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Mueller v. Swift

United States District Court, D. Colorado

July 21, 2017

DAVID MUELLER, Plaintiff,
v.
TAYLOR SWIFT, Defendant and CounterClaimant, and FRANK BELL, and ANDREA SWIFT a/k/a Andrea Finlay, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO EXCLUDE PORTIONS OF THE TESTIMONY OF DR. LORRAINE BAYARD DE VOLO

          William J. Martínez United States District Judge

         In this tort action pending under the Court's diversity jurisdiction, 28 U.S.C. § 1332, Plaintiff pursues claims against all Defendants for tortious interference with his employment contract and with related business opportunities, while Defendant-CounterClaimant Taylor Swift (“Ms. Swift”) pursues counterclaims for the torts of assault and battery. Now before the Court is Plaintiff's Motion to Exclude Testimony of [Dr.] Lorraine Bayard de Volo. (ECF No. 136 (Plaintiff's “Motion”).) For the reasons explained below, Plaintiff's Motion is granted to exclude portions of Dr. Bayard de Volo's proposed expert testimony.

         I. BACKGROUND

         The Court set forth the factual background and allegations in this case in some detail in its Order Granting Summary Judgment in Part. (ECF No. 137 (“summary judgment order”)), and familiarity with that factual background is presumed. In summary, Plaintiff worked as an on-air radio personality for a Denver area radio station, KYGO. On June 2, 2013, he attended a backstage “meet and greet” preceding a concert performed at Denver's Pepsi Center by Ms. Swift. Ms. Swift alleges that during a staged photo opportunity at that event, Plaintiff purposefully and inappropriately touched her buttocks, while Plaintiff denies having done so. (See ECF No. 137 at 2-3.) After KYGO was informed of Ms. Swift's accusation, Plaintiff was terminated from his job, and this lawsuit followed.

         In the course of litigation, Swift and her co-defendants have disclosed Dr. Lorraine Bayard de Volo to testify as an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2) and Federal Rule of Evidence 702. Plaintiff's present Motion seeks to exclude portions of her proposed testimony pursuant to Rule 702 and other evidentiary authorities.

         As set out in her written disclosure, Dr. Bayard de Volo is the Chair and Associate Professor of Women and Gender Studies at the University of Colorado-Boulder. (ECF No. 136-1 at 2 (Dr. Bayard de Volo's “Report”).)[1] She has a Ph.D. in political science and a graduate certificate in women's studies, and has had 20 years of teaching and research experience in the field of gender and violence. (Id.)

         Her Report discloses the following two summary opinions related to this case:

1. Sexual harassment and assault are fundamentally motivated by the perpetrator's perceived need to assert power and to protect the perpetrator's status. Throughout David Mueller's pleadings in this lawsuit and his deposition testimony, he indicated that even before he met Ms. Swift, he felt his job security was threatened, his identity as a radio personality was threatened, and his masculinity was threatened. This perfect storm of threats to Mr. Mueller's perceived status is consistent with the well-settled, academically-accepted, perceived threats to status that motivate a man to commit sexual harassment or assault.
[and]
2. Victims of sexual harassment and assault typically do not report the event immediately but rather delay or do not report it at all. The time between Mr. Mueller's unwanted sexual contact and Ms. Swift's full verbal reporting of that contact is entirely consistent with the conduct identified in professional literature and studies of someone who has been sexually assaulted.

(Id. at 3.) Plaintiff's Motion challenges only Opinion #1 above, so the Court will not further address Opinion #2 here. The remainder of this Order addresses only “Opinion #1” and the analysis in the Report which supports it, and this Order does nothing to alter Dr. Bayard de Volo's ability to testify at trial consistent with her offered Opinion #2 and her analysis supporting same.[2]

         Dr. Bayard de Volo's Report sets out in some detail her reasons for reaching her opinion. (See generally Id. at 2-9.) She explains, in part, that in her view there is a professional or research consensus “that sexual harassment and sexual assault (including inappropriate physical contact) are fundamentally motivated by power and protection or enhancement of the aggressor's status. In cases of men targeting women, it is an assertion of men's gender-based social power and most typically targets women who challenge men's status in some manner.” (Id. at 3.)

         Dr. Bayard de Volo's Report goes on to discuss materials that she reviewed in this case, primarily Plaintiff's own deposition testimony and Plaintiff's Second Amended Complaint. (See Id. at 3-8.) She concludes that on June 2, 2013, Plaintiff “faced an accumulation of perceived threats to his status” that were consistent with the kinds of “threats to status that . . . motivat[e] sexual harassment and sexual assault.” (Id. at 4.) Describing this “accumulation of threats” in greater detail, her Report describes, for example:

• “Threats to job status, ” describing evidence that, in Dr. Bayard de Volo's opinion, shows that Plaintiff “perceived significant tensions with his [boss] at KYGO, Eddie Haskell” (id. at 5);
• “Threats to status as a radio personality, ” describing Dr. Bayard de Volo's opinion that Plaintiff “perceived that he did not receive from Ms. Swift and the Swift tour personnel the professional respect he thought he deserved, ” because he “was not recognized as a radio personality during the meet-and-greet event” and “expected a certain level of treatment from Ms. Swift . . . that he did not receive” (id. at 5-6, 7);
• “Threats to masculine status, ” offering Dr. Bayard de Volo's opinion that “dynamics with [Plaintiff's] girlfriend . . . exacerbated his annoyance and perception of emasculation, ” in part based on Plaintiff's testimony suggesting that when they met at the “meet and greet, ” Ms. Swift “was really excited about [his girlfriend], ” while Plaintiff “felt like [he] was invisible” (id. at 8-9).

         In sum, Dr. Bayard de Volo opines that Plaintiff's “testimony reveals that he was frustrated . . . as neither his boss, the Swift team, or in the end, Ms. Swift herself, would acknowledge him in a way that would confirm his perceived elevated status as a radio show host, ” and that “his stated perception of events and his view of his own status is consistent with the circumstances under which sexual aggressors would commit unwanted sexual contact, such as grabbing a woman's bottom.” (Id. at 9.) She also opines that Plaintiff's “testimony and pleadings . . . indicate his belief that unwanted sexual contact is something that men in radio can get away with, ” for several reasons, including that improper touching might be viewed as “his prerogative as a radio host who regularly met with famous women.” (Id.)

         II. ...


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