Expert Historical Evidence Under The FRE

It was Henry Ford who opined "I wouldn't give a nickel for all the history in the world. History is more or less bunk." In a trial, can expert testimony be offered about historical matters to assist the jury in deciding the facts of the case? The Second Circuit recently confronted this question. While finding that the proffered historian's testimony under FRE 702 and FRE 703 was not "helpful" enough to resolve the questions involved, the circuit did observe that "no doubt ... a historian's 'specialized knowledge' could potentially aid a trier of fact" in an appropriate case, in Marvel Characters, Inc. v. Kirby, _ F.3d _ (2d Cir. Aug. 8, 2013) (No. 11–3333–cv)

One requirement to admit expert testimony under FRE 702(a) is that "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." The Second Circuit recently considered the extent that an expert witness may "offer historical perspective concerning the type of work and employment relationship between" the parties?

In the case, comic publisher Marvel sought a declaratory judgment against the heirs of Kirby, reputed to be "the most influential comic book artists of all time." The dispute concerned whether the heirs could terminate Marvel's copyright in certain comics "created between 1958 and 1963" which appeared in publications of Marvel and it's predecessors. If the comics were considered to be "works for hire," then the heirs woud not have the statutory rights to terminate the Marvel copyright. The trial judge resolved the case on a summary judgment motion filed by Marvel. After excluding testimony by two expert witnesses offered by the plaintiff heirs, among other actions, the district court "concluded that undisputed facts in the record establish[ed] as a matter of law that the works at issue were made at [plaintiff] Marvel's instance and expense, and were therefore works made for hire. This being so, the Kirbys [heirs] had no termination rights...." Marvel Characters, _ F.3d at _ (citing Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720, 729-30 (S.D.N.Y. 2011) (finding expert testimony inadmissible).

The heirs appealed to the Second Circuit, claiming as one error that the trial judge refused to admit testimony by "putative experts ... who purported to offer historical perspective concerning the type of work and employment relationship between Marvel and the comic artist Kirby. The Circuit affirmed the trial judge's exclusion of the purported expert testimony as not in conformity with the requirements of FRE 702. Specifically, the circuit noted that the proffer of the expert testimony would not "be helpful to the [trier of fact] in comprehending and deciding issues beyond the understanding of a layperson.” (Marvel Characters, __ F.3d at __ (citing DiBella v. Hopkins, 403 F.3d 102, 121 (2d Cir. 2005)).

Applicability Of The FRE To Expert Testimony

The Second Circuit noted that the expert testimony by an historian faced a number of evidentiary challenges. For example, one issue concerned the relevance of the testimony. In addition, the source of the historian's knowledge could come into play. For instance, the circuit explained that under FRE 703 concerning the bases of the expert's testimony, "a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.” This appeared to be much like the problem of the summary witness under FRE 1006, that the witness simply is a vehicle for retreading hearsay. The circuit noted the preference of the legal system that "[t]he appropriate way to adduce factual details of specific past events is, where possible, through persons who witnessed those events. And the jobs of judging these witnesses' credibility and drawing inferences from their testimony belong to the factfinder." (citing Nimely v. City of New York, 414 F.3d 381, 397–98 (2d Cir. 2005); Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 666 (S.D.N.Y. 2007)).

Not Using "Specialized Knowledge"

In Marvel Publications, the court focused specifically on the helpfulness to the factfinder aspect of expert testimony required by FRE 702. The circuit discussed the value of expert historical testimony generally and the problem with he particular testimony offered by the heir's historical expert witnesses:

We have no doubt that a historian's “specialized knowledge” could potentially aid a trier of fact in some cases. A historian could, for example, help to identify, gauge the reliability of, and interpret evidence that would otherwise elude, mislead, or remain opaque to a layperson. He or she might helpfully synthesize dense or voluminous historical texts. Or such a witness might offer background knowledge or context that illuminates or places in perspective past events.

But [the heirs' expert historian witnesses] Morrow and Evanier do not bring their expertise to bear in any such way. As the district court recognized, their reports are by and large undergirded by hearsay statements, made by freelance artists in both formal and informal settings, concerning Marvel's general practices towards its artists during the relevant time period. See, e.g., Deposition of Mark Evanier, Dec. 6, 2010, at 18–21, Joint App'x at 957–59. Drawing from these statements, they then speculate as to the motivations and intentions of certain parties, see, e.g., Expert Report of John Morrow at 9, Joint App'x at 1152 (“I do not believe that Goodman, Lee, Marvel or the freelance artists, like Jack Kirby, ... thought that the material they created was ‘work made for hire’ ....”), or opine on the credibility of other witnesses' accounts, see, e.g., Expert Report of Mark Evanier at 14, Joint App'x at 1105 (“I have great respect and personal affection for Stan Lee, but I disagree with the accounts he has sometimes given....”).
Marvel Characters, __ F.3d at __ (citing Maxine D. Goodman, Slipping Through the Gate, 60 Baylor L. Rev. 824, 857 (2008) (commenting that a historian's task is “to choose reliable sources, to read them reliably, and to put them together in ways that provide reliable narratives about the past” (quoting Martha C. Howell & Walter Prevenier, From Reliable Sources: An Introduction to Historical Methods 2 (2001))); Int'l Soc. for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981) (“In fact, one religious expert at trial remarked that the American movement is ‘one of the most unusual examples of transfer of a cultural tradition across broad national and cultural barriers.’ This evidence of historical longevity and theological consistency should not be ignored.”)).


The Marvel Characters case focuses on the requirement whether the expert testimony is helpful to the jury. Apparently there was no challenge to the expertise of the historical witnesses. There was, however, the problem of whether the witnesses were utilizing their historical skills and expertise as is required to opine in court. This arose in Marvel Characters when the witness essentially (a) launders hearsay statements and accounts for the fact-finder; (b) primarily "speculate[s] as to the motivations and intentions of certain parties" in the case, or (c) "opine[s] on the credibility of other witnesses' accounts." This is distinguishable from appropriate uses identified by the circuit, which include, testifying as to "reliable sources, to read them reliably, and to put them together in ways that provide reliable narratives about the past” or to more generally identify "evidence of historical longevity and theological consistency....”)). Marvel Characters, __ F.3d at __ (citations omitted)).


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