1 

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. 

XPO’S REPLY IN SUPPORT OF ITS MOTION TO 

EXCLUDE EXPERT TESIMONY OF DAVID JACOBY 

 GSL’s opposition brief largely fails to address the flaws in the expert reports and opinions 

of its “supply chain management” expert, David Jacoby. Instead, it argues that: (1) XPO’s motion 

to exclude was untimely; (2) Jacoby is generally qualified as an expert on all things transportation 

because he has done third-party consulting on “supply chain management” for companies, 

including some that relate to transportation; and (3) Jacoby can summarize the facts for the jury. 

All of these arguments fail and GSL’s expert should be excluded in full. 

A. XPO’s Motion is Timely 

GSL first argues that XPO’s Motion to Exclude is untimely because it is “essentially” a 

dispositive motion. (ECF No. 432, Opp’n at 2.) GSL ignores the case schedule, which set a 

deadline for filing both “Motions in limine” and “all pre-trial motions.” (ECF No. 210).1 XPO’s 

Motion to Exclude was a timely filed “pre-trial motion” within the scope of the Order. If GSL 

wanted the Court to set a separate deadline for motions related to experts, it could have and should 

have asked the Court to do so. And if GSL was confused about whether motions to exclude experts 

 

1 At the request of the parties, and to allow for time to mediate, the Court reset the dates, and XPO 

timely filed its Motion to Exclude as set forth in the subsequent order. (ECF No. 218.) 

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needed to be filed at the dispositive motion deadline, it should have asked the Court for clarity. It 

did neither. XPO is not bound by GSL’s assumption about (or post hoc interpretation of) the case 

schedule. Tellingly, GSL cites no rule, case law, or court order in support of its argument. 

GSL argues that its case is doomed without the testimony of Jacoby, and therefore that 

XPO’s Motion to Exclude is a “dispositive” motion. But GSL’s candid admission that Jacoby is 

necessary to its case does not transform XPO’s motion to exclude testimony into a “dispositive” 

motion, under Rule 56 or otherwise. Indeed, if GSL’s argument were correct, a party’s mere 

declaration that a witness or an issue is critical to its case would unilaterally transform any motion 

threatening the presentation of that witness or that issue at trial into a dispositive one. There is no 

authority to support such an assertion, and GSL’s timeliness argument should therefore be rejected. 

B. Jacoby is Not Qualified to Opine on the Topics Relevant to this Litigation. 

GSL’s Opposition only serves to highlight XPO’s arguments for excluding Jacoby—

namely that Jacoby claims expertise over any topic that he has even tangentially encountered in 

his years as an outside consultant on “supply chain management” issues in a hodgepodge of 

unrelated industries. In fact, GSL states that Jacoby is “sufficiently qualified to render an expert 

opinion” on, “among other things,” the following topics: 

 “XPO’s organizational structure” 

 “XPO’s business and the services it provides” 

 “The fact that the events at issue are within the scope of XPO’s busines [sic]” 

 “Baltagi’s employment” 

 “His duties and responsibilities” 

 “His authority” 

 “His acting as an agent” 

 “Baltagi acting in the course and scope of his employment” 

 “That GSL fairly relied on Baltagi as XPO’s agent”; and 

 “XPO’s negligent supervision of Baltagi.”

(Opp’n at 1.) GSL argues that Jacoby is qualified to opine on all of these topics because “Jacoby 

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has more than 32 years of experience consulting in ‘supply chain management, operations 

strategy and performance improvement, primarily in the transportation, logistics, energy and 

automotive sectors.’” (Opp’n at 4 (emphasis in original).) When asked during his deposition to 

define “supply chain management,” Jacoby admitted that this phrase describes the lifespan of a 

product, not the nuance of any one particular industry or any stops along the way: 

Q. [I]f you were invited to an elementary school career day, how would you 

describe what supply chain operations is? Like how would you describe what your 

company does if you were in front of a room of fourth graders? 

A. Yes, somebody asked me this the other day and I actually sent them some pages 

from my book, Guide to Supply Chain Management, which included the definition. 

Supply chain is everything that it takes to get a product from its raw material state 

to its in consumer, in layman’s terms, I would say. And that’s only for products, 

but that’s what concerns us here. So it includes logistics, transportation, 

warehousing, production, and point of sale. 

(Jacoby Dep. at 36-37.) And what does Jacoby’s book say on that topic? It states, 

Use of the phrase “supply chain” has become widespread. . . Yet many 

practitioners use key words like logistics, procurement, transportation, and supply 

chain interchangeably and without a consistent hierarchy, confusing the supply 

chain’s role with respect to the other functions, and implying that everybody 

who works in any of those fields is a supply chain practitioner. 

Guide to Supply Chain Management (Economist Books), Jacoby, David Steven (Feb. 25, 

2014)(emphasis added). In other words, by Jacoby’s own admission, working in logistics, or 

procurement, or transportation, does not make one a supply chain practitioner expert, just as 

working as a supply chain practitioner does not make one an expert in logistics, procurement or 

transportation; these are not interchangeable concepts or functions. Jacoby’s self-proclaimed 

expertise as a “supply chain” practitioner does not mean he has expertise about the operations of 

a freight forwarder, like XPO Global Forwarding, or even a 3PL warehouse, and he should not be 

permitted to confuse the jury by blurring the lines between and among these varying areas of 

expertise by lumping them all under the umbrella of “supply chain management.” 

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 Further, the fact that Jacoby has consulted for a few businesses in the transportation 

industry, but on entirely different topics, illustrates why he is not qualified as an expert here. For 

example, to support his expertise in warehousing and 3PLs, GSL cites testimony about Jacoby’s 

work with Iron Mountain, the document storage company. (Opp’n at 4-5.) But even a cursory 

inquiry into that work, which was 20 years ago, reveals that the engagement did not involve the 

use of a freight forwarder (Jacoby Dep. at 28), and the warehouse receipts related to that 

engagement were internal warehouse receipts because that company ran its own warehouses (id.

at 32), and, in any case, he does not recall the specific content of those warehouse receipts (id. at 

33). Iron Mountain is not a freight forwarder, and any experience Jacoby acquired about how Iron 

Mountain operated twenty years ago does not give him a sound basis to tell the jury he is an expert 

regarding the operations of XPO, or any other freight forwarding company, now. 

 Jacoby’s other engagements similarly fail to provide him with expertise relevant to this 

matter. For example, his work for UPS involved how to integrate the operations of an acquired 

entity that happened to be a freight forwarder, but that engagement did not involve, for example, 

what the warehouse receipt should say. (Jacoby Dep. at 29-31.) His work with FedEx’s freight 

forwarding arm involved “corporate work related to real estate information systems and other 

overhead shared costs.” (Id. at 45.) Again, this has nothing to do with the issues in this case. And 

when pressed about the issues in this case like, for example, what a freight forwarder would issue 

in terms of an inspection report (like those Baltagi is alleged to have signed), Jacoby admitted he 

“couldn’t say right now” what types of documents freight forwarders would use. (Id. at 229-230.) 

 How does GSL justify presenting Jacoby as an expert on these topics, given the foregoing? 

It merely asserts that “[s]everal of those engagements have also involved speaking with warehouse 

managers.” (Opp’n at 4.) This is not nearly enough to make Jacoby an expert. Indeed, the Court 

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excluded plaintiff’s expert witness in a related case, Kirby Dev., LLC v. XPO Global Forwarding, 

Inc., No. 2:18-CV-500, on a similar basis. (ECF No. 208.) Like the partially-disqualified expert in 

Kirby, Jacoby has no experience advising on the contents of warehouse receipts, inspection reports, 

or fraud audits. (Jacoby Dep. at 222-223 (testifying that he has not reviewed reports performed by 

a warehouse intended to report on the condition of goods as they were received at a third-party 

warehouse); 223-224 (testifying that it is “possible” he has seen a warehouse-issued inspection 

report but cannot think of an instance); 230 (admitting he does not know what type of inspection 

report other freight forwarding companies would use); 233 (admitting he does not know what 

“nonnegotiable” means on warehouse receipts and has never advised on what warehouse receipts 

should contain); 167-168 (testifying that he has not been involved with a fraud audit, running a 

fraud audit, or reviewing fraud audit results). And as the Court held in Kirby, “Seeing something 

and understanding what is seen are different things.” (Kirby ECF No. 208 at 22.)

GSL also argues, “XPO can disagree with Jacoby’s conclusions and can challenge his 

testimony on cross-examination and through the testimony of its own witnesses. However, the fact 

that XPO disagrees with Jacoby’s opinions does not provide a basis to preclude his expert 

testimony.” (Opp’n at 2.) But this takes too narrow a view of XPO’s position, which is not that 

XPO disagrees with Jacoby, but that he has not crossed the basic expert hurdle in the first instance. 

And opposing counsel’s ability to vigorously cross-examine does not absolve the expert of 

demonstrating that he is qualified to speak as an expert to begin with. Jacoby should be excluded 

because this is not a case about “supply chain management,” but rather about (1) due diligence in 

a tire sale and (2) the specific operations of a freight forwarder. Jacoby is not an expert in either. 

C. Jacoby’s “Expert” Opinions are Not Based on Reliable Sources 

GSL makes no attempt to explain why Jacoby’s reliance on indisputably unreliable sources 

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is not a threshold issue that precludes the admissibility of his opinions. Specifically, Jacoby relies 

heavily on an anonymous job review website, Glassdoor.com, citing it multiple times in his report 

(Jacoby Rep. at 13, 14, 22, 27). He also pasted into his report a summary prepared by activist shortseller investor Spruce Point Capital, without ever reviewing the actual full report, and then cites 

Spruce Point and its principal multiple times (Jacoby Rep. at 17, 18, 23; Jacoby Dep. at 153-155.) 

Further, he cites to sources seemingly pulled at random from the internet. (Mot. at 5-6.) GSL fails 

to address these unreliable sources or how they can possibly support expert testimony. When the 

foundation for an expert’s opinions is so fundamentally flawed that counsel cannot make any 

argument for their reliability, those opinions should not be admitted. 

D. Jacoby’s Opinions Are Not “Expert” Opinions 

GSL’s Opposition makes it apparent that part of the role it seeks to have Jacoby play is as 

GSL’s storyteller, merely recounting deposition testimony and documents, without any expert 

gloss. But an expert who merely summarizes facts is not providing “expert” testimony at all. This 

issue, in particular, pervades Jacoby’s Rebuttal to XPO’s expert, Gerald Sabino. For example, GSL 

wants Jacoby to testify that Baltagi was not trained, because Jacoby relied “upon the deposition 

testimony of Ian Oliver that Baltagi was never given training,” and that Baltagi was not subject to 

discipline, because Jacoby relied “on the testimony of Dominick Muzi that he was unaware of 

anyone at XPO ever being reprimanded.” (Opp’n at 9.) This is not an expert providing an opinion 

based on specialized training or experience in order to help the trier of fact—this is a purported 

expert repackaging factual testimony as “expert opinion.” As such, GSL’s argument that “the trier 

of fact is entitled to weigh Mr. Jacoby’s expert opinions” misses the mark—the recitation of facts 

is not expert testimony in the first instance.2 (See Mot. at 7.) 

 

2 While problematic enough that Jacoby seeks to “expertize” facts, this issue is made 

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E. XPO is Challenging Jacoby’s Opinions 

GSL incorrectly argues that “XPO is not challenging the ultimate opinions offered, 

presumably as it is obvious such goes to weight rather than admissibility.” (Opp’n at 6.) This is 

false; XPO is challenging the admissibility of his opinions, particularly those that are (1) legal 

conclusions, (2) sheer speculation, and (3) invade the province of the jury. (See Mot. at 9-10.) For 

example, Jacoby opined on the legal sufficiency of Baltagi’s independent contractor agreement, 

XPO’s obligations under Sarbanes-Oxley, and that XPO ratified the documents at issue. (Mot. at 

10.) Jacoby speculates at length about what various employees may or may not have known, 

whether others were in cahoots with Adkins, etc. (Mot. at 9 (summarizing repeated instances of 

speculation.) Jacoby’s rebuttal report offers blatant legal conclusions that “GSL reasonably relied 

on XPO’s representations,” and “the documents were authorized by XPO since they came from a 

bonafide XPO employee through an official XPO email account.” (Jacoby Rebuttal Rep. at 3.) 

Jacoby even offers wild legal opinions like XPO should have filed a “restraining order or 

injunction” to compel Baltagi to update his LinkedIn profile, despite never having been involved 

in anything even remotely similar. (Jacoby Dep. at 206-208.) Thus, XPO is not challenging the 

weight of the opinions, but their admissibility. 

F. Conclusion 

As set forth in XPO’s Motion, and as reiterated herein, Jacoby’s opinions and testimony 

should be excluded in full. 

Respectfully submitted, 

/s/ Martha Brewer Motley 

 Kimberly Weber Herlihy (0068668) 

Martha Brewer Motley (0083788) 

 

exponentially worse given Jacobys’ incorrect recitation of the facts as he interpreted them, as 

summarized in XPO’s opening motion and which GSL entirely failed to address. (Mot. at 6.)

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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 23, 2021 a true and accurate copy of 

the foregoing Reply brief was sent to counsel of record via the Court’s ECF system and to Mr. 

Baltagi and Mr. Adkins, via email, and will serve on December 27, 2021 via regular mail to: 

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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