Great Southland Limited v. Landash Corporation, et al.

Filing 257

OPINION AND ORDER GRANTING XPO's 229 Motion in Limine No. 4; GRANTING IN PART and MOOT IN PART GSL's 230 Motion in Limine to Exclude Evidence and Arguments Regarding Plaintiff's Damages; GRANTING XPO's 231 Motion in Limi ne No. 3; GRANTING XPO's 232 Motion in Limine No. 2; GRANTING XPO's 233 Motion in Limine No.1; and GRANTING IN PART and DENYING IN PART XPO's 234 Motion to Exclude Expert Testimony of Mr. David Jacoby. Signed by Judge Sarah D. Morrison on 1/28/2022. (tb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 1 of 17 PAGEID #: 4814

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREAT SOUTHLAND LIMITED,
Case No.: 2:17-cv-719

Plaintiff,

Judge Sarah D. Morrison

vs.

Magistrate Judge Kimberly A. Jolson

LANDASH CORPORATION, et al.,
Defendants.

OPINION & ORDER
Several motions in limine bring this matter to the Court’s attention. Each is
decided as noted below.
I.

STANDARD OF REVIEW
A motion in limine is a pre-trial mechanism by which the Court can give the

parties advance notice of the evidence upon which they may or may not rely to prove
their theories of the case at trial. Although the Federal Rules of Evidence do not
explicitly authorize a court to rule on an evidentiary motion in limine, the United
States Supreme Court has noted that the practice of ruling on such motions “has
developed pursuant to the district court’s inherent authority to manage the course
of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The motions therefore
serve “to narrow the issues remaining for trial and to minimize disruptions at trial.”
United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999).
To obtain the in limine exclusion of evidence, a party must prove that the
evidence is clearly inadmissible on all potential grounds. Luce, 469 U.S. at 41 n.4.

1

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 2 of 17 PAGEID #: 4815

Any motion in limine ruling, however, is “no more than a preliminary, or advisory,
opinion that falls entirely within the discretion of the district court, and the district
court may change its ruling where sufficient facts have developed that warrant the
change.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). The Court will
therefore entertain objections on individual proffers of evidence as they arise at
trial, even though the proffered evidence falls within the scope of a denied motion in
limine. United States v. Kistner, No. 2:11-cr-00283, 2013 U.S. Dist. LEXIS 2129, at
*4-5 (S.D. Ohio Jan. 7, 2013) (Frost, J.).
II.

XPO’S MOTIONS IN LIMINE
A.

ECF No. 233: Motion in Limine No. 1 to Preclude GSL from
Proceeding on a Negligent Hiring, Supervision, or Retention
Claim.

Defendants XPO Logistics, Inc. and XPO Global Forwarding, Inc. (collectively
“XPO”) argue that GSL’s Amended Complaint (ECF No. 144) fails to raise a claim
for negligent hiring, supervision, or retention as to XPO’s employee, Defendant Afif
Baltagi. XPO thus moves for an order precluding evidence or argument as to that
“claim” at trial. (ECF No. 233.)
GSL counters its controlling pleading satisfies Fed. R. Civ. P. 8’s lenient
standard. (ECF No. 238.) In support, GSL highlights the following allegations
contained within the Amended Complaint: Baltagi acted negligently while acting
within the scope of his employment at XPO; XPO was liable for his negligent actions
via respondeat superior; XPO had a duty to “hire, manage, and supervise . . .

2

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 3 of 17 PAGEID #: 4816

Baltagi”; and “XPO was negligent in its hiring, management, and supervision of
Baltagi . . . .” (ECF No. 144, ¶ ¶ 224-226.)
The Amended Complaint fails to satisfy Rule 8’s relaxed standards. The
noted allegations equate to nothing more than legal conclusions; absent from the
Amended Complaint is “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation omitted). Indeed, GSL points to no factual matter within the
Amended Complaint addressing: (1) XPO’s actual or constructive knowledge of
Baltagi’s incompetence; (2) XPO’s actual or constructive knowledge of Baltagi’s
propensity to engage in similar tortious conduct; (3) XPO’s act of causing GSL’s
injuries short of simply employing Baltagi; and (4) XPO’s alleged negligence
proximately causing GSL’s injuries, each of which are elements of a negligent
hiring, supervision, and retention claim. Simpkins v. Grace Brethren Church of
Delaware, 5th Dist. Delaware No. 13 CAE 10 73, 2014-Ohio-3465, ¶ 40, 16 N.E.3d
687, 701. See also Sitton v. Massage Odyssey, LLC, 1st Dist. Hamilton No. C190578, 2020-Ohio-4282, ¶ 12, 158 N.E.3d 156, 161. (“plaintiff must show that the
employer knew or should have known of the employee’s propensity to engage in
similar tortious or criminal conduct.”) (internal quotation and citation omitted).
In sum, reviewing the Amended Complaint in a light most favorable to GSL,
the Court concludes that the pleading does not assert a claim for negligent hiring,
supervision, and retention of Baltagi. XPO’s Motion to Preclude evidence and
testimony at trial regarding such a claim is GRANTED. (ECF No. 233.)

3

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 4 of 17 PAGEID #: 4817

B.

ECF No. 232: Motion in Limine No. 2 to Preclude GSL from
Moving on a RICO Conspiracy Claim.

XPO concedes the Amended Complaint sufficiently asserts a claim under 18
U.S.C. 1962(c). But XPO asserts that the Amended Complaint fails to adequately
allege an 18 U.S.C. § 1962(d) RICO conspiracy claim so that any RICO conspiracy
evidence should be excluded at trial. (ECF No. 232.) In particular, XPO contends
the Amended Complaint’s failure to allege that XPO “knowingly joined a conspiracy
to violate § 1962(c)” mandates the exclusion of such evidence. Id., PageID 3732.
GSL relies on Count VI of the Amended Complaint, wherein GSL alleges that
all defendants “violated RICO – 18 U.S.C. § 1961, et seq.”, and to paragraph 298,
wherein GSL alleges all “Defendants have violated 18 U.S.C. § 1962 by, among
other things, being employed or associated, directly or indirectly, in the enterprise
and engaging in conduct through a pattern of racketeering activity” to argue the
Amended Complaint put XPO on notice of a § 1962(d) claim. (ECF No. 144, PageID
1774 and ¶ 198; ECF No. 239, PageID 4047). GSL’s argument fails. Generic
reference to a code section containing four subsections fails to put XPO on notice
that GSL is bringing a claim under one of the unspecified four sections.
Additionally, the Amended Compliant lacks a factual predicate sufficient to sustain
a RICO conspiracy claim. Namely, the Amended Complaint does not allege or assert
any facts regarding whether Baltagi intended to benefit XPO thorough his actions
or that XPO benefitted from the conspiracy. Trollinger v. Tyson Foods, No. 4:02-CV23, 2007 WL 1091217, at *4 (E.D. Tenn. Apr. 10, 2007) (citing Davis v. Mut. Life Ins.
Co., 6 F.3d 367, 379 (6th Cir. 1993)).
4

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 5 of 17 PAGEID #: 4818

The Court has reviewed the Amended Complaint in a light most favorable to
GSL and concludes that the pleading does not raise a claim for RICO conspiracy
under § 1962(d). XPO’s Motion to Preclude GSL from Moving on a RICO Conspiracy
Claim is GRANTED. (ECF No. 232.)
C.

ECF No. 231: Motion in Limine No. 3 to Prohibit Plaintiff from
Seeking Ponzi Scheme Interest.

GSL borrowed money from seven or eight unidentified investors to fund the
Landash deal. (ECF No. 240-1.) As part of its claims against XPO, GSL seeks the
amount it loaned Landash—$2.4 million—and the $3,007,627 in interest GSL
asserts it has since paid to the investors who loaned GSL the money to fund the
Landash transaction. (ECF No. 227, PageID 3135.) XPO moves to prevent GSL’s
attempt to recoup the interest component, arguing that GSL offers nothing but
speculation as to the basis for, and amount of, the interest it seeks. (ECF No. 231,
3393-3396.) GSL counters the interest is recoverable and definitive.
“As a general rule, speculative damages are not recoverable.” Ramsdell v.
Ramsdell, 6th Dist. No. L-12-1113, 2013-Ohio-409, ¶ 18. “An award of damages
must be shown with a reasonable degree of certainty and in some manner other
than mere speculation, conjecture, or surmise.” Acme Co. v. Saunders & Sons
Topsoil, 7th Dist. No. 10-MA-93, 2011-Ohio-6423, ¶ 57. “Damages are not
speculative when they can be ‘computed to a fair degree of probability.’” Id. (quoting
Allied Erecting Dismantling Co. v. City of Youngstown, 151 Ohio App. 3d 16, 2002Ohio-5179, 783 N.E.2d 523, ¶ 65 (7th Dist.).

5

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 6 of 17 PAGEID #: 4819

GSL argues that the deposition testimony of Dave Hodgson is concrete proof
of its interest damages. It is not. The few selected excerpts of Hodgson’s deposition
provided to the Court indicate Hodgson created GSL in 2014. (ECF No. 240-1.) But
the excerpts do not establish his specific role at the company at the relevant time or
his specific involvement with either the alleged investor loans or the Landash deal.
Id. His testimony therefore lacks foundation. It also lacks specifics. He testifies in
general terms about how: GSL raises capital (in a pool, not per deal); all GSL
investors sign a contract with GSL for a two-year deal; GSL’s investors do not know
which GSL investment their money is funding unless they request a specific
investment; and GSL “endeavor[s] to offer a fixed income of 20 percent per annum
for a bulk or certain-sized investments, and a smaller size is 17 percent per annum”
to its investors. Id. at 4079.
GSL fails to provide copies of contracts it claims to have had with the
relevant investors. GSL also fails to identify the: (1) date of the contracts; (2)
specific investors at issue; (3) amount of each investor’s investment in GSL
generally and the Landash deal specifically; (4) contracts’ repayment terms; and (5)
contracts’ interest rate for repayment. Thus, GSL’s right to the interest, as well as
the specific amount of interest being sought, is wholly unsubstantiated.
GSL has presented nothing to the Court establishing GSL’s right to collect
the interest it paid to its investors as damages or allowing such damages to be
computed to a fair degree of probability. XPO’s Motion to Prohibit Plaintiff from
Seeking Ponzi Scheme Interest is GRANTED. (ECF No. 231.)

6

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 7 of 17 PAGEID #: 4820

D. ECF No. 229: Motion in Limine No. 4 to Preclude GSL from Calling
Brad Jacobs or Catherine Friedman as a Witness and to Exclude the
Jacoby Supplemental Report.
Brad Jacobs is XPO Logistics’ CEO and Chairman. (ECF No. 192.) Catherine
Friedman is his Chief of Staff. Id. The Court permitted GSL to depose each on the
limited topic of whether they had any knowledge of certain April 2015 e-mails about
Star Funding. Id. Jacobs and Friedman both testified they did not. XPO now seeks
an order prohibiting their personal testimony if subpoenas are successful or the
reading of their depositions at trial if not. (ECF No. 229, PageIDs 3284-3285.) XPO
further seeks exclusion of the Supplemental Report of one of GSL’s experts, Mr.
David Jacoby, opining on the testimony of Mr. Jacob and Ms. Friedman. Id., PageID
3285-3286.
GSL wants to use Mr. Jacobs’ and Ms. Friedman’s testimony about the
e-mails to establish that “XPO was negligent in its hiring, supervision, and
management of” Baltagi. (ECF No. 241, PageID 4085.) The Court excludes any
evidence as to that claim as part of its ruling above. Hence, the testimony is
irrelevant and inadmissible under Fed. Rs. Evid. 401 and 402. Furthermore, Mr.
Jacoby’s Supplemental Report (ECF No. 229-3) pertains only to GSL’s negligent
hiring, supervision, and management claim. Therefore, it is likewise irrelevant and
inadmissible under those same rules and shall not be discussed at trial. XPO’s
Motion to Preclude GSL from Calling Brad Jacobs or Catherine Friedman as a
Witness and to Exclude the Jacoby Supplemental Report is GRANTED. (ECF No.
229.)

7

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 8 of 17 PAGEID #: 4821

E. ECF No. 234: Motion to Exclude Expert Testimony of David Jacoby
Mr. Jacoby opines:
●

XPO’s negligent hiring, supervision, and/or retention of Baltagi
“enabled him to facilitate Adkins’ fraud against GSL.” (ECF No. 234-1,
PageID 3818.)

●

Baltagi was acting within the course and scope of his employment
when he gave Hodgson a tour of XPO Houston in February 2016;
executed a warehouse receipt in April 2016 verifying receipt of GSL’s
tires in Houston; and sent Hodgson an e-mail that same month
providing the serial numbers for GSL’s tires. Id. See also, ECF No. 144,
PageIDs 1792-1795, 1927-30.

●

GSL reasonably relied on Baltagi’s representations. (ECF No. 234-2,
PageID 3848.)

●

XPO Houston was a warehousing facility. Id. at 3852.

●

XPO did authorize Baltagi’s execution of the warehouse receipt and
sending of the April 2016 e-mail because Baltagi used his XPO e-mail
address when providing both to GSL. Id. at 3854.

●

Various disputes about the tires’ ownership “should have triggered a
security audit.” Id.

●

A security audit “would probably have” uncovered the fraud. Id. at
3855.

XPO seeks to exclude these opinions under Fed. R. Evid. 702, arguing that Jacoby
lacks the requisite knowledge and bases his opinions on unreliable sources. (ECF
No. 234.)
1.

Federal R. Evid. 702 Framework

Rule 702 provides:

8

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 9 of 17 PAGEID #: 4822

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise 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.
The rule “imposes a special obligation upon a trial judge to ensure that scientific
testimony is not only relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 137 (1999) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)).
This basic gatekeeping obligation applies to all expert testimony. Kumho Tire Co.,
526 U.S. at 147. But the gatekeeper role
is not intended to supplant the adversary system or the
role of the jury; rather, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596. The judge’s role is simply to
keep unreliable and irrelevant information from the jury
because of its inability to assist in factual determinations,
its potential to create confusion, and its lack of probative
value. Wellman v. Norfolk and W. Ry. Co., 98 F. Supp. 2d
919, 923-24 (S.D. Ohio 2000) [Sargus, J.].
Ohio Oil Gathering Corp. III v. Welding, Inc., No. 2:09-cv-782, 2010 U.S. Dist.
LEXIS 136248, at *15-16 (S.D. Ohio Dec. 9, 2010) (Frost, J.). “[R]ejection of expert
testimony is the exception, rather than the rule.” In re Scrap Metal Antitrust Litig.,
527 F.3d 517, 530 (6th Cir. 2008) (citation omitted). Accordingly, “Rule 702 should
be broadly interpreted on the basis of whether the use of expert testimony will

9

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 10 of 17 PAGEID #: 4823

assist the trier of fact.” Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 516
(6th Cir. 1998) (citation omitted). The Court enjoys broad discretion when making
that call. Surles v. Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007).
The Sixth Circuit employs a three-pronged approach in Rule 702 analysis.
“First, the witness must be qualified by ‘knowledge, skill, experience, training, or
education.’ Second, the testimony must be relevant, meaning that it ‘will assist the
trier of fact to understand the evidence or to determine a fact in issue.’ Third, the
testimony must be reliable.” In re Scrap Metal, 527 F.3d at 529 (quoting Rule 702).
“The party offering the expert testimony has the burden of establishing its
admissibility by a preponderance of the evidence.” Id., citing Pride v. BIC Corp., 218
F.3d 566, 578 (6th Cir. 2000) and Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244,
251 (6th Cir. 2001).
2.

Knowledge and Experience

“To qualify as an expert under Rule 702, a witness must first establish their
expertise by reference to ‘knowledge, skill, experience, training, or education.’”
United States v. Higgins, No. 3:18-cr-186, 2022 U.S. Dist. LEXIS 779, at *7 (S.D.
Ohio Jan. 4, 2022) (Rose, J.) (quoting Fed. R. Evid. 702). Additionally, the expert’s
training and qualifications must relate to the subject matter of the proposed
testimony. Smelser v. Norfolk Southern Railway Co., 105 F.3d 299, 303 (6th Cir.
1997). “[T]he issue with regard to expert testimony is not the qualifications of a
witness in the abstract, but whether those qualifications provide a foundation for a
witness to answer a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351

10

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 11 of 17 PAGEID #: 4824

(6th Cir. 1994). Exclusion is proper when “the subject of the testimony lies outside
the witness’ area of expertise.” 4 Weinstein’s Fed. Evid. § 702.06[1], at 702-52
(2000).
Mr. Jacoby holds a Bachelor of Science in Finance and Economics, a Master
of Business Administration, and a Masters in International Business from the
University of Pennsylvania. (ECF No. 234-2, PageID 3857.) His career began at A.T.
Kearney, Inc. as a Procurement Logistics and Supply Chain Manager. (ECF No.
251-2, PageID 4509.) There, he managed “engagements in strategic sourcing,
transportation, logistics/supply chain optimization” and “[i]mplemented a
redesigned [department] store logistics process.” Id. at 4509-10. Next, he worked for
Norbridge, Inc. as a Transport and Logistics Principal for two years. Id., at 4509. In
that role, he “helped global . . . logistics service providers improve operations . . .”
(ECF No. 234-1, PageID 3825.) Id.
Two years later he started Boston Strategies International, Inc., where he
has served as President since the company’s inception. Id. at 3824. In that capacity
he consulted for UPS regarding an acquisition of a freight forwarding company; for
Chrysler Fiat about auto parts, warehousing, and performance measurements; for
CSX concerning freight forwarding; for General Motors re-designing their
warehouse receipts and inspection reports; and for FedEx with respect to real estate
information systems and shared overhead costs. (ECF No. 251-1, PageID 43714375.) Those experiences have exposed him to warehouse receipts and inspection
reports and allowed him to interview warehouse managers. (ECF No. 251-1, PageID

11

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 12 of 17 PAGEID #: 4825

4372, 4374, 4377). Additionally, he advised a French holding company about
“[e]xactly how to do warehousing operations from transportation and receiving
through store logistics . . .” although freight forwarding “was not a major part of”
that consultancy. (ECF No. 251-1, PageID 4376.) Between one-fourth and one-half
of his work has focused on supply chain efficiency. Id. at 4378. While he has
consulted on a variety of subject areas throughout his career, transportation and
logistics has been the most prominent. Id. at 4383.
Mr. Jacoby performed organizational studies for FedEx and Iron Mountain.
Id. at 4379. Such studies “involve writing job descriptions and posting job
requisitions, sometimes actively hiring staff on behalf of the company involved,
drawing organization charts, explaining the relationship between people and their
responsibilities, who should do what exactly and who should report to whom.” Id.
Mr. Jacoby authored several books on supply chain management. (ECF No.
234-1, PageID 3827.) He presented on the same topic to numerous audiences, and
taught graduate-level operations-management courses. Id. at 3823.
In sum, Mr. Jacoby has more than thirty years’ consulting experience in
“supply chain management, operations strategy and performance improvement.”
(ECF No. 234-1, PageID 3823.) Great Southland has shown by a preponderance of
the evidence that Mr. Jacoby’s knowledge, skill, experience, training, and/or
education satisfy Rule 702’s knowledge requirement.

12

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 13 of 17 PAGEID #: 4826

3.

Relevance

Neither side addresses the relevance of Mr. Jacoby’s opinions. In re Scrap
Metal makes clear that the relevance of Mr. Jacoby’s conclusions must be
established. This involves considering whether the proffered expert testimony is
relevant under Rule 401, which provides that “[e]vidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” The
testimony must “assist the trier of fact to understand the evidence or to determine a
fact in issue . . . . Expert testimony which does not relate to any issue in the case is
not relevant and, ergo, non-helpful.” Daubert, 509 U.S. at 591 (cleaned up). Under
the relevance requirement “there must be a ‘fit’ between the inquiry in the case and
the testimony, and expert testimony that does not relate to any issue in the case is
not relevant and therefore not helpful.” United States v. Bonds, 12 F.3d 540, 555
(6th Cir. 1993). “Whether an opinion ‘relates to an issue in the case’ or helps a jury
answer a ‘specific question’ depends on the claims before the court. Thus, when
analyzing the relevancy of expert testimony, a court should consider the elements
that a plaintiff must prove.” Madej v. Maiden, 951 F.3d 364, 370 (6th Cir. 2020).
Mr. Jacoby’s opinions tie into elements of Great Southland’s claims for fraud,
civil conspiracy, RICO, breach of contract, and negligence/respondeat superior. They
are therefore relevant under Fed. R. Evid. 401 and help the jury understand the
evidence and determine a fact in issue under Rule 702. But some of Mr. Jacoby’s

13

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 14 of 17 PAGEID #: 4827

opinions pertain to GSL’s excluded negligent hiring, supervision, and/or retention
claim; those opinions are irrelevant, would not help the jury, and are excluded.
4.

Reliability

The next genesis for XPO’s request is that Mr. Jacoby’s opinions are based on
incorrect facts and unreliable sources. This Rule 702(b) argument equates to a
reliability attack.
Although Daubert identifies several factors addressing a reliability
determination, the Court need not consider them here as no scientific or technical
expert testimony is at issue. Because the “law grants a district court the same broad
latitude when it decides how to determine reliability as it enjoys in respect to its
ultimate reliability determination,” the reliability inquiry is flexible. Surles ex rel.
Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007). “The task for
the district court in deciding whether an expert’s opinion is reliable is not to
determine whether it is correct, but rather to determine whether it rests upon a
reliable foundation, as opposed to, say, unsupported speculation.” In re Scrap Metal
Antitrust Litig., 527 F.3d 517, 529-30 (6th Cir. 2008). In this regard, the Court “is
required to do more than simply take ‘the expert’s word for it’ as part of its
gatekeeping function.” Id.
XPO points out that some of Mr. Jacoby’s opinions are based, in part, on
anonymous and unverified postings on Glassdoor.com and on a report from Spruce
Point Capital Management which is an investment firm that has a short position on
XPO’s stock. (ECF No. 234, PageIDs 3783-3785.) XPO also argues Mr. Jacoby relies

14

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 15 of 17 PAGEID #: 4828

on incorrect facts. Id. at 3785-3788. XPO’s complaints about Mr. Jacoby’s references
to, and reliance upon, those sources goes to the weight of his opinions and not their
admissibility. Any weaknesses in his methodology should be explored through
stringent cross-examination. Daubert, 509 U.S. at 596 (“Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.”). And the Sixth Circuit “generally permit[s] testimony based
on allegedly erroneous facts when there is some support for those facts in the
record.” In re Scrap Metal, 527 F.3d at 530.
In sum, XPO’s motion to exclude Mr. Jacoby’s opinions (ECF No. 234) is
hereby GRANTED IN PART and DENIED IN PART. The Court deems Mr.
Jacoby qualified, but he shall be prohibited from testifying to opinions about GSL’s
negligent hiring, supervision, and/or retention claim due to irrelevance. However,
Mr. Jacoby will be allowed to testify to his remaining opinions, as they are relevant
and reliable within the meaning of Rule 702.
III.

ECF No. 230: GSL’S MOTION IN LIMINE TO EXCLUDE
EVIDENCE AND ARGUMENTS REGARDING PLAINTIFF’S
DAMAGES

GSL’s lone motion in limine first seeks to preclude XPO from arguing that
GSL is not entitled to the $3,007,627 in interest GSL asserts it paid to its investors
to secure the funds for the Landash loan. (ECF No. 230.) This request is MOOT per
the Court’s ruling above that GSL may not present evidence concerning interest
GSL may have paid to its investors for the Landash loan. GSL may, however,
pursue the principal amount of the money it loaned Landash as damages.
15

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 16 of 17 PAGEID #: 4829

Second, GSL seeks exclusion of argument and evidence regarding damages
offset. This ask is MOOT per XPO’s response that it does not intend to “argue that
GSL’s damages should be offset by funds that have not been recovered at the time of
the verdict.” (ECF No. 242, PageID 4099.)
Third, and finally, GSL seeks exclusion of argument about and evidence that
damages for GSL’s federal and state RICO claims may be apportioned. (ECF No.
230.) The proposed jury instructions and interrogatories do not address joint and
several liability or apportionment of liability because if GSL establishes RICO
liability as to any of the defendants, joint and several liability is established as a
matter of law. Permitting argument and evidence regarding apportionment would
therefore do nothing but confuse the issues and mislead the jury. GSL’s Motion to
Exclude RICO liability apportionment argument and evidence is GRANTED under
Fed. R. Evid. 403. (ECF No. 230.)
IV.

CONCLUSION
XPO’s Motion in Limine No. 1 to Preclude GSL from Proceeding on a

Negligent Hiring, Supervision, or Retention Claim is GRANTED. (ECF No. 233.)
XPO’s Motion in Limine No. 2 to Preclude GSL from Moving on a RICO
Conspiracy Claim is GRANTED. (ECF No. 232.)
XPO’s Motion in Limine No. 3 to Prohibit Plaintiff from Seeking Ponzi
Scheme Interest is GRANTED. (ECF No. 231.)

16

Case: 2:17-cv-00719-SDM-KAJ Doc #: 257 Filed: 01/28/22 Page: 17 of 17 PAGEID #: 4830

XPO’s Motion in Limine No. 4 to Preclude GSL from Calling Mr. Brad Jacobs
or Ms. Catherine Friedman as a Witness and to Exclude the Jacoby Supplemental
Report is GRANTED. (ECF No. 229.)
XPO’s Motion to Exclude Expert Testimony of Mr. David Jacoby is
GRANTED in part and DENIED in part.(ECF No. 234.)
GSL’S Motion in Limine to Exclude Evidence and Arguments Regarding
Plaintiff’s Damages is MOOT in part and GRANTED in part. (ECF No. 230.)
IT IS SO ORDERED.
s/Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

17