Beach Tv Properties Inc. v. Soloman ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE ATLANTA CHANNEL, INC., :
:
Plaintiff, : Civil Action No.: 15-1823 (RC)
:
v. : Re Document Nos.: 195, 196, 201, 208
: 211, 212
HENRY A. SOLOMON, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANT SOLOMON’S MOTION TO STRIKE; GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTIONS TO STRIKE
I. INTRODUCTION
Before the Court are several motions to strike expert testimony. In this legal malpractice
case, Plaintiff Atlanta Channel, Inc. (“ACI”) alleges that Defendant Henry A. Solomon failed to
completely fill out an application for a special license that he filed with the Federal
Communications Commission (“FCC”) in December of 1999. ACI alleges that failure to secure
the license resulted in millions of dollars in damages. The claim against Mr. Solomon hinges on
application of the statute of limitations. Two years after filing suit against Mr. Solomon, ACI
added a legal malpractice claim against Defendant Melodie Virtue and her law firm Garvey,
Schubert & Barer (together the “Garvey Defendants”), a firm Mr. Solomon moved to in the early
2000s. Broadly, ACI alleges that the Garvey Defendants failed to properly alert ACI about its
potential malpractice claim against Mr. Solomon—the claim against the Garvey Defendants is
contingent on the jury finding that ACI’s claim against Mr. Solomon is time-barred. The parties
have proffered expert testimony on a variety of topics, including ACI’s eligibility for the special
license, the appropriate standard of care applicable for the legal malpractice claims, and
damages. The motions to strike before the Court aim to limit the expert testimony ultimately
presented to the jury. For the reasons set forth below, the Court denies Mr. Solomon’s motion to
strike and grants in part and denies in part ACI’s motions to strike.
II. BACKGROUND 1
ACI filed this suit to recover damages stemming from the erroneous filing of an
incomplete form with the FCC on December 29, 1999. See 2d Am. Compl. ¶¶ 26–27, ECF No.
69. ACI alleges that Mr. Solomon was responsible for filing the Statement of Eligibility form for
a Class A License for its Low Power Television (“LPTV”) Station that used call sign WTHC-LD
(“WTHC”). Id. ¶¶ 16, 26–27. When Mr. Solomon submitted the form, he left several questions
blank, and on June 9, 2000, the FCC’s Mass Media Bureau rejected the statement. Id. ¶¶ 28–29,
32. ACI alleges that it would have been granted the Class A License if the form had been
completely filled out. Id. ¶ 35.
After the dismissal of the initial statement, Mr. Solomon pursued an administrative
appeal within the FCC. Id. ¶ 37. The appeal remained pending until November 9, 2012—more
than a decade after it had been submitted. Id. While the matter lied dormant at the FCC, Mr.
Solomon started working at Garvey, Schubert & Barer. See id. ¶ 11. Eventually, in 2010, he
retired from the practice of law altogether. See id. Mr. Solomon’s employment status during
this time, and what ACI reasonably believed about it, will determine whether the claims against
him are time barred under the continuous representation doctrine. See Beach TV Props., Inc. v.
1
The Court assumes familiarity with its prior opinions and limits its discussion to the
factual and procedural history most relevant to the pending motions. See, e.g., Beach TV Props.,
Inc. v. Solomon, 324 F. Supp. 3d 115, 118 (D.D.C. 2018); Beach TV Props., Inc. v. Solomon, No.
15-cv-1823, 2016 WL 6068806, at *1–4 (D.D.C. Oct. 14, 2016).
2
Solomon, 306 F. Supp. 3d 70, 89 (D.D.C. 2018) (explaining factual issues under continuous
representation doctrine that must be resolved by fact finder).
Ms. Virtue took over responsibilities for ACI’s representation after Mr. Solomon ceased
working full time. 2d Am. Compl. ¶¶ 51–54. ACI alleges that Ms. Virtue failed to tell ACI
about the potential malpractice claim against Mr. Solomon, the statute of limitations issue with
that claim, and her potential conflict of interest. See id. ¶ 59. The claims against the Garvey
Defendants are contingent on the jury finding that the claim against Mr. Solomon is barred by
the statute of limitations. See id. ¶¶ 80–87. The Garvey Defendants have filed an expert report
prepared by Lucian T. Pera to support their contention that Ms. Virtue’s representation of ACI
adhered to the applicable standard of care. See Pera Rep., ECF No. 171-1.
With respect to damages, ACI argues that failing to secure a Class A License led to
diminished value for the station and led to WTHC going off the air. See 2d Am. Compl. ¶¶ 63–
68. Part of ACI’s damages argument relates to Title VI of the Middle Class Tax Relief and Job
Creation Act of 2012, Pub. L. No. 112-96, 125 Stat. 156 (2012), commonly known as the
Spectrum Act. See id. The Spectrum Act allows for radio spectrum currently in use by
broadcast television stations to be relicensed to wireless communications companies. See id.Under the Spectrum Act, the government uses a reverse auction to acquire licenses of full power
and Class A broadcast television stations, resells the acquired licenses to wireless carriers, and
“repacks” or moves the Class A licensees to a different frequency. Id. ¶ 64. Without a Class A
License, LPTV stations cannot participate in the reverse auction or repacking and risk going off
the air if the available spectrum is taken by wireless carriers or broadcast stations with priority.
Id. ¶¶ 65–66. ACI alleges that the failure to obtain the Class A License has led to damages of at
least $25,000,000. Id. ¶ 70. ACI has filed an expert report prepared by Michael J. Garibaldi to
3
support a portion of its damages claim. See Garibaldi Rep., ECF No. 185. Mr. Solomon has
filed an expert report, and a supplemental report, prepared by Jack N. Goodman to support his
claim that the reverse auction procedures outlined in the Spectrum Act were not foreseeable, see
Goodman Rep., ECF No. 115-1, and that WTHC was actually never eligible for the Class A
License, see Suppl. Goodman Rep., ECF No. 141.
Portions of the expert reports noted above have all been challenged through motions to
strike. See Solomon’s Mot. to Strike Garibaldi (“Soloman’s Mot. to Strike”), ECF No. 195;
ACI’s Mot. to Strike Pera, ECF No. 208; ACI’s Mot. to Strike Goodman Auction, ECF No. 211;
ACI’s Mot. to Strike Goodman Class A Qualification, ECF No. 212. Also pending is a motion
for leave to file a surreply filed by ACI, see ACI’s Mot. for Leave to File, ECF No. 201, and a
motion by the Garvey Defendants to join Mr. Solomon’s motion to strike, see Garvey Defs.’
Mot. for Joinder, ECF No. 196. All these pending motions are ripe for decision.
III. LEGAL STANDARD
The pending motions to strike expert testimony are all governed by the same standard
defined by Federal Rule of Evidence 702. Expert testimony is admissible if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. “In general, Rule 702 has been interpreted to favor admissibility.”
Khairkhwa v. Obama, 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 587 (1993)). The Rule requires that the Court act as a gatekeeper to
ensure “that the methodology underlying an expert’s testimony is valid and the expert’s
conclusions are based on ‘good grounds.’” Chesapeake Climate Action Network v. Export-
4
Import Bank of the U.S., 78 F. Supp. 3d 208, 219 (D.D.C. 2015) (quoting Daubert, 509 U.S. at590–97). In other words, the Court’s obligation under Rule 702 is to “‘ensure that any and all
scientific testimony . . . is not only relevant, but [also] reliable.’” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert, 509 U.S. at 589). The gatekeeping
obligation applies to all expert testimony, even if it is not “scientific” testimony. Id.Generally, “[e]xpert testimony that consists of legal conclusions cannot properly assist
the trier of fact” in either “‘understand[ing] the evidence’ or . . . ‘determin[ing] a fact in issue.’”
Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) (quoting
Fed. R. Evid. 702). This is because “[l]egal conclusions . . . ‘intrude upon the duties of, and
effectively substitute for the judgment of, the trier of fact and the responsibility of the Court to
instruct the trier of fact on the law.’” Convertino v. U.S. Dep’t of Justice, 772 F. Supp. 2d 10, 12
(D.D.C. 2010) (quoting United States ex rel. Mossey v. Pal-Tech, Inc., 231 F. Supp. 2d 94, 98
(D.D.C. 2002)). “[T]he line between an inadmissible legal conclusion and admissible assistance
to the trier of fact in understanding the evidence . . . is not always bright.” Burkhart, 112 F.3d at
1212. Generally, though, “an expert may offer [an] opinion as to facts that, if found, would
support a conclusion that the legal standard at issue was satisfied, but [the expert] may not testify
as to whether the legal standard has been satisfied.” Id. at 1212–13. Additionally, the Court is
not required to admit opinion evidence when “there is simply too great an analytical gap between
the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). When
the expert relies primarily on experience, the expert must “explain how that experience leads to
the conclusion reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Little v. Wash. Metro. Area Transit Auth., 249 F.
Supp. 3d 394, 414 (D.D.C. 2017) (quoting Fed. R. Evid 702 advisory committee’s note to 2000
5
amendment). “The trial court's gatekeeping function requires more than simply ‘taking the
expert’s word for it.’” Id. (quoting Fed. R. Evid 702 advisory committee’s note to 2000
amendment).
These general rules become more complex in the context of legal malpractice suits.
“When an expert witness is required, the expert must ‘clearly articulate and reference a standard
of care by which the defendant’s actions can be measured.’” Robinson v. Wash. Metro. Area
Transit Auth., 774 F.3d 33, 39 (D.C. Cir. 2014) (quoting Varner v. District of Columbia, 891
A.2d 260, 269 (D.C. 2006)). When that defendant is a lawyer, that standard of care necessarily
implicates legal issues that would not arise in a typical negligence case. See, e.g., Nieves-
Villanueva v. Soto-Rivera, 133 F.3d 92, 100–01 (1st Cir. 1997) (“[T]here may be particular areas
of law, such as legal malpractice, where expert testimony on legal matters is admissible where it
would normally be excluded.”).
Courts in this circuit consider ethical rules applicable to D.C. attorneys to be relevant to
determining the appropriate standard of care in a legal malpractice case. See Waldman v. Levine,
544 A.2d 683, 691 (D.C. 1988) (noting that “[i]t is an obvious proposition that the [D.C.] Code
of Professional Conduct provides a gauge by which to determine the competency of the Bar” and
finding appropriate an expert’s “use of the Code in determining the standard of care required in a
legal malpractice case”); see also Williams v. Mordkofsky, 901 F.2d 158, 163 (D.C. Cir. 1990)
(“While the Model Code [of Professional Responsibility] does not provide for a direct private
malpractice action, violations of the Code certainly constitute evidence in an action at common
law” (citing Waldman, 544 A.2d at 690–91)). Additionally, courts both in this circuit and in
others have allowed experts to testify as to violations of, or compliance with, ethical rules and
the resulting standard of care in legal malpractice cases. See, e.g., Hendry v. Pelland, 73 F.3d
6397, 401 (D.C. Cir. 1996) (discussing expert testimony that defendant had violated D.C.
disciplinary rule in breach of fiduciary duty case); Am. Int’l Adjustment Co. v. Galvin, 86 F.3d
1455, 1461 (7th Cir. 1996) (discussing expert testimony that defendant’s actions did not breach
standard of care in legal malpractice case); Miami Int’l Realty Co. v. Paynter, 841 F.2d 348, 353
(10th Cir. 1988) (rejecting argument that lower court erroneously admitted expert testimony as to
lawyer’s failure to comply with Colorado Code of Professional Responsibility in legal
malpractice case). However, while a lawyer’s ethical duties, and breach thereof, can be used as
evidence in a legal malpractice action, an expert is not entitled to make the inferential leap to
conclude that the attorney’s actions constitute or fail to constitute de facto negligence. See, e.g.,
Paynter, 841 F.2d at 353.
IV. ANALYSIS
Before the Court are four motions to strike related to three separate experts. In each
subsection below, the Court will briefly summarize the content of the challenged expert report,
the reasons underlying the challenge, and then provide an analysis and ruling on the motion.
A. Garibaldi
Michael J. Garibaldi, a certified public accountant, was “retained to provide accounting
and consulting services” for ACI. Garibaldi Rep. at 4, 2 ECF No. 185. Mr. Garibaldi explains in
his short report that he was “asked to compute the net present value of a stream of costs and
expenses that the plaintiffs will incur.” Id. Mr. Garibaldi summarized his conclusions in an
initial report filed on March 4, 2019, but then submitted an updated report based on new
assumptions on April 16, 2020. See id. Mr. Garibaldi and his team reviewed materials provided
2
Because this filing included multiple documents, the Court cites the page numbers
generated by the electronic case filing system.
7
by ACI to determine the net present value of “streaming video technology” used as a
replacement for ACI’s traditional broadcasting methods. See id. Mr. Garibaldi concluded, based
on the information provided to him by ACI that the “net present value of the costs and expenses
to The Atlanta Channel are estimated to be approximately $1,361,000 based upon a 33 year
period.” Id. at 5.
Mr. Solomon argues that Mr. Garibaldi’s testimony should be stricken because his
calculations are not reliable and are irrelevant. Solomon Mot. to Strike at 8–12. 3 According to
Mr. Solomon, Mr. Garibaldi should have conducted an analysis of the company’s finances as a
whole, rather than just calculate the net present value of the costs associated with streaming. See
id. at 8–9. Mr. Solomon also states that Mr. Garibaldi’s use of a thirty-three-year period in his
calculation is arbitrary, id. at 8, and that Mr. Garibaldi should have requested more information
from ACI prior to reaching his conclusion, id. at 9. Mr. Solomon points to Mr. Garibaldi’s
deposition testimony, and ACI’s counsel’s instruction not to answer questions that explored how
the conclusion fit into ACI’s theory of damages, as evidence suggesting that Mr. Garibaldi’s
methodology is flawed. Id. at 9–10. Mr. Solomon claims that Mr. Garibaldi’s calculation,
standing alone, “fails to address the applicable measure of damages” and is therefore irrelevant.
Id. at 10–11. Mr. Solomon suggests that the present value of future costs cannot be relevant to
damages in this case because the appropriate measure of damages is loss of business value or the
value of lost profits. See id. at 11. According to Mr. Solomon, these deficiencies render Mr.
Garibaldi’s testimony both unreliable and irrelevant under Daubert. See id. at 8, 10.
3
As noted above, the Garvey Defendants filed a motion to join in Mr. Solomon’s motion
to strike. See Garvey Defendants’ Mot. for Joinder. Given that no party objects, the Court
grants the Garvey Defendants’ motion.
8
ACI argues in response that Mr. Garibaldi was hired for a specific and limited purpose: to
calculate the “net present value of ACI’s recurring monthly costs to deliver its programming” via
streaming technology. ACI’s Opp’n Solomon’s Mot. to Strike at 1, ECF No. 197. ACI states
that calculating net present value is something that Mr. Garibaldi is qualified to do, and that it is
appropriate to establish through expert testimony. See id. 1–2. From ACI’s perspective, Mr.
Solomon’s motion does nothing to undermine the reliability of Mr. Garibaldi’s calculation of net
present value of future costs. See id. at 2–3. ACI argues that “Mr. Solomon is certainly free to
cross-examine ACI” on the alleged deficiencies noted in the motion, but that the alleged
deficiencies do not render the opinion unreliable. Id. at 3. Finally, ACI claims that Mr.
Garibaldi’s testimony is relevant to ACI’s “obligation to mitigate its losses and the cost of the
mitigation.” Id. at 5. 4
The parties also use the briefing on this motion to strike to debate the applicable theory of
damages. See id. at 5; Solomon’s Reply Mot. to Strike Garibaldi at 2–6, ECF No. 200
(discussing consequential and direct damages). After discussing the differences between direct
and consequential damages and the appropriate measure of each, Mr. Solomon states that
“consequential damages based on the expenses of mitigation require consideration of the
reasonableness of the efforts and expenses, and showing that the expenses bear a reasonable
relation to the damages to be avoided or mitigated.” Id. at 6. Because Mr. Garibaldi’s report
does not discuss the reasonableness of the expenses, Mr. Solomon argues that the jury should not
hear his conclusions. See id. ACI responds that “Mr. Garibaldi is opining only on the
4
ACI also has filed a motion for leave to file a surreply with Mr. Solomon’s consent. See
ACI’s Mot. for Leave to File Surreply, ECF No. 201; ACI’s Proposed Surreply, ECF No. 201-1.
Given that no party objects and the proposed surreply addresses matters raised for the first time
in reply, the Court will grant ACI’s motion for leave to file.
9
appropriate discount rate to be applied to the recurring future expenses of video streaming to
determine their net present value – nothing more.” ACI’s Proposed Surreply at 2. ACI says that
the reasonableness of the mitigation of damages expenses can be explored through cross
examination of other witnesses. Id. 5
The Court agrees with ACI. The Court understands Mr. Garibaldi’s testimony to be
aimed at a discrete and limited topic. While Mr. Solomon argues that Mr. Garibaldi’s
methodology was flawed because he did not conduct a full analysis of ACI’s financials, Mr.
Solomon does not suggest that the methodology used to calculate the net present value of costs
associated with streaming video is flawed. That discrete opinion appears to be based on Mr.
Garibaldi’s expertise and his reliable application of recognized methods. See Fed. R. Evid. 702.
Mr. Solomon can challenge Mr. Garibaldi’s underlying assumptions and attempt to demonstrate
the limited value of his conclusions through cross examination of the fact witnesses that provide
the basis for those assumptions (or of Mr. Garibaldi if the predicate evidence for those
assumptions is never admitted or has been discredited). Furthermore, the Court agrees that the
testimony is relevant with respect to ACI’s obligation to mitigate damages. Mr. Solomon does
not seriously challenge this contention, and instead argues that Mr. Garibaldi’s report should
include an analysis of the reasonableness of the future expenses. The Court does not agree that
his report needs such an analysis to be relevant. The Court finds that Mr. Garibaldi’s proffered
testimony is sufficiently reliable and relevant to be presented to the jury. Accordingly, Mr.
Solomon’s motion to strike is denied.
5
This argument raises the possibility that ACI’s lay witnesses may attempt to proffer
testimony that may be more appropriately characterized as expert testimony. But that is an
objection for another day.
10
B. Pera
Lucian T. Pera is an attorney and the Garvey Defendants’ expert on liability. See Pera
Rep., ECF No. 171-1. His report states that he is “familiar with [the] standard of care, as well as
the law and rules, governing the conduct of a District of Columbia lawyer concerning her
conduct when faced with the assertion by a client that the lawyer . . . has made a mistake.” Id. at
3. He states that the “opinions stated in [his] expert report reflect th[e] applicable standard of
care.” Id. at 3–4. In addition to offering some of his own commentary, Mr. Pera adopts the
opinions and conclusions of Professor Myles Lynk. Id. at 5; see also Lynk Rep., ECF No. 119-1.
Professor Lynk was originally slated to testify for the Garvey Defendants, but due to a conflict
had to withdraw. See Mem. Op. at 20, ECF No. 205 (granting the Garvey Defendants’ motion to
substitute expert). Broadly speaking, Mr. Pera, and Professor Lynk, testify that pursuant to the
applicable rules of professional conduct, Ms. Virtue’s conduct adhered to the standard of care.
See id. at 6; Lynk Rep. at 5–12.
ACI claims that several portions of Mr. Pera’s report should be stricken. ACI argues that
a number of Mr. Pera’s conclusions, or Professor Lynk’s conclusions adopted by Mr. Pera, are
impermissible legal conclusions that should be excluded by the Court. ACI’s Mot. to Strike Pera
at 1–2, ECF No. 208-1. According to ACI, the opinions of Mr. Pera have been foreclosed by this
Court’s prior ruling on the Garvey Defendants’ motion for summary judgment. See id. at 2–8.
ACI states that “[t]he Court has held, as a matter of law, there are no limitations, on Ms. Virtue’s
duties to ACI arising out of facts that support the” arguments, previously made by the Garvey
Defendants, that Ms. Virtue’s duties did not extend to the so-called “Virtue Obligations.” 6 Id. at
6
The “Virtue Obligations” constitute a list of duties that ACI asserts Ms. Virtue should
have fulfilled. See 2d Am. Compl. ¶ 59. In using this label, the Court takes no position on
whether the listed obligations are in fact required by the appropriate standard of care.
11
2–6. ACI also claims that several statements in Mr. Pera’s report amount to ipse dixit opinions
without any support or constitute speculation. See id. at 10–12.
The Garvey Defendants respond that Mr. Pera’s opinions are about the applicable
standard of care, which is appropriate in a legal malpractice case. Garvey Defs.’ Opp’n ACI’s
Mot. to Strike Pera at 2–5, ECF No. 225. They claim that ACI misreads the Court’s prior
opinions stating that “while the Court indeed denied the request of the Garvey Defendants to
decide as a matter of law that such duties did not exist, the Court did not hold as a matter of law
that they did.” Id. at 9. Because Mr. Pera’s opinions are aimed at what the applicable standard
of care required of Ms. Virtue, the Garvey Defendants assert that his opinions fall directly into
the space left by the Court for expert testimony on the issue of liability. See id. (quoting Mem.
Op. at 12). The Garvey Defendants also argue that ACI should be judicially estopped from
making the arguments in its motion because they are inconsistent with ACI’s prior positions. See
id. at 10–12. Furthermore, the Garvey Defendants claim that none of Mr. Pera’s opinions
amount to ipse dixit because they should be considered in the context of the entire report,
including Professor Lynk’s report that Mr. Pera adopts as his own. See id. at 13. Finally, the
Garvey Defendants put forth an argument that the motion to strike should be treated as untimely
because it is essentially a de facto motion to strike Mr. Pera as an expert, which would render the
motion untimely under the Court’s prior orders. See id. at 14–15.
The Court concludes that the vast majority of Mr. Pera’s opinions are appropriate in the
context of a legal malpractice case. The Court has repeatedly stated that the parties will need to
rely on expert testimony to establish the appropriate standard of care and what specific conduct
is required, or not required, by that standard. See Beach TV Props., Inc. v. Solomon, 254 F.
Supp. 3d 118, 134 (D.D.C. 2017) (“Whether a reasonable attorney would have been aware of the
12
doctrine of continuing representation and what specific conduct was required by the standard of
care . . . are questions of fact that may be resolved with the aid of expert testimony.”) (internal
citations omitted); Atlanta Channel, Inc. v. Solomon, 2020 WL 4219757, at *8 (D.D.C. July 23,
2020) (“At trial, the parties will present expert testimony for the trier of fact on the proper
standard of care, what that standard required of Ms. Virtue, when it required action, and whether
Ms. Virtue’s actions met that standard.”). The majority of the opinions ACI seeks to strike speak
directly to the appropriate standard of care, what that standard required of Ms. Virtue, and
whether her actions conformed with that standard. The Court reaches this conclusion by
evaluating Mr. Pera’s report and Professor Lynk’s report together and as a whole. See Lynk
Rep. at 5–12.
The Court does not agree that its prior opinions foreclose many of the opinions offered by
Mr. Pera. ACI misinterprets the Court’s prior rulings. The Court stated that it would “not
declare as a matter of law that Ms. Virtue’s duty as a lawyer did not extend to disclosing a
potential malpractice claim and conflict of interest regarding the matter on which she was
employed to work.” Atlanta Channel, 2020 WL 4219757, at *6. The Court did not rule as a
matter of law that the appropriate standard of care is exactly what ACI says it is. The Court finds
that Mr. Pera’s testimony will aid the jury in determining the appropriate standard of care, what
the standard of care required in this case, and whether Ms. Virtue’s actions conformed with the
standard. ACI will have an opportunity to present expert testimony on the exact same matters.
The Court does not find that Mr. Pera’s opinions are ipse dixit. The Supreme Court has
held that “noting in either Daubert or the Federal Rules of Evidence requires a district court to
admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”
Gen. Elec. Co., 553 U.S. at 146. When Mr. Pera’s opinions and conclusions are considered in
13
the proper context, alongside the report of Professor Lynk, the Court finds that they do not
amount to ipse dixit. The Court finds that the opinions are based on citations to appropriate
sources of ethical rules, such as the D.C. Rules of Professional Responsibility. See Lynk Rep. at
5, 7–8, 11 (discussing D.C. Rules of Professional Responsibility); see id. (citing Restatement
(Third) of the Law Governing Lawyers); id. at 6 (discussing American Bar Association Ethics
opinion); id. at 11 (discussing legal ethics treatise); Pera Rep. at 4–5 (describing materials
reviewed). That said, given that Mr. Pera adopts in full the report of Professor Lynk, Mr. Pera
should ensure that any testimony offered at trial is rooted in applicable ethical rules or other
specific sources. 7
Two statements in Professor Lynk’s report go a step too far and will be stricken. First,
Professor Lynk states that “in [his] professional opinion ACI’s allegations against Ms. Virtue in
Court III are unfounded.” Id. at 5. Second, Professor Lynk states that “in [his] opinion the
claims against Ms. Virtue as set forth in Count III of the Second Amended Complaint are
without merit.” Id. at 12. These statements are not limited to the appropriate standard of care or
Ms. Virtue’s actions measured against that standard. Instead, they are opinions that amount to
legal conclusions about the claims against Ms. Virtue as a whole. Such testimony does not assist
the trier of fact because it merely supplies an answer for the ultimate legal question the jury must
answer. See Burkhart, 112 F.3d at 1212 (“Expert testimony that consists of legal conclusions
7
In two short paragraphs with no citations to legal authority, ACI suggests that two other
portions of the report should be stricken. See ACI’s Mot. to Strike Pera at 12–13. First, ACI
argues that Professor Lynk’s report inappropriately opines on Ms. Virtue’s intent given her word
choice in an email. Id. at 12. Second, ACI complains that Mr. Pera simultaneously adopts
Professor Lynk’s report as his own and describes it as thorough, complete, and correct. Id. at
12–13. The Court does not find the discussion of Mr. Virtue’s email to be inappropriate in the
context of a discussion about the standard of care. The Court also is not troubled by the Mr.
Pera’s word choice in adopting Professor Lynk’s report as his own.
14
cannot properly assist the trier of fact” in either “‘understand[ing] the evidence’ or . . .
‘determin[ing] a fact in issue.’” (quoting Fed. R. Evid. 702)). Accordingly, the Court grants
ACI’s motion with respect to these two statements and denies the motion in all other respects. 8
C. Goodman
Jack N. Goodman is an attorney who was hired by Mr. Solomon. Mr. Goodman
specializes in communications law and practices before the FCC. See Goodman Rep. ¶ 1. Mr.
Solomon hired Mr. Goodman to offer opinions with respect to two distinct topics. First, Mr.
Goodman offers his opinion about whether Mr. Solomon could have reasonably anticipated in
1999 and 2000 that the failure to secure a Class A License could have resulted in a “loss of the
opportunity to sell the spectrum used by WTHC either in the Broadcast Incentive Auction (the
“Auction”) held by the [FCC] or to sell an option for WTHC to a speculator intending to
participate in the Auction.” Id. ¶ 11. Second, Mr. Goodman offers his opinion about whether
WTHC “would have met the qualifications for a Class A station.” Suppl. Goodman Rep. ¶ 1.
ACI filed motions to strike each opinion separately.
1. Auction Opinion
Mr. Goodman’s initial report states that it is his opinion “that neither Mr. Solomon nor
any other FCC practitioner could or would reasonably have anticipated the Auction or that there
would have been an opportunity to monetize the WTHC license in connection with the Auction.”
Goodman Rep. ¶ 12. Much of his report gives background information about the FCC, broadcast
television spectrum, and the Spectrum Act. See id. ¶¶ 13–19, 21–24. He ultimately concludes
8
Because the Court largely denies ACI’s motion to strike, the Court declines to rule on
judicial estoppel or on timeliness grounds.
15
that the changes made by the Spectrum Act could not have been reasonably anticipated. See id.
at ¶¶ 25–26.
ACI argues that Mr. Goodman’s opinion about the foreseeability of the changes made by
the Spectrum Act should be stricken because it is an impermissible legal conclusion. ACI’s Mot.
to Strike Goodman Auction at 3. ACI states that Mr. Goodman’s opinion boils down to an
opinion that “the auction was a superseding or intervening cause between Mr. Solomon’s failure
to file a completed Statement of Eligibility and ACI’s damages.” Id. ACI suggests that the
Court already determined that the Spectrum Act is not a superseding cause of ACI’s damages.
See id. at 5. ACI argues that damages should be measured as the amount ACI would have
recovered but for Mr. Solomon’s negligence. Id. at 6 (citing Lockhart v. Cade, 728 A.2d 65, 69
(D.C. 1999). For this reason, ACI contends that Mr. Solomon, not ACI, should bear the risk of
an uncertain future. See id. The Court understands this argument to suggest that Mr. Goodman’s
opinion on the foreseeability of the Spectrum Act is irrelevant. ACI also argues that Mr.
Goodman’s opinion will be confusing for the jury because “Mr. Goodman does not make any
connection between his opinion on foreseeability” and the other damages experts’ testimony. Id.
at 8. ACI claims that Mr. Goodman’s failure to make this connection would make his testimony
unfairly confusing and that the testimony would be prejudicial because he would carry a certain
degree of “gravitas” before the jury. Id. at 8.
Mr. Solomon argues in response that Mr. Goodman’s opinion does not amount to an
impermissible legal opinion. Solomon Opp’n ACI’s Mot. to Strike Goodman Auction at 3, ECF
No. 228. Mr. Solomon states that Mr. Goodman’s opinion does not “merely reference a legal
standard” but instead “addresses factual components that would be helpful to the finder of fact in
following the Court’s instructions.” Id. Mr. Goodman’s opinion about the foreseeability of
16
developments in communications law, Mr. Solomon says, “is one that laymen could not draw for
themselves.” Id. at 3. Mr. Solomon claims that Mr. Goodman’s opinion is relevant because it
speaks to the causal relationship between Mr. Solomon’s actions and the harm alleged to have
occurred. Id. Mr. Solomon also argues that the Court’s prior ruling denying Mr. Solomon’s
motion for summary judgment “is not equivalent to a finding by the Court as a matter of law that
the Spectrum Act was foreseeable.” Id. at 4. Finally, Mr. Solomon contends that Mr.
Goodman’s testimony would not be unfairly prejudicial just because of his high billing rates. Id.
at 5.
The Court finds that portions of Mr. Goodman’s opinion should be stricken. As noted
above, “[a]n expert may offer his opinion as to facts that, if found, would support a conclusion
that the legal standard at issue was satisfied, but he may not testify as to whether the legal
standard has been satisfied.” Burkhart, 112 F.3d at 1212–13. When Mr. Goodman opines that
“neither Mr. Solomon nor any other FCC practitioner could or would reasonably have
anticipated the Auction,” Goodman Rep. ¶ 12, he crosses the line between expert testimony that
helps the trier of fact and impermissible legal opinion that does not. What is “reasonably
foreseeable” is for the jury to decide. That being said, the Court finds that much of Mr.
Goodman’s report would assist the trier of fact in understanding a complicated field and aid the
jury in reaching its own conclusion with respect to what was foreseeable. Cf. S.E.C. v. Johnson,
525 F. Supp. 2d 70, 77 (D.D.C. 2007) (“[I]n securities cases, expert testimony commonly is
admitted to assist the trier of fact in understanding trading patterns, securities industry practice,
securities industry regulations, and complicated terms and concepts.”). The Court does not find
that ACI has demonstrated that Mr. Goodman’s testimony would be unfairly confusing or
prejudicial. ACI can use cross examination to attempt to undermine Mr. Goodman’s credibility.
17
As such, the Court will only strike those portions of Mr. Goodman’s report that encroach on the
province of the jury. 9 Accordingly, ACI’s motion is granted in part.
2. Class A License Opinion
Mr. Goodman’s supplemental expert report contains his opinion that “WTHC-LD did not
in 1999, did not in 2016, and does not now meet the requirements for Class A Television status.”
Suppl. Goodman Rep. ¶ 11. Similar to Mr. Goodman’s initial report, the supplemental report
includes background discussion about Class A Licenses, technical terms such as “DTV noise-
limited contour,” and the FCC’s regulations. See id. ¶¶ 3–5. He goes on to quote at length from
a deposition taken for this case. See id. ¶¶ 6–8. Mr. Goodman concludes that WTHC would not
be eligible for a Class A License because it does not meet the locally produced programming
requirement, id. ¶ 11, and because it does not meet the “main studio with two full-time
employees and production capability” requirement, id. ¶ 15. He also suggests that even if
WTHC had originally been granted a Class A License, the FCC would have revoked the license
prior to the auction. Id. ¶ 16.
9
The Court strikes the following:
(1) “[I]t is my opinion that neither Mr. Solomon nor any other FCC practitioner could or
would reasonably have anticipated the Auction of that there would have been an opportunity to
monetize the WTHC license in connection with the Auction.” Goodman Rep. ¶ 12;
(2) “In my opinion, that harm – to the extent it might have occurred – was not something
that could have been foreseen in 1999 or 2000.” Id. ¶ 20;
(3) “In my opinion, in 1999 and 2000, the possibility of an auction where the FCC would
acquire spectrum from television stations could not have been anticipated.” Id. ¶ 25;
(4) “Even if it would have been possible to foresee something like the Auction, it was not
in my opinion foreseeable in 1999 and 2000 that, if stations were repurchased by the FCC, Class
A stations would have been protected by either the FCC or Congress.” Id. ¶ 26;
(5) “My opinion is that no reasonable FCC practitioner in 1999 or 2000 could have
anticipated the harm WTHC alleges.” Id. ¶ 26.
18
ACI again argues that Mr. Goodman’s opinions amount to impermissible legal
conclusions. See ACI’s Mot. Strike Goodman Class A Qualification at 1–2, ECF No. 212-1.
ACI also suggests that because the Court previously ruled that “ACI could meet the ‘main
studio’ requirement by its use of the ‘grandfathered’ studio in Panama City, FL,” Mr.
Goodman’s opinion should be stricken because it makes no mention of “grandfathered” studios.
Id. at 2 (citing Mem. Op. at 21, ECF No. 184). Mr. Solomon argues in response that because this
is a legal malpractice case, expert testimony that embraces legal conclusions is often required.
See Solomon’s Opp’n ACI’s Mot. to Strike Goodman Class A Qualification at 3, ECF No. 227.
Furthermore, Mr. Solomon claims that Mr. Goodman does not merely state what legal
conclusion should be reached, but instead “identifies facts which if found would support the
conclusion that the legal standard” was not satisfied. Id. at 5.
As the Court found with Mr. Goodman’s initial report, some portions of his supplemental
report must be stricken as impermissible legal conclusions. 10 The Court agrees with Mr.
Solomon that “discussion of the laws and FCC regulations concerning a highly specialized
industry will help the jury understand unfamiliar terms and concepts.” Id. at 4. But Mr.
Goodman goes too far when he opines on legal issues that the Court has determined must be
resolved by the fact finder. The Court ruled that disputed issues of fact prevented summary
judgment on the Class A eligibility issue. See Atlanta Channel, Inc. v. Solomon, 2020 WL
1508587, at *9 (D.D.C. Mar. 30, 2020). The jury will be responsible for resolving the factual
disputes and determining the appropriate legal conclusion based on instructions provided by the
Court. Mr. Goodman’s opinion that WTHC did not satisfy the legal requirements to secure a
10
The Court takes no position on whether the legal conclusions offered by Mr. Goodman
are correct.
19
Class A License does not assist the jury in understanding the facts or determining a factual
dispute. See Burkhart, 112 F.3d at 1212. Although the Court will strike Mr. Goodman’s legal
conclusion, the Court will allow Mr. Goodman to testify to the legal framework at issue and how
given facts might fit into that framework. Therefore, the Court grants in part ACI’s motion to
strike the portions of Mr. Goodman’s supplemental report. 11
V. CONCLUSION
For the foregoing reasons, Mr. Solomon’s motion to strike (ECF No. 195) is DENIED;
ACI’s motion to strike (ECF No. 208) is GRANTED IN PART AND DENIED IN PART;
ACI’s motion to strike (ECF No. 211) is GRANTED IN PART AND DENIED IN PART; and
ACI’s motion to strike (ECF No. 212) is GRANTED IN PART AND DENIED IN PART. The
Garvey Defendants’ motion for joinder (ECF No. 196) and ACI’s motion for leave to file (ECF
No. 201) are GRANTED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
11
The Court strikes the following from Mr. Goodman’s supplemental report:
(1) “In my opinion, therefore, WTHC-LD did not in 1999, did not in 2016, and does not
now meet the requirements for Class A Television status.” Suppl. Goodman Rep. ¶ 11.
(2) “It would, therefore, not be deemed to be locally produced programming for purposes
of Class A eligibility.” Id.(3) “It appears, therefore, that WTHC-LD was not complying with the FCC’s condition
that stations qualifying for Class A status have at least two full-time employees working at the
station’s main studio and that the main studio include facilities that would enable local program
production.” Id. ¶ 14.
(4) “Mr. Colley’s indication that the manner in which WTHC-LD operated was
unchanged from the 1990’s suggests that WTHC-LD never possessed a qualifying main studio.”
Id.
(5) The entirety of paragraph fifteen.
(6) “In my opinion, the FCC’s staff would have proposed that the station be downgraded
to a low power television station and not permitted to participate in the auction.” Id. ¶ 16.
20
Dated: November 24, 2020 RUDOLPH CONTRERAS
United States District Judge
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