United States District Court, District of Columbia
UNITED STATES OF AMERICA ex rel. FLOYD LANDIS, Plaintiff,
TAILWIND SPORTS CORP., et al., Defendants.
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R COOPER, UNITED STATES DISTRICT JUDGE.
the Court are several motions in limine from both parties. In
this Memorandum Opinion and Order, the Court resolves the
motions related to expert testimony: namely, Defendant Lance
Armstrong's motion to exclude the testimony of the
Government's three proposed experts (Larry Gerbrandt, Dr.
Brian Till, and Dr. Jonathan Walker) (ECF No. 559) and the
Government's motions to exclude the testimony of
Armstrong's two experts, Douglas Kidder (ECF No. 557) and
John Gleaves (ECF No. 558).
respect to the Government's experts, the Court will
mostly deny Armstrong's motion, but will grant it in two
respects: (1) the experts cannot testify as to an
impermissible theory of damages that has been previously
rejected by the Court, namely that the fair market value of
the promotional services that Armstrong's cycling team
rendered to the U.S. Postal Service (“USPS”) is
zero, and (2) Gerbrandt cannot offer his unsubstantiated
opinion that the harm resulting to the USPS from the negative
publicity it received from coverage of Armstrong's use of
performance enhancing drugs (“PEDs”) necessarily
outweighed the value of any benefits received from the
sponsorship prior to revelations of Armstrong's PED use.
respect to Armstrong's experts, the Court will grant in
part and deny in part both Government motions. The Court
finds Mr. Kidder's testimony admissible except insofar as
it discusses the value of USPS's cycling-themed Visa
credit-card promotion. And the Court will permit Mr. Gleaves
to testify as an expert witness with respect to the
widespread nature of PED use in cycling, but will not permit
him to testify to the other opinions laid out in his expert
Government intends to call three expert witnesses at trial to
testify regarding its alleged damages: Larry Gerbrandt, Dr.
Brian Till, and Dr. Jonathan Walker.
Gerbrandt is the principal of Media Valuation Partners, a
firm that has been providing valuation, market research, and
litigation support since 2007. Def. Armstrong's Mot. to
Exclude Testimony of Gerbrandt, Till, & Walker
(“Armstrong MIL”), Ex. 1 (“Gerbrandt Expert
Report”), at 1. He also serves as the managing director
of Janas Consulting, an investment banking, management
consulting, and valuation firm; as an associate with the
Analysis Group, a provider of economic, financial, and
business strategy consulting; and as a board member of The
Inspiration Network, a family-entertainment-oriented
television network. Id. Prior to his current
positions, Gerbrandt worked as an analyst and executive for
several media research companies, including The Nielsen
Company, and has spent his career collecting and analyzing
data related to pricing, valuation, and consumption across
consumer media. Id. He has served as an expert
witness more than 90 times on topics involving the economics
and value of network television series, the advertising and
license fee revenue generated by broadcasts, and the value of
publicity. Id. at 4. According to the Government and
Gerbrandt's expert report, he intends to testify about
the negative publicity USPS received from the media coverage
of Lance Armstrong's PED use. Id. at 5-6;
Pls.' Opp'n to Armstrong MIL (“Pls.'
Opp'n”) at 1, 11.
Dr. Brian Till
Brian Till is the Dean of the College of Business and
Administration and a Professor of Marketing at Marquette
University. Armstrong MIL Ex. 4 (“Till Expert
Report”) at 1. He has a bachelor's degree in
advertising and an MBA from the University of Texas, and a
Ph.D. from the University of South Carolina in marketing.
Id. His academic research has focused on associative
learning, brand equity, and celebrity endorsers, and he has
published articles on these topics in several academic
journals. Id. Prior to his academic career, he
worked as a brand manager at Purina. Id. According
to the Government and Dr. Till's expert report, he
intends to testify that the USPS cycling sponsorship created
an associative link between USPS and Lance Armstrong and that
academic literature has shown that negative information about
athletes, such as Armstrong's PED use, negatively impacts
consumer perception of brands associated with the athlete.
Id. at 1-2; Pls.' Opp'n at 1, 20.
Dr. Jonathan Walker
Jonathan Walker is the President and Chief Executive Officer
of the economic consulting firm Economists Incorporated.
Armstrong MIL Ex. 6 (“Walker Expert Report”) at
2. He has a bachelor's degree from the University of
California at Berkeley and a PhD from the Massachusetts
Institute of Technology, both in economics. Id. In
addition to his work with Economists Incorporated, he
consults regarding damages and economics-related topics in
sports cases and other types of litigation matters.
Id. According to the Government and Dr. Walker's
expert report, he intends to testify about the possible
losses that USPS incurred from the negative publicity
surrounding Armstrong's PED use using event studies
performed on scandals involving similar celebrity athlete
endorsers. Id. at 4; Pls.' Opp'n at 1,
intends to call two experts at trial: Douglas Kidder and Dr.
Kidder is a managing partner with OSKR, LLC, a consulting
firm that provides expert services primarily in intellectual
property and antitrust cases. Pl.'s Mot. Exclude Kidder
Testimony (“Pls.' Kidder MIL”) Ex. 1
(“Kidder Expert Report”), at 1. He also teaches a
course on damages at the Golden Gate University School of
Accounting. Id. Kidder received a bachelor's
degree in mathematics and English from Amherst College and a
master's degree in naval architecture from the University
of California at Berkeley. Id.; id. Ex. 3
(Kidder Depo.), at 10:12-18. He has over 25 years of
professional experience valuing businesses, both as a
consultant and as a business manager. Id. at 1-2.
Kidder intends to testify about the benefits that USPS
received from sponsoring the cycling team, and about the
difference between the value of those benefits and what the
government paid in sponsorship fees. Id. at 3-4.
Kidder has also prepared a rebuttal report responding to Dr.
Walker's conclusions. Id. Ex. 2 (Rebuttal
Dr. John Gleaves
John Gleaves is an Associate Professor of Kinesiology at
California State University, Fullerton. Pl.'s Mot.
Exclude Gleaves Testimony (“Pl.'s. Gleaves
MIL”) Ex. A (“Gleaves Expert Report”), at
1. He received a B.A. in philosophy and theology from Carroll
College and a PhD in history and philosophy of sport from
Pennsylvania State University. Id. at 3. His
academic research has focused on the history of doping and
performance enhancement in sports, and he has published
several articles on this topic. Id. Additionally, he
serves as the Co-Director of the International Network of
Doping Research, a group that seeks to explore and understand
the use of PEDs, and of the Center for Sociocultural Sport
and Olympic Research, which promotes education on sport and
the Olympic Games. Id. at 5. According to Armstrong
and Dr. Gleaves' expert report, he intends to testify
about the history of the use of PEDs in cycling and to
USPS's awareness of Armstrong's PED use and any
failure to investigate that use. Id. at 8-9;
Armstrong's Opp'n Pls.' Mot. Exclude Gleaves
Testimony (“Armstrong Gleaves Opp'n”) at 5-6.
702 of the Federal Rules of Evidence permits the testimony of
a witness as an expert if (1) the witness “is qualified
as an expert by knowledge skill, experience, training, or
education, ” (2) the testimony “will help the
trier of fact to understand the evidence or to determine a
fact in issue, ” (3) the testimony is “based on
sufficient facts or data, ” (4) the testimony “is
the product of reliable principles and methods, ” and
(5) the expert has “reliably applied the principles and
methods to the facts of the case.” Fed.R.Evid. 702.
witness is deemed to be qualified to testify as an expert,
the Court then applies the two-part test laid out in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), to determine if the remaining requirements
for admissibility under Rule 702 are met. Under
Daubert, the Court must determine “whether the
expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or
determine a fact in issue.” Id. at 592. In
other words, the proffered expert testimony “must be
both reliable and relevant.” United States v.
Nwoye, 824 F.3d 1129, 1136 (D.C. Cir. 2016).
determining reliability, the Court's purpose is to
conduct a “preliminary assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue,
” an analysis focused “solely on principles and
methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 592-93, 595.
The Supreme Court in Daubert identified four factors
to consider in this analysis: “(1) whether the theory
or technique can be and has been tested; (2) whether the
theory or technique has been subjected to peer review and
publication; (3) the method's known or potential rate of
error; and (4) whether the theory or technique finds general
acceptance in the relevant scientific community.”
Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C.
Cir. 1996) (citing Daubert, 509 U.S. at 593-94).
Ultimately, this inquiry is a “flexible one” and
“none of the factors discussed is necessarily
applicable in every case or dispositive; nor are the four
factors exhaustive.” Id. (quoting
Daubert, 509 U.S. at 594).
addition to reliability, the proposed testimony must also
meet the second prong of Daubert: relevance. This
requires the Court to determine “whether the proffered
expert testimony ‘is sufficiently tied to the facts of
the case that it will aid the jury in resolving a factual
dispute.'” Id. (quoting Daubert,
509 U.S. at 591). The proponent of the expert testimony bears
the burden of showing, by a preponderance of the evidence,
that these requirements for admittance are met. See
Daubert, 509 U.S. at 592 n.10.
Armstrong's Motion (Government's Experts)
broadly challenges all three of the Government's expert
witness on the ground that their testimony is not relevant.
He also raises specific challenges to the qualifications or
reliability of the experts individually. The Court will
address each issue in turn.
challenges all three of the Government's experts'
proposed testimony on the ground that it will not help the
trier of fact to understand the evidence or determine a fact
in issue. First, he argues the testimony is not relevant
insofar as the experts are attempting to prove an
impermissible theory of damages. Second, he argues the
testimony is irrelevant because it will lead the jury to
improperly speculate as to the amount of damages. The Court
concludes that Armstrong is correct that the Government is
seeking to prove damages under an impermissible theory and
will prohibit the expert testimony insofar as it relates to
that theory; however, the Government's proffered expert
testimony is still relevant to a permissible, non-speculative
theory of damages and thus, aside from any other ground for
exclusion, is admissible.
Impermissible Theory of Damages
first challenges certain aspects of the testimony of the
Government's experts as irrelevant because it relates to
an impermissible theory of damages. Specifically, he argues
that testimony from Gerbrandt and Dr. Walker that the
cycling-team sponsorship had no fair market value is
inadmissible because it attempts to prove damages via a
theory that the Court prohibited at summary judgment.
Armstrong MIL at 18, 35. The Government responds that the
Court's summary judgment ruling did not
“foreclos[e] the jury from considering the market value
of the tainted services, and ultimately concluding that
market value is ascertainable.” Pls.' Opp'n at
discussed in more detail in the Court's opinion on
summary judgment, the relevant standard for damages in this
case is that laid out by the D.C. Circuit's decision in
United States v. Science Applications International
Corp. (“SAIC”), 626 F.3d 1257 (D.C.
Cir. 2010). The Court at summary judgment explained that
“[t]he market value of the cycling team's
‘PED- tainted' promotional services is just as
‘impossible to determine'” as the services
rendered in SAIC. United States ex rel. Landis
v. Tailwind Sports Corp., 234 F.Supp.3d 180, 200 (D.D.C.
2017). However, the Court held, the Government “may
attempt to prove that the positive benefits of the
sponsorship were reduced-or even eliminated altogether-by the
negative publicity that accompanied the subsequent
investigation and disclosure of Armstrong's
doping.” Id. at 201.
Court's decision on summary judgment has foreclosed the
Government from arguing, as it seeks to do now, that the fair
market value of the services rendered-promotional services
from an undisclosed tainted team-was zero. This is so
because, as the Court held, the fair market value of that
service is not readily ascertainable. See id. at
200-01; cf. SAIC, 626 F.3d at 1279 (concluding that
services by entity with undisclosed conflicts was not readily
ascertainable). To the extent that the Government's
proffered experts intend to testify to that theory of
damages, their testimony is irrelevant and inadmissible. But
to the extent that the Government seeks to prove that the
negative impact of the publicity surrounding the disclosure
of Armstrong's doping and concealment thereof outweighed
any positive benefits received prior, the testimony of the
experts is relevant and, if all other conditions are met,
admissible. Cf. Landis, 234 F.Supp.3d at 204
(indicating the expert testimony at issue here is relevant to
a proper theory of damages).