UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREAT SOUTHLAND LIMITED, :

:

Plaintiff, : CASE NO. 2:17-CV-00719

:

v. :

: JUDGE MORRISON 

LANDASH CORPORATIONS, et al. :

: MAGISTRATE JUDGE JOLSON

Defendants. :

______________________________________________________________________________

PLAINTIFF GREAT SOUTHLAND LIMITED’S BRIEF IN OPPOSITION TO XPO’S 

MOTION IN LIMINE NO. 4 (DOC NO. 229) TO PRECLUDE GSL FROM CALLING 

BRAD JACOBS OR CATHERINE FRIEDMAN AS A WITNESS AND TO EXCLUDE 

THE JACOBY SUPPLEMENTAL REPORT

______________________________________________________________________________

I. INTRODUCTION

Defendants XPO Logistics, Inc. and XPO Global Forwarding, Inc. (collectively “XPO”) 

assert that Plaintiff Great Southland Limited (“GSL”) should be barred from calling XPO’s CEO, 

Brad Jacobs, or his former assistant, Catherine Friedman, as witnesses at trial. XPO makes this 

argument based upon this Court’s ruling in the matter of Abington Emerson Capital, LLC v. 

Adkins, et al., Case No. 2:17-cv-00143. In that matter, this Court held that the testimony of 

Mr. Jacobs and Ms. Friedman as to Star Funding was not relevant to show “a potential cover-up” 

as alleged by Abington. See Abington ECF No. 455 at 20. This Court held that because 

Mr. Jacobs testified that he had no knowledge regarding the Star Funding issue, he had no 

information that would make a cover-up more or less probable than it would be without the 

evidence. Id. at 21. 

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However, the Court’s ruling in Abington does not preclude GSL from calling Mr. Jacobs 

or Ms. Friedman as witnesses in this matter. GSL intends to use their testimony for a different 

purpose. In the case at bar, GSL offers Mr. Jacobs’ and Ms. Friedman’s testimony to establish,

among other things, that XPO was negligent in its hiring, supervision, and management of its 

employee, Afif Baltagi. Mr. Jacobs’ and Ms. Friedman’s testimony, including their claimed 

ignorance, regarding the issues with Star Funding is relevant as it demonstrates the lack of 

supervision and safeguards that were in place as to Baltagi. Testimony as to their alleged 

ignorance – when issues with Baltagi were directed to their attention – makes the fact the XPO 

negligently supervised and managed Baltagi more probable than it would be without that 

evidence. Unlike the case in Abington, XPO’s expert witness, David Jacoby, relied upon the 

testimony of Ms. Friedman and Mr. Jacobs in reaching the conclusions and opinions contained in 

his supplemental report.

Naturally, this distinction is important which is why XPO seeks to exclude Mr. Jacoby’s 

supplemental report. If the report is stricken, then the testimony upon which it is based becomes 

easier for XPO to challenge. To that end, XPO incorrectly asserts that the opinions expressed by 

Mr. Jacoby are speculative and lacking in foundation. In making this argument, XPO conflates 

the admissibility of an expert’s opinion with the weight that is given to that opinion by the trier 

of fact. Expert witnesses are able to reach conclusions and present opinions based upon their 

observations of the evidence before them. Mr. Jacoby did this in his supplemental report, relying 

upon the deposition testimony of Mr. Jacobs and Ms. Friedman to reach his conclusions. If XPO 

disagrees with the opinions in the supplemental report, it will have the opportunity to crossexamine Mr. Jacoby at trial. Ultimately, the trier of fact will determine what weight should be 

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given to Mr. Jacoby’s supplemental report. However, the fact that XPO disagrees with its 

conclusions, does not provide a basis to bar the use of the supplemental report.

II. LAW AND ARGUMENT

A. The Testimony of Brad Jacobs and Catherine Friedman Is Relevant To Show 

That XPO’s Lack Of Knowledge and Oversight Of Afif Baltagi Allowed Baltagi 

To Facilitate Jason Adkins’ Fraud Scheme

Federal Rule of Evidence 402 bars admission of irrelevant evidence. Evidence is relevant 

if it “has any tendency to make a fact more or less probable than it would be without the 

evidence” and if “the fact is of consequence in determining the action.” Fed. R. Evid. 401. “Rule 

403 permits courts to exclude relevant evidence if its probative value is substantially outweighed 

by a danger of, inter alia, unfair prejudice, confusing the issues, and misleading the jury.” Fed. 

R. Evid. 403. United States v. Valueland Auto Sales, Inc., No. 2:13-cr-143, 2015 U.S. Dist. 

LEXIS 8091, *3 (S.D. Ohio January 22, 2015).

“Relevance is an “extremely liberal” standard, allowing all evidence not otherwise 

excluded that “has any tendency to make a fact more or less probable than it would be without 

the evidence” and is of consequence to a claim before the court.” In re. Laurel Valley Oil Co., 

No. 05-64330, 2015 Bank. LEXIS 2470, *14 (U.S. Bankruptcy Court N.D. Ohio July 28, 2015) 

citing Fed. R. Evid. 401; Dortch v. Fowler, 588 F. 3d 396, 400-01 (6th Cir. 2009).

As set forth above, XPO argues, based upon this Court’s ruling in Abington, that Mr. 

Jacobs’ lack of relevant knowledge as to the Star matter should preclude him from being called 

as a witness at trial in this matter. However, the lack of knowledge of Mr. Jacobs and Ms. 

Friedman bolsters a portion of GSL’s claim, that XPO negligently managed and supervised its 

employee, Baltagi. In short – ignorance is no defense. Indeed, it establishes XPO’s business 

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model is premised on the refusal to properly supervise their employees thereby allowing Baltagi 

to perpetuate this fraud scheme with Adkins.

In Count IX of GSL’s Amended Complaint, GSL alleges that Baltagi acted negligently in 

making several knowingly false representations to GSL. See, ECF No. 144. GSL also asserts 

that XPO negligently hired, managed and supervised its employee, Baltagi, and therefore failed 

to protect its customers, such as GSL from Baltagi’s acts. Id., ¶227. XPO’s failure to properly 

supervise and manage Baltagi caused tens of millions of dollars in damages to be incurred by 

lenders such as GSL that were caught up in the Adkins Ponzi scheme. Id. 

As XPO admits, the ignorance of Mr. Jacobs and Ms. Friedman as to the issues involving 

Star Funding cannot be disputed. Their ignorance is of consequence to GSL’s claim that XPO 

negligently supervised and managed its employee, Baltagi. Thus, the testimony of Mr. Jacobs 

and Ms. Friedman as to their lack of knowledge regarding the Star matter is clearly relevant, as it 

makes it more probable that one of the key facts of the case, that XPO failed to properly manage 

and supervise Baltagi, is true.

Not only is the testimony as to the lack of knowledge of Mr. Jacobs and Ms. Friedman 

relevant, its probative value far outweighs any potential unfair prejudice or confusion. Their 

testimony is probative as it demonstrates XPO’s inattention and lack of oversight of its 

employees. The testimony of Mr. Jacobs and Ms. Friedman would not unfairly prejudice XPO 

or confuse any issues. Instead, their lack of knowledge would provide information that would 

aid the jury in making a determination as to GSL’s negligence claim against XPO.

By moving to exclude the testimony of Mr. Jacobs and Ms. Friedman, XPO is seeking to 

bar highly relevant evidence that provides insight into a key part of GSL’s claims against XPO. 

Moreover, GSL’s expert David Jacoby relies upon their deposition testimony in reaching the 

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opinions detailed in his supplemental report. Mr. Jacoby properly relied upon Mr. Jacobs’ 

testimony as experts are permitted to rely upon facts in the record to support their opinions. 

Navarro v. P & G, No. 1:17-cv-406, 2021 U.S. Dist. LEXIS 43140, *28 (S.D. Ohio 

March 8, 2021). Mr. Jacoby testified that the lack of supervision and accountability on the part 

of XPO for the actions of its employee “enabled Baltagi to facilitate Adkins’ fraud against GSL.” 

See Exhibit 3, pg. 6 attached to XPO’s motion in limine. By seeking to bar the testimony of 

Mr. Jacobs and Ms. Friedman, XPO is impermissibly trying to bar Mr. Jacoby’s expert from 

opining as to what their lack of knowledge means in the context of GSL’s claim that XPO failed 

to properly manage and supervise Baltagi.

B. The Supplemental Expert Report Of GSL’s Expert, David Jacoby Should Not Be 

Barred As The Opinions Contained In His Report Are Based Upon Facts In The 

Record.

Federal Rule of Evidence 702, which governs the use of expert testimony, states that:

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. Merrel Dow Pharms., 509 U.S. 579 (1993)). The trial court’s

gatekeeping function applies to all expert testimony. Id. at 147. “The requirement that an 

expert’s testimony be reliable means that it must be “supported by appropriate validation – i.e, 

‘good grounds’ based on what is known.” In re Scrap Metal Antitrust Litig., 527 F. 3d 517, 529

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(6th Cir. 2008) citing Daubert, 509 U.S. 590. “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.” Id., 

529-530 citing Fed. R. Evid. 702.

“Rejection of expert testimony is the exception, rather than the rule,” and the Sixth

Circuit has held that “we will generally permit testimony based on allegedly erroneous facts 

when there is some support for them in the record.” Scrap Metal, 527 F. 3d 530, citing Quiet 

Tech, DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F. 3d 1333, 1345 (11th Cir. 2003). In Jahn v. 

Equine Services, 233 F. 3d 382 (6th Cir. 2000), the Court of Appeals reversed a decision by the 

District Court holding inadmissible an expert’s testimony. The Court explained that although the 

expert’s opinions “may very well be ‘shaky,’ because the opinions were based on facts in the 

record, and were not “assumptions” or “guesses,” challenges merely went to the accuracy of the 

conclusions, not the reliability.” Id. citing Jahn at 390-393. “An expert’s opinion, where based on 

assumed facts, must find some support for those assumptions in the record. However, mere 

‘weaknesses in the factual basis of an expert witness’ opinion...bears on the weight of the 

evidence rather than on its admissibility.’” Id. quoting United States v. L.E. Cooke Co., 991 F. 

2d 336, 342 (6th Cir. 1993). “The trier of fact makes determinations of credibility and the weight 

to be given to the evidence.” Coleman v. Warden, Trumbull Corr. Inst., No. 2:12-CV-1213, 

2014 U.S. Dist. LEXIS 61917, *27-*28 (S.D. Ohio May 5, 2014) sighting State v. DeHass, 10 

Ohio St. 2d 230, paragraph one of the syllabus (1967).

In the case at bar, GSL’s expert David Jacoby analyzed the deposition testimony of Brad

Jacobs to provide an opinion as to what degree XPO bore responsibility for the actions of 

Baltagi, in his capacity as XPO’s manager of its Houston facility, in furtherance of the Ponzi 

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scheme. See Exhibit 3 attached to XPO’s motion in limine, pg. 3. Despite XPO’s assertions to 

the contrary, in reaching the conclusions contained in his report, Mr. Jacoby relied only upon the 

deposition testimony of Mr. Jacobs and Ms. Friedman regarding their failure to review the 

correspondence related to the Star Funding dispute.

XPO argues, based upon certain language contained in the supplemental report on pages 

7 and 8, that Mr. Jacoby’s opinions were based upon speculation. However, as the Sixth Circuit 

has made clear, the shakiness or weakness of the conclusions contained in an expert’s report

would not bear upon the admissibility of the report, as long as the conclusions are based upon 

facts in the record. Any challenges to such a report would be made as to the accuracy of the 

report, not its reliability.

In the case at bar, the conclusions contained in Mr. Jacoby’s supplemental report are 

clearly reliable as they are based upon the deposition testimony of Mr. Jacobs. If XPO believes 

that Mr. Jacoby’s supplemental report is inaccurate, it will presumably challenge his opinions at 

trial on cross-examination and through the testimony of its own witnesses. However, XPO’s 

contention that Mr. Jacoby’s opinions are questionable does not provide a basis to bar his 

supplemental report.

Similarly, XPO cherry picks certain portions of Mr. Jacoby’s deposition transcript to 

argue that his opinions are speculative. As to the issue of plausible deniability on the part of 

XPO as to actions of its employees, XPO cites the deposition testimony of Mr. Jacoby that he 

believed that employees of XPO such as Muzi, Shook, Oliver and Baltagi were evasive in their 

depositions. See, ECF No. #229, pg. 8. As he states in his testimony Mr. Jacoby provided his 

analysis based upon his review of facts in the record, in this instance the deposition testimony 

Muzi, Shook, Oliver and Baltagi. Id. Moreover, he testified that his conclusion was based upon 

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his “observation” of the number of times those individuals responded to depositions questions by 

testifying that they did not know or remember the answer. Id., at 9. Mr. Jacoby’s opinions and 

conclusions were correctly based upon his observations and review of the facts in the record.

XPO also takes issue with the fact that Mr. Jacoby states on page 7 of his rebuttal report,

that “Catherine Friedman effectively ran XPO by representing herself as (Mr. Jacobs) without 

limitation.” Although XPO argues that this opinion is “inaccurate” and “reckless”, Mr. Jacoby 

clearly states in his report that he relied upon Mr. Jacobs’ deposition testimony in arriving at that 

opinion. See Exhibit 3 attached to XPO’s motion in limine, pg. 7, Section 2.1. As for XPO’s 

claim that Mr. Jacoby gave the opinion that XPO’s former COO, Troy Cooper, should have been 

copied on a set of emails sent by Ms. Friedman, that claim is untrue. Regarding Mr. Cooper, 

Mr. Jacoby noted that he wasn’t copied on those emails. Id., pg. 8, Section 2.3.

XPO conflates the admissibility of Mr. Jacoby’s Supplemental Report with the weight 

that it will be given by the trier of fact. The conclusions contained in the supplemental report 

were based upon evidence that is in the record, the deposition testimony of Mr. Jacobs. Mr. 

Jacoby relied upon his testimony to reach his opinions and conclusions, including his conclusion 

that XPO’s lack of oversight of its employee Baltagi allowed him to facilitate Adkins’ fraud 

against GSL. If XPO disagrees with Mr. Jacoby’s opinions, it can challenge his testimony on 

cross-examination and through the testimony of its own witnesses at trial. However, XPO’s 

argument that Mr. Jacoby’s opinions are shaky or incorrect, does not form a basis for excluding 

the supplemental report.

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ATB/ATB/02452978.1

030705.000004

III. CONCLUSION

Based on the foregoing, it is respectfully requested that the Court deny XPO’s motion to 

preclude GSL from calling Brad Jacobs or Catherine Friedman as a witness and to exclude the 

supplemental report of David Jacoby.

Respectfully submitted, 

CARLILE PATCHEN & MURPHY LLP

/s/ Matthew S. Brown

Matthew S. Brown (0077687)

Anthony T. Betta (0096070)

Email: mbrown@cpmlaw.com

Email: abetta@cpmlaw.com

950 Goodale Boulevard, Suite 200

Columbus, Ohio 43212

Tele: (614) 228-6135

Fax: (614) 221-0216

Counsel for Plaintiff Great Southland 

Limited

CERTIFICATE OF SERVICE

I hereby certify that on this 9

th day of December 2021, a true and correct copy of the 

foregoing was filed and served electronically via the Court’s CM/ECF System upon those who 

are registered to receive electronic notice. I have also served the following parties via U.S. Mail 

at the addresses below:

Jason E. Adkins

885 Sternberger Road

Jackson, Ohio 45640

Landash Corporation 

885 Sternberger Road

Jackson, Ohio 45640

Afif Baltagi

2308 Nantucket Drive, Apt. C

Houston, TX 77057

/s/ Matthew S. Brown

Matthew S. Brown

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