Some More on Expert Witnesses in Libel Lawsuits

Former Congressman Alan Grayson, now running for the Senate in Florida, is producing some interesting caselaw.

Again, from Judge Paul Byron (M.D. Fla.) in Grayson v. No Labels, Inc., decided last week (for another opinion in the same case, about a different expert, see this post):

The Plaintiff, Alan Grayson, contends in his Second Amended Complaint that the Defendants, acting through Progress Tomorrow, published false and defamatory statements which damaged him "personally, professionally, and ultimately politically." The allegedly defamatory statements fall into three categories: (1) citation to a Congressional Ethics Investigation finding candidate Grayson had "Abused His Office for Financial Gain," including by using "taxpayer resources to conduct his high-risk investor scheme;" (2) images of Grayson's passport photograph with dollar signs replacing his eyes, an attaché case containing $150,000, and images implying he flew to the Cayman Islands to launder the money; (3) statements relating to accusations made by Grayson's ex-wife in connection with their divorce proceedings during which she accuses him of spousal abuse….

The Plaintiff retained Mr. David Heller to offer expert testimony concerning the cost associated with repairing the Plaintiff's reputation within the 9th Congressional District. Mr. Heller concludes that the cost of producing and purchasing mail, television and internet advertising designed to rehabilitate Mr. Grayson's reputation within the 9th Congressional District is $16.777 million dollars. That said, Mr. Grayson has not spent any money to date to rehabilitate his reputation in the 9th Congressional District or anywhere else. Further, it is undisputed that Mr. Grayson's intention is to run for the United States Senate and not the House of Representatives. Notwithstanding this fact, Mr. Heller's opinion is limited to the cost of rehabilitating Mr. Grayson's reputation within Florida's 9th Congressional District.

Federal Rule of Evidence 702 permits "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education" to testify in the form of an opinion. In Daubert v. Merrell Dow Pharmaceuticals, Inc. L.Ed.2d 469 (1993), the Supreme Court explained that Rule 702 imposes an obligation on a trial court to act as gatekeeper to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.³ District courts are charged with this gatekeeping function "to ensure that speculative, unreliable expert testimony does not reach the jury" under the mantle of reliability that accompanies "expert testimony." Thus, the party offering an expert opinion has the burden of establishing three criteria: qualification, reliability, and helpfulness….

Mr. Heller opines that the allegedly defamatory political advertisements damaged Mr. Grayson's reputation and caused him to lose a primary challenge against the incumbent Congressman Darren Soto. Mr. Heller relies on a Democratic poll conducted in June 2018 where 504 likely Democratic primary voters for Florida's 9th Congressional District had Grayson leading Soto by a margin of 45% to 38% with a margin of error of 4%. After the "anti-Grayson" ad campaign was launched, Soto received twice as many votes as Grayson and won re-election. Mr. Heller opines that, based on his experience, negative advertising "has [a] much greater impact on voters than does positive advertising" and it is difficult to undo. Mr. Heller calculates the cost of producing and purchasing 3.5 as many mailers as were issued in the "anti-Grayson" campaign at $2,397,000. And Mr. Heller determines that, based on his experience, the Plaintiff must also purchase television ads to counter the negative ads aired on Facebook, Instagram, Twitter, "and perhaps other social media." The cost of television ads is calculated to be $4,790,000. Finally, Mr. Heller opines it will be necessary to produce "two different ads to rebut" each allegedly defamatory statement. The grand total of the media campaign targeting the 9th Congressional District is $16,777.000. …

In Daniels v. HSN, Inc. (M.D. Fla. Feb. 3, 2020), the plaintiff's lawsuit included a claim for defamation per se. In discussing special damages, the Court rejected the plaintiff's argument that he could prove special damages through expert testimony concerning the cost of repairing his reputation online. The Court held special damages are actual, out of pocket losses; that is, realized or liquidated loss. Mr. Heller's expert report does not address actual, out of pocket losses, because Grayson has not spent money to rehabilitate his reputation in the 9th Congressional District. {See, e.g., Thermolife International LLC v. Vital Pharmaceuticals Inc. (S.D. Fla. 2020) (finding that the counter-claimant had sufficiently alleged special damages by alleging that it was seeking damages in the form of "expenses incurred to counteract the disparaging effect" of the false statements); Jameson Land Co., LLC v. Mosaic Fertilizer, LLC (M.D. Fla. 2016) (finding that the plaintiff had sufficiently alleged special damages by alleging that it had incurred expenses to counteract the false publication).} Moreover, as discussed above, Grayson has no interest in running for a seat in the 9th Congressional District, rendering Mr. Heller's opinions concerning the cost of producing and publishing positive political ads irrelevant to any issue in dispute. Grayson literally seeks costs related to securing a job he does not want. Under no construction of the law does this amount to a compensable damage. Accordingly, Mr. Heller's expert opinions fail to satisfy the third prong of the Daubert analysis.

{This is not to suggest that Mr. Grayson does not have a claim for general damages, assuming the jury concludes some of the statements are defamatory—it is simply to stress that Mr. Heller's opinions do not advance that element of Grayson's claim.} …

For the sake of completeness, the Court finds that Mr. Heller possesses the requisite technical and otherwise specialized knowledge based on his extensive employment history to offer expert opinions on the manner and means of producing and publishing favorable political advertisement and the costs associated doing so. While Mr. Heller may not have been specifically employed in the field of reputational repair, assuming such a thing exists, he has considerable experience working as a political media consultant. The specialized knowledge acquired in this field since 1991 qualifies Mr. Heller to offer expert opinions concerning the cost of producing and publishing political advertisements. And so, the first prong of the Daubert analysis is satisfied.

The second prong of the Daubert test—a reliable methodology—presents a more challenging issue. Mr. Heller surmises that the allegedly defamatory statements produced by Progress Tomorrow and published at its direction caused Grayson to lose the primary election for Florida's 9th Congressional District. According to Mr. Heller "[t]he amount of damage done to Grayson's reputation in this case is relatively clear." That said, Mr. Heller relies on only two data points: (1) a survey conducted by a Democratic polling firm in 2018 in which 504 likely Democratic primary voters favored Grayson over incumbent Congressman Soto, and (2) the fact that notwithstanding his apparent lead, Grayson lost to Soto, the latter candidate receiving twice as many votes as Grayson. The survey canvassed just under 1% of the eligible Democratic primary voters. {According to Mr. Heller there were 55,114 votes cast in the 2018 Democratic primary, and 504 eligible voters were surveyed in June before the negative political ads were aired.}

Mr. Heller did not conduct, and does not cite, any surveys of eligible Democratic primary voters conducted after the August 2018 negative political ad campaign to assess whether the "anti-Grayson" ads negatively impacted the voter's opinion of Grayson and caused the voter to vote for Congressman Soto. While testing is not an absolute prerequisite to the admission of expert testimony, "an expert who conducts no testing must be prepared with a good explanation as to why his or her conclusion remained reliable notwithstanding the absence of testing." Mr. Heller fails to explain why he did not conduct a survey of individuals residing in the 9th Congressional District to gauge the impact, if any, of the so-called "anti-Grayson" ads. This survey could have been conducted shortly after the election while the voter's impression of the negative ads was fresh. The data from the survey could possibly have provided a basis for a statistical analysis of the impact of the allegedly defamatory statements on the election, assuming the survey was large enough and asked relevant questions using a reliable format.

Even so, Mr. Heller is not qualified to interpret a survey of this kind and could not offer an opinion as to the reliability of the data collected and its impact on the election. Simply put, the record before the Court does not identify a single voter who was otherwise inclined to vote for Grayson but did not do so because of the negative ads.

The Court is therefore left to consider whether a poll taken of 1% of the eligible Democratic voters (conducted before the negative ad campaign began) coupled with Grayson's loss is a reliable methodology upon which to find a causal connection between the negative political ads and the outcome of the election. While it may be commonsense that negative political advertisements do not help a candidate, they are a fixture of American politics and candidates win elections even when confronted with a blitzkrieg of negative ads. A single poll conducted before an election and focused on a thin slice of the eligible electorate, combined with an election loss, is not a methodology. Mr. Heller does not cite any studies where such meager data was used to accurately predict the outcome of an election, and the Plaintiff cites no caselaw holding the methodology, or even a similar methodology, carries the day.

As a final point, the Court finds that Mr. Heller's opinion that positive advertising must be produced and published at a ratio of 3.5 to 1 to repair Grayson's reputation in the 9th Congressional District is entirely unsupported. While Mr. Heller has extensive experience as a political media consultant, he does not cite to any prior campaigns where he was involved in rebutting negative advertisements and found a ratio of 3.5 to 1 positive over negative advertisement reversed the impact of the negative ads. As Mr. Heller conceded at deposition, he cannot identify a basis for this ratio. Mr. Heller also admitted he had not conducted any studies to arrive at this multiplier.

Accordingly, Mr. Heller's opinions that the allegedly defamatory statements caused Grayson to lose the election are not supported by a reliable methodology, nor is his opinion that a multiplier of 3.5 to 1 is necessary to repair Grayson's reputation….