Economics Expert’s Opinion on Copyright Damages Excluded
Posted on October 22, 2025 by Expert Witness Profiler
Plaintiff The Upper Deck Company (“Upper Deck”) sued its former contractor, Ryan Miller (“Miller”), and its competitor, Ravensburger North America Inc. (“Ravensburger”), for claims arising from the alleged copying of Upper Deck’s new trading card game (“TCG”), Rush of Ikorr.
Miller filed motions to exclude Plaintiff’s expert witnesses Dr. Roberto J. Cavazos and Dr. Ian Bogost while Plaintiff filed a motion to exclude Miller’s expert witness James E. Pampinella.
Gaming Expert Witness
Dr. Ian Bogost serves as a professor of Film and Media Studies as well as Computer Science and Engineering at Washington University in St. Louis and enjoys international recognition “as a key figure in game design and game studies.”
Economics Expert Witness
Dr. Roberto J. Cavazos is an economics professor with thirty years of experience. He has worked in a number of areas including lost earnings, business damages, labor management relations for global
multinationals.
Accounting Expert Witness
James E. Pampinella CPA, CFF, CLP has been providing consultation services in the area of complex commercial litigation and valuation services for over 30 years, specializing in intellectual property strategic consulting and disputes, including matters involving copyrighted works.
Discussion by the Court
Miller’s Motion to Exclude Plaintiff’s Expert Bogost
Bogost is qualified to testify about TCGs
Miller sought to exclude Bogost’s testimony, arguing that he is not qualified to opine on TCGs, that his methods are unreliable, and that he offered improper legal opinions.
The Court noted that Bogost’s CV has a marked video game slant. However, his CV also contains several indications of general game expertise: throughout his career, Bogost has written several publications on games and game theory generally, taught multiple university courses on game design, and presented at several conferences on games.
Given Bogost’s ample experience in the field of games, game design, and game review—and because his opinions are based on specialized knowledge other than science—the Court found that Bogost met the minimum bar set by Rule 702 to qualify as an expert on TCGs.
Bogost’s methodology is sufficiently reliable to offer expert opinions about the two TCGs
Miller also challenged the reliability of Bogost’s methodology. Bogost first obtained two sets of Lorcana starter decks, which included “ready to play” decks, a booster pack of cards, a tabletop play mat, printed rules, and “a set of cardboard chits.” Bogost next considered what version of Rush of Ikorr to use in his analysis. After reviewing case materials, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design.
Miller took issue with how Bogost played Version 2.6 because he did not use overlays, and did not play in team mode. But as Upper Deck pointed out, Bogost could not recall whether he used the overlays and Rush of Ikorr can be played as a single-player or team-based game.
Bogost initially made determinations as to which versions of the games to obtain based on the particular facts in the record, then proceeded to play the games, and draw conclusions based on his knowledge of game mechanics.
Miller also moved to exclude Section E of Bogost’s report. In Section E, Bogost first explained that “rough-looking” materials, such as Version 2.6, still represent a substantially complete work product in the game design process. While the completeness of Version 2.6 was relevant to the copyright claim, the state of that work product when Miller left Upper Deck and whether it was sufficiently complete or valuable may also be relevant to Plaintiff’s contract claim.
Accordingly, the Court denied Miller’s motion to exclude Bogost.
B. Defendant’s Motion to Exclude Upper Deck’s Copyright Damages Expert Dr. Roberto Cavazos
In this case, Cavazos provided his opinion on copyright damages, estimating economic harm by analyzing the “market value” of rights allegedly taken, and by calculating Defendant Ravensburger’s profits allegedly derived from infringement of Upper Deck’s TCG.
Cavazos testified that his methods arise under copyright law, and were based upon his understanding from counsel of the applicable measure of copyright damages.
Cavazos does not attempt to quantify any alleged breach of contract by Miller, nor assign value to Miller’s work on Version 2.6 in the context of the profits from the Lorcana game, nor does it seem he would be qualified to do so. Rather, the royalty rate that Cavazos calculated considered only Ravensburger’s total global revenues and profits from sales of Lorcana, and did not attempt to apportion any value to Miller’s alleged disclosures of confidential information.
Cavazos admitted that he was not an expert in game design, did not identify the intellectual property at issue, and did not provide a basis for his one-third opinion, beyond that it “stands to reason” that some people would buy the game because of the underlying game design, not just because of the use of Disney IP.
The Court held that Cavazos’s opinions are no longer relevant to the issues in this case, and to the extent that they could be, he is not qualified to provide them.
C. Plaintiff’s Motion to Exclude Defense Damages Expert James Pampinella
With regard to Upper Deck’s general objection to Pampinella’s use of the costs approach, Upper Deck acknowledged that the method is one of three that is accepted by economic literature. Thus, Upper Deck’s objection to Pampinella’s decision to rely solely upon the costs approach concerned the weight rather than admissibility.
Upper Deck also took issue with Pampinella’s results under the costs approach, arguing that “it is illogical and unreliable for Pampinella to assert that there are no actual damages.” While Pampinella found no actual damages as to the alleged conduct of Ravensburger and Miller, he also concluded that Upper Deck could have suffered economic damages of up to $39,000—the amount paid to Miller under his contracts with Upper Deck.
The Court is also unpersuaded that Pampinella’s lack of expertise in the gaming industry damages renders his opinion inadmissible for the same reason it found Bogost’s lack of specialized TCGs experience not to be dispositive.
Held
- The Court denied Miller’s motion to exclude Dr. Ian Bogost’s testimony.
- The Court denied Upper Deck’s motion to exclude James E. Pampinella’s testimony.
- The Court granted Miller’s motion to exclude Dr. Roberto Cavazos’ testimony.
Key Takeaway:
It is true that the Daubert standard can be more difficult to apply where “expert testimony is ‘experience-based’ rather than ‘science-based.’ But here, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design.
Case Details:
| Case Caption: | The Upper Deck Company V. Miller Et Al |
| Docket Number: | 2:23cv1936 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | October 20, 2025 |
