UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ex rel. FLOYD LANDIS , Plaintiff,

v. TAILWIND SPORTS CORP., et al. ,
Defendants. Case No. 10-cv-00976 (CRC)

MEMORANDUM OPINION AND ORDER Before the Court are several motions in limine from both partie s. In this Memorandum Opinion and Order, the Court reso lves the motions related to ex pert testimony: namely, Defendant Lance Armstrong’s mo tion to exclude the testimony of the Government’s three proposed experts (Larry Gerbra ndt, Dr. Brian Till, and Dr. Jona than Walker) (ECF No. 559) and the Government’s motions to exc lude the testimony of Armstrong’ s two experts, Douglas Kidder (ECF No. 557) and John Gleaves (ECF No. 558). 1 With respect to the Government’s experts, the Court will mostly deny Armstrong’s motion, but will grant it in two respects: (1) the experts cannot testify as to an impermissible theory of damages that has bee n previously rejected by the Cour t, namely that the fair market value of the promotional services that Armstrong’s cycling team rendered to the U.S. Postal Service (“USPS”) is zero, and (2) Gerbrandt cannot offer his un substantiated opinion that the harm resulting to the USPS from the negative publicity it recei ved from coverage of Armstrong’s

1 In a separate Order issued t oday, the Court ruled on the parti es’ other motions in limine.2 use of performance enhancing drugs (“PEDs”) necessarily outweig hed the value of any benefits received from the sponsorship pr ior to revelations of Armstrong ’s PED use. With respect to Armstrong’s expe rts, the Court will grant in part and deny in part both Government motions. The Court finds Mr. Kidder’s testimony adm issible except insofar as it discusses the value of USPS’s cy cling-themed Vis a credit-card p romotion. And the Court will permit Mr. Gleaves to testify as an expert witness with respect to the widespread nature of PED use in cycling, but will not permit him to testify to the other opinions laid out in hi s expert report.
I. Background A. Government’s Experts The Government intends to call three expert witnesses at trial to testify regarding its alleged damages: Larry Gerbrandt , Dr. Brian Till, and Dr. Jonat han Walker.
1. Larry Gerbrandt Larry Gerbrandt is the principa l of Media Valuation Partners, afirm that has been providing valuation, market res earch, and litigation support si nce 2007. Def. Armstrong’s Mot. to Exclude Testimony of Gerbrandt, Till, & Walker (“Armstrong M IL”), Ex. 1 (“Gerbrandt Expert Report”), at 1. He also s erves as the managing director of Janas Consulting, an investment banking, management consulting, and valuation firm; as an associate with the Analysis Group, a provider of ec onomic, financial, and business strategy consulting; and as a board member of The Inspiration N etwork, a family-entertainment -oriented television network. Id. Prior to his current positions, Gerbrandt worked as an ana lyst and executive for several media research companies, inc luding The Nielsen Company, and ha s spent his career collecting and analyzing data related to pr icing, valuation, and consumpti on across consumer media. Id. He has served as an expert witn ess more than 90 times on topics involving the economics and3 value of network television ser ies, the advertising and license fee revenue generated by broadcasts, and the value of publicity. Id. at 4. According t o the Government and Gerbrandt’s expert report, he intends to t estify about the negative publici ty USPS received from the media coverage of Lance Armstrong’s PED use. Id. at 5–6; Pls.’ Opp’n to Armstrong MIL (“Pls.’ Opp’n”) at 1, 11.
2. Dr. Brian Till Dr. Brian Till is the Dean of the College of Business and Admin istration and a Professor of Marketing at Marquette University. Armstrong MIL Ex. 4 (“Ti ll Expert Report”) at 1. He has a bachelor’s degree in adverti sing and an MBA from the Universi ty of Texas, and a Ph.D. from the University of South Carolina in marketing. Id. His academ ic research has focused on associative learni ng, brand equity, and celeb rity endorsers, an d he has published articles on these topics in several academic journals. Id. Prior to his academi c career, he worked as a brand manager at Purina. Id. Accord ing to the Government and Dr. Ti ll’s expert report, he intends to testify that the USPS cycling s ponsorship created an associativ e link between USPS and Lance Armstrong and that academic literature has shown that negative information about athletes, such as Armstrong’s PED use, negatively impacts consumer perception of brands associated with the athlete. Id. at 1–2; P ls.’ Opp’n at 1, 20.
3. Dr. Jonathan Walker Dr. Jonathan Walker is the Presi dent and Chief Executive Office r of the economic consulting firm Economists In corporated. Armstrong MIL Ex. 6 ( “Walker Expert Report”) at 2. He has a bachelor’s degree from t he University of California at Berkeley and a PhD from the Massachusetts Institute of Technology, both in economics. Id. In addition to his work with Economists Incorporated, he consul ts regarding damages and econ omics-related topics in sports4 cases and other types of litig ation matters. Id. According to the Government and Dr. Walker’s expert report, he intends to tes tify about the possible losses that USPS incurred from the negative publicity surrounding Armstrong’s PE D use using event studies p erformed on scandals involving similar celebrity athlete endor sers. Id. at 4; Pls.’ Opp’n at 1, 26–27.
B. Armstrong’s Experts Armstrong intends to call two expe rts at trial: Douglas Kidder and Dr. John Gleaves.
1. Douglas Kidder Douglas Kidder is a managing part ner with OSKR, LLC, a consulti ng firm that provides expert services primarily in intel lectual property and antitrus t cases. Pl.’s Mot. Exclude Kidder Testimony (“Pls.’ Kidder MIL”) E x. 1 (“Kidder Expert Report”), at 1. He also teaches a course on damages at the Golden Gate Un iversity School of Accounting. Id. Kidder received a bachelor’s degree in mathematic s and English from Amherst Colle ge and a master’s degree in naval architecture from the Uni versity of California at Berkele y. Id.; id. Ex. 3 (Kidder Depo.), at 10:12–18. He has over 25 years of pr ofessional experience valu ing businesses, both as a consultant and as a business ma nager. Id. at 1–2. Kidder inte nds to testify about the benefits that USPS received from sponsor ing the cycling team, and about the difference between the value of those benefits and wha t the government paid in sponsor ship fees. Id. at 3–4. Kidder has also prepared a rebuttal report responding to Dr. Walker’s conc lusions. Id. Ex. 2 (Rebuttal Report).
2. Dr. John Gleaves Dr. John Gleaves is an Associate Professor of Kinesiology at Ca lifornia State University, Fullerton. Pl.’s Mot. Exclude Gl eaves Testimony (“Pl.’s. Gleav es MIL”) Ex. A (“Gleaves Expert Report”), at 1. He r eceived a B.A. in philosophy and th eology from Carroll College and a5 PhD in history and philosophy of spor t from Pennsylvania State University. Id. at 3. His academic research has focused on the history of doping and perf ormance enhancement in sports, and he has published several a rticles on this topic. Id. Addi tionally, he serves as the Co-Director of the International Network of Doping Research, a group that s eeks to explore and understand the use of PEDs, and of the Cente r for Sociocultural Sport and Olympic Research, which promotes education on sport and the Olympic Games. Id. at 5. According to Armstrong and Dr. Gleaves’ expert report, he inte nds to testify about the history of the use of PEDs in cycling and to USPS’s awareness of Armstrong’s PED use and any failure to inve stigate that use. Id. at 8–9; Armstrong’s Opp’n Pls.’ Mot. Exclude Gleaves Testimony (“Armstr ong Gleaves Opp’n”) at 5–6.

II. Legal Background Rule 702 of the Federal Rules of E vidence permits the testimonyof a witness as an expert if (1) the witness “is qualif ied as an expert by knowledge skil l, experience, training, or education,” (2) the testimony “ will help the trier of fact to u nderstand the evidence or to determine a fact in issue,” (3) the testimony is “based on suff icient facts or data,” (4) the testimony “is the product of reliable principles and methods,” and (5) the expert has “reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. If a witness is deemed to be qualif ied to testify as an expert, the Court then applies the two-part test laid out in Daubert v. Merrell Dow Pharmaceutical s, Inc., 509 U.S. 579 (1993), to determine if the remaining re quirements for admissibility under Rule 702 are met. Under Daubert, the Court must determine “whether the expert is propos ing to testify to (1) scientific knowledge that (2) will assist t he trier of fact to understand or determine a fact in issue.” Id. at 592. In other words, the proffere d expert testimony “must be b oth reliable and relevant.” United States v. Nwoye, 824 F.3d 1129, 1136 (D.C. Cir. 2016).6 In determining reliability, the Court’s purpose is to conduct a “preliminary assessment of whether the reasoning or methodology underlying the testimony i s scientifically valid and of whether that reasoning or me thodology properly can be applied t o the facts in issue,” an analysis focused “solely on principles and methodology, not on the concl usions that they generate.” Daubert, 509 U.S. at 592–93, 595. The Supreme Court in Daubert identified four factors to consider in this analysis: “(1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer revi ew and publication; (3) the method’s known or potential rate of error; and (4) whether the theory or techni que finds general acceptance in the relevant scientific community.” Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996) (citing Daube rt, 509 U.S. at 593–94). Ultimat ely, this inquiry is a “flexible one” and “none of the factors di scussed is necessarily applicab le in every case or dispositive; nor are the four factors exhaustiv e.” Id. (quoting Daubert, 509 U. S. at 594). In addition to reliability, the pr oposed testimony must also me et the second prong of Daubert: relevance. This require s the Court to determine “whet her the proffered expert testimony ‘is sufficiently tied t o the facts of the case that i t will aid the jury in resolving a factual dispute.’” Id. (quoting Da ubert, 509 U.S. at 591). The propone nt of the expert testimony bears the burden of showing, by a preponder ance of the evidence, that these requirements for admittance are met. See Daubert, 509 U.S. at 592 n.10.

III. Analysis
A. Armstrong’s Motion (Government’s Experts) Armstrong broadly challenges all three of the Government’s expe rt witness on the ground that their testimony is not relev ant. He also raises specific challenges to the qualifications or reliability of the experts individually. The Court will addres s each issue in turn.7 1. Relevance Armstrong challenges all three of the Government’s experts’ pro posed testimony on the ground that it will not help the trier of fact to understand th e evidence or determine a fact in issue. First, he argues the te stimony is not relevant insofar as the experts are attempting to prove an impermissible theory of da mages. Second, he argues the test imony is irrelevant because it will lead the jury to improperly s peculate as to the amount of damages. The Court concludes that Armstrong is correct that the G overnment is seeking to prove da mages under an impermissible theory and will prohibit the e xpert testimony insofar as it rel ates to that theory; however, the Government’s proffered expert t estimony is still relevant to a permissible, non-speculative theory of damages and thus, aside from any other ground for exclusion, is admissible.

a. Impermissible Theory of Damages Armstrong first challenges certa in aspects of the testimony of the Government’s experts as irrelevant because it relates to an impermissible theory of damages. Specifically, he argues that testimony from Gerbrandt and Dr. Walker that the cycling-t eam sponsorship had no fair market value is inadmissible because it attempts to prove damag es via a theory that the Court prohibited at summary judgme nt. Armstrong MIL at 18, 35. The Government responds that the Court’s summary judgment ruli ng did not “foreclos[e] the jury f rom considering the market value of the tainted services , and ultimately concluding that m arket value is ascertainable.” Pls.’ Opp’n at 4. As discussed in more detail in t he Court’s opinion on summary j udgment, the relevant standard for damages in this cas e is that laid out by the D.C. Circuit’s decision in United States v. Science Applications International Corp. (“SAIC”), 626 F.3d 1257 (D.C. Cir. 2010). The Court at summary judgment explai ned that “[t]he market value of the cycling team’s ‘PED-8 tainted’ promotional services is just as ‘impossible to determi ne’” as the services rendered in SAIC. United States ex rel. Lan dis v. Tailwind Sports Corp., 2 34 F. Supp. 3d 180, 200 (D.D.C. 2017). However, the Court held, the Government “may attempt to prove that the positive benefits of the sponsorship wer e reduced—or even eliminated alt ogether—by the negative publicity that accompanied the subs equent investigation and dis closure of Armstrong’s doping.” Id. at 201. The Court’s decision on summary j udgment has foreclosed the Gov ernment from arguing, as it seeks to do now, that the fair market value of t he services rendered—promotional services from an undisclosed tai nted team—was zero. This is so because, as the Court held, the fair market value of that servic e is not readily ascertainable. See id. at 200–01; cf. SAIC, 626 F.3d at 1279 (concluding that se rvices by entity with undisclos ed conflicts was not readily ascertainable). To the extent th at the Government’s proffered experts intend to testify to that theory of damages, their testim ony is irrelevant and inadmissib le. But to the extent that the Government seeks to prove that the negative impact of the publi city surrounding the disclosure of Armstrong’s doping and conceal ment thereof outweighed any po sitive benefits received prior, the testimony of the experts is r elevant and, if all other cond itions are met, admissible. Cf. Landis, 234 F. Supp. 3d at 204 (indica ting the expert testimony at issue here is relevant to a proper theory of damages). b. Speculative Testimony on Damages Armstrong further argues that even if the Government’s experts intend to testify as to the permissible theory of damages here, their testimony is still ir relevant because they fail to provide a sufficiently concrete means by w hich the jury can calculate d amages. He claims that “the government seeks to have the jur y do what its experts did not—q uantify the amount of damages9 without any ability to do so, any method for doing so, or any e vidence of its amount.” Armstrong’s Reply in Supp. of Mot . Exclude Testimony of Gerbran dt, Till, and Walker 5; see also Armstrong MIL at 16–17, 32. The Government responds that damages are not speculative simply because there is uncertainty as to the amount when, as h ere, there is certai nty as to injury. Pls.’ Opp’n at 6–8. The rule on a plaintiff’s require d proof of damages was laid ou t by the Supreme Court in Story Parchment Co. v. Paters on Parchment Co., 282 U.S. 555 (19 31). See, e.g., Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003) (explaining that St ory Parchment “states the American rule on damages”). There, the Supreme Court stated th at: Where the tort itself is of such a nature as to preclude the as certainment of the amount of damages with certainty, it would be a perversion of f undamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, wh ile the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. Story Parchment, 282 U.S. at 563. I n other words, “while a pla intiff seeking to recover . . . must ordinarily prove the fact of in jury with reasonable certainty, proof of the amount of damages may be based on a reasonable estimat e.” Samaritan Inns, Inc. v. Di strict of Columbia, 114 F.3d 1227, 1235 (D.C. Cir. 1997). Essentiall y, this boils down to a requi rement that there be “some reasonable basis on which to estimate damages.” Hill, 328 F.3d at 684 (quoting Wood v. Day, 859 F.2d 1490, 1493 (D.C. Cir. 1988)). Moreover, when considering whether damages are too speculative, courts “make allowances for the fact that th e defendants’ own misconduct has foreclosed any exact calculation of” damages. United States e x rel. Miller v. Bil l Harbert Int’ l Const., Inc., 608 F.3d 871, 905 (D.C. Cir. 2010). As the Supreme C ourt has stated, “where the defendant by his own wrong has prevented a more precise comput ation, the jury may not render averdict based on speculation or10 guesswork” but it “may make a ju st and reasonable estimate of the damage based on relevant data.” Bigelow v. RKO Rad io Pictures, 327 U.S. 251, 264 (1946) . So it is here: As the Court has previously noted, the quantif ication of damages in this cas e is “a task no doubt made difficult by the delay in public awareness of Armstrong’s doping caused b y his concealment.” Landis, 234 F. Supp. 3d at 204. In cases where calculation of the exact measure of damages is n ot possible with mathematical certainty, the D.C . Circuit has approved of theori es of damages that involve expert witnesses testifying to methods a jury can use to estimate dama ges. For instance, in Miller, the D.C. Circuit affirmed a damages award in a False Claims Act cas e involving allegations that the defendant had rigged a contract bid, resulting in an inflated p rice for a government contract. 608 F.3d at 905–07. The court highlight ed two of the government’s damages theories: first, an expert testified as to a typical profit margin in this type of contrac t and the government argued that the jury should use actual costs plus that profit margin to estimat e the government’s losses; and second, the government proposed the jury estimate a competitive bid award using one of two benchmark numbers, including one based on other bid proposals. Id. at 905–06. The D.C. Circuit concluded that both of t hese were permissible methods t o estimate damages. Id. Similarly, in Tri County Industr ies, Inc. v. District of Columb ia, 200 F.3d 836 (D.C. Cir. 2000), the D.C. Circuit reversed the district court’s determina tion that the award of lost profits stemming from the defendant’s fai lure to approve a building permit was too speculative and remote. Id. at 842. The plaintiff had presented testimony fro m several witnesses that discussed projections about the planned f acility’s output and costs. Id. at 841. In addition, an expert witness testified to the general market for the planned facility, offered “a comparison of service rates for similar operations,” a nd “projected the profitabilityof Tri County’s facility.” Id. The11 D.C. Circuit concluded that i n light of this testimony, the awa rd for lost profits was “sufficiently well-founded to avoid characterizat ion as ‘mere speculation or guess.’” Id. at 842 (citation omitted); see also Uni ted States v. Sci. Applications Int’l Cor p., 958 F. Supp. 2d 53, 77–78 (D.D.C. 2013) (holding evidence of damages was not speculative where three witnesses provided non-speculative testimony based on per sonal experience that the services rendered had less value than what the government paid for them). As in Miller and Tri County, the testimony that the Government intends to offer here provides grounds beyond “mere sp eculation or guess” for the jury to calculate an award of damages. Indeed, the Court suggested at summary judgment that the testimony of the experts discussed here was relevant t o determining damages. See Landis , 234 F. Supp. 3d at 204. The Government has indicated that Dr . Till will testify “that there is a general causal relationship between negative publicity about a s ponsored celebrity-athlete and diminished consumer perception of a sponsoring bra nd.” Pls.’ Opp’n at 24. In turn , Gerbrandt will testify “that there

was a great deal of negative public ity.” Id. And finally, Dr. Wa lker will “estimate the harm to USPS from public disclosure of A rmstrong’s PED use.” Id. at 31 . In tandem, these three experts provide the jury a framework on w hich to estimate an amount of damages: the linkage of USPS with negative coverage of Arms trong’s doping scandal (Gerbrandt ) led to a negative impact on USPS’s brand (Till), w hich resulted in an estimated loss amount (Walker). Each witness’s testimony here is based on more than mere speculation and is re levant to prove the government’s damages in a non-speculative way. Armstrong’s argument throughout hi s motion appears to assume th at this Court should consider each expert witness as w alled off from the others when determining relevance, and faults the government for the f act that Till and Gerbrandt will not provide numerical estimates of12 the damages claimed. Armstrong MIL at 18–19, 32. But Armstron g provides no reason why the fact that any single expert, al one, might not fully prove the p athway to damages means that the Court should not look to whether the government can rely on all three working together. Rather, “i[t] is well established that a court may not exclude an exper t’s otherwise reliable and relevant testimony simply because, without more, the testimony is insuff icient to prove a proponent’s
entire case.” Rothe Dev. Inc . v. Dep’t of Def., 107 F. Supp. 3d 183, 198 (D.D.C. 2015); see also Adams v. Ameritech Servs., Inc., 231 F.3d 414, 425 (7th Cir. 20 00) (“[T]he question before us is not whether the [expert] repor ts proffered by the plaintiffs pr ove the entire case . . . . No one piece of evidence has to prove eve ry element of the plaintiffs’ case . . . .”). Each expert’s testimony has a tendency to make the Government’s damages more probable, and together they provide a non-speculative framewo rk for the jury to use to anal yze damages. In sum, the three experts that t he Government intends to introd uce together provide the jury a sufficiently non-speculativ e framework for determining d amages. That those damages might be somewhat uncertain does not justify excluding the test imony of the experts as too speculative or leading the jury to improperly speculate on dama ges. Thus, their testimony is relevant, provided the experts a dhere to the damages framework adopted by the Court in its summary judgment ruling.
2. Challenges to Gerbrandt Moving to Armstrong’s specific ch allenges to each of the Govern ment’s experts, the Court begins with Mr. Gerbrandt.

a. Qualifications Armstrong first challenges Gerbra ndt’s qualifications to testif y as an expert, contending13 that he is not qualifie d to opine on any harm to USPS. 2 He contends that since Gerbrandt has no academic training or publications in the field of negative publ icity valuation, he is not qualified to testify about negative media impressions resulting from Arms trong’s PED use. For a witness to testify as a n expert, he must be qualified bas ed on “knowledge, skill, experience, training, or edu cation.” Fed. R. Evid. 702. Thus, the absence of formal academic training or a degree is not fatal to a witness’s status as an e xpert; experience, knowledge, or skill can also suffice to show qualifications. Gerbrandt has more th an thirty years of experience as a media and entertainment analyst , including prior experience as an expert witness analyzing the economics and value of televis ion programming and advertising. Gerbrandt Expert Report at 3– 4. He has published reports on the value of media and advertis ing, including three Nielsen reports on the impact of new tec hnology on media consumption an d advertising pricing and expenditures. Pls.’ Opp’n Ex. 1 ( “Gerbrandt Decl.”) ¶ 4. In l ight of Gerbrandt’s experience in media and entertainment analysis— both of which are relevant to a discussion of the number of media impressions viewers receiv e—the Court concludes he is qua lified to testify as to media coverage of Armstrong’s PED use and any associated links to USP S. b. Failure to Apply Reliable Methodology Armstrong further contends that Gerbrandt’s testimony is inadmi ssible because it is not the product of reliable scient ific methods or principles. He c hallenges two particular aspects of

2 Armstrong also argues that Gerbr andt is not qua lified to addre ss valuation reports commissioned by USPS from two marketing firms, Campbell Ewald a nd FCB. Armstrong MIL at 19. Given that the Court has he ld the reports are inadmissi ble, Gerbrandt l ikely will not be opining on the reports. See Pls. ’ Opp’n at 14. As such, this issue is likely moot. To the extent that there is still apossibility tha t the Government might ask Gerbrandt about the r eports at trial, the Court will reserve any chall enges to his qualifications in this regard until then.14 Gerbrandt’s testimony: (1) his conclusion that negative publici ty harmed USPS, and (2) his media-impression count. As for the first issue, Armstr ong argues that Gerbrandt’s concl usion that USPS was harmed by any negative publicity of A rmstrong’s PED use is not based on any underlying science or methodology. Gerbrandt ’s expert report does conclud e that “the harm to USPS resulting from such a large vol ume of negative impressions woul d necessarily outweigh the value of any benefits recei ved by USPS resulting from positive impressions during the sponsorship period.” GerbrandtExpert Report at 6. Yet the bu lk of Gerbrandt’s analysis is dedicated to calculating the num ber of negative impressions lin king Armstrong, his PED use, and USPS. Id. at 21–49. His expert r eport simply states that the number of negative impressions necessarily outweighs any positive impressions. But nowhere does Gerbrandt discuss the positive impressions that USPS derived from its sponsorship, ho w the positive impressions compare with the negative impre ssions, or (alternatively) why h e need not calculate positive impressions. As a result, the C ourt is unsure as to how Gerbra ndt determined that the negative impressions outweighed the posi tive impressions, let alone nece ssarily so. While Gerbrandt is free to opine that USPS was harm ed by the negative publicity an d about the extent of that publicity, he cannot testify that the negative impressions outw eighed the positive impressions without setting forth a foundation f or that opinion, which his report does not do. Second, Armstrong contends that Gerbrandt’s media-impression co unt is not the product of a reliable methodology. He fau lts Gerbrandt for “fail[ing] to rely on any methodology” in determining how many media impr essions linked negative coverage of Armstrong’s PED use and USPS. Armstrong MIL at 14. But Gerbrandt’s expert report reveals a method to his calculations. He consulted the “ premiere independent sources f or marketing, advertising, public15 relations, Internet and social me dia and entertainment decision s and purchases” such as Nielsen Co. (which tracks television ra tings) and Cision (which tracks editorial coverage). Gerbrandt Expert Report at 25. He examine d these sources, surveyed them for media that connected Armstrong with PED use and that mentioned or referenced USPS insome fashion, and gathered information on the “reach” of these sources, i.e., the number o f viewers. See id. at 26–49. Based on this research, Gerbrandt total ed the “media impressions” fro m the individual media types and sources. Id. at 50. Armstrong complains that Gerbrandt “merely states that his 41,9 12 Internet articles translate into 154.4 billion impressions . . . but provides no meaningful explanation for how he made those calculations.” Armstrong MIL at 14. But Gerbrandt’ s expert report st ates that, for Internet articles, he consulted C ision database—which archives traditional print and digital media—with “a series of sear ch terms . . . connecting Mr. Armst rong with the use of performance enhancing drugs and blood doping.” Gebrandt Expert Report at 27. The search was additionally “constrained t o only those news items and arti cles that specifically mentioned or identified the USPS in som e fashion.” Id. Cision also prov ided the “reach” of each article, which is simply “the unique visi tors per month to the website o n which the article is posted” for an online article. Id. Based on t his information, Gerbrandt w as able to calculate the “media impressions” by summing the number of articles multiplied by th e reach of each article. Id. Clearly, Gerbrandt did provide an explan ation of the method he used in reaching the t otal impressions for Internet articl es and the other forms of media in his report. See generally id. at 26–49. His process has an underlyi ng methodology that is sound and reasonable. Armstrong’s criticisms of this method—such as that impressions may be different lengths, or that different media has different advantages and d isadvantages—are the sort that go16 to the weight to give Gerbrandt ’s testimony, not its admissibil ity. See Ambrosini, 101 F.3d at 140 (“[E]fforts to discredit [an expert’s] methodology by point ing to the limits of the research he undertook . . . goes to the weight rat her than the admissibility of his testimony.”). The Court concludes that Gerbrandt’s conc lusions on the media-impression count are based on a reliable methodology and therefore admissible.
3. Challenges to Dr. Till To recap, the Government has offered Dr. Till to testify that n egative press coverage of Armstrong harmed consumers’ impressions of USPS. Armstrong arg ues that Till’s conclusions should be excluded because they are not the product of reliable principles and methods. He contends that because Till faile d to conduct any particular tes ts or research on t he facts of this case, his conclusions are not the product of a reliable methodo logy and he has failed to apply any principles or methods to the f acts of this case. The Court dis agrees. 3 For one, Till’s general theory of causation—that negative publi city regarding a sponsor athlete tarnishes the brands the athlete has promoted— has been subject to testing, publication, and peer review, and appears to enjoy some degree of acceptance in the academic community. Till himself published an article in a peer-reviewed journal de tailing the results of a study indicating that negativ e information about an endorser is likel y to have a negative impact on the associated brand. See Brian D. T ill & Terrence A. Shrimp , Endorsers in Advertising: The Case of Negative Celebrity Information , 27 J. A DVERT . 67 (1998). His expert re port indicates that other scholars in the field have also published articles showin g that a sponsor’s negative information can have a negativ e impact on the associated brand as well. See Till Expert Report

3 Armstrong does not challenge D r. Till’s qualifications.17 at 3. As such, the general theory of causation to which Till i ntends to testify i s the product of reliable scientific methods. 4 Armstrong further contends that Till’s testimony is inappropria te because he has not conducted a specific study on the f acts of this case that shows any negative impact on the USPS brand. This argument also misses the mark. Courts frequently allow the testimony of expert witnesses as to general academic or scientific principles, incl uding general theories of causation. See, e.g., Ambrosini, 101 F.3d at 135–36 (holding that medical expert’s testimony that a drug was generally capable of causing the plaintiff’s injury in a pr oduct liability case was relevant); Miller v. Holzmann, 563 F. Supp. 2d 54, 96 (D.D.C. 2008) (permi tting expert witness to testify to general economic principles related to bid-rigging), aff’d i n relevant part, Miller, 608 F.3d at 895. To the extent that Till’s testimony is intended to show “ that there is a general causal relationship between negative pub licity about a sponsored celeb rity-athlete and diminished consumer perception of a sponsori ng brand,” Pls.’ Opp’n at 24, his failure to perform a specific study on the facts of this partic ular case does not undermine the reliability of his method— relying as it does on a publis hed, peer-reviewed study he previ ously performed and other academic literature in his field corroborating that study’s res ults. And to the extent that Till intends to test ify about the likeli hood that his general theory of causation applies in this case, his failure to perform a specific study here is still no t fatal. Till’s

4 The case is thus distinguishabl e from Frosty Treats, Inc. v. S ony Computer Entertainment America, I nc., No. 03-cv-378, 2004 WL 5500100 (W. D. Mo. Mar. 3, 2004), where Dr. Till’s testimony was e xcluded. There, Dr. Till’s the ory on “reciprocal spillover effects” “ha[d] not been subjec ted to peer review or publicatio n” and “appear[ed] to have been developed for use in litigati on.” Id. at *3. In contrast, Dr. Till’s general theory of negative brand association has been subject to testing as well as peer review and publication and there is no indication he developed his th eory—which was published in a 199 8 journal article—for use in litigation in this case or any other.18 report indicates that he revie wed facts and details about this case and applied principles developed from academic literature to those facts. See Till Ex pert Report at 1, 4–5. Armstrong provides no reason to believe that this is not a reliable metho d for an academic in Till’s field. He essentially argues that Till should have conducted his own stud y specifically on Armstrong’s PED use, but the fact that Ti ll did not perform the study that Armstrong wanted or use the method Armstrong desired to reach his conclusion does not make the method he did use unreliable. Finally, Armstrong contends that Till’s testimony is unreliable because he did not rely on a survey conducted regarding the impact of Armstrong’s PED use on the USPS brand and failed to consider relevant factors in determining whether a brand is damaged by a sponsor’s negative publicity. But such “efforts to discredit [Till’s] methodology by pointing to the limits of the research he undertook . . . goes to t he weight rather than the admissibility of his testimony.” Ambrosini, 101 F.3d at 140. Armstrong r emains free to raise th ese issues before the jury on cross-examination and to argue t hat the jury should give Till’s testimony less weight. But these contentions do not necessarily r ender his testimony unreliable. The Court will therefore allow Till’s testimony as long as he ref rains from discussing the pro hibited theory of damages, as discussed above.
4. Challenges to Dr. Walker Armstrong next turns to Dr. Walk er, who, again, intends to test ify about the potential monetary impact of the negative coverage of Armstrong’s PED use on the USPS. Armstrong argues that Walker’s testimony should be excluded because his m ethodology is “composed19 entirely of speculation” and there fore not reliable or reliablyapplied to the facts of the case. Armstrong MIL at 36–37. 5 The Court disagrees. Armstrong’ s argument primarily faults Wal ker for not running an event study to quantify the financial impact of the negative co verage on USPS in particular. However, Walker could not run a n event study specific to USPS b ecause an event study can only be performed on a publicly traded c ompany: an event study “meas ure[s] the effect that [an] event had on the stock price of publicly traded companies impacted by [an] event.” Till Expert Report at 18 (emphasis added); see als o Pls.’ Opp’n at 30. Instead, W alker looked at event studies performed on publicly traded compa nies that had experienced a s imilar event to USPS, namely the revelation that a sponsor wa s engaged in a scandal. Till E xpert Report at 20–22. For instance, Walker looked at event s tudies that calculated the im pact of the Tiger Woods scandal on his associated brands. Id. at 22. Walker then used the results of these event st udies to approxim ate the financial impact of Armstrong’s PED use on USPS. Id. at 24. Because USPS is not p ublicly traded and has no stock values, Walker applied the calculated losses from the oth er event studies to stock values for similar companies, namely other parcel delivery services with a nnual revenue similar to USPS. Id. at 23. Based on his application of the event-study-calcula ted loss rates to the similarly-sized parcel companies, Walker estima ted a range of possible financia l loss to USPS from the scandal. Id. at 32. In light of the analysis that he performed, Walker’s ultimate c onclusion is not based on rank speculation. Armstrong does not dispute that event studie s are a reliable methodology used

5 Armstrong does not challenge the q ualifications of Dr. Walker.20 by experts in Walker’s field. Giv en the impossibility of perfo rming an event study on USPS itself, see id. at 31–32, it seems r easonable to use the result s of event studies conducted in similar circumstances to estimate a po ssible range of losses for USPS. The Court theref ore concludes that Walker’s testimony is suffici ently reliable to be admissib le, again so long as Walker adheres to the Court’s limitations as t o a permissible theory of damage s. B. Government’s Motions (Armstrong’s Experts) The Court now turns to the Government’s objections to Armstrong ’s proposed experts, beginning with Douglas Kidder, who pl ans to testify regarding e conomic benefits USPS derived from the cycling sponsorship.
1. Challenges to Douglas Kidder

a. Qualifications At the outset, the Government a rgues that Kidder is unqualified to testify as an expert because he lacks formal training in business, economics, or fin ance, and because he has no particular experience in valuing media exposure. The Court, ho wever, does not find that these claimed deficiencies demand exc luding Kidder’s testimony. Agai n, witnesses may be qualified as experts based on their practical experience. See Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. Courts regularl y allow witnesses with gener al experience in business valuation to provide expert test imony about the value of a spec ific asset, even where the witness has no particularized expertise on assets of that type. See, e .g., Popovich v. Sony Music Entm’t, Inc., 508 F.3d 348, 359 (6th Cir. 2007) (w itness’s experience w ith business valuation allowed him to testify about value of com pany’s contract right to affix logo to album); cf. Coleman v. Parkline Corp., 844 F.2d 863, 866 (D.C . Cir. 1988) (witness’s e xperience with investigating industrial accidents allowed him to testify about danger of ele vator ceiling). So w hile Kidder has21 no formal education in economics or finance, his 25-plus years of experience valuing businesses, including 13 years advising busine sses on whether to acquire “n ew business interests,” Kidder Depo. at 14:22–15:10, establish tha t he is qualified to testify about the economic value of sponsoring a cycling team. b. Failure to Apply Reliable Me thodology in Expert Report The Government also contends tha t Kidder should be barred from testifying about the economic benefits USPS received f rom sponsorship because of fla ws in his methodology. The Government challenges Kidder’s reliability on a slew of grounds , which can be summarized as follows: (1) Kidder’s estimate of USPS sales revenue generated by the cycling sponsorship improperly ignores the costs of those new sales; (2) his conclu sions about sales revenue and earned media revenue simply adopt USPS data without any interpr etation; and (3) his conclusions about new sales and earned media revenue are unduly speculative. With one small exception, the Court disagrees wit h the Government’s contention s and will allow Kidder to testify as an expert about the c onclusions contained in his exp ert report.
First , the fact that Kidder’s expert report does not expressly consi der costs associated with USPS’s increased sales does not warrant excluding his test imony. To be sure, the Court’s summary judgment ruli ng explained that the relevant “measure of benefits received by the Postal Service would be net income fro m the sales in question, not gro ss revenue.” Landis, 234 F. Supp. 3d at 202. USPS’s costs are therefore relevant to the is sue of damages. But so long as Kidder does not mislead the jur y—for example, by suggesting wit hout further explanation or support that USPS had no costs ass ociated with its new sales—he is permitted to testify about a single variable (gross revenue) of the damages equation (gross revenue minus costs). Cf. Rothe Dev., 107 F. Supp. 3d at 198 (“[A] court may not exclude an exp ert’s otherwise reliable and22 relevant testimony simply because, without more, the testimony is insufficient to prove a proponent’s entire case.”). Kidder’s report does not hide the ball on this point : it indicates that he will testify about “$374 million in quantifiable gross benefits ,” Kidder Report at 4 (emphasis added). And Armstrong makes a reas onable argument that the mar ginal costs of USPS’s increased sales are negligible because, according to USPS’s own analysis, the costs associated with USPS’s marketing operations w ere primarily fixed, not vari able. See Def.’s Opp. at 8–9; see also Kidder Depo. at 219: 15–220:9 (Kidder explaining his co nsideration of USPS’s costs). If the Government disagrees, it is free to put on evidence of cost s (beyond the sponsorship fee) associated with that gross revenue.
Second , the Court finds no problem with K idder’s reliance on USPS sal es data in forming his conclusions. Experts regul arly rely on parties’ sales data when valuing assets. See, e.g., Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 164, 181–82 (4th Ci r. 2010) (upholding admission of expert testimony on damages that relied in large part on spread sheets created by defendants). And Kidder’s reliance on USPS’s data here makes common sense: U SPS calculated these sales figures in evaluating whether t o extend the cycling sponsorship , and thus had an incentive to accurately estimate new sales attributable to the sponsorship. Moreover, Kidder is not, as the Government contends, merely pa rroting USPS figures without any use of his expertise. As discussed below, several years of USPS sales data are unavailab le, and Kidder has estimated sales for those years using e xtrapolation and interpolation fro m sales figures for surrounding years. And, more generally, Ki dder’s collation, e xplanation, a nd summation of USPS’s figures strikes the Court as the sort of analysis “customarily relied u pon in his industry for the valuation of assets, a subject beyond the e xperience of most jurors.” El liott v. Kiesewetter, 112 F. App’x 821, 824 (3d Cir. 2004). The approach may not be especially co mplex, but it is not so obvious as23 to render it an inappropriate ba sis for expert testimony. See Ward, 595 F.3d at 181 (expert “applied an appropriate interest rate” to parties’ data in esti mating damages).
Third , for the most part, the Court does not find that Kidder’s conc lusions about sales revenue or earned media are undul y speculative. Contrary to th e Government’s argument, Kidder has provided a reliable method of filling in gaps in sal es and earned-media figures. In estimating the value of new sales for 2001–2004, where USPS dat a was not available, Kidder extrapolated from data for 2000, w hich he deemed a “conservativ e” method of filling the gaps because evidence in the record suggests that sales attributable to the sponsorship increased for each year of the sponsorship. Kidder Report at 9. Similarly, in estimating the value of earned media, Kidder interpolate d data for 1998–2000, which USPS did n ot track, using figures for 1997 and 2001. Id. at 15. He also r elied on estimates of dome stic earned media exposure to estimate the value of international media exposure in certain y ears, citing an advertising agency report commissioned by USPS stati ng that the latter dominated t he former. Id. at 13–14. While the Government contends that Ki dder’s uses of int erpolation and extrapolation rendered his estimates too speculative, the C ourt finds that Kidder’s result ing estimates are sufficiently reliable to allow introducti on of his testimony at trial, where the Government will be free to argue that the estimates s hould be accorded little weight. Nor does the Court believe that Kidder’s testimony is based on impermissible speculation as to the link between USPS’s new sales and earned media, on on e hand, and the cycling sponsorship, on the other. The G overnment identifies purported flaws in Kidder’s approach—for example, that he improperly assu mes that USPS’s planned sales f or 2000 materialized into actual sales. Pls.’ Kidder MIL at 10. These limited criticisms do n ot require exclusion of Kidder’s testimony, and can instead be dir ected toward undermining Kidde r’s conclusions at trial. See24 Ambrosini, 101 F.3d at 140. Similarly, while the Court in a se parate Order issu ed today ruled that advertising reports produ ced by Campbell Ewald and FCB are not themselves admissible, Kidder is permitted to rely on those reports in estimating the value of earned revenue attributable to the sponsorship. See Fed. R . Evid. 703 (allowing expert to rely on inadmissible facts or data in forming opinions so long as e xperts in that field would reas onably do so). After all, the reports were commissioned by USPS, and in internal corresponden ce USPS cited figures from the reports with approval . See Landis, 234 F. Supp. 3d at 203; Kidder Report at 6–7. The Court does, however, find that one portion of Kidder’s plan ned testimony is not rooted in a sufficiently re liable methodology. In estimating n ew sales attributable to the cycling sponsorship, Kidder counted revenues from USPS’s cycling-themed Visa credit card promotion. Kidder Report at 9–11. This promotion, which USPS ran in 2000, encouraged customers to use Visa cards when purchasing USPS goods by entering Visa users in to a sweepstakes for cyclingthemed prizes, including a tri p to the Tour de France. Id. at 10. Kidder cites USPS data suggesting that the promotion generated $39.8 million in new re venue based on increased sales and decreased transaction costs a ssociated with credit-card pur chases. Id. But unlike with the figures that Kidder relies on to e stimate postage and shipping sales generated by the cycling sponsorship, and unlike his use of the advertising reports to e stimate earned-media revenue, Kidder’s expert report does not provide a reasonable basis for linking revenues generated by the Visa promotion to USPS’s sponsor ship of the cycling team. Again, USPS entered the cycli ng sponsorship with the goal of ge nerating new sales contracts and gaining media expos ure. As Kidder plans to testi fy, USPS attempted to quantify those benefits in order to justif y the cost of the sponsorship, which provides a reasonable basis for attributing those benefits t o the sponsorship itself. Not so with the Visa promotion, which25 appears to have been an entirely separate promotional agreement . And Kidder’s report lays no independent foundation for attribut ing revenues from the Visa p romotion to the sponsorship of Armstrong’s team. Rather, as the Government contends, a cyclin g-themed promotion might have generated just as much revenue absent a cycling sponsorship—custo mers would be enticed by the prizes even without a prio r association between USPS and cycling. In opposing the motion to exclude Kidder’s tes timony, Armstrong does not respon d to the Government’s contention on this front. The Court will therefore exclude tes timony about revenue from the Visa promotion. Kidder may, howeve r, testify as to the other c onclusions contained in his expert report.

c. Failure to Apply Reliable Me thodology in Rebuttal Report Finally, the Court finds that Kidder may testify as an expert a bout the conclusions stated in his rebuttal report, which seek to undermine the conclusions of the Government’s expert, Dr. Walker. The report does not, as th e Government argues, contain impermissible legal conclusions. Kidder’s testimony that Walker’s opinion is “irre levant,” for example, does not appear to be statement about legal relevance, but rather is a c riticism of Walker’s approach as rooted in inapposite anecdotes. 6 See Gov.’s MIL Ex. 2 (Kidder Rebuttal), at 7–8. Nor is Kidder’s general approach unrel iable. In responding to Walker’ s conclusion that Armstrong’s PED scandal eliminated his valu e as an endorser, Kidder cites c ompeting scandals that undermine Walker’s assertion. In responding to Walker’s conclu sion about the va lue of the 2000 sponsorship agreement, Kidder points out temporal concerns withWalker’s analysis. And in responding to Walker’s use of an e vent study to estimate USPS’s losses caused by the PED

6 The Court will, of course, ensure that at trial neither party’ s expert is permitted to offer bare legal conclusions.26 scandal, Kidder explains why, in hi s view, event studies are us eless for businesses without stock prices. The Court finds that , with each of these responses, K idder relies on a sufficiently reliable methodology rooted in his b usiness-valuation expertise , and that he is permitted to provide his rebuttal testimony under Rule 702.
2. Challenges to Dr. John Gleaves The Government also challenges the testimony of Dr. Gleaves. A rmstrong, in reply, contends that Gleaves is primar ily offered as a summary witness . The Government indicated in a footnote that it has reserved a ny challenges to Gleaves’ proffe red summary testimony under Rule 1006 and that the appropriate time to address those challenges is in the Joint Pretrial Statement. As such, the Court will solely address the Government’s challen ges to Gleaves’ expert testimony and will reserve judgment on any summary witness testimony (and the admissibility of any summary evidence) until then. According to Armstrong and Gleaves’ expert report, Gleaves inte nds to offer three opinions: (1) that PED use was wi despread in cycling; (2) that USPS knew or should have known about Armstrong’s PED use; a nd (3) that USPS failed to in vestigate any suspected PED use. The Court will admit test imony concerning Gleaves’ first opinion but will exclude testimony on the latter two points.

a. Dr. Gleaves’ Conclusion About PED Use in Cycling The Government first challenges G leaves’ attempt to testify as an expert witness concerning the widespread nature of PED use in cycling. 7 Primarily, the Government argues that

7 The Government does not challe nge Dr. Gleaves’s qualifications with respect to this opinion.27 any PED use by non-USPS riders is not relevant. Armstrong coun ters that this evidence is relevant to three issues: (1) materiality, (2) causation, and ( 3) Armstrong’s statute of limitations defense. The Court will start with Armstrong’s statute of limitations de fense. The key question for this defense is when the government “knew or should have kn own” the “facts material to the right of action.” See 28 U.S.C . § 2416(c) (tolling provision f or non-False Claims Act claims); 31 U.S.C. § 3731(b)(2) (tolling provis ion for False Claims Act cla ims). 8 The widespread use of PEDs by non-USPS riders around the time of the Government’s spo nsorship agreement raises a possible inference that the Gove rnment suspected PED use by its own riders and further helps illuminate whether the Government’s actions with respect to inv estigating any suspected PED use were reasonable. As such, it is relevant to Armstrong’s st atute of limitations defense. The Court concludes, therefore, tha t Dr. Gleaves’ opinion on the wi despread nature of PED in cycling is relevant to an issue in the case, namely the statute of limitations defense. For similar reasons, the Court concludes that Dr. Gleaves’ opin ion on the widespread nature of PED use in cycling is al so relevant to materiality. Under the False Claims Act, “[a] misrepresentation about complian ce with a statutory, regulatory , or contractual re quirement must

8 At this juncture, the Court n eed not address the appropriate l egal framework for Armstrong’s statute of limitations defense, such as the level o f notice required or which officials (i.e., those at USPS or those at t he Department of Justice) wer e required to have this notice. However, the Court will remind t he parties that per its prior o pinion addressing this topic, the statute of limitations “does notcommence upon notice of allega tions of impropriety instead, it is when the impropriety itself is known or reasonably should ha ve been known by the relevant official that” it commences. U nited States ex rel. Landis v. T ailwind Sports Corp., 51 F. Supp. 3d 9, 40 (D.D.C. 2014). Therefore, USPS’s knowledge of allegat ions of PED use or of PED use by other non-USPS riders is by itself insu fficient to trigger the statute of limitations; rather “it must be a finding of the doping—not an investigation seeking to determine whether doping occurred—that is a ‘fact materia l’ to the government’s [] claim s.” Id.28 be material to the Government’s payment deci sion in order to be actionable .” Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1996 (2016) (emphasis added). The statute defines “material” a s “having a natural tendency to influence, or be capable of influencing, the payment or rec eipt of money or property.” 31 U.S.C. § 3729(b)(4). Thus, materiality “look[s] to the eff ect on the likely or actual beha vior of the recipient of the alleged misrepresentation.” Univers al Health, 136 S. Ct. at 2002 (cita tion omitted) (alteration in original). Armstrong argues that the evide nce of PED-use by non-USPS rider s is relevant to materiality, and the Court agr ees. As noted above, the widespr ead nature of PED use in cycling creates a possible in ference that the USPS suspected Armstrong’ s own PED use. A decision by the USPS to enter into a sponsor ship agreement with Armstrong w hile aware of or suspecting his PED use could create a further pos sible inference that Armstron g’s possible PED use did not influence the USPS’s payment d ecisions—in other words, that his PED use was not material to the Government’s payment decision. Alternatively, the endemic nature of PED use in cycling creates a possible inference thatthe Government was aware of t he widespread use of PEDs. That, combined with a failure by t he Government to take steps t o investigate any potential doping by Armstrong before entering i nto a sponsorship agreemen t, would similarly raise a possible inference that the U SPS did not particularly care abou t any PED use by Armstrong— again, yielding an inference that P ED use was not material to t he Government’s funding decisions. Given these permissi ble chains of possible inferenc es, the widespread nature of PED use is relevant to materiality. The Court does not find, however , that the widespread nature of PED use is relevant to causation: that is, whether Armstrong caused the team to dope and submit false claims. While29 evidence that USPS team members used PEDs before Armstrong join ed might be relevant to determining Armstrong’s role in t he team’s PED use, the actions of non-USPS members shed no real light on the actions of US PS team members—that everybody e lse was using PEDs says nothing about Armstrong’s role i n causing false claims to be pr esented to the Government. As such, the evidence is not admissible as to causation. As to the Government’s argumen t that Gleaves’ opinion is too va gue to be helpful to the jury, such arguments go to the weigh t, rather than admissibility, of the testimony. See Ambrosini, 101 F.3d at 140. Finally, the Court disagrees with the Government’s contention that because the jury could make some analysis of the widespread nat ure of PED use, Gleaves’ argument is inadmissible. In lig ht of Gleaves’ academic backgr ound, expertise, and familiarity with this area of study, see Gl eaves Expert Report at 3–6, his testimony will still be helpful and relevant. The Court will thus a llow Gleaves to testify as to h is opinions concerning the widespread nature of PED use in cycling. Before moving on, however, the Court will briefly address the t emporal nature of Gleaves’ proposed testimony. Gleav es apparently intends to opi ne at length on the history of PED use in cycling dating back to 1890. See, e.g., Gleaves Exp ert Report at 69. But what is most relevant in his testim ony is any opinion concerning the wi despread nature of PED use in cycling contemporaneous with USPS’s sponsorship of the cycli ng team. While Gleaves’ opinio n that PED use has always been widespread, id. at 69–79, may be relevant to what the Gov ernment knew or should have known in 2003, it ha s much less probative v alue compared to his opinions concerning contemporaneous P ED use. Additionally, allowing Gle aves to testify at length on the history of PED use in cycling s ince 1890 runs a significant ris k of creating undue delay or wasting time as well as of prej udice to the Government in the f orm of the argument that because30 everyone was using PEDs, Armstrong should not be held accountab le if he has violated the False Claims Act. See Pls.’ Gleaves M IL at 10. As such, the Court w ill permit limited discussion of the use of PEDs in cycling during periods of time not contempor aneous with the Government’s sponsorship and subsequent developments and will restrict Gleav es’ testimony to solely that which is admissible under Rule 403. See Fed. R. Evid. 403 (exc luding relevant evidence if the probative value is substantia lly outweighed by a danger of unfa ir prejudice, undue delay, or wasting time). b. Dr. Gleaves’ Other Opinions The Government further challe nges Gleaves’ remaining two opinio ns—which concern what USPS employees knew and their failure to investigate PED u se—as not based on a reliable methodology, not helpful to the jury, and an improper usurpatio n of the jury’s role in determining credibil ity and findings of fact. The Court agrees that this pa rt of Gleaves’ testimony should be excluded. Gleaves’ methodology for reaching his conclu sions as to what USPS offici als knew (or should have known) appears to consist entire ly of reading the deposition tr anscripts of USPS employees and summarizing what they said. In Gle aves’ expert report, his sum mary of his opinions on this point cites almost exclusivel y to USPS employee deposition test imony. See Gleaves Expert Report at 79–88. And during his own de position, Gleaves descri bed his method as simply that: reviewing the depos ition testimony of USPS employees and—to det ermine if their memories were accurate—comparing it to other public source materials. S ee, e.g., Pls.’ Gleaves MIL Ex. 2 at 171:2–8 (Q: “What is your basis for saying that Ms. Sonnenbe rg in fact knew that cyclists on the USPS team were—were using performance-enhancing substances? ” A: “I read her testimony . . . . That’s my basis.”).31 This testimony is problematic for at least two reasons. For on e, expert testimony typically must concern something beyond the ken of the average juror. See, e.g., United States v. Boney, 977 F.2d 624, 629 (D.C. Cir. 1992) (“[Expert] testimony should ordinarily not extend to matters within the knowledge of lay men.”). But the average jur or is entirely capable of reviewing the testim ony of USPS witnesses and drawing conclusio ns as to what they knew—or should have known—or did concerning A rmstrong’s PED use. See U nited States v. Mitchell, 49 F.3d 769, 780 (D.C. Cir. 1995) (holding t hat district court did not err in precl uding expert testimony on tape recorded conversations because “elucidat[ing] tape recorded conventions” is a “matter[] of general knowledge”). In fact, it is precisely the jury’s function to review the testimony of witnesses and determine what factual conclusi ons to draw from that testimony; courts have long recognized that “determining the weight and c redibility of [ a witness’s] t estimony” is a duty that “belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.” Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891). As such, Gleaves’ testimony reg arding his second and third opin ions “not only involves matters of general knowledge, but is squa rely within the traditional pr ovince of the jury” and is therefore inappropriate expert witne ss testimony. Mitchell, 49 F.3d at 7 80; see also United States v. Johnson, 54 F.3d 1150, 1157–58 (4th Cir. 1995) (holding that te stimony involving a chart that simply summarized other witnes ses’ testimony and that the proff ered expert did not use any “specialized knowledge” to prepare was not admissible expert te stimony). Armstrong suggests that it is a c ommon practice for historians to look to materials such as recorded recollections and public source materials to determ ine what a person knew at a point in time. While this may be tru e, it is irrelevant here. All o f the USPS employees that Gleaves32 would testify about can (and likely will) be called as a witnes s and asked in front of the jury, point blank, what they knew or did and when they knew or did it . And Armstrong is free to probe each employee’s knowledge or to try to call the employee’ s statements into question during examination as permitted by the rules of evidence. The jury is more than capable of drawing its own conclusion as t o what any particular USPS emplo yee knew (or should have known) and did at the relevant tim e period without any assistan ce from an expert witness, based on any testimony at trial and the other evidence. Moreover, Gleaves’ testimony w ould veer dangerously close to of fering an expert opinion on the credibility of a witn ess, which is impermissible . See, e.g., Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005) (“[T]his court, echoed b y our sister circuits, has consistently held that expert opin ions that constitute evaluati ons of witness credibility, even when such evaluations are roote d in scientific or technical exp ertise, are inadmissible under Rule 702.”); United States v. Samara, 643 F.2d 701, 705 (10th Cir. 1 981) (“An expert ‘may not go so far as to usurp the exclusive f unction of the jury to weigh the evidence and determine credibility.’” (citation omitte d)). Gleaves’ methodology of co mparing the USPS testimony to publicly available sources and o ffering his conclusion as to wh at the USPS employees knew essentially amounts to an argumen t that that employee and poten tial witness at trial was telling the truth or lying about her knowle dge. This testimony is thus an attack on likely witnesses’ credibility and is inadmissibl e for this reason as well.

IV. Conclusion For the foregoing reasons, it is hereby
ORDERED that [559] Defendant Armstr ong’s Motion to Exclude Testimony o f Larry Gerbrandt, Brian Till, and JonathanWalker is GRANTED IN PART a nd DENIED IN PART.33 None of the experts will be permitted to testify to the prohibi ted theory of damages. In addition, Gerbrandt cannot offer his opinio n that the negative impression s necessarily outweighed any positive impressions from the sponsorship. Aside from these two limitations, the testimony of Gerbrandt, Dr. Walker, and Dr. Till is admissible. It is furth er ORDERED that [557] the Government’s M otion to Exclude Testimony of Dr. Douglas Kidder is GRANTED IN PART and DEN IED IN PART. Kidder’s testimo ny is admissible except insofar as it discusses th e value of the Visa credit car d promotion. It is further
ORDERED that [558] the Government’s M otion to Exclude Testimony of Dr. John Gleaves is GRANTED IN PART and DEN IED IN PART. The Court will permit Dr. Gleaves to testify concerning his opinion that the use of PEDs was widespr ead in cycling, but will not permit him to testify as to the other opinions set forth in his expert report. SO ORDERED

.

CHRISTOPHER R. COOPER United States District Judge Date: November 28, 2017