Expert Witness Profiler

Tag: Qualification

Vermont Court limits executive search and recruitment expert’s opinions regarding Plaintiff’s job qualifications and associated compensation range

This case involved a claim of malicious prosecution brought by Plaintiffs Robert Wolfe and Crossfield, Inc. against Defendants Enochian BioSciences Denmark ApS, Enochian BioSciences, Inc., Rene Sindlev, and Luisa Puche. Wolfe was a citizen of Vermont and the CEO and sole shareholder of Crossfield. Enochian BioSciences was a publicly traded Delaware corporation and the parent company of Enochian Denmark, which was located in Denmark. Sindlev was the Chairman of Enochian BioSciences and Puche was its CFO. 

Enochian Denmark had hired Wolfe as a consultant and CFO in 2017. His employment agreement contained confidentiality provisions barring disclosure of Enochian’s confidential information during or after his employment. In December 2018, Sindlev informed Wolfe he would be terminated as CFO. The Enochian Board of Directors then voted to terminate him later that month. 

After Wolfe’s termination, a dispute arose over payments he sought related to his employment. In February 2019, Wolfe filed a lawsuit in Denmark against Enochian seeking these payments. Prior to filing, Wolfe’s attorney had emailed Enochian a draft complaint containing allegedly confidential information about payments Enochian had made for security services for its scientific advisor Serhat Gumrukcu. 

Enochian then filed a lawsuit against Wolfe in Vermont state court in February 2019, alleging he had disclosed Enochian’s confidential information and seeking injunctive relief to bar further disclosures. Enochian was initially granted a temporary restraining order but in December 2019, after a hearing, the Court dissolved the TRO and held Enochian had failed to satisfy the requirements for a preliminary injunction. In April 2020, Enochian moved to dismiss its Vermont lawsuit with prejudice. The Court conditionally granted the motion in November 2020 and awarded Wolfe his costs but not attorney’s fees.

In April 2022, Wolfe withdrew his Danish lawsuit and brought his claim before an arbitrator. The Danish Court still found Wolfe to be the unsuccessful party and ordered him to pay costs to Enochian, which he had not done.

In the current federal case, Wolfe and Crossfield brought a malicious prosecution claim against Enochian, Sindlev, and Puche. They alleged the Vermont lawsuit was improperly initiated to gain leverage in the Danish case and harm them professionally and financially. 

Enochian filed two motions: (1) a motion demanding the exclusion of speculative expert opinions of Wolfe’s executive recruitment expert witness Jeffrey Ketchum, and (2) a motion for summary judgment. 

Executive Search and Recruitment Expert Witness

Jeffrey R. Ketchum has over 27 years of experience in executive search and leadership consulting. He has personally completed 200 engagements focused on executive recruiting, management appraisal and assessment, executive compensation, and succession planning for organizations ranging from two million dollars to sixty million dollars in revenue across various industries. 

Ketchum graduated from Cornell University’s Advanced Program for Executive Search and Leadership Consulting, an MBA-level certificate program designed for senior consultants with over 10 years of experience. He also holds the Certified Researcher/Associate certification from the Association of Executive Search and Leadership Consultants, the only comprehensive external certification for researchers in executive search. 

Through his executive search firm Lordstone Corporation and its subsidiaries, Ketchum has experience performing executive job search analysis, interviewing, media research, and assessing executive skills, performance, and compensation for recruiting purposes. He previously worked for Management Recruiters International where he conducted over 60 executive/professional searches.

Ketchum has also received training in behavioral analysis for deception detection, business brokerage, executive assessment using the Topgrading methodology, and coaching. He is a member of professional associations like the Turnaround Management Association and has published extensively on business management topics.

Ketchum’s qualifications include his advanced education, certifications, decades of experience in executive recruiting and consulting, training in relevant methodologies, publications, and memberships that demonstrate his expertise. The Defendant pressed for exclusion of speculative expert opinions provided by Jeffrey R. Ketchum in the instant case.

Discussions by the Court

Jeffrey R. Ketchum was the Plaintiffs’ expert witness in this case. He has extensive professional experience in executive recruitment and continuing education in the field. Based on his qualifications, the Court found Ketchum was an expert on executive salaries, job searches, and recruitment. 

The Defendants filed a motion to exclude Ketchum’s expert opinions as unreliable, arguing his opinions were not based on a discernible methodology but were reverse engineered to reach a desired conclusion. The Defendants claimed that Rule 702 of the Federal Rules of Evidence warranted exclusion of speculative expert opinions of the kind.

Regarding Ketchum’s opinion on the career opportunities Wolfe would be qualified for and the associated compensation range, the Court found the factual support established Ketchum’s opinion that Wolfe was qualified for a Chief Financial Officer role was grounded in reliable evidence and admissible. However, it excluded Ketchum’s opinion on Wolfe’s probable compensation range of $240,000-$500,000. Ketchum failed to explain why he believed Wolfe’s compensation should fall in this range. His opinion relied solely on Wolfe’s prior Enochian salary and the compensation of Wolfe’s successor, without comparing their qualifications or services as CFO. Ketchum did not evaluate Wolfe’s prior compensation history or the market rates for CFO positions. The Court found his compensation range opinion was wholly conclusory and appeared designed to maximize the range without considering Wolfe’s history of lower earnings.

The Court also excluded Ketchum’s opinion that Wolfe’s job search efforts were reasonable. It concluded that this opinion invaded the province of the jury as an inadmissible legal conclusion, citing United States V. Bilzerian. Ketchum’s assumptions about the reasonableness of Wolfe’s networking efforts were based on unverified data. For example, Ketchum did not independently verify the substance of thousands of emails on a spreadsheet from Wolfe but nonetheless found the spreadsheet reliable. Ketchum also failed to explain how the emails he did review demonstrated Wolfe used networking to find work. Further, Ketchum’s reliance on Wolfe’s job applications to jobs posted on a job board contradicted his own statements that job boards are often unproductive for executive searches. Due to these flaws in Ketchum’s reasoning, the Court found his opinion regarding the reasonableness of Wolfe’s job search efforts was unreliable and excluded it.

The Court also excluded Ketchum’s opinion that media coverage following Wolfe’s termination would have substantially impeded his job search. Ketchum failed to provide an admissible causation opinion, as he could not identify any specific employers that had rejected Wolfe due to the media coverage. His report also failed to cite any media articles that discussed the Vermont lawsuit itself. By ignoring unfavorable evidence from his own media research that conflicted with the desired outcome, Ketchum appeared to have reverse engineered his conclusion. The Court found his media research opinion was neither reliable nor relevant.

Held

In sum, Ketchum’s expert opinions were limited since the Court denied the motion to exclude Ketchum’s opinions regarding Wolfe’s job qualifications and the use of networking in executive searches. However, it granted the motion regarding Ketchum’s opinions on probable compensation, reasonableness of the job search, and the impact of media coverage. It found these opinions were conclusory, speculative, and relied on inadequate methodology under Rule 702.

The Court also denied Enochian’s motion for summary judgment in its entirety. It found there were genuine disputes of material fact regarding each element of Wolfe’s malicious prosecution claim: whether Enochian lacked probable cause, acted with malice, the Vermont case was terminated in Wolfe’s favor, and Wolfe suffered damages. The Court held a jury must resolve these factual disputes, therefore summary judgment was inappropriate.The court has not yet made a final decision on the case, and there are still unresolved issues that need to be addressed before a final ruling can be issued.

Key Takeaways

This case demonstrates the importance of methodology and factual support in determining the admissibility of expert witness opinions under Rule 702. Even though Jeffrey Ketchum was qualified as an expert based on his extensive professional experience in executive recruiting, portions of his opinions were excluded due to inadequate methodology. Specifically, the Court found his opinions regarding the Plaintiff’s probable compensation range and the reasonableness of his job search efforts were conclusory because they relied on limited data points without sufficient explanation of his reasoning which warranted exclusion of speculative expert opinions. This shows experts must thoroughly explain their methodology and have reliable factual support for their conclusions, rather than relying solely on experience or selectively choosing data. 

Furthermore, the Court excluded opinions that invaded the province of the jury, like reasonableness, or were unhelpful generalizations. This reinforces the fact that experts cannot offer legal conclusions or merely restate common sense. Experts must utilize their specialized knowledge to offer opinions tethered to the facts of the case. Overall, this case demonstrates the importance of methodology and factual support in admitting expert opinions, as well as avoiding legal conclusions or unhelpful generalizations. Thorough explanation of the expert’s reasoning in applying specialized knowledge to the case facts is key under Rule 702.

September 13, 2023
Court admits expert testimony regarding restrictive covenants in public nuisance case

Carolyn Stone as the owner of a home within the Lakeview Homes Addition subdivision (Subdivision) in Houston, Texas alleged that the Defendants Harley Marine Services, Harley Marine Gulf, and Harley Channelview Properties (collectively Harley) were operating a commercial barge business that violated the Subdivision’s deed restrictions prohibiting commercial activity. Stone claimed that Harley’s conduct diminished her property value and constituted a nuisance. 

Peter Boecher had been chosen as an expert witness by Harley due to his expertise in matters related to land use and restrictive covenants to testify in this case regarding the current situation of these covenants in the subdivision. Stone designated rebuttal expert Mike Brubaker to testify on the same topics. Harley moved to exclude Brubaker’s testimony, arguing he was unqualified because he is not a land planner, citing failure to squarely rebut Boecher’s opinions as well as failure to identify the methodology which supported his opinion.

Real Estate Expert Witness

Mike Brubaker is a highly experienced real estate appraiser and broker in Texas. He has held a Certified General Appraiser license in the state and is also a licensed real estate broker. Brubaker earned the prestigious SRA designation from the Appraisal Institute in 1988, demonstrating his expertise in residential appraising. He holds a Bachelor’s degree in Architecture from the University of Houston earned in 1981.

Over his long career spanning more than 35 years, Brubaker has undertaken extensive education in the appraisal field including numerous courses and seminars offered by organizations like the Appraisal Institute. Brubaker is recognized as a leader in the appraisal community through his prior roles as an instructor, Director, and committee member for appraisal and real estate trade groups.

Brubaker has performed valuations for purposes including eminent domain, litigation support, relocation, and lending. He has appraised both residential and commercial properties. Through his depth of experience, Brubaker has testified and been qualified as an expert witness in Texas Courts on multiple occasions. He counts major law firms and lenders among his past clients during his 30+ year career as an appraiser. Overall, Brubaker’s extensive qualifications and active involvement make him a recognized authority in the real estate appraisal field.

Peter Boecher is a highly experienced land planning and real estate consultant with over 35 years of expertise in areas including site selection, development feasibility, access planning, zoning, subdivision design, land ordinances, and eminent domain analysis. He holds the prestigious Counselor of Real Estate (CRE) designation, awarded to real estate professionals demonstrating the highest levels of competence and ethical standards. Boecher has been a certified planner with the American Institute of Certified Planners (AICP) since 1989, requiring continuing education to maintain this status. He is also a Registered Landscape Architect in Texas since 1981, which similarly necessitates ongoing continuing education.

In 2019, Boecher joined EHRA engineering firm as a Senior Planner and Real Estate Counselor. He previously served in Planning Director roles at multiple firms. A frequent presenter, he has delivered seminars on land use, eminent domain, and planning topics for legal continuing education. Boecher has extensive experience providing expert witness testimony via deposition, trial, mediation, and other means regarding land use, eminent domain, planning, and real estate matters in county, state, and federal courts.

Discussions by the Court

Harley argued that Brubaker should be excluded as an expert witness because he was not qualified since he is not a land planner. Harley asserted that Brubaker failed to properly rebut the opinions of their expert, Peter Boecher, who is a land planner. Harley also contended that Brubaker did not identify the methodology he used to reach his opinions.  Harley accused Brubaker of applying arbitrary classifications to the uses within the Subdivision, suggesting a lack of objectivity in his analysis. Harley asserted that the testimony of Brubaker lacked relevance and he faltered in accounting for “obvious alternative explanations.”

Judge Bray examined Brubaker’s background and experience in detail. He noted that Brubaker is a licensed real estate appraiser and broker with over 40 years of experience preparing neighborhood analyses. As part of these analyses, Brubaker inspected neighborhoods, reviewed land use, and examined deed restrictions. Judge Bray found these were the exact same types of tasks performed by Boecher. Although Brubaker is not a land planner, the Court determined he had the requisite expertise based on his professional experience.

Judge Bray also reviewed Brubaker’s report and found he directly rebutted the opinions offered by Boecher. Since the purpose of designating Brubaker was to provide rebuttal testimony, the Court found him qualified for this role.

Regarding methodology, Brubaker stated in his declaration that he performed his analysis consistent with the industry standard Fannie Mae Selling Guide. He explained this involved identifying neighborhood boundaries, characteristics, and land use through visual inspection and document review. The Court found Brubaker employed the same methodology as Boecher by touring the neighborhood, observing land use, and examining the deed restrictions. 

Harley failed to provide sufficient evidence or argument to support their claim that Brubaker’s testimony was unreliable or that he failed to gather sufficient facts or data. Additionally, it appeared that Harley did not adequately identify what they believed were “obvious alternative explanations” that Brubaker should have considered when providing his testimony.

Judge Bray determined Harley’s objections about Brubaker’s methodology went to the weight of his opinions rather than admissibility. The judge denied Harley’s motion to exclude Brubaker, finding him to be qualified and allowing his expert rebuttal testimony. Harley could raise specific objections at trial.

Moreover, Harley moved to exclude or limit Carolyn Stone’s testimony under Federal Rule of Evidence 701.

In her disclosures, Stone stated she would provide testimony about the value of her property under the Texas Property Owner Rule. Harley filed a motion asking the Court to limit Stone’s testimony to the parameters of this Rule. 

Judge Bray outlined the key requirements of the Texas Property Owner Rule. He stated the testimony must refer to market value of the property, have a basis beyond just the owner’s opinion, and can be substantiated through evidence of sales, appraisals, tax valuations, and other factors.

Since Stone had already agreed to testify as per the parameters of the Texas Property Owner Rule, the Court denied Harley’s motion as moot.

Held

In conclusion, Judge Bray denied Harley’s motions to exclude the expert testimony of Brubaker and limit the testimony of Stone. The Court found Brubaker was qualified as a rebuttal expert based on his experience. The judge also declined to limit Stone’s testimony since she had already agreed to follow the Texas Property Owner Rule. A final decision has not been reached in this case by the Court considering the remaining issues involved in this case still await resolution.

Key takeaways

This case demonstrates the importance of properly qualifying expert witnesses and establishing a reliable methodology. Harley challenged the qualifications of Stone’s rebuttal expert Brubaker because he was not a land planner like their expert Boecher. However, the Court found Brubaker’s 40+ years of experience inspecting neighborhoods and reviewing deeds as a real estate appraiser qualified him to opine on land use and deed restrictions. The Court also examined his methodology, which followed industry standards for neighborhood analysis, relied on document review, and involved inspecting the subdivision. His approach mirrored the methodology of Harley’s expert. While specific objections could be raised at trial, Brubaker was permitted to testify as a rebuttal expert. This shows experts can be qualified based on practical experience even if they do not have the same formal credentials as the opposing expert. However, they must employ a sound methodology reliably applied to the facts. Vague objections to qualifications or methodology will likely fail if the expert has substantive experience and explains their analytical approach. Specific objections may still be raised later regarding the weight given to the expert’s opinions.

September 11, 2023
FTX Founder’s Experts Face Exclusion in Cryptocurrency Fraud Case
FTX Trading Ltd. was a cryptocurrency exchange founded in 2019 by Sam Bankman-Fried. It quickly grew to become one of the largest crypto exchanges. Bankman-Fried also founded Alameda Research, a cryptocurrency trading firm. Federal prosecutors alleged that starting in 2019, Bankman-Fried orchestrated a scheme to defraud FTX customers by misappropriating their deposits to support Alameda’s trading activity.

Specifically, he was accused of diverting billions in customer funds to Alameda without disclosing this practice. Alameda allegedly used the funds to make speculative crypto trades. Prosecutors said Bankman-Fried made false statements about FTX’s financial condition and operations to attract more customer deposits as well as investments into FTX and loans to Alameda.

In November 2022, concerns about Alameda’s financial condition led to mass withdrawals from FTX. This caused a liquidity crunch at FTX, which did not have sufficient funds to meet withdrawal demands. FTX filed for bankruptcy on November 11, 2022. An estimated 1 million customers and investors suffered billions in losses.

In December 2022, federal prosecutors filed criminal charges against Bankman-Fried, including wire fraud, commodities and securities fraud, and money laundering conspiracy. Bankman-Fried was arrested in the Bahamas and extradited to face charges in the United States. He pleaded not guilty. Jury selection for his trial is scheduled to begin on October 2, 2023, in New York. Bankman-Fried might face up to 115 years in prison if convicted.

To summarize, Bankman-Fried is faced with 12 criminal charges, which will be spread across two trials scheduled to begin on October 2, 2023, and March 11, 2024. He has pleaded not guilty to all counts.

Lawrence Akka

The Government argued that the testimony of all seven experts should be excluded for various reasons. The Government contended that the testimony of Lawrence Akka, an English barrister, should be excluded because he intended to interpret FTX’s terms of service and opine on the legal obligations created by the contract which, according to the Government, usurped the role of the judge in instructing the jury on the law and the jury’s role in applying the law to the facts. The Government also argued that his testimony was also unreliable because it did not consider the full context for interpreting the agreement, and he had not reliably established that there was a uniform definition of “trust” that he could apply. The Government added that his testimony should also be excluded under Rule 403 because it was likely to mislead and confuse the jury about the relevant legal standards.

Joseph M. Pimbley

The Government also pushed for excluding the testimony of Joseph M. Pimbley concerning problems with FTX’s software infrastructure, specifically its database and computer code because considering the notice did not adequately disclose his opinions, his testimony would not be relevant to the issues at trial, and it would be an improper attempt to imply through an expert that Bankman-Fried lacked knowledge of alleged infrastructure deficiencies at FTX.

Bradley A. Smith

The Government also demanded the exclusion of the proposed testimony of Bradley A. Smith regarding campaign finance laws and practices because not only was it improper for an expert to testify about the legal framework that applied to political contributions at the federal level, it was also irrelevant since the campaign finance charges had been dropped, and his opinions about Defendant’s “good faith” compliance with campaign finance laws constituted inadmissible state of mind testimony under Rule 704(b).

Pietro (Peter) Umberto Vinella

The Government asserted that the proposed expert testimony of Pietro (Peter) Umberto Vinella warranted exclusion because he lacked qualifications to opine about cryptocurrency markets and FTX considering much of his proposed testimony was irrelevant or speculative, and his opinions about financial services industry customs and the reasonableness of FTX’s actions were misleading and unfairly prejudicial.

Andrew Di Wu

The Government challenged the background testimony of Andrew Di Wu on cryptocurrency’s history and markets which also drew comparisons between FTX and other cryptocurrency exchanges deeming it irrelevant, speculative, and dismissive of the Court’s legal instructions.

Moreover, the Government also argued that the testimony of Thomas E. Bishop and Brian Y. Kim should be excluded because the defense failed to provide sufficient disclosure about their anticipated expert opinions and the bases for those opinions, as required by Rule 16. The notices for these two experts only identify general topics but do not state any actual opinions or analysis.

In summary, the Government argued that the seven proposed defense experts had either failed to provide adequate notice of their opinions, intended to provide irrelevant or improper legal opinions and testimony on industry practice, lacked qualifications, or intended to provide speculative and unreliable testimony that was substantially more unfairly prejudicial than probative. For these reasons, Daubert hearings were requested to assess relevance, qualifications, and reliability.

As the start date of the trial of FTX co-founder Sam “SBF” Bankman-Fried approached, new court filings indicated that SBF could pay his expert witnesses more than $1,000 an hour should they testify on his behalf.

Some of the witnesses, such as former Federal Election Commission Chairperson Bradley Smith, charged SBF’s legal team $1,200 an hour to testify about issues such as the United States’ campaign finance laws and straw donors, according to a court filing on August 28. Bradley Smith clarified that he had no financial stake in the case’s outcome. He was receiving compensation solely for his time and services, billed at a rate of $1,200 per hour. He emphasized that his compensation was not based on the opinions he provided in the case or on the final outcome of the legal proceedings.

Additional expert witnesses, such as Akka and Pimbley, might charge £800 (equivalent to $1,000) and $720 per hour, respectively, if they testify, as indicated in the court filings. The hourly rates for other potential expert witnesses for SBF’s case vary, ranging from $400 to $650.

On the other hand, Peter Easton, an accounting professor at the University of Notre Dame, who is a proposed witness for the prosecution, would charge $1,175 per hour as per the court data.

SBF seeks to request a trial postponement. If the request is submitted by September 1 and is approved, SBF’s trial will be rescheduled to March 11, 2024.

Key Takeaways:
- Experts cannot testify to legal conclusions, interpret contracts, or opine on whether the Defendants had the requisite mental state to commit the crimes. This improperly usurps the role of the judge and jury.
- Experts noticed by the defense failed to provide adequate disclosure of their opinions and analysis as required by the rules of evidence. Vague topics are insufficient.
- Proposed testimony on background information, industry practices, actions of third parties, and regulatory uncertainty from several experts is irrelevant to the issues the jury must decide. It is also likely to mislead and confuse the jury.
- Testimony opining that the Defendants acted reasonably or in good faith compliance with laws and regulations is impermissible state of mind evidence.
- Some experts lack qualifications to testify about cryptocurrency markets and exchanges. Their opinions are unreliable and speculative.
- Expert testimony that is cumulative of facts that can be established through percipient witnesses is unnecessary and improper. In summary, the government argues the proposed experts either lack proper qualifications, offer legal opinions and testimony irrelevant to the facts at issue, or provide unreliable and prejudicial opinions. The testimony should therefore be excluded or limited through Daubert hearings.
September 8, 2023
Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case
Title IX violations expert testimony

Plaintiffs, Elizabeth Niblock and Meredith Newman filed this class action complaint against the University of Kentucky Director of Athletics, Mitch Barnhart, President, Eli Capilouto and Board of Trustees (collectively “UK”) alleging practices violative of the Title IX of the Education Amendments Act of 1972, an act prohibiting sex-based discrimination of any form in any school or any other education program that receives funding from the federal government. UK has refused to add any female sports to help bridge the participation gap between male and female student athletes. Due to lack of women’s opportunities, female student athletes are being deprived of the same scholarship opportunities as male student athletes. In other words UK is promoting men’s sports at the expense and detriment to women’s sports.

Gender Equity Expert

Plaintiffs have offered the testimony of expert, Donna Lopiano, the president of Sports Management Resources, LLC, her own, single-member LLC through which she runs a consulting practice “that focuses on helping educational institutions and sport organizations solve sports program integrity, equity, growth, and management challenges.” Donna Lopiano has opined that UK was not accommodating the interests and abilities of female students under Prongs One, Two, or Three of Title IX’s participation options which emphasize on the number of male and female student-athletes being proportional to the overall male and female student enrolment in the institution, on the school in question demonstrating a history and continuing practice of expanding athletic opportunities for female students to align with their interests and on schools with disproportionate athletics programs not currently expanding, to comply with Title IX by demonstrating that their existing program adequately accommodates the interests of female students. Lopiano further testified that UK failed to regularly and properly assess the interests and abilities of the underrepresented sex for the purpose of identifying unmet interests and abilities.

Lopiano also concluded that UK had only considered adding the financially least expensive and alumni/audience appealing women’s sports, women’s sports that have never appeared on UK interest and ability surveys.

Lopiano stated that UK would be unable to count its current UK sideline cheerleading squad and the dance team as varsity sports and participants as varsity athletes, whether or not coaches, scholarships or other services were being provided to these programs and also added that UK’s proposed plan to add a women’s Stunt and women’s junior varsity soccer team did not achieve Prong One gender equity. UK demanded exclusion of the testimony of Plaintiff’s expert Donna Lopiano.

Discussion by the Court

Defendant contended that all of Lopiano’s proposed opinions should be excluded considering they constitute legal conclusions or are otherwise inadmissible for various reasons such as lack of required qualifications or lack of a reliable basis.

The Court admitted the Defendant’s argument that Lopiano crossed the line into impermissibility when Lopiano opined about UK’s current compliance with Title IX. Plaintiff replied that Lopiano merely wanted to establish industry standards for compliance yet in her report Lopiano “compares what UK has done on all elements—compares it to what Title IX requires” and stated that her report was “all about the University of Kentucky’s fact situation compared to the Title IX standards.” Moreover, Lopiano’s expert report does not consist of opinions about other universities’ compliance. The Court held that Lopiano’s opinions amounted to legal conclusions.

Defendant also alleged that Lopiano’s opinions on participation derived from the Equity in Athletics Disclosure Act (“EADA”) survey analysis are premised on the cursory analysis performed by Lopiano and hence are unreliable, irrelevant, and unhelpful to the trier of fact. Lopiano testified that she compared a University’s EADA submissions with website participant counting data and actual NCAA (National Collegiate Athletic Association) squad lists instead of performing the comparison and using only publicly available EADA data to form the basis of some of her conclusions.

The Court also found that Lopiano ceased to examine the specifics of UK’s Cheer or Dance teams in performing her analysis and though Plaintiff contends this argument should go to the weight of Lopiano’s testimony instead of its admissibility, the Court held that whether certain teams should be counted for the purposes of Title IX compliance fell under its domain instead of Lopiano’s and henceforth it could not be reasonably concluded if Lopiano’s testimony was relevant or helpful to the trier of fact.

When the Defendant testified that Lopiano’s opinions regarding the UK’s athletic interest surveys should be excluded considering she was unqualified to offer such opinions, the Court observed that despite Lopiano’s extensive history and involvement in women’s sports and the area of Title IX, she was not a survey design expert and by her own admission had relied on another survey design expert’s work to form her own conclusions and held that her opinions regarding athletic interest surveys were beyond her area of expertise.

Since the proceedings are ongoing, the outcome of the case remains to be seen.

Held

The Court excluded the opinions and testimony of Plaintiff’s expert Donna Lopiano because they consisted of legal conclusions, lacked a reliable basis and Lopiano opined on topics beyond her area of expertise. The outcome of the case is yet to be decided since the issued involved in the case still remain unresolved.

Key Takeaways:
1. Legal Conclusions: The Court found that Lopiano compared the University of Kentucky’s fact situation with the standards and requirements of Title IX of the Education Amendments Act of 1972 without following it up with reports of other universities’ compliance as was required for objective assessment. The Court, henceforth, concluded that the testimony of Lopiano amounted to legal conclusions in this case.
1. Reliability: The Court held that Lopiano’s conclusions lacked a reliable premise on account of being based on publicly available Equity in Athletics Disclosure Act (“EADA”) data instead of her own comparisons or specifics of UK’s Cheer or Dance teams not being adequately examined by her in performing her analysis.
1. Qualification: Though recognized as one of the foremost national experts on gender equity in sport, Lopiano, unfortunately, by her own admission is not a survey design expert. Usually the Court deems an expert qualified to opine if the topic is sufficiently within the confines of the expert’s scope of expertise but athletic interest surveys were not within the confines of Lopiano’s expertise.
August 25, 2023