In Robocast, Inc. v. Apple, Inc., C.A. No. 11-235-RGA (D. Del. Jan. 28, 2014), Judge Richard G. Andrews granted defendant’s Daubert motions to exclude plaintiff’s expert on the subject of internet advertising as well as its damages expert. The internet advertising expert had relied on various internet sources to conclude that “Automated Browsing System (‘ABS’) advertising increases Click Through Rates (‘CTR’) an average of 33% over static advertising.” Id. at 1. The sources included sites that defendant claimed were “unreliable because they were either self-interested sales pitches or misread by” the expert. Id. at 2.
The Court concluded that this evidence was unreliable and had not been reliably applied. First, “[s]tatistical information in press releases and other promotional materials is of doubtful reliability.” Id. at 3. The Court pointed out that it “only ha[d] to consider that the [allegedly unreliable] sources have a wide spread (21% to 68%), which one would not expect if they were accurately measuring the same thing.” Id. at 3-4. The Court “also consider[d] that the ‘statistics’ have nothing approaching a sufficient explanation of what they are purporting to measure.” Id. at 4. As a result, the Court held that the expert’s testimony “was unreliable, and was unreliably applied” and it excluded the testimony. Id. Because the testimony of the internet advertising expert formed the foundation of the damages expert’s testimony, the Court also excluded the damages expert’s testimony. Id.