Y. 2008).
Defendants’ repeated appeals to Evanier’s and Morrow’s so-called expertise in comic “industry custom and practice” also gain them no traction as their assignment did not include industry custom and practice; rather, they were asked only to opine on Kirby’s relationship to Marvel during a specified time period and the circumstances of the creation of the Works. See Perelman Decl. Ex. 1 at 1; Fleischer Decl. Ex. A at 1. Furthermore, as Defendants’ own cases explain, experts can only offer testimony on industry “custom and practice” if such practice is “fixed and invariable” or “universally understood.” See SR Int’l Bus. Ins. Co., Ltd. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 135 (2d Cir. 2006); Bayway Ref. Co. v. Oxygenated Mktg. & Trading, A.G., 215 F.3d 219, 225 (2d Cir. 2000). There is no evidence that the customs or practices on which Morrow and Evanier opine are fixed or invariable or universally understood.
Indeed, in a closely analogous case, Evanier expressly admitted that work-for-hire policies were “not an industry-wide practice” prior to 1978 in the comic book industry and that work-for-hire policies were “on only a company-by-company basis.” Reply Declaration of Sabrina A. Perelman, Exhibit 1 at B-214:4-9, B-214:22-215:8. Evanier’s testimony on industry custom and practice in yet another analogous case also was found to be “void of any specific evidence or opinion” on the works in question and “not at all probative.” Siegel v. Warner Bros. Entm’t Inc., 542 F. Supp. 2d 1098, 1122-23 (C.D. Cal. 2008). Indeed, the Siegel court later found that “appeals to expert opinion of industry custom and practice are of dubious evidentiary value [because] the expert in question is not venturing any opinion as to what actually occurred with respect to the specific business relationship” at issue. Siegel v. Warner Bros. Entm’t Inc., 658 F. Supp. 2d 1036, 1069 (C.D. Cal. 2009). So, too, must Evanier’s and Morrow’s reliance on industry custom and practice be rejected here.
While Defendants attempt to evade the reliability requirement by casting Morrow’s and Evanier’s opinions as within the “social sciences” and not the “hard sciences,” Supreme Court precedent is clear that even though non-scientific expert testimony may not be subject to the same controls as the hard sciences, they must nonetheless be subject to some controls. See Kumho, 526 U.S. at 141. Morrow and Evanier’s testimony are not, and “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Fed. R. Evid. 702 advisory committee’s note (courts need not “simply tak[e] the expert’s word for it”). Thus, as Morrow and Evanier’s “methodology” is purely subjective, speculative and precludes analysis for reliability, both must be excluded. See, e.g., 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 514 F. Supp. 2d 571, 574-77 (S.D.N.Y. 2007) (excluding expert on development of music startup companies whose opinions were “inherently subjective and speculative” and could not “be tested, . . . [had] no known rate of error, and . . . [were] not subject to any particular standards or controls”); Algarin v. N.Y. City Dep’t of Corr., 460 F. Supp. 2d 469, 477 (S.D.N.Y. 2006) (expert on involuntary commitment excluded on summary judgment where his “conclusion is not the product of the application of any analytic method, aside from [his] personal experience, and [he] cites no support for it, other than his occasional allusions to ‘common sense’”).

Evanier And Morrow Offer Irrelevant Opinions, As Both Seek To Usurp, Rather Than Assist, The Court In Its Function As Factfinder.
Only after an expert’s reliability has been established does a court “evaluate the relevancy of the testimony by determining whether the information presented ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’” Royal Ins. Co., 208 F. Supp. 2d at 425 (quoting Fed. R. Evid. 702). Here, Defendants skate over the reliability prong, and focus only on the assertion that Morrow and Evanier will assist the trier of fact. But Rule 702 requires them to show both reliability and relevance, and they cannot prove reliability by reading the requirement out of the test.
In any event, both Morrow’s and Evanier’s reports are irrelevant as well as unreliable and thus, will not assist the fact-finder. Both proffered experts focus largely on whether a particular character or story was the idea of Stan Lee, Jack Kirby or a combination of the two, which is wholly beside the point under the instance and expense test that Defendants concede governs. Nothing in their opinions suggests Kirby ever put pencil to paper before receiving an assignment from Marvel or that he was ever not paid his agreed per-page rate for his contributions to the Works. In fact, both Evanier and Morrow consistently and repeatedly agreed with Marvel on all of the salient facts that fulfill the work-for-hire test. See Docket No. 62 at 20-22.
Soldiering on despite this reality, Defendants claim their testimony will be “helpful” because it provides “historical context.” See Evanier Opp. at 2, 16; Morrow Opp. at 10-11. But this “historical context” is no different from the demonstrably unhelpful and usurpatory historical narratives universally rejected as improper subjects for expert testimony. E.g., Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 468-69 (S.D.N.Y. 2005), aff’d, 551 F. Supp. 2d 173, 180 (S.D.N.Y. 2008) (“[A]n expert cannot be presented . . . solely for the purpose of constructing a factual narrative. . . .”); Taylor v. Evans, No. 94 Civ. 8425 (CSH), 1997 WL 154010, at *2 (S.D.N.Y. Apr. 1, 1997). Indeed, it strains credulity to argue Morrow’s report would be “helpful to the trier of fact,” as Defendants protest, where even Morrow conceded there was no way to distinguish between statements of purported fact and statements of his opinion in his report. See Fleischer Decl. Ex. B at 133:11-135:8.
All Evanier and Morrow seek to do is to construct a fictionalized factual narrative, based on layers of hearsay, and then “opine” they believe those facts to be true. Indeed, they purport to construct this narrative without any regard for (or even any review of) any record facts. Unlike in United States v. Joseph, 542 F.3d 13 (2d Cir. 2008), a case Defendants heavily rely on, neither Evanier nor Morrow will “explain conduct not normally familiar to most jurors.” Id. at 22. The true facts on which Evanier and Morrow purport to opine are set out clearly in the competent fact record, and are “lay matters which [the trier of fact] is capable of understanding and deciding without [their] help,” particularly where the case will be tried – if at all – to the Court. See Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989). Thus, both their “factual” reports serve no purpose and should be excluded as irrelevant.
Additionally, far from assisting the fact-finder, Evanier and Morrow seek to usurp its role by opining as to motivation and credibility. The case law is legion that neither is a proper subject for expert testimony. E.g., In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 547 (S.D.N.Y. 2004) (inferences about intent or motive “lie outside the bounds of expert testimony”); see also Nimely v. City of N.Y., 414 F.3d 381, 398 (2d Cir. 2005) (“[E]xpert opinions that constitute evaluations of witness credibility . . . are inadmissible under Rule 702.”). Defendants’ cases do not require a different result, as they involve testimony regarding contractual intent where evidence of actual intent is unavailable and opinions from an expert knowledgeable about the industry practice is required to resolve the issues. See, e.g., Travelers Indem. Co. v. Scor Reinsurance Co., 62 F.3d 74, 78 (2d Cir. 1995) (expert could opine on custom or practice in reinsurance industry to “interpret ambiguous provisions of contracts” where it was “hard to imagine how the . . . case could have been decided without [it]”); Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33, 38-39 (1st Cir. 2000) (expert could opine on trade usage to determine meaning of agreement where policy was decades old and evidence of parties’ actual intent was unavailable). No such circumstances exist here. 
Defendants’ arguments that Morrow and Evanier do not improperly opine on credibility fall short, as they themselves claim that Morrow “evaluate[s] the true facts and relationship between Kirby and Marvel,” Morrow Opp. at 10 (emphasis added), and Evanier testified that he formulated his opinions by deciding “the version that [he] take[s] to be the most credible” by “mak[ing] a value judgment” and “believ[ing] [a certain] version” of the events. Perelman Decl. Ex. 2 at 50:14-51:21 (emphasis added). Ironically, Evanier and Morrow make these credibility judgments without having reviewed any of the testimony of actual percipient witnesses or any record evidence. Id. at 10:11-13, 51:22-53:19, 54:15-25; Fleischer Decl. Ex. B at 17:17-18:12.
In fact, Defendants do not even argue their “experts” do not opine on credibility, but merely rely on inapposite cases to contend such testimony is not improper. See Morrow Opp. at 11-13; Evanier Opp. at 19-21. These arguments are meritless and should be rejected, as should their repeated mantra that any questions with respect to this improper testimony go to weight and not admissibility. Defendants must prove that their proffered experts’ testimony is admissible as a threshold matter before its weight may be considered. See Bourjaily, 483 U.S. at 175; Royal Ins. Co., 208 F. Supp. 2d at 426. They have not done so.

 Morrow’s Report Is Wholly Duplicative Of Evanier’s And Should Be Excluded On That Basis Alone.
Morrow’s report also should be excluded for the independent reason that it is wholly duplicative of Evanier’s. Marvel cited five of the most egregious instances in which the Morrow and Evanier reports overlap in form, substance and content, but even a cursory review of the reports shows they are duplicative well beyond those passages. Moreover, Morrow’s testimony does not “come[] from a different professional perspective” than Evanier’s. Morrow Opp. at 16.
Morrow and Evanier have the same roles in the industry (to promote Kirby) and seek to offer testimony on identical subject matter (who, as between Kirby and Lee, had an idea for a comic book some fifty years ago). Thus, designating both Morrow and Evanier as “experts” is wasteful and unnecessary. See Member Servs., 2010 WL 3907489, at *27; Price v. Fox Entm’t Group, Inc., 499 F. Supp. 2d 382, 390 (S.D.N.Y. 2007). That Defendants all but ignore the fact that Morrow’s report violates Rule 26(a)(2)(B), relegating their response to a footnote, does not make it less true. See In re Jackson Nat’l Life Ins. Co. Premium Litig., No. 96-MD-1122, 2000 WL 33654070, at *1 (W.D. Mich. Feb. 8, 2000) (“undeniable substantial similarities” of expert reports strongly suggest “counsel’s participation so exceeded the bounds of legitimate ‘assistance’ as to negate the possibility that [the expert] actually prepared his own report within the meaning of Rule 26(a)(2)”). For this reason, too, Morrow should be excluded.

II. DEFENDANTS’ ATTEMPT TO CIRCUMVENT THE HEARSAY RULE UNDER THE GUISE OF SO-CALLED EXPERT TESTIMONY MUST BE REJECTED
As Defendants freely concede, Evanier’s and Morrow’s opinions are, of necessity due to their lack of personal knowledge, based entirely on inadmissible hearsay. See Evanier Opp. at 11; Morrow Opp. at 4, 6, 9. Defendants’ attempts to dress up this hearsay as “expert” testimony is unavailing, as they seek only to offer it for its truth rather than apply any expertise to arrive at an independent opinion, as required under Rule 703. Thus, their testimony must be excluded.
Defendants’ insistence that experts may rely on hearsay statements misses the point – experts may rely on hearsay to draw properly supported conclusions, but they cannot convert it into admissible evidence simply by repeating it. Defendants do not (and cannot) cite any authority to allow them to simply repeat the facts in those statements as if they were true. Indeed, binding precedent mandates the opposite. See, e.g., United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008) (“[An] expert may not, however, simply transmit that hearsay…Instead, [he] must form his own opinions by applying his extensive experience and a reliable methodology to the inadmissible materials. Otherwise, the expert is simply repeating hearsay evidence without applying any expertise whatsoever, a practice that allows [a party] to circumvent the rules prohibiting hearsay.”).
The opinions proffered by Evanier and Morrow falter at each level of the Rule 703 analysis. Fundamentally, as discussed, they both lack any expertise relevant to this action, and neither of them has shown any measure of reliability in their methodologies or conclusions. Moreover, at bottom, their entire purpose in this case is to introduce inadmissible hearsay from interviews and articles in the guise of “expert” testimony. Evanier and Morrow have applied no expertise, and have arrived (unreliably) at opinions that certain hearsay statements are true. Under such circumstances, Defendants cannot be heard to argue that either Evanier or Morrow is an expert under any conceivable formulation. Their testimony is, at best, akin to “junk science” and is expressly condemned by Daubert, Kumho and their progeny.

CONCLUSION
For the foregoing reasons, and the reasons set forth in Marvel’s opening briefs, the reports and testimony of Mark Evanier and John Morrow should be excluded in their entirety.

7 comments:

The Seditionist said...

Daniel, you keep dancing around the point. No one's going to win this based on supported claims -- that is, talk, without extrinsic substantiation.

And there's essentially none. Given the size of Marvel at the time, there are very few witnesses with first-hand knowledge available. Kirby's dead. Lee's memory is awful -- between misstatements based on ego and simple lack of or insufficient attention at the time, there's little he can say. Brodsky's dead. Dunno when Steinberg was there or what she could offer.

Everything else from the Marvel offices is along the lines of "So and so told me...." Not good enough.

And even if it was, Neil Kirby, every litigator's nightmare -- ignorant and arrogant -- damn near blows up the case: "My father never did anything on spec." I can respect that refusal to work on spec but....

Working on spec is a huge part of how Siegel and Shuster have gotten what they did.

Daniel, I've already said what I'm about to on the Timely-Atlas list nearly ad nauseum, but if you missed it, one more time:

There's approximately *one* reported legal decision regarding a comics creator attempting to regain copyrights to creations: The Siegel case. Read the decision and assume it's test is essentially the one that will be relied on in the Kirby case.

The Kirbys, specially now, can't meet it.

Daniel Best said...

It's not for me to decide who's right or wrong in this case, the same as I have no idea who will, or won't, prevail. Personally I don't think the Kirby's will win out, mainly because their defence doesn't appear to have been thought out all that well - they're claiming characters that Jack Kirby clearly did not create and that's going to be a hard cliff to climb.

The main crux will be convincing the court that what Kirby did was either work for hire or not - that is a grey area, but we'll see. However I'm not dancing around anything - I'm trying to be as impartial as can be, and in doing so, I can't win.

Let's see how it all pans out. However you can't really compare this case to the Siegel case - after it was clearly demonstrated that Siegel and Shuster SOLD Superman to DC, with Marvel and Kirby, Kirby came up with concepts that appear to have not been pre-existing.

Anonymous said...

Here's a portion of John's deposition where he comments on a calculated and outrageous falsehood elicited from Stan Lee by Disney attorney James Quinn. Toberoff also pointed out the apparent spoon feed testimony Lee gave on this question.
Q.

Lee in this case to the effect that whether pages were

rejected or not, if he had asked Jack to draw a story,

he would pay for it?

contradict a statement to that effect by Stan Lee?

Are you aware of testimony given by Stan

Do you have any reason to

MR. TOBEROFF:

Yeah, I do, I mean, there's a lot of

Asked and answered.

A.

historical references to artists saying when their work

got rejected, they didn't pay for it.

included one in here from John Romita talking about

when Stan canceled a story on him, he didn't get paid

for those.

I think I

But there's a lot of other instances

throughout all the stuff I've read and published over

the years, where people say things got rejected, we

didn't get paid for it, or, you know, Stan was always

asking me to make changes on things, and I didn't get

paid for it.

So, yeah, I've got a major reason to

dispute that.

TSG Reporting - Worldwide

877-702-9580

Anonymous said...

I hate to say this, but the thing is that Mark's testimony IS basically hearsay, and John's even moreso. I mean, I have the fanzines and interviews John has access to. Does that make me an expert witness? At least Mark Evanier WORKED with Kirby.

Daniel Best said...

Well that is the argument put forward. A lot of people have the same access to what John and Mark have, some would also have access to other unpublished interviews and information gained firsthand from Jack Kirby or others, so why aren't they experts?

The counter argument is that both John and Mark have made a career out of Jack Kirby, as stated in the legal document. Both make a living, of sorts, from publishing Jack Kirby information and both appear on panels. That, to a degree, makes them experts.

In this case the only one who really isn't operating from a field of hearsay is Stan Lee, and, to a lesser extent, Larry Lieber. Even Roy Thomas, John Romita and co are making statements after the time period. Stan worked with Jacki, Larry also worked with Jack, but then neither man were there, at the Kirby house, when Jack created concepts.

What would appear to be a mess really isn't, from a legal aspect. Yes, Mark worked with Jack, albeit briefly, John met Jack. It's not the same as being there though.

Anonymous said...

Absolutely. I think the Kirbys are working from a position that is nearly indefensible. At least from a legal standpoint. I honestly believe that the famed FF #1 synopsis probably kills their argument for those characters... Larry Lieber's involvement kills their claims on Iron Man and Thor going forward, and the less said about the Spider-Man debacle, the better. Of course, I'm no lawyer... but I can't imagine that there are better lawyers in the world in the field of trademark and copyright retention than the ones Disney fields.

I've said elsewhere that, while I like and respect Mark Evanier immensely (John Morrow, too), I don't particularly like how he's sort of set himself up as the Kirby Answer Man.

After reading all of this, I still don't know how I feel. Kirby was treated unfairly, absolutely. He should have been able to reap the benefits of cocreating (and I honestly do believe these are cocreations)these beloved characters. I feel bad saying this, and it's not like Disney needs the money or whatever... but I'm not sure that his estate is entitled to the same benefits.

I fully admit tho', that I may be biased because of the YEARS of tearing down Stan whilst building Kirby up (which Morrow has certainly contributed to, if only a little). It sometimes feels as if you're not supposed to like both men and their contributions.

It's not Stan's fault that he was better at self-promotion than Kirby was.

Daniel Best said...

I must be odd because I do admire both men for what they were and what they did for Marvel back in the day. I've always said I'd like to see a compromise whereby Marvel officially credit Kirby by placing his name alongside Lee's on the books that he did co-create, and possibly hand the family some cash. However it doesn't seem likely that even that'll happen, but then again, we're not the judge in this case, and if the legal system has taught me anything it's that it's the most unusual thing in the world and impossible to predict.

As for Mark and John, John I can and do respect because he's stuck to his guns and often presents both side of the story. Mark has set himself up as the only expert in the field and I've got something to say about that shortly...

It does seem unlikely that the Kirby's will prevail, which will surely unleash a new round of Stan Lee and Marvel bashing. Sad...