IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GREAT SOUTHLAND LIMITED, 

Plaintiff, Case No.: 2:17-cv-00719 

vs. Judge: Hon. Sarah D. Morrison 

LANDASH CORPORATION, et al., Magistrate Judge: Hon. Kimberly A. Jolson 

Defendants. 

DEFENDANTS XPO LOGISTICS AND XPO GLOBAL FORWARDING’S 

MOTION TO EXCLUDE EXPERT TESTIMONY OF DAVID JACOBY 

I. INTRODUCTION 

In an effort to prove that XPO should be liable for Adkins’ and Baltagi’s bad acts, GSL 

seeks to offer expert testimony from David Jacoby. Jacoby, however, is not qualified to render 

the opinions that he offers. Jacoby purports to be an expert on nearly all things related to the broad 

fields of “supply chain management, operations strategy and performance improvement, primarily 

in the transportation, logistics, energy, and automotive sections” among many, many other areas. 

His opinions span the gamut from best practices for freight forwarders, to real-time email 

monitoring, to human resources, to the Sarbanes Oxley Act. But his experience as a jack-of-alltrades in “supply chain management” only gives him surface-level knowledge on many things, 

and does not render him an expert in these areas. 

Further, Jacoby’s report is replete with references to unreliable sources, like anonymous 

internet posts and data compiled by activist-short-seller investors. Jacoby’s Report extensively 

relied on a document that he testified he had never even seen before. In addition, Jacoby 

consistently relies on inaccurate facts that entirely undermine the reliability of his report. Jacoby 

even resorts to outright speculation. Accordingly, Jacoby’s opinions are unreliable. 

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II. LAW AND ARGUMENT 

The trial judge is the gatekeeper for expert testimony, and is responsible for screening 

proffered expert testimony to ensure that only relevant and reliable testimony is admitted. Daubert 

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). 

A. Jacoby is Not an Expert on the Topics on Which He Opines 

“To qualify as an expert under Rule 702, a witness must first establish his expertise by 

reference to ‘knowledge, skill, experience, training, or education.’” Pride v. BIC Corp., 218 F.3d 

566, 577 (6th Cir. 2000) (quoting Fed. R. Evid. 702). “[A] a party cannot qualify as an expert 

generally by showing that the expert has specialized knowledge or training which would qualify 

him or her to opine on some other issue.” CDA of Am. Inc. v. Midland Life Ins. Co., No. 01-CV837, 2006 U.S. Dist. LEXIS 97327, at *8 (S.D. Ohio Mar. 27, 2006). 

Jacoby opines regarding seemingly every issue in this case.1 However, while purported 

master of all, Jacoby is in fact a master of none. For example, in addition to the many other services 

he offers on his website, he markets himself as an expert witness on “Contract interpretation, 

contract administration, and contract dispute”; “Transfer pricing”; “Price manipulation”; 

“Monopoly pricing and market dominance”; “Procurement processes and practices”; and 

“Logistics and transportation.”2 In an earlier case, Jacoby offered expert opinions “concern[ing], 

among other things, the complexities involved in the sale of coal, natural gas and oil, and the 

sophistication of the individuals who purchase these commodities on behalf of their companies[.]” 

See American Energy Corporation. American Energy Partners, LP et al., Case No. 2:13-cv-00886 

(S.D.Ohio Sept. 9, 2013) at Doc. No. 150. 

1 Jacoby’s Report is attached as Ex. 1. His Rebuttal Report is attached as Ex. 2. His 

Supplemental Report is attached as Ex. 3

2 A page of Jacoby’s website is attached as Ex. 4.

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Here, Jacoby opines regarding email management best practices for a CEO (Jacoby Rep. 

at 15); Sarbanes-Oxley (id. at 17); real-time email monitoring of employees (id. at 20); human 

resources (id. passim); audits of many different varieties (id. passim); XPO’s management 

structure (id. at 26); “Baltagi’s duties and responsibilities as Branch Manager” (Jacoby Rep. at 4); 

and many, many other topics that are too numerous to detail. 

While at first glance he appears to have significant expertise, a review of the work he has 

actually done reveals that he has surface level experience in many broad areas but no actual 

expertise in the matter at hand. (See e.g. Jacoby Dep. at 33 (admitting he sees a wide range of 

engagements but does not remember specifics); id. at 23 (admitting that his consulting with a 

freight forwarder related to paperwork flow to the customer of the freight forwarder, not 

recommendations to the freight forwarders on their protocols or documents); id. at 50 (admitting 

he has not advised on the contents that should or should not be contained on a warehouse receipt); 

id. at 116-117 (admitting that he does not specialize in HR policies); id. at 174 (admitting that he 

has never been retained to perform a fraud audit, does not know what a fraud audit checklist would 

entail, and refers to consultants for that expertise); id. at 175-177 (admitting that he does not know 

how his clients monitor their emails and has not made recommendations for any client on whether 

email monitoring is prudent); id. at 202-204 (admitting he has no understanding of XPO’s email 

retention policies or practices but is making “inferences”); id. at 233 (admitting he does not know 

what “non-negotiable” would mean on a warehouse receipt); id. at 270 (testifying that he 

“benchmarked” secretarial staffing policies in the early 1990s but does not know if those related 

to email use); id. 286-287 (admitting he’s “really not totally sure” what a bonded warehouse is).)3

3 Relevant excerpts of Jacoby’s deposition are attached as Ex. 5.

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Thus, while Jacoby’s past work consists of a broad array of consulting on very general 

high-level practices for a wide-ranging set of industries, Jacoby does not have the requisite 

experience to offer his opinions here and therefore they should be excluded. 

B. Jacoby’s Opinions Are Not Reliable 

Rule 702 “imposes a special obligation upon trial judges to ‘insure that any and all 

scientific testimony . . . is not only relevant, but reliable.” Khumo Tire Co v. Carmichael, 526 U.S. 

137, 147 (1999) (quoting Daubert 509 U.S. at 589). Jacoby’s testimony is unreliable as he bases 

his opinions on both unverified and unreliable sources and inaccurate facts not found in the record, 

and even outright speculation. 

1. He Relies on Unreliable Data and Sources in Forming his Opinions 

Jacoby relies on sources that he admits are unreliable and irrelevant without the appropriate 

context. For example, Jacoby repeatedly relies on anonymous postings on the online blog 

Glassdoor.com as the basis for his expert opinions. (See Jacoby Rep. at 13 n.4, 14 n.6, 22 n.11, 

27 n.15.) For instance, to support his assertion that XPO has confusing organizational relationships 

that “lead to ambiguity and a lack of accountability (id. at 14), he cites a review on Glassdoor.com 

where an unnamed poster stated that XPO was disorganized and understaffed. (Id.) Similarly, in 

support of his opinion that XPO lacks customer satisfaction metrics, Jacoby cites a review posted 

on Glassdoor.com alleging that the company cut staff and caused customer dissatisfaction, 

“destroyed customer freight,” and other inflammatory allegations. (Id. at 22.) 

Despite the multiple opinions that are based on Glassdoor.com, Jacoby failed to verify the 

accuracy of the website or even understand how it worked. Jacoby was unable to explain which 

XPO entity the reviews related to, he admitted employers are unable to refute, edit, or challenge 

the reviews, and he agreed the average employer only has a rating of 3.5 out of 5. (Jacoby Dep. at 

124, 128-30.) Jacoby also admitted he did not know how Glassdoor.com calculates employer 

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ratings. (Id. at 132.) Further, Jacoby himself admitted that he could not give credence to the 

reviews of his own company on Glassdoor.com and had no idea whether they were accurate. (Id.

at 132–133 (referring to employer ratings and stating “I have a reason not to give it credence. It’s 

not really clear what this represents to me.”); id. at 138 (stating he had “no opinion” about the 

review of his own company), id. at 137 (no opinion as to whether reviews are accurate or 

inaccurate).) Further, Jacoby admitted that, without context, the Glassdoor.com review has no 

relevance. (Id. at 140 (“Q: So without context this has no relevance? A: Right.”).) 

Jacoby also relied on a report from Spruce Point Capital Management—an investment firm 

that has a “short” position on XPO’s stock. As a short-seller, Spruce Point has a direct financial 

interest in XPO’s stock falling.4 The cover of the Spruce Point Report features a truck driven by 

a Muppet—an ad hominem jab at XPO’s leadership. It also prominently features “P.O.S. 

Logistics” across the top of the truck (i.e. “Piece of Shit Logistics”). Despite Spruce Point’s clear 

anti-XPO agenda, Jacoby relied on this report extensively, citing it multiple times and attaching 

the executive summary as Exhibit A to his report. 

Worse yet, despite his reliance on Spruce Point, Jacoby testified that he had only relied on 

the Executive Summary of the report and had never even seen the entire report until the 

deposition. (Jacoby Dep. at 154.)5 Jacoby also cited an article by Ben Axler, the principal of 

Spruce Point, describing this as “a different source than Spruce Point Capital source,” with the 

implication that many different voices were raising the same criticism of XPO. (Jacoby Dep. at 

157 (emphasis added).) But, upon learning that Axler is, in fact, the principal of Spruce Point, he 

4 The Spruce Point Report is attached as Ex. 6.

5 The Jacoby report includes three pages of the Spruce Point report attached as Appendix A. 

Jacoby, however, produced the entire 68-page Spruce Point report in response to a subpoena 

seeking documents upon which he relied. Despite producing the full report, Jacoby testified that 

he had never seen that full report before his deposition. (Jacoby Dep. at 154.) 

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admitted that “Yeah—I mean, yeah, I probably wouldn’t have called it another source if I had 

known that.” (Id. at 157.) 

Jacoby’s Rebuttal Report likewise cites to a document created by “Redwood,” an entity 

about which Jacoby knew nothing (Jacoby Dep. at 251-253 & Ex. 20; Rebuttal at 13-14 & fn 6), 

and a competitor’s manual related to a different business line he apparently pulled from the Internet 

(Id. at 250-251 & Ex. 19; Rebuttal at 13-14 & fn 5). This is not reliable. 

Here, the data and sources underlying his opinion are unreliable and therefore his opinions 

are lacking sufficient facts and data as required under Rule 702. See Ellipsis, Inc. v. Color Works, 

Inc., 428 F. Supp. 2d 752, 760 (W.D. Tenn. 2006) (excluding expert report when the expert relied 

on data and information from a website and failed to verify its accuracy); Motor Co. v. Versata 

Software, Inc., No. 15-cv-10628, 2018 U.S. Dist. LEXIS 236571, at *15 (E.D. Mich. July 9, 2018) 

(excluding expert testimony when the expert failed to gather data in a reliable manner when he 

relied on data from a website, without taking independent verification effort, and the website did 

think highly of the opposing party); Kilgore v. Carson Pirie Holdings, Inc., 205 F. App’x 367, 372 

(6th Cir. 2006) (affirming exclusion of expert which relied on an internet article without knowing 

what research or methodology the article used or conducting any further independent research on 

the subject). Accordingly, Jacoby’s opinions should be excluded. 

2. Jacoby Relies on Incorrect Facts When Forming his Opinions 

Jacoby’s opinions are also based on inaccurate facts. His report is replete with countless 

examples of facts that are inaccurate, facts that cite to evidence or testimony that simply does not 

exist, and facts that are outright contradicted by the record.As only a few examples of his 

inaccuracies: 

 He opines that “an immediate audit response was required of XPO, especially by May 2016 

when Star [Funding] initiated litigation against XPO.” (Jacoby Rep. at 25.) This opinion 

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is fundamentally unreliable because Star Funding never initiated litigation against XPO; 

 Jacoby states that “[n]obody ever responded definitively to Brad Jacob’s request to take 

care of the Star Funding problem or reply to Star Funding’s irate email.” (Jacoby Rep. at 

14.) Mr. Jacobs’ testimony, however, made clear that he was not involved with the so 

called “Star Funding problem” and never made such a request. 

 Jacoby cites Jorgensen Dep. Ex. 213 and states that this email was never responded to by 

XPO. But that same exhibit clearly shows that Dominick Muzi responded on May 6, 2016.6

 Jacoby opines that, “nine people were responsible for overseeing the Houston branch over 

four years. At an average of 5.3 months each (48 months divided by nine people), Baltagi 

knew he could pull the wool over their eyes. A supervisor with a longer tenure would have 

seen the problem escalate.” (Jacoby Rep. at 27.) But in that calculation, Jacoby fails to 

account for the facts that (1) Baltagi term as branch manager ended in June 2016; (2) the 

branch actually closed in July 2017; (3) the “nine people” double counts two of the 

supervisors, and counts two “supervisors” whose tenure at XPO post-dates Baltagi’s 

relationship with XPO, which ended in April 2018; and (4) uses 48 months as the 

denominator despite that Baltagi was only an independent contractor for 4 months of 2018, 

so, even assuming this math exercise has merit, the denominator should be 39. (Jacoby 

Dep. at 142-147.) Jacoby compounds the issue by attempting to buttress this opinion by 

referencing yet another Glassdoor.com post from 2021 related to a customer service 

representative in Butte, Montana, and an entirely different XPO entity. (See Jacoby Rep. 

at 27, fn 15; compare Jacoby Dep. at 123-128 & Ex. 11.) 

Furthermore, there are countless examples in Jacoby’s report where he cites to deposition pages 

that simply do not exist. (See e.g., Jacoby Rep. at 11 (citing Jorgensen Dep. 826-852); id. at 14 

(citing Muzi Dep. 811); id. at 15 (citing Jorgensen Dep. 849); id. at 17 (citing Baltagi 825); id. at 

18 (citing Muzi Dep. 731 and Jorgensen Dep. at 731).) 

This problem with Jacoby’s opinions is exacerbated by the fact that GSL appears to be 

calling Jacoby as the case “storyteller” and seeks to have Jacoby present the “facts” as Jacoby 

interprets them, interpret witnesses motivation, and judge their credibility, none of which is 

permitted of an expert. See In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 192 (S.D.N.Y. 

2009) (“An expert cannot be presented to the jury solely for the purpose of constructing a factual 

narrative based upon record evidence.”); see also Waite, Schneider, Bayless & Chesley Co., L.P.A. 

6 Jorgensen Dep. Ex. 213 is attached hereto as Ex. 7.

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v. Davis, 253 F. Supp. 3d 997, 1013 (S.D. Ohio 2015) (“The jury is sufficiently capable of drawing 

its own inferences regarding intent, motive, or state of mind from the evidence, and permitting 

expert testimony on this subject would be merely substituting the expert’s judgment for the jury’s 

and would not be helpful to the jury.”) (quoting Siring v. Oregon State Bd. of Higher Ed., 927 F. 

Supp. 2d 1069, 1077 (D. Or. 2013)); Mar Oil Co. v. Korpan, 973 F. Supp. 2d 775, 786 (N.D. Ohio 

2013) (“An expert cannot testify about a witness’ credibility. The jury, not the expert, evaluates 

credibility.”) For example, Jacoby’s speculates about what witnesses “probably” thought (Jacoby 

Supp. Rep. at 8); what the legal strategy “might” have been (id. at 8); and what “seems selfevident” to Jacoby (id. at 7.) Similarly, Jacoby’s Rebuttal Report is reciting the facts as Jacoby 

interprets them based on the evidence he reviewed. (See, e.g., Jacoby Rebuttal Rep. at 6 

(summarizing emails), 9 (summarizing testimony and facts), 10 (explaining what GSL said to 

Baltagi), 11 (summarizing GSL’s warehouse tour). It is troubling enough that this is outside the 

permitted role of an expert, but the prejudice is compounded by the issue that Jacoby’s underlying 

facts are wrong.

For all of these reasons, Jacoby’s report and opinions are unreliable, speculative and based 

on inaccurate and/or incomplete information, and should be excluded. See Buck v. Ford Motor 

Co., 810 F.Supp.2d 815, 839, 852 (N.D. Ohio 2011) (“Ford asserts that no such testimony exists, 

and neither Buck nor Sero has identified where in the record any witness made this statement. I 

therefore find that Sero cannot rely on this [expert] witness testimony to rule out driver error.”); 

Birge v. Dollar Gen. Corp., No. 04-2531 B/P, 2006 U.S. Dist. LEXIS 97192, at *12–16 

(W.D.Tenn. Sept. 25, 2006) (excluding expert opinion “because [the] opinion [was] based on 

insufficient and inaccurate information” and was therefore “highly speculative.”); Multimatic, Inc. 

v. Faurecia Interior Sys. USA, 358 F. App’x 643, 654 (6th Cir. 2009) (affirming exclusion of an 

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expert’s “utterly speculative” opinion which “assume[]d] facts without [] support for those 

assumptions in [the] expert report or elsewhere in the record.”). 

3. Jacoby Outright Speculates in Reaching his Opinions 

Jacoby’s report is further riddled with speculative statements. For example, Jacoby posits 

that “certain XPO employees may or may not have conspired with Baltagi” despite no citations 

or evidentiary support for such a statement. (Jacoby Rep. at 4 (emphasis added).) Jacoby’s report 

even includes outright speculative statements such as: 

 “Misleading GSL/Paladin by giving Hodgson a tour of the facility and representing it as 

being managed by XPO and himself as an authorized agent – were other XPO 

representatives present or aware of this?” (Jacoby Rep. at 24 (emphasis added).) 

 “Implicitly accepting Adkins’ terms of escrow in an email chain – Baltagi did not cc any 

XPO employees, but were any on bcc or aware of it?” (Id. at 24 (emphasis added).) 

 “Receiving and implicitly accepting falsified warehousing receipts from Jason Adkins 

for GSL tires at the Houston facility – were any XPO employees aware of the 

documents?” (Id. (emphasis added).) 

 “Facilitating fraud by signing false security interest letters so other lenders such as 

Vecron and Abington would release the funds – did any other XPO employees help 

produce or deliver these?” (Id. at 25.) 

Jacoby even admitted that he was speculating: 

 “Q: But that’s speculating. A: Yes, and that’s why I said – that’s why I said in the 

sentence could have been particularly useful. It depends on how the exit interview went 

obviously.” (Jacoby Dep. at 198 (emphasis added).) 

 “Q: But you’re speculating about that, right? A: Yes. I’m just explaining why if I 

were Great Southland I might not be too suspicious of this document.” (Id. at 239-40 

(emphasis added).) 

 “Q: . . . The causal effect here, you’re speculating, right? A: Yes.” (Id. at 277. 

(emphasis added).) 

Jacoby’s repeated tendency toward speculation threatens unfair prejudice to XPO and, as 

a result, his testimony should be excluded. See Davison v. Cole Sewell Corp., 231 F. App’x 444, 

450 (6th Cir. 2007) (expert testimony may not be based on speculation and instead facts must find 

support in the record). 

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C. Jacoby’s Opinions are Inappropriate Legal Conclusions 

Jacoby’s opinions are also riddled with inappropriate legal conclusions. See Navarro v. 

P&G, No. 1:17-cv-406, 2021 U.S. Dist. LEXIS 43140, at *32 (S.D. Ohio Mar. 8, 2021) (“[T]he 

principle that an expert may not make legal conclusions is indeed well established.”) (citation 

omitted). For example, Jacoby opines: 

 “Komsky says that Forwarding and Logistics are not separate legal entities. . . . but 

according to the company’s SEC filings XPO Global Forwarding Inc. is a subsidiary At 

(sic) one point he characterizes XPO Global Forwarding as a cost center, which is 

typically different than a for-profit legal subsidiary.” (Jacoby Rep. at 13.) 

 “XPO Legal should have asked the Audit Committee to establish an Internal Audit 

Committee[.]” (Id. at 15.)

 “[T]his sloppiness may constitute a violation of Section 404 of Sarbanes-Oxley[.]” (Id.

at 17.) 

 “It’s difficult to imagine there was ever an evaluation of safeguards, given the series of 

events that unfolded at XPO while this fraud played out. SOX 302c stipulates that the 

signing officers ‘have evaluated the effectiveness of the issuer’s internal controls. . . .’ 

(SOX p33)” (Id. at 17.) 

 “XPO may be at risk of failure to disclose legal and financial risk to investors[.]” (Id. at 

22.)

 “The legal language [of Baltagi’s independent contractor agreement] was very thin[.]” 

(Id. at 24.) 

 “The documents were authorized by XPO since they were acknowledged by a bonafide 

XPO employee through an official XPO email account.” (Jacoby Rebuttal at 13.) 

Jacoby’s legal conclusions disguised as expert opinions are inappropriate and provide an additional 

basis for the exclusion of his testimony. 

III. CONCLUSION 

For the foregoing reasons the Court should exclude in full the opinions of David Jacoby. 

Respectfully submitted, 

/s/ Martha Brewer Motley 

Kimberly Weber Herlihy (0068668) 

Martha Brewer Motley (0083788) 

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Thomas J. Whaling (0096430) 

Erica M. Rodriguez (0098711) 

Vorys, Sater, Seymour and Pease LLP 

52 East Gay Street, P. O. Box 1008 

Columbus, OH 43216-1008 

Phone: (614) 464-8283 

Fax: (614) 719-5021 

Email: kwherlihy@vorys.com; 

mbmotley@vorys.com 

tjwhaling@vorys.com; emrodriguez@vorys.com

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on December 2, 2021 a true and accurate copy of the 

foregoing Motion to Exclude Expert was sent to counsel of record via the Court’s ECF system and 

to Mr. Baltagi and Mr. Adkins, via regular mail, at: 

Afif Baltagi 

2308 Nantucket Drive, Apt. C 

Houston, TX 77057 

Jason Adkins 

885 Sternberger Road 

Jackson, Ohio 45640 

/s/ Thomas J. Whaling 

Thomas J. Whaling (0096430) 

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