AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 97

REPLY to opposition to motion re #67 MOTION to Strike #66 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) [REDACTED] REPLY IN SUPPORT OF PUBLIC RESOURCE'S MOTION TO STRIKE THE DECLARATION KURT F. GEISINGER [90-12] filed by PUBLIC.RESOURCE.ORG, INC.. (Bridges, Andrew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC., and
NATIONAL COUNCIL ON MEASUREMENT
IN EDUCATION, INC.,

Case No. 1:14-CV-00857-TSC-DAR
REPLY IN SUPPORT OF DEFENDANT
PUBLIC RESOURCE’S MOTION TO
STRIKE THE DECLARATION OF
KURT F. GEISINGER

Plaintiffs,
Action Filed: May 23, 2014
v.
PUBLIC.RESOURCE.ORG,
Defendant.

[REDACTED VERSION]

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I.

GEISINGER’S EXPERT DISCLOSURE FAILED TO “ADEQUATELY
PRESAGE” THE NEW OPINIONS IN HIS DECLARATION. ........................................2
A.

Geisinger’s New Opinions Are Not Elaborations of His Expert
Disclosure. ...............................................................................................................3

B.

Dr. Geisinger Was Not Permitted to “Supplement” His Report with
New Opinions During his Deposition. .....................................................................4

II.

PLAINTIFFS HAVE NOT EXPLAINED HOW GEISINGER’S
QUALIFICATIONS AS A PSYCHOLOGIST SUPPORT HIS OPINIONS
ABOUT NON-PSYCHOLOGICAL MATTERS. ...............................................................5

III.

GEISINGER’S OPINIONS ARE UNRELIABLE. .............................................................7
A.
B.

Plaintiffs Have Failed to Rehabilitate Geisinger’s Unreliable Opinion
that Plaintiffs Cannot Reasonably Calculate Their Lost Revenue. ........................11

C.

Plaintiffs Have Not Shown that Geisinger’s Opinion that Plaintiffs
Will Cease Developing the Standards Is Reliable. ................................................12

D.
IV.

Plaintiffs Have Not Rehabilitated Geisinger’s Unreliable Opinion That
Public Resource Caused a Decrease in Plaintiffs’ Revenues...................................7

Plaintiffs Have Not Shown that Geisinger’s Remaining Opinions Are
Admissible. ............................................................................................................16

CONCLUSION ..................................................................................................................16

i

TABLE OF AUTHORITIES
Page(s)
CASES 
Allgood v. Gen. Motors Corp.,
No. 1:02CV01077 DFHTAE, 2007 WL 647496 (S.D. Ind. Feb. 2, 2007) ................................5
Ambrosini v. Labarraque,
101 F.3d 129 (D.C. Cir. 1996) .................................................................................................10
Astra Aktiebolag v. Andrx Pharm., Inc.,
222 F. Supp. 2d 423 (S.D.N.Y. 2002)......................................................................................10
Blake v. Bell’s Trucking, Inc.,
168 F. Supp. 2d 529 (D. Md. 2001) ...........................................................................................8
Eiben v. Gorilla Ladder Co.,
No. 11–CV–10298, 2013 WL 1721677, at *4–7 (E.D. Mich. April 22, 2013) .........................5
Fail-Safe, L.L.C. v. A.O. Smith Corp.,
744 F. Supp. 2d 870 (E.D. Wis. 2010).....................................................................................15
Freeland v. Iridium World Commc’ns, Ltd.,
545 F. Supp. 2d 59 (D.D.C. 2008) .............................................................................................7
Groobert v. President & Directors of Georgetown College,
219 F. Supp. 2d 1 (D.D.C. 2002) .............................................................................................13
In re Executive Telecard, Ltd. Sec. Litig.,
979 F. Supp. 1021 (S.D.N.Y. 1997).........................................................................................10
In re Sulfuric Acid Antitrust Litig.,
235 F.R.D. 646 (N.D. Ill. 2006) .................................................................................................4
In re TMI Litig.,
193 F.3d 613 (3d Cir. 1999).....................................................................................................15
Interplan Architects, Inc. v. C.L. Thomas, Inc.,
No. 4:08-CV-03181, 2010 WL 4065465 (S.D. Tex. Oct. 9, 2010) ...........................................6
Montgomery Cty. v. Microvote Corp.,
320 F.3d 440 (3d Cir. 2003).....................................................................................................15
Moore v. Napolitano,
926 F. Supp. 2d 8 (D.D.C. 2013) ...............................................................................................5

ii

TABLE OF AUTHORITIES
(Continued)
Page(s)
Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc.,
493 F.3d 160 (D.C. Cir. 2007) ...............................................................................................3, 4
U.S. Information Systems, Inc. v. Inter. Broth. of Elec. Workers Local
Union No. 3,
313 F.Supp.2d 213 (S.D.N.Y. 2004)........................................................................................10
Ullman v. Auto-Owners Mut. Ins. Co.,
No. 2:05-CV-1000, 2007 WL 1057397 (S.D. Ohio Apr. 5, 2007) ............................................4
United States v. Hankey,
203 F.3d 1160 (9th Cir. 2000) .................................................................................................13
United States v. Ramsey,
165 F.3d 980 (D.C. Cir. 1999) .................................................................................................13
RULES
Fed. R. Civ. P. 26 .....................................................................................................................1, 2, 4
Fed. R. Civ. P. 37 .............................................................................................................................5
*Fed. R. Evid. 702 .......................................................................................................................1, 7
*Fed. R. Evid. 703 .........................................................................................................................15
OTHER AUTHORITIES
Joseph, Gregory P., Expert Approaches, 28 Litigation 20 (2002) ...................................................4
Merriam-Webster.com, http://www.merriam-webster.com/dictionary/presage (last
visited Mar. 3, 2016) ..................................................................................................................3

iii

GLOSSARY
Short Form

Cited Document

G. Decl.

ECF No. 60-06, Declaration of Kurt. F. Geisinger in Support of Plaintiffs’
Motion for Summary Judgment and Entry of a Permanent Injunction

G. Dep.

ECF No. 90-02, Complete Transcript of the Deposition of Kurt F. Geisinger
attached as Exhibit 1 to the Declaration of Jonathan Hudis in opposition to
Defendant-Counterclaimant Public Resource’s Motion to Strike the Declaration
of Kurt. F. Geisinger in Support of Plaintiffs’ Motion for Summary Judgment
and Entry of a Permanent Injunction

G. Rep.

ECF No. 67-05, Expert Report of Kurt F. Geisinger attached as Exhibit 3 to the
Declaration of Matthew Becker in support of Defendant-Counterclaimant Public
Resource’s Motion to Strike the Declaration of Kurt. F. Geisinger in Support of
Plaintiffs’ Motion for Summary Judgment and Entry of a Permanent Injunction

Mot.

ECF No. 67, Defendant-Counterclaimant Public Resource’s Motion to Strike the
Declaration of Kurt. F. Geisinger in Support of Plaintiffs’ Motion for Summary
Judgment and Entry of a Permanent Injunction

Opp.

ECF No. 91, Plaintiffs’ Opposition to Defendant-Counterclaimant Public
Resource’s Motion to Strike the Declaration of Kurt. F. Geisinger in Support of
Plaintiffs’ Motion for Summary Judgment and Entry of a Permanent Injunction

iv

INTRODUCTION
Plaintiffs failed to satisfy their burden to show that Dr. Geisinger’s declaration is
admissible. Even under the liberal standard for admitting expert testimony where the Court is the
factfinder, expert opinions must satisfy the requirements of Federal Rule of Evidence 702:
qualification, helpfulness, and reliability. Each of Dr. Geisinger’s opinions falls short of meeting
those requirements. In addition, several of his opinions were late and violated the expert
disclosure obligations under Federal Rule of Civil Procedure 26(a)(2)(B) and the Court’s
scheduling order (ECF No. 53).
Public Resource does not dispute that Dr. Geisinger has expertise in the field of
psychometric testing. But his declaration ranges far outside that field, into areas where he has no
professional, expert knowledge but where he simply serves as a mouthpiece for Plaintiffs to
dress up their arguments with a false veneer of respectability and authority. For example, he has
no relevant qualifications to opine on the effect on Plaintiffs’ sales of Public Resource’s posting
the 1999 Standards. But instead of retaining a qualified expert to opine on topics where
Geisinger lacks experience or training, Plaintiffs had Geisinger cram all the “opinions” they
needed into his declaration. Not surprisingly, Geisinger cannot support the opinions on issues
outside his field of expertise, and his analysis on those issues manifestly flounders. His opinions
rest on unreliable assumptions, deficient or non-existent principles and methods, and
inadmissible and biased evidence. Two reasons to exclude Geisinger’s key opinions stand out as
particularly compelling:


Geisinger’s opinion that Public Resource caused a decline in sales of the 1999
Standards rests on his assumption that sales of the Standards had gradually declined
since their first publication.

1



Geisinger’s opinion that Plaintiffs will not update the 2014 Standards if Public
Resource prevails in this case rests on his opinion that Plaintiffs would lack funding
to pay their development costs. But that underlying opinion in turn rests on a false
assumption:

(based on Plaintiffs’ 15 year revision cycle).
Geisinger’s opinions therefore do not fit the facts of this case.
Plaintiffs also concede that their disclosures of Geisinger’s new “opinions” were late and
that the lateness of the disclosure was not substantially justified. Instead, Plaintiffs argue that
their late efforts to squeeze in new opinions were harmless even though they deprived Public
Resource of adequate notice to prepare fully for Dr. Geisinger’s deposition.
This Court should not consider unqualified and unreliable expert testimony, especially
testimony on opinions that were not timely disclosed. The Court should strike the Geisinger
declaration entirely.
ARGUMENT
I.

GEISINGER’S EXPERT DISCLOSURE FAILED TO “ADEQUATELY
PRESAGE” THE NEW OPINIONS IN HIS DECLARATION.
Plaintiffs could have easily avoided any argument about Geisinger’s sandbagging

opinions by simply filing his expert disclosure under oath instead of a declaration that strays far
from the scope of his disclosure. There are clear differences between the opinions in Geisinger’s
expert disclosure and his declaration. Although experts may elaborate on the facts and data that
support their opinions during direct and cross-examination, Federal Rule of Civil Procedure
26(a)(2)(B) requires that each expert disclose a “complete statement of all opinions the witness
will express and the basis and reasons for them.” Plaintiffs cannot, as they now suggest, disclose

2

an incomplete report that “presages,” meaning “to give an omen or warning of: foreshadow,”
future opinions that the expert may contrive. See Merriam-Webster.com, http://www.merriamwebster.com/dictionary/presage (last visited Mar. 3, 2016). Plaintiffs cannot meet their burden to
show that their delay in revealing Geisinger’s new opinions was substantially justified or
harmless. Therefore, most of Geisinger’s opinions should be excluded as untimely.
A.

Geisinger’s New Opinions Are Not Elaborations of His Expert Disclosure.

Public Resource moves to strike Geisinger’s testimony in paragraphs 22, 24, and 25 of
his declaration because that testimony is new and untimely. Mot. at 6, 11, 12.

Plaintiffs fail to show where in Geisinger’s
disclosure he identified the opinions that appear in his new declaration. See Opp. at 6.
Geisinger’s report reveals that he
assumed that Public Resource posting the standards online would cause the elimination of all of
Plaintiffs’ revenue from the Standards and opined on the consequences he feared would result.
G. Rep. ¶ 55. Plaintiffs make no effort to locate in his expert disclosure Geisinger’s opinion that
it is impossible to calculate Plaintiffs’ allegedly lost revenue. Instead, much of Plaintiffs’
argument is a red herring, focusing on other opinions that Public Resource never argued were
new. See Opp. at 6 (last three bullet points).
Although experts may elaborate on the facts and data supporting their opinions, Plaintiffs
cite no authority that permits experts to submit new opinions under the guise of “elaboration.”
Plaintiffs rely on Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 167–68
(D.C. Cir. 2007), which does not support their position. In Muldrow, the expert testimony
included additional facts about a specific fatality report concerning a resident at defendant’s
juvenile transitional living facility. The court held that testimony was admissible because the
3

expert had disclosed that he reviewed the facility’s fatality reports in the expert report and
merely elaborated on a particular example from those reports. It rejected the appellant’s
characterization of the expert’s testimony as rendering a new opinion. Id. at 167. Other courts
have rejected attempts like that of Plaintiffs here to expand the scope of expert opinions under
the guise of supplementation. E.g., Ullman v. Auto-Owners Mut. Ins. Co., No. 2:05-CV-1000,
2007 WL 1057397, at *4 (S.D. Ohio Apr. 5, 2007) (excluding supplemental report that provided
actual reasoning for assertions in initial report).

B.

Dr. Geisinger Was Not Permitted to “Supplement” His Report with New
Opinions During his Deposition.

Plaintiffs fall back on the claim that their untimely disclosure is excused because
Geisinger revealed his new opinions during his deposition. There is no authority from this circuit
that permits sandbagging by withholding expert opinions until the expert’s deposition. To
support their claim that Geisinger could render new opinions in his deposition, Plaintiffs rely
upon an old article advocating fewer expert depositions and upon a case that cited to that article a
decade ago. See Mot. at 7–8 (citing Gregory P. Joseph, Expert Approaches, 28 Litigation 20, 21
(2002) and In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 646, n. 13 (N.D. Ill. 2006)). The
argument in the article was that an expert’s deposition testimony constitutes supplementation
under Federal Rule of Civil Procedure 26(e)(1). Most courts, however, limit supplementation to
correction of inaccurate information or the provision of “additional” information that was not
available at the time of the initial report or deposition. “Rule 26(e) imposes a duty on the
producing party to supplement information that is incorrect or incomplete. It does not give the
producing party a license to disregard discovery deadlines and to offer new opinions under the

4

guise of the ‘supplement’ label.” Allgood v. Gen. Motors Corp., No. 1:02CV01077 DFHTAE,
2007 WL 647496, at *3 (S.D. Ind. Feb. 2, 2007); accord Eiben v. Gorilla Ladder Co., No. 11–
CV–10298, 2013 WL 1721677, at *4–7 (E.D. Mich. April 22, 2013) (excluding supplemental
expert opinions as untimely).
Plaintiffs also argue that the untimely disclosure of Geisinger’s opinions was harmless
under Rule 37 because Public Resource deposed Geisinger. Plaintiffs bear the burden of showing
lack of harm. Moore v. Napolitano, 926 F. Supp. 2d 8, 27 (D.D.C. 2013). Public Resource’s
deposition of Geisinger did not render his new opinions harmless because Public Resource
lacked advance notice of his opinions and had no ability to prepare questions concerning those
opinions. Permitting parties to introduce new opinions only at deposition would flout the purpose
of the full disclosure rule and destroy the finality of expert reports. See Allgood, 2007 WL
647496, at *3–4.
II.

PLAINTIFFS HAVE NOT EXPLAINED HOW GEISINGER’S
QUALIFICATIONS AS A PSYCHOLOGIST SUPPORT HIS OPINIONS ABOUT
NON-PSYCHOLOGICAL MATTERS.
Plaintiffs contend that Geisinger’s membership and participation with the sponsoring

organizations show that he has the requisite experience to render opinions about the cause of
Plaintiffs’ sales decline and likely future conduct regarding updating the standards. Opp. at 12.
Plaintiffs also argue that he is qualified because he and his foundation have published books.
Opp. at 15. What Plaintiffs fail to show, however, is a connection between Geisinger’s
experience and the opinions he draws. As a long-time member of Plaintiffs’ organizations, he
may be familiar with their history, but that does not explain how that membership informed his
opinion about what Plaintiffs would do in the future if they cannot continue to claim copyright
ownership over the 1999 Standards. His opinion that Plaintiffs will stop developing the standards
rests on his faulty assumption that lack of copyright ownership will eliminate Plaintiffs’ revenues
5

entirely, and his testimony was simply as a mouthpiece to provide a pseudo-expert veneer upon
what should have been percipient witness evidence from Plaintiffs’ executives about their
intentions. See G. Rep. ¶ 23. There is no reason to allow this subterfuge.
Plaintiffs claim that Geisinger’s familiarity with his own publications, or those of his
foundation, qualify him to opine on the cause of Plaintiffs’ decline in sales revenue is weak.
Authorship of some publications does not qualify someone, without substantially more, to opine
upon a marketplace for very different publications and the hypothetical effect of court decisions
on different marketplaces. Geisinger has made no efforts to explain why he would expect his
publications to sell similarly to the Standards. And there are obvious differences:

And the Buros
Center updates its Mental Measurements Yearbooks annually, while Plaintiffs publish their
Standards every 15 years.
Plaintiffs fail to distinguish Interplan Architects, Inc. v. C.L. Thomas, Inc., No. 4:08-CV03181, 2010 WL 4065465, at *13 (S.D. Tex. Oct. 9, 2010). In that case the court found that an
architect-expert’s opinions on industry custom must be excluded because he relied only on his
knowledge of two other architects, but that his opinions on convenience store design were
admissible because of his personal experience with many such store designs. Similarly,
Geisinger may testify about the content of the Standards, or which tests follow the Standards, or
non-quantitative opinions about the factors that affect the success or accuracy of a particular test.

And Public Resource never challenged his qualifications for his opinions
expressed in paragraphs 17–21 of his declaration, which concern the Standards’ development

6

and use (although those opinions are not helpful to the Court). Beyond those topics, Geisinger
strayed far beyond his expertise, and his further opinions should be excluded on that basis.
III.

GEISINGER’S OPINIONS ARE UNRELIABLE.
Public Resource also moves to exclude Geisinger’s declaration because he failed to use

reliable methods or apply methods reliably. Plaintiffs contend that these methodological
criticisms affect the weight of Geisinger’s testimony but not their admissibility. That argument is
directly contrary to Federal Rule of Evidence 702. Not surprisingly, the case Plaintiffs claim
supports their assertion never states that methodological critiques go only to the weight of an
opinion. Opp. at 16 (citing Freeland v. Iridium World Commc’ns, Ltd., 545 F. Supp. 2d 59, 88
(D.D.C. 2008) (holding the party seeking exclusion had attacked only the factual basis for the
expert’s report and not the methodology)).
Plaintiffs further claim that Geisinger should be immune from methodological critiques
because his opinions are based on experience, not testing. Opp. at 21. But Geisinger’s challenged
opinions are not of the kind that may rest on experience alone. Were he opining on whether a
particular test followed the Standards, his experience reviewing other tests with similar
characteristics would probably be sufficient. But his prediction about whether Plaintiffs will
continue to develop the standards and his causal opinion as to why sales of the 1999 Standards
declined in 2012 are untethered to his professional experience. He has no reliable scientific basis
for his conclusions because he identified no comparable circumstances from which he can
extrapolate data.
A.

Plaintiffs Have Not Rehabilitated Geisinger’s Unreliable Opinion That
Public Resource Caused a Decrease in Plaintiffs’ Revenues.

Geisinger opines that sales of the 1999 Standards should have declined gradually and that
what he called the “precipitous drop” in 2012 sales could be explained only by the fact that

7

Public Resource posted the Standards that year. G. Decl. ¶ 25. Plaintiffs do not address, let alone
rebut, most of Public Resource’s arguments why Geisinger’s opinion is unreliable. Public
Resource seeks to exclude that opinion because (1) Geisinger is not qualified to opine on the
cause of economic phenomena; (2) he did not use any reliable principles or methodology to
render his opinion; (3) his assumption that sales of the 1999 Standards would gradually decline
was not reliable and contradicted Standards’ actual sales history; (4) he did not apply any
reliable principles or methodology to evaluating alternate causes of the decline of sales; and (5)
he did not consider similar events where other organizations made standards available online
without negative repercussions. Plaintiffs respond only to Public Resource’s fourth critique.1
This Court may also exclude Geisinger’s opinion on this issue for any of the other, unrebutted,
reasons in Public Resource’s opening brief.
Geisinger’s false assumption about Plaintiffs’ sales is fatal to his opinion on this issue.
“A district court has a responsibility to ensure that an expert’s opinion has an adequate basis in
fact.” Blake v. Bell’s Trucking, Inc., 168 F. Supp. 2d 529, 533 (D. Md. 2001) (excluding expert
opinion that was not supported by the record). Geisinger’s opinion that sales of the 1999
Standards should have gradually declined is contradicted by Plaintiffs’ actual sales data. See
Mot. at 8 (sales data table). Further, if Plaintiffs were correct that Public Resource’s acts caused
the decline in sales, then Plaintiffs’ sales figures should have continued to decline as more people
learned the 1999 Standards were available online.

1

Plaintiffs claim that Public Resource’s argument that Geisinger “did not consider any other
alternative causes for the decline in sales” is “patently false” because he considered and rejected
the announcement of the imminent publication of the 2014 Standards as an alternate cause. Opp.
at 18. Plaintiffs misunderstood Public Resource’s use of the phrase “other alternative causes.”
Public Resource acknowledged that Geisinger testified at deposition that he considered the
imminent publication of the 2014 Standards, although he did not give it due weight, but he failed
to consider any other alternate causes for the decline in sales. See Mot. at 10.
8

If Geisinger were correct that knowledge of the Standards’ online availability would
impair significantly sales, then sales should have continued to drop markedly as knowledge of
their online availability spread.

As for Geisinger’s failure to address alternative causes of Plaintiffs’ sales decline,
Plaintiffs contend that Geisinger “ruled out the possibility [that the expectation of the 2014
Standards caused the decline in sales] based on his experience in tracking and monitoring book
sales throughout his career.” Opp. at 18. That’s not what Geisinger said.

Plaintiffs also exaggerate Geisinger’s experience “tracking and
monitoring book sales.”

Plaintiffs contend that Geisinger is not required to address every alternative cause for the
decline in Plaintiffs’ sales. Mot. at 19. That is a classic straw man argument. Of course Geisinger
need not address every alternative cause, but he is required to use a reliable methodology. One
searches Geisinger’s declaration in vain to identify any methodology he used, or what alternative
causes he considered or deliberately ignored. Plaintiffs have thus failed to carry their burden on
the admissibility of Geisinger’s testimony. Thus this case stands in contrast to Plaintiffs’ cited
2

Plaintiffs argue for the first time in their opposition that “vast majority of annual purchasers are
students taking courses in which the 1999 Standards is required reading.” Opp. at 18 n.7 (citing
G. Dep. at 244:4–13).
There is no evidence that the vast majority of purchasers are students, no explanation for
how Plaintiffs’ new theory is consistent with the precipitous drop in sales before Public Resource
posted the Standards, and no reason why students would not also opt to purchase a used copy of
the 1999 Standards upon learning the reference work would shortly become obsolete.
9

authority stating that experts are not required to eliminate every alternative cause. (Mot. at 19
citing Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996) and U.S. Information
Systems, Inc. v. Inter. Broth. of Elec. Workers Local Union No. 3, 313 F.Supp.2d 213, 235
(S.D.N.Y. 2004).) The court in Ambrosini held that the challenged physician-expert followed a
reliable methodology for determining the cause of plaintiff’s birth defects because he considered
and ruled out several alternative causes that the medical community had found for the patient’s
condition. 101 F.3d at 140. In U.S. Information Systems, defendants argued that the expert
inconsistently applied his “methodology” to prefer documentary evidence over testimony, which
has little relevance to this case. Far more interesting is that the quote that Plaintiffs selected, that
an expert need not “categorically exclude each and every possible alternative cause” comes from
Astra Aktiebolag v. Andrx Pharm., Inc., 222 F. Supp. 2d 423, 488 (S.D.N.Y. 2002), in which the
immediately preceding sentence states: “Failure to test for alternative causes or the use of control
experiments may provide a basis for exclusion.”
In cases involving economic opinions, for example, courts have excluded expert
testimony because the expert failed to rule out alternative causes for stock price fluctuations. See
In re Executive Telecard, Ltd. Sec. Litig., 979 F. Supp. 1021, 1025 (S.D.N.Y. 1997) (excluding
expert’s testimony on stock price decline because he failed to “adequately . . . distinguish
between fraud related and non-fraud related company specific influences on [defendant’s] stock
price”). Especially for economic analyses, controlling for alternative causation is essential to
avoid committing a post hoc ergo propter hoc fallacy. Here, Geisinger’s failure to rule out any
alternative causes in his report and testimony that he only considered one possible alternative
cause is fatal to his testimony’s admissibility.

10

Plaintiffs ignore most of the reasons Public Resource gave for why Geisinger’s opinions
on lost sales should be excluded. They also fail to explain why he looked at one alternate cause
for declining sales, but not others. His opinion on this issue should be excluded.
B.

Plaintiffs Have Failed to Rehabilitate Geisinger’s Unreliable Opinion that
Plaintiffs Cannot Reasonably Calculate Their Lost Revenue.

Plaintiffs contend that Geisinger does not actually opine that they cannot reasonably
calculate lost revenue. Apparently he meant something else when he stated that Plaintiffs cannot
reasonably calculate “the number of [people] who would have purchased Plaintiffs’ Standards
but for their wholesale posting on Defendants’ [] website.” Opp. at 16 n.5. It appears Plaintiffs’
point is simply that Geisinger did not use the phrase “lost revenue.” But discussing the number
of people who would have purchased Plaintiffs’ Standards is just another way of discussing lost
revenue. It is clear that he is discussing lost revenue because his opinion is that people would
have purchased the Standards but for Public Resource’s acts and now Plaintiffs have lost the
revenue they would have had from those purchases. Plaintiffs further argue that this opinion
properly rests on Plaintiffs’ alleged inability to determine how many people copied and
redistributed the 1999 Standards. That itself is a questionable assertion given available statistical
methods, and it is an assertion that Geisinger has no qualifications to make. But even if Plaintiffs
cannot know how many people circulated copies of the Standards, they can reasonably calculate
lost sales based on reasonable expectations about what sales should have been in 2012. Plaintiffs
have not presented any reason to suspect that sales should have increased that year. Plaintiffs can
reasonably calculate lost revenue by taking their expected sales, subtracting their actual sales,

11

and then accounting for other reasons why sales would have declined in 2012. That is what
economists do all the time. But Plaintiffs declined to retain an economist to do that calculation.3
C.

Plaintiffs Have Not Shown that Geisinger’s Opinion that Plaintiffs Will
Cease Developing the Standards Is Reliable.

Geisinger opines that Plaintiffs will cease developing future versions of the standards if
Public Resource prevails in this litigation. G. Decl. ¶ 23. Public Resource moved to exclude that
opinion because (1) it is inconsistent with his deposition testimony; (2) Geisinger lacks
qualifications to support that opinion; (3) his opinion concerns only the 2014 Standards, which
are not at issue in this litigation; (4) his opinion rests on the unsupported and unreasonable
assumption that Plaintiffs would lose all its revenue and that Plaintiffs’ costs are fixed; (5) his
opinion rests on the unverified self-interested statements of Plaintiffs’ executives, which he fails
to show would be accepted by experts in the particular field; and (6) his opinions do not fit this
case because he failed to consider the $1.5 million in funding dedicated to developing future
standards. Plaintiffs fail to adequately rebut each of these arguments.
Inconsistent Deposition Testimony: Geisinger declared that it was “extremely likely” that
Plaintiffs will cease developing the Standards if Public Resource prevails. G. Decl. ¶ 23.

That probability is baseless and, if true, would hardly support that his prediction
was “extremely likely.” Plaintiffs respond with two arguments, first that Geisinger was not
3

Plaintiffs argue that Public Resource is taking inconsistent positions by moving to exclude
Geisinger and an economist in the ASTM case. Plaintiffs present a false dichotomy between
having an economist or not. Many litigants retain multiple experts so that each expert can testify
within their domain of expertise. For economic opinions, litigants often require a general
economist and another expert familiar with the market conditions of the industry at issue.
Plaintiffs in both this case and the ASTM case committed the same fundamental error—they
instructed their retained experts to testify beyond the area of their expertise. ASTM’s economics
expert opined about non-economic issues and Geisinger, a psychology expert, opined about
economic ones.
12

required to quantify the probability, and second, that Public Resource has failed “to see the forest
for the trees.” Opp. at 20. The first argument is a non-sequitur. Geisinger’s problem is not his
failure to quantify his confidence level but that he did so in a way that exposed his methodology
and conclusion as unreliable. Plaintiffs’ second argument appears to be simply that there are
facts that support his opinion. Those facts, however, do not alter Geisinger’s expression of his
relatively low confidence in his conclusion that Plaintiffs will cease developing the standards.
Qualifications: Plaintiffs fail to identify how Geisinger’s past experiences with Plaintiffs’
organizations support this opinion. His list of qualifications shows that he is eminently suited to
evaluate the quality of tests and to develop standards for rating and designing tests. Not
surprisingly, Plaintiffs defend his qualifications to opine on Plaintiffs’ future course of conduct
by referring to his experiences generally, without any specifics tied to content of that opinion.
Opp. at 21. Plaintiffs’ reliance on United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) does
not support their claim. In that case, the Ninth Circuit admitted a police gang expert’s testimony
about a particular gang’s code of silence, to impeach defendant’s alibi witness, based on the
officer’s observations and communications with gang members. The expert had an opinion about
a standard practice of an organization—retaliating against gang members testifying—based on
years of personal experience.4 Here, Geisinger is not opining about a standard practice. He has
not identified any comparable events as the source of his opinion. In theory, Plaintiffs could have
introduced someone with experience about on how Plaintiffs, or other comparable professional
organizations, responded to declines in sales revenue for their publications. But Plaintiffs have

4

Plaintiffs’ other cited cases involving experienced experts also involved experts opining on
standard practices or population averages. See United States v. Ramsey, 165 F.3d 980 (D.C. Cir.
1999) (police expert on criminal behavior); Groobert v. President & Directors of Georgetown
College, 219 F. Supp. 2d 1, 8 (D.D.C. 2002) (stock photographer on lost future income of
plaintiff stock photographer).
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not shown Geisinger’s experience is pertinent to his opinion.
Relevance of the 2014 Standards:
His opinion
applies to the 2014 Standards only. Therefore, his opinions do not fit the facts of this case.
Plaintiffs contend his opinion should still be admissible because he properly relied on Carl
Malamud’s deposition testimony that Public Resource will post the 2014 Standards if they are
incorporated by reference into law. Opp. at 20 n.8. That post-hoc rationalization is untimely and
unreliable. Geisinger has offered no evidence about whether the 2014 Standards will be
incorporated by reference into law or when it might happen, i.e., before or after Plaintiffs earned
enough revenue to cover the cost of developing the next set of Standards. Therefore, Geisinger’s
opinion does not fit the facts of this case.
Total vs. Partial Loss of Revenue: Plaintiffs ignore that Geisinger’s opinion incorrectly
assumes that Plaintiffs will lose all revenue from the Standards. They cannot refute that Plaintiffs
continued to earn revenue on the 1999 Standards after Public Resource posted it or that other
entities successfully sell material in the public domain. Geisinger also does not marshal facts to
show that Plaintiffs would be unable to reduce the costs of developing the Standards if there was
a drop in revenue or raise funds in other ways. These are crucial gaps in his analysis. Plaintiffs
retort that these arguments are “red herrings,” “preposterous,” and that Geisinger is not required
to “travel down the rabbit hole.” Opp. 22–23. While the imagery is colorful, Plaintiffs’ rhetoric
lacks reasoning. Plaintiffs seek to introduce Geisinger’s opinion that, if Public Resource prevails,
Plaintiffs would stop developing the Standards. The reliability of that opinion rests on
Geisinger’s consideration of Plaintiffs’ potential responses to an adverse decision. He did not
conduct that analysis. Therefore, his opinion is not reliable.

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Mouthpiece Function to Convey Plaintiffs’ Self-Interested Assertions: Plaintiffs contend
that Geisinger’s reliance on self-serving statements by Plaintiffs’ executives falls within the
scope of materials permitted by Federal Rule of Evidence 703. Opp. at 17. Not surprisingly,
Plaintiffs offer no authority for that assertion. It is hard to imagine that any expert worth his salt
would rely on his client’s assertions without independent verification. In fact, courts routinely
find that self-interested statements made in litigation are not reliable. In re TMI Litig., 193 F.3d
613 (3d Cir. 1999); Montgomery Cty. v. Microvote Corp., 320 F.3d 440, 448 (3d Cir. 2003)
(excluding testimony where expert relied on unreliable documents prepared by client); Fail-Safe,
L.L.C. v. A.O. Smith Corp., 744 F. Supp. 2d 870, 887 (E.D. Wis. 2010) (excluding expert opinion
based on uncritical acceptance of party’s sales forecasts). Plaintiffs argue in the alternative that
Geisinger’s personal observations support his opinion. But the two sections of deposition
testimony that Plaintiffs cite do not support that claim. Opp. at 18 (citing G. Dep. at 152:5–153:2
and 190:16–191:4).

Currently Available Funds: Plaintiffs effectively ignore that Geisinger failed to account
for the fact that Plaintiffs have $1.5 million in a restricted fund devoted to developing the
Standards. Geisinger does not opine that Plaintiffs will cease developing the standards once they
deplete that fund (which would probably take nearly half a century); he opines that the 2014
Standards would be the “last one developed or published.” G. Rep. ¶ 52; accord G. Decl. ¶ 23.
Plaintiffs argue that this omission is another “red herring.” Opp. at 22. Yet Geisinger’s failure to

15

acknowledge that the Standards are already funded for decades renders his opinions unreliable
and shows that the opinions do not fit the facts of this case.
D.

Plaintiffs Have Not Shown that Geisinger’s Remaining Opinions Are
Admissible.

Availability of Past Versions: Geisinger opines the public at large would be harmed by
the “uncontrolled publication of the 1999 Standards without any notice that those guidelines
have been replaced by the 2014 Standards.” G. Decl. ¶ 27. Although neither his report nor
declaration provides a reliable basis for this opinion,

The
fact of those instances, however, do not show the significance of current confusion between
editions, causation between availability of an edition of the Standards online and confusion, or
detrimental reliance by anyone on an outdated version of the Standards. Geisinger’s opinion is
wholly speculative and should be excluded.
Advantages of the Standards: Plaintiffs do not dispute that Geisinger’s opinions about the
advantages of the Standards (G. Decl. ¶¶ 17–21) are not germane to this matter and therefore
should be excluded because they are not helpful to the Court.
IV.

CONCLUSION
In support of admitting Geisinger’s declaration, Plaintiffs primarily rely on generic

recitations of the legal standard favoring admissibility, especially when the court acts as a
factfinder. Public Resource readily concedes that point, but only as a tie-breaker if the Court
finds the question of admissibility too close to call. The Federal Rules of Evidence still apply to
summary judgment proceedings and Plaintiffs must still meet their burden of proof on the
admissibility of their expert’s opinions. Plaintiffs have not met their burden here because

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Geisinger’s opinions are either unhelpful or unreliable. His opinions about testing and the use of
the Standards in the testing field, while within his area of competence, are not germane to this
dispute and therefore not helpful to the Court. His opinions about Plaintiffs’ sales and whether
Plaintiffs will continue to develop the Standards, while germane, fall outside his area of
competence and lack reliability. And his untimely disclosures prejudiced Public Resource’s
ability to respond. His declaration should therefore be stricken from the record.
Dated: March 3, 2016

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (admitted pro hac vice)
[e-mail]
Matthew Becker (admitted pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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