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Bid to Exclude Experts |at Telenovela Trial Fails

MIAMI (CN) - The parties in a case in which Telemundo is accused of violating the copyright on a popular Argentine telenovela cannot block the testimony of their adversary's expert witnesses, a magistrate judge ruled.

Latele Television C.A. sued Telemundo Communications on July 12, 2012, claiming the Spanish-language networks, "El Rostro de Analia" telenovela infringes on Labelle's "Maria Maria," a soap opera that originally aired in 1989.

To carry out the scheme, the complaint said, Telemundo hired "Maria Maria" author Humberto Olivieri Michelena, to develop "El Rostro de Analia," a show so similar to its predecessor as to be a virtual remake.

Both sides filed motions seeking to exclude the other side's expert witnesses, or at least call into question the weight of their expert opinions.

Telemundo challenged Latele's use of Tomas Lopez-Pumarejo, a professor with two doctorates in literature, as an expert witness, claiming he is "offering impermissible legal conclusions."

Lopez has "no doubt" that "El Rostro" is a remake or "Maria Maria," the motion says.

Meanwhile, Latele challenged Telemundo's use of two expert witnesses: Carolina Acosta-Alzuru, a professor who has published research on telenovelas, and Ben Sheppard, an entertainment business accountant hired to rebut a report on Telemundo's profits from "El Rostro."

Acosta says the differences between "El Rostro" and "Maria Maria" outweigh the similarities between the shows. Latele said Acosta's testimony lacks merit because she has never written a telenovela, is not a literary expert, and is not familiar with copyright infringement elements.

The plaintiff also challenged Sheppard's testimony, saying his infringement damages calculation is speculative and a case of "the blind leading the blind" because he has never before given expert damages testimony in a copyright lawsuit.

U.S. Magistrate Judge Jonathan Goodman denied all three motions to exclude testimony, holding that there will be opportunity enough for the parties to challenge the experts' opinions once the trial gets underway.

"At trial, defendants will be able to question Lopez about his less-than-complete review of the two works, and this cross-examination, which the undersigned anticipates will be rigorous, should be sufficient protection," Goodman wrote.

The same holds true for Latele's challenge to Acosta's testimony, the judge ruled

"Acosta is the only proffered expert in the case who actually viewed and analyzed all 376 hours of the audiovisual productions of the two telenovelas. She prepared recaps of each episode as they were viewed, re-read the recaps and produced diagrams to summarize the plot of each of the two works," Goodman wrote. "The mere fact that she has not written a telenovela herself is insufficient to preclude her expert testimony."

The plaintiff's concerns about Sheppard's testimony can also be addressed at trial, Goodman ruled.

"Latele contends that Sheppard's calculations are inaccurate and based on improper approaches to classifying items for financial analysis. But the 'identification of such flaws' is 'precisely the role of cross-examination,'" the magistrate wrote.

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