1

 At the May 29, 2008 status hearing, the Court expressed an inclination to allow these witnesses

to testify. However, the FTC is nevertheless filing its motion in limine for two reasons: 1) to

exclude improper testimony that will unduly protract the hearing, and 2) to lay the foundation to

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

 

:

FEDERAL TRADE COMMISSION, :

Plaintiff, :

v. : Civil Action No. 03-C-3904

:

KEVIN TRUDEAU, :

Defendant. :

 

PLAINTIFF’S MOTION IN LIMINE TO DISQUALIFY 

PROPOSED EXPERTS AND EXCLUDE THEIR TESTIMONY

Plaintiff Federal Trade Commission (“FTC”) respectfully moves the Court to disqualify

Jeffrey Harris and Avin Mark Domnitz as experts and to exclude their testimony. Fed. R. of

Evid. 702 permits the expert testimony of a witness qualified “by knowledge, skill, experience,

training, or education” if such expert testimony will “assist the trier of fact to understand the

evidence or determine a fact in issue.” Trudeau has proffered Mr. Harris and Mr. Domnitz as

experts and therefore bears the burden of demonstrating that their testimony meets this standard. 

See Amakua Development, LLC v. Warner, Case No. 05-C-3082, 2007 U.S. Dist. Lexis 49952, at

*19-20 (N.D. Ill. 2007). However, neither Mr. Harris nor Mr. Domnitz pass muster under Rule

702. Specifically, as discussed in greater detail below, the Court should exclude Mr. Harris’s

testimony because: 1) it includes impermissible legal conclusions concerning the meaning of the

Court’s Order; 2) it is irrelevant; and 3) Mr. Harris is not qualified as an expert either to interpret

court orders or the FTC’s mirror image doctrine. The Court should also exclude Mr. Domnitz’s

testimony because his knowledge of the book industry includes no expertise concerning the

impact of infomercial advertising on the retail sale of books.1

Case: 1:03-cv-03904 Document #: 148 Filed: 07/17/08 Page 1 of 9 PageID #:2469
object to any request by Trudeau for the FTC to pay the costs associated with taking discovery

from these proposed witnesses pursuant to Fed. R. Civ. P. 26(b)(4)(C). 

2

I. JEFFREY HARRIS IS NOT QUALIFIED TO TESTIFY AS AN EXPERT

CONCERNING ANY LEGALLY PERMISSIBLE ISSUE RELEVANT TO THIS

CASE.

The Court has already found Trudeau in contempt of the Stipulated Order for Permanent

Injunction (“2004 Order” or “Order”), specifically holding that Trudeau flagrantly

misrepresented the content of his WLC book in infomercials. See Court’s Memorandum Opinion

and Order of November 16, 2007, Ex. 16 of FTC’s Consolidated Exhibits in Support of its

Remedy Briefs. However, Trudeau’s motion for reconsideration attempts to resurrect the

contention that he was “reasonably diligent and energetic” in his attempts to comply with the

Order. To that end, he proffers the opinion of purported expert Jeffrey Harris, an attorney who

briefly worked at the FTC during the years 1979 to 1981, that Trudeau has reasonably complied

with the FTC’s Advertising in Books Policy Statement (also known as “the mirror image

doctrine”). Mr. Harris’s testimony should be excluded because: 1) his opinion includes

impermissible legal conclusions about the meaning of the Order; 2) his opinion concerns the

irrelevant issue of whether Trudeau complied with the mirror image doctrine, and 3) Mr. Harris

is not qualified to provide expert testimony on the mirror image doctrine. 

1. Mr. Harris’s Expert Testimony Impermissibly Offers Legal Conclusions

About the Meaning of the Order

Mr. Harris’s opinion that the plain language of the Order somehow incorporates the

mirror image doctrine is a legal conclusion that exceeds the parameters of permissible expert

testimony under Fed. R. Evid. 702. “The Federal Rules of Evidence prohibit experts from

offering opinions or legal conclusions on issues that will determine the outcome of the case.” 

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2

 Even if the Order were viewed as more akin to a contract, it would be impermissible for Mr.

Harris to opine on its meaning. See Loeb v. Hammond, 407 F.2d 779, 781 (7th Cir. 1969) (“The

question of interpretation of the contract is for the jury and the question of legal effect is for the

judge. In neither case do we permit expert testimony.”). 

3

McCabe v. Crawford & Co., 272 F. Supp. 2d 736, 739 (N.D. Ill. 2003). Moreover, “the only

legal expert in a federal courtroom is the judge.” United States v. Caputo, 517 F.3d 935, 942

(7th Cir. 2008) (affirming the district court’s exclusion of expert testimony as to the meaning of

a statute and regulations). Put simply, the meaning of a court order is not a matter for expert

testimony.2 Further, as the court noted in its contempt findings, the Order is “simple and direct.” 

Ex. 16 at 8. Accordingly, it requires no expert explanation. 

Similarly, Mr. Harris’ opinion as to whether Mr. Trudeau’s interpretation of the Order

and subsequent conduct were “reasonably diligent and energetic in attempting to accomplish

what was ordered,” see Ex. 16 at 7-8, is also an impermissible legal opinion that usurps the role

of the Court. Moreover, along with being an impermissible legal opinion, Mr. Harris’ opinion

also lacks a factual basis in that he purports to be able to opine on whether Trudeau was

“reasonable,” without ever having spoken to Trudeau about what steps he took to comply. 

Harris Depo at 85 (Attachment A). In short, the Court has no need for an “expert” in

understanding its own Order or the applicable law.

2. Mr. Harris’s Expert Testimony as to Whether Trudeau Complied with the 

Mirror Image Doctrine Is Irrelevant.

Along with offering impermissible legal conclusions, Mr. Harris’ testimony is

completely irrelevant because there is no basis for his assertion that the Order somehow

incorporates the mirror image doctrine. Specifically, Mr. Harris attempts to opine on the

meaning of the Order by somehow concluding that it is “coextensive” with the mirror image

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4

doctrine. Thus, by Mr. Harris’s reasoning, proof of Trudeau’s compliance with the mirror image

doctrine would equate to proof of Trudeau’s compliance with the Order. Harris Depo at 31. 

However, the Order by its plain language does not in any manner incorporate, reference

or otherwise mention the mirror image doctrine nor does it contain “commonly understood”

language that magically makes it “co-extensive” with the mirror image doctrine, as Mr. Harris

suggests. Harris Depo at 30. Rather, as the Court noted, the Order language at issue is “simple

and direct” in requiring that Trudeau not misrepresent the content of his books in infomercials. 

Ex. 16 at 8.

Because the Order does not contain the language of the mirror image doctrine, Mr. Harris

takes a Herculean leap – opining that the Order language requiring that Trudeau “not

misrepresent the content of the book” is “understood” by the FTC and business community to be

“co-extensive” with the mirror image doctrine. The only basis for this contrived reasoning is

Mr. Harris’ opinion that “it is custom and practice in the field of trade regulation, both by FTC

staff and practitioners in the field advising clients, that the term ‘not misrepresent the contents of

the book’ is understood to be co-extensive with the Mirror Image Doctrine.” Harris Depo at 30. 

Such a leap not only violates basic canons of interpretation, but would limit the application of

the Order to “FTC staff and practitioners in the field” familiar with the doctrine – as opposed to

Trudeau and those in active concert and participation with him pursuant to Fed. R. Civ. P. 65(d).

3. Mr. Harris Is not Qualified to Provide Expert Testimony as to Whether 

Kevin Trudeau Has Complied with the Mirror Image Doctrine

Mr. Harris is not qualified to testify as an expert on the subject for which he is proffered

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3

 Mr. Harris’s report provides four distinct opinions, three of which focus on the mirror image

doctrine and its applicability to the current proceedings. Harris Report at 3-15. As a result, the

bulk of the report is devoted to Mr. Harris’s explanation of why he believes Trudeau’s WLC

infomercials comply with the mirror image doctrine, and by “co-extensi[on],” the Order. 

5

– namely the mirror image doctrine.3

 Mr. Harris states that his expertise lies “in the field of FTC

regulation and enforcement relating to, among other fields, advertising and commercial speech.” 

Harris Report at 1 (Attachment B). However, by his own admission, Mr. Harris has been

involved in only one case in his 40-year career in which the mirror image doctrine was at issue. 

Harris Depo at 10-11. Even during his three year stint at the FTC twenty-seven years ago, he

does not recall being personally involved in any matters that dealt with the mirror image doctrine

because such matters “are pretty sparse,” and the agency may not even have had such a case

during his tenure. Harris Depo at 13-14. 

Moreover, apart from the single case, the extent of Mr. Harris’s experience with the

mirror image doctrine is limited to two forums: (1) his participation in general policy

discussions, when he was at the agency from 1979 to 1981, where the mirror image doctrine

would be raised “from time to time;” and (2) his discussions, in private practice, with clients

whose matters did not necessarily involve book advertising, but for whom he provided a general

overview of advertising and First Amendment law that included some explanation of the mirror

image doctrine merely as part of “the playing field.” Harris Depo at 13-17. 

Mr. Harris has never before testified as an expert or served as a consulting witness on the

mirror image doctrine or anything else. Harris Depo at 4-8. His proffered opinions in this case

are no place to start. In exercising its “general ‘gatekeeping’ authority,”Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 141 (1999), the Court may reject expert testimony that will not

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6

“assist the trier of fact to understand the evidence or determine a fact in issue.” Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993) (quoting Fed. R. Evid. 702). Here, Mr.

Harris’s proffered legal conclusions, irrelevant application of the mirror image doctrine, and lack

of relevant experience would be of no assistance to the Court and his testimony should be

excluded. 

II. AVIN DOMNITZ IS NOT QUALIFIED AS AN EXPERT ON ISSUES RELEVANT

TO THIS CASE.

Trudeau also proffers the expert report and testimony of Avin Mark Domnitz to rebut the

presumption that his widespread infomercials are responsible for all sales of the WLC book,

including those made through retail outlets. Mr. Domnitz is not qualified to render an expert

opinion in this case because his experience does not reach that issue. Specifically, Mr. Domnitz

is not qualified to opine on the impact of infomercials on retail sales of the WLC book because

he has virtually no experience with infomercial advertising being used as a method for marketing

books. 

In his report, Mr. Domnitz sets out the factors that, in his opinion, drive the sale of books

in retail stores. Domnitz Report at 1-2 (Attachment C). Mr. Domnitz has experience in

evaluating a number of factors that may influence the sale of books in retail stores including: the

in-store placement of a book; the size/design of in-store displays; the reputation of the author;

the book jacket; the title/subject of a book; the customer’s review of the book; word-of-mouth;

book reviews; recommendations from media personalities; and interviews of the author. 

Significantly, however, according to Mr. Domnitz, television and radio advertising typically

constitute a relatively small portion of book marketing. Domnitz Report at 2. For this reason, he

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7

opines that television and radio advertising do not carry nearly the weight of a factor such as

word-of-mouth. Domnitz Depo at 24-25 (Attachment D). 

Thus, this contempt action involves a scenario that Mr. Domnitz himself acknowledges is

uncommon in his experience – the marketing and sale of a book through both direct-response

infomercials and retail outlets. Domnitz Report at 7. The question, therefore, for purpose of

Rule 702’s gatekeeping mandate, is whether Mr. Domnitz has the requisite expertise to opine on

the impact of widespread infomercials on retail sales. By his own admission, he does not. 

Indeed, when asked a series of questions at his deposition regarding the impact of

television and radio advertising on retail sales, Mr. Domnitz answered, “I have a hard time even

answering this question because there is so little [television and radio advertising]. I don’t even

have an opinion.” Domnitz Depo at 24-25. When asked what percentage of books sold in retail

stores might have television advertising associated with them, Mr. Domnitz answered that he

would be “shocked” if it was even as high as five percent, and that “in the overwhelming number

of books, it’s zero.” Domnitz Depo at 28-29. In short, Mr. Domnitz has no experience

analyzing the impact of widespread infomercial advertising on sales in retail bookstores. 

Experience aside, it is difficult to imagine anyone being able to offer relevant expert

testimony concerning the impact of infomercials sales on a particular book without having

performed a case-specific analysis. Mr. Domnitz has not performed any such analysis of the

advertising and sales of the WLC book. Domnitz Depo at 80-82. Therefore, his expert report

and testimony should be excluded. 

//

//

//

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8

III. CONCLUSION

For the foregoing reasons, the FTC moves this Court to disqualify Jeffrey Harris and

Avin Mark Domnitz as experts and to exclude their testimony.

Dated: July 16, 2008 Respectfully submitted,

WILLIAM BLUMENTHAL

General Counsel

DAVID A. O’TOOLE

Federal Trade Commission

55 West Monroe St., Suite 1825

Chicago, Illinois 60603

phone: (312) 960-5601

fax: (312) 960-5600

dotoole@ftc.gov

s/ Sandhya Prabhu 

LAUREEN KAPIN 

ELIZABETH TUCCI

SANDHYA PRABHU

Federal Trade Commission

601 New Jersey Ave, NW Suite 2215

Washington, DC 20001

phone: (202) 326-3237, -2402, -2040

fax: (202) 326-2559

lkapin@ftc.gov; etucci@ftc.gov;

sprabhu@ftc.gov

Attorneys for Plaintiff

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9

CERTIFICATE OF SERVICE

I, Sandhya Prabhu, an attorney, hereby certify that on July 16, 2008, I caused to be

served true copies of the Plaintiff’s Motion in Limine to Disqualify Proposed Experts and

Exclude Their Testimony by electronic means and by filing such document through the Court’s

Electronic Case Filing System, which will send notification of such filing to:

David Bradford, Esq. and Daniel J. Hurtado, Esq. 

Jenner & Block

330 N. Wabash Ave.

Chicago, IL 60611-7603

dbradford@jenner.com

dhurtado@jenner.com

s/ Sandhya Prabhu 

Sandhya Prabhu

Attorney for Plaintiff

Federal Trade Commission

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