Bubba Clem (known as Todd Clem before he changed his name) is a radio host who is better known by his on-air name, Bubba the Love Sponge. He generally fits the mold of a “shock jock” and has more than once been in trouble with his employers and the Federal Communications Commission for making racially offensive remarks and treating his listeners to graphic descriptions of sexual activities.
Bubba was recently in the news for surreptitiously filming his wife while she was having sex with Hulk Hogan. That video sparked a highly-publicized lawsuit after Gawker placed the video on its website. ExpertPages discussed the expert testimony offered by Hulk Hogan in this post.
Nielson Audio, the ratings company, sued Bubba for fraud and related wrongs after Bubba attempted to influence a member of the Nielson ratings panel. Nielson attempts to keep the identities of panelists a secret, and prohibits subscribers to its ratings service from contacting them.
Bubba admits that he had contact with a member of the Tampa ratings panel, although how that came about may be a disputed fact. It is not disputed that Bubba tried to influence the panelist by encouraging the panelist to listen to his show.
Nielson uses devices that look like pagers to measure the listening habits of its panelists. Nielson contends its panelists are representative of the listeners in a given marketplace. If a panelist tunes in to a particular show, Nielson may conclude that thousands of people in the relevant marketplace listened to the same show.
Nielson has accused Bubba of shipping radios to the panelist’s home after instructing the panelist to manipulate that data that Nielson collects. The suit alleges that Bubba offered to pay the panelist each month to help Bubba boost his ratings.
Text messages quoted in the lawsuit suggest that Bubba instructed the panelist never to listen to his “main rival” in Tampa. The suit also alleges that Bubba influenced at least one other member of the same panel.
Bubba was suspended for eight days after his actions became public. He subsequently apologized.
Nielson claims that its subscribers have questioned the integrity of its data as a result of Bubba’s misconduct. According to Nielson, Bubba’s fraudulent attempt to boost his ratings caused Nielson to suffer irreparable damage to its “reputation and the reputation of its rating reports as an unbiased tool.”
Whether a jury will agree that the harm was either irreparable or significant is unclear, as Nielson may have repaired the damage by removing the tainted data from its ratings report and by de-listing the station that employed Bubba for one month. To prove that its claims are substantial, however, Nielson enlisted the services of an expert witness.
Nielson proposed to call David A. Haas as a damages expert. Haas has an M.B.A. and specializes in management accounting. Haas proposed to testify about the injury that Bubba’s conduct had on Nielson’s reputation and goodwill.
Bubba filed a Daubert motion, asking the court to exclude Haas’ testimony because:
- Haas is not an expert in the radio industry or in the measurement of radio audiences;
- Haas based his opinion on data provided by Nielson without independently verifying it;
- a layperson could just as easily determine damages, so Haas’ analysis would not assist the jury;
- Haas did not investigate other potential causes of harm to Nielson’s loss of goodwill or damaged reputation; and
- Haas’ proposed testimony is prejudicial even if it is relevant.
The district court rejected those claims. The court noted that Haas has calculated damages in dozens of cases for businesses in a variety of industries. Expertise, the court said, need not be industry-specific when “broadly applicable calculations and measurements” are adequate to assess damages, and when there is no reason to believe that experience in a specific industry is necessary to calculate damages accurately.
The court noted that Haas is entitled to rely on data provided by Nielson since it is the kind of data upon which experts routinely rely. Whether the data is accurate is a question that the jury can decide if it is contested at trial. The court also questioned whether it would have been possible for Haas to independently verify Nielson’s internal data by contacting a knowledgeable outside source, since no sources were identified who would have access to that data.
Bubba argued that Nielson will not be forced to grant pricing concessions as a result of his misconduct because Nielson has a virtual monopoly over audience measurement, so customers have no choice but to pay what Nielson asks. The court thought that was an argument for the jury to consider rather than a reason to exclude Haas’ testimony. Haas relied on documents showing that pricing concessions were requested by one customer, and his discussions with Nielson about those documents supported his opinion.
Haas calculated harm to reputation and goodwill by using a “financial modeling technique.” The court decided that his testimony therefore goes beyond the calculations a lay jury could make without expert assistance.
The court concluded that Haas was not required to consider alternate sources of harm to Nielson’s reputation and that his failure to do so goes to the weight the jury should give his opinions, not to their admissibility.
Finally, the court found nothing prejudicial about Haas’ testimony, given that Bubba intends to offer his own expert to refute Haas’ opinions. It will be up to the jury to weigh the opinions of each expert when and if it measures damages.