In Virginia College, LLC v. Martin the US District Court for the Southern District of Mississippi has ruled that malice expert witness testimony and reports should be excluded for making impermissible legal conclusions. The Court reasoned:
[name of expert] focuses his report on the failure of Plaintiff’s defamation claim. As pointed out by Plaintiff, his report reads like a motion for summary judgment. After reviewing the applicable law, [name of expert] ultimately opines that (1) there is no evidence that the Martins acted with actual malice, which is required to prevail on a defamation claim against a vortex public figure such as Virginia College; (2) the Martins’ statements are subject to absolute and/or qualified privilege; and (3) Virginia College cannot establish an injury resulting from the alleged defamatory statements. [name of expert] Report [178–1], Ex. A.
The Court finds these expert opinions and reports constitute impermissible legal conclusions and argument that should be excluded. Expert testimony is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. As this is a bench trial, the trier of fact is the undersigned, and the Court does not require an expert to apply the law to the facts, which is precisely what [name of expert] and [name of expert] endeavor to do. See Snap–Drape, Inc., 98 F.3d at 198 (affirming exclusion of opinions that were “nothing more than legal arguments”).