MPO took a brief break for the holiday from the UFC Antitrust lawsuit, but we are catching up on some motions in mid-December regarding Zuffa’s motion to exclude plaintiffs’ experts Singer, Zimbalist and Davis.
Similarly, Zuffa filed Motions to Exclude prior to the class certification period. Judge Boulware denied those motions. Zuffa argues that the motions to exclude at trial should differ since the judge has the ability to act as a gatekeeper as to what expert testimony is included and what is not.
Notably, in the Motion to Exclude Dr. Hal Singer, Zuffa includes the opinions of Dr. Gregory Leonard. Obviously, the inclusion of this individual is after the current deadlines in the case.
Plaintiffs filed a Motion to Strike the motions to exclude as well as the “untimely expert disclosure” of Dr. Leonard. It also cited to an amendment of the Federal Rules of Evidence which, according to Zuffa, made it “unambiguously clear that it is
Plaintiffs argued that the filing was untimely and supported it with an unauthorized new expert. They stated that Zuffa’s renewed motions did not refer back to the prior rulings by the Court allowing the expert information at the class certification stage or detailing the reasons why the Court’s reasoning was flawed.
“Zuffa simply pretends that it is working on a blank slate,” reads the motion adding, “[Z]uffa’s gambit is breathtaking in its audacity.”
Plaintiffs point to the redundancy of the motions and spell out that defendants are looking to avoid the April 2024 trial date that is looming. It also reminds the court that the deadline for filing expert disclosures was October 2017 and the deadline for filing motions to exclude February 2018.
They also address the recent jury verdict in In re Google Play Store Antitrust Litigation where Dr. Singer’s expert report was critiqued and essentially disregarded.
Zuffa responded on December 14th with an opposition to the Motion to Strike citing that ” Plaintiffs are desperate to prevent the Court from considering developments over the last five years that further prove thier led expert’s opinions are a sham.” They go on to state Dr. Singer produced “inflated results” in another case and identifying other Courts which did not take his opinion. Of course, Dr. Leonard, Zuffa’s new expert, was the one that pointed out issues in a prior case where Dr. Singer served as an expert.
Zuffa argued that its motions were not “duplicative” because the Court did not decide Zuffa’s prior Daubert Motions. Specifically, the Court denied them without prejudice, which means that the party that had the motion denied could feasibly bring it again.
It also gets lawyerly with how the Court did not outright deny Zuffa’s previous motion. It notes that while Judge Boulware stated that “Drs. Singer and Zimbalist” opinions satisfied the evidentiary rules, it was not proof that the Court adjudicated the motion on the merits.
Zuffa also argues that Dr. Leonard’s Declaration attached to its Motion to Exclude Dr. Singer is admissible. Zuffa states that Dr. Leonard did not redo work of a previous Zuffa expert but “analyzed whether Dr. Singer’s model was a reliable method for purposes of the Daubert analysis of the key question of whether the challenged contracts injured any individual fighter. They go on to argue that the analysis will be key and would not result in prejudice to Plaintiffs.
Zuffa argues that there is still time to depose Dr. Leonard if Plaintiffs desire. They also take a shot at the Plaintiffs by noting its “”sky is falling” theatrics” int he motion as Zuffa argues it has no desire in dealying the trial.
Payout Perspective:
Plaintiffs have a Reply Brief that they may file to respond to Zuffa’s Opposition. We note that Zuffa is using this Motion as a way to introduce information post-2017 cutoff to this case. But, in its defense, the fact that this trial has taken up so much time, who is to blame them. They argue that since the closure of experts and challenges back in late 2017, early 2018, things have changed. Notably, according to Zuffa, an amendment to the Federal Rules of Evidence giving the Court more authority to act as gatekeeper regarding expert testimony. This strategy is a way for Zuffa to keep the expert testimony out of the hands of a jury. If Judge Boulware were to exclude the Plaintiffs’ experts it would severely cripple its case. Also, the addition of Dr. Leonard to critique Dr. Singer is an interesting play. Clearly, the time to add experts was long ago, but Zuffa is trying to persuade the Court that there is no harm in adding him since there is ample time for Plaintiffs to prepare. The case will hinge on the evidentiary rulings and whether Judge Boulware will exclude anything at trial. MPO will continue to follow.
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