By Elizabeth Bulat
Elizabeth Niblock, the plaintiff, sued the University of Kentucky (“UK), the defendants, for not complying with Title IX in a 2020 civil action suit. In 2023, successive to each party’s full briefing and the Court’s Daubert hearing in April 2023, the District Court granted the defendants’ motion to exclude the plaintiff’s expert witness, Dr. Donna Lopiano.
After the plaintiff transferred to UK from another institution, she found that UK did not offer a women’s varsity lacrosse or field hockey team for her to join. Her claim asserted “that UK discriminates against female students on the basis of sex by providing them fewer and poorer opportunities in sports than male students.” Niblock v. Univ. of Ky., 2020 U.S. Dist. LEXIS 224826. Although the plaintiff’s claim that Dr. Lopiano would not testify regarding whether UK was compliant with Title IX, “UK seeks to exclude Lopiano’s testimony, on grounds that Lopiano’s testimony amounts to impermissible legal conclusions on the ultimate issue in this case.” Niblock v. Univ. of Ky, 2023 U.S. Dist. LEXIS 130823.
The court followed the common law rule regarding the motion to exclude an expert witness: “(1) the witness must be qualified by knowledge, skill, experience, training, or education; (2) the testimony must be relevant, meaning that it will assist the trier of fact to understand the evidence or to determine a fact in issue; and (3) the testimony must be reliable.” United States v. Simpson, 845 F. App’x 403, 409 (6th Cir. 2021), (citing In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008)). Further, courts will reject testimonies that express an opinion regarding the ultimate question of liability for the defendant while testimonies that merely imply liability are permissible. Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994).
Dr. Lopiano’s report and her Daubert testimony each include legal terminology that obscures the crucial line between her personal opinions and legal opinions, which, according to the court, the inclusion of the latter qualified her testimony as impermissible. Considering her expressed opinions so far, the defendants posed five questions that they claim Dr. Lopiano would answer in an impermissible manner according to the above standard.
Among these questions is how Lopiano analyzes UK compliance with Title IX, the central issue of the lawsuit. “In her report and testimony, however, Lopiano ‘compares what UK has done on all elements—compares it to what Title IX requires’ and states that her report is “all about the University of Kentucky’s fact situation compared to the Title IX standards.” (DE 119 at 59-60). The court also considered the factually similar case Portz v. St. Cloud State University where Dr. Lopiano’s testimony was limited by the court “to the extent that it involved Lopiano’s testimony about the requirements of Title IX or whether [the University] was in compliance with those requirements.” Portz v. St. Cloud State Univ., 297 F. Supp. 3d 929, 951-952. Therefore, the court agreed that Dr. Lopiano’s testimony should be limited in this case at least to the extent determined by Portz.
The defendants further questioned Dr. Lopiano’s consideration of countable athletes under Title IX. Dr. Lopiano compared results from the UK Equity in Athletics Disclosure Act (EADA) survey with public NCAA information to draw the conclusion “that UK, like many other institutions, overestimates female participation and the resulting gap between that and male participation.” Niblock v. Univ. of Ky, 2023 U.S. Dist. LEXIS 130823. This explicit legal conclusion is impermissible and fails to meet Daubert standards. Additionally, her claims are unreliable as they relate to the EADA survey results and who constitutes a countable athlete under Title IX. For instance, Dr. Lopiano fails to include UK’s Cheer and Dance team in her analysis due to her unfamiliarity with their efforts and benefits, which advances the defendants’ argument that her methodology was poor.
The court excluded Dr. Lopiano’s testimony since her claims “repeatedly veered into the factfinder’s lane” during her Daubert testimony making her claims unreliable and “sometimes at odds with established Title IX protocols with respect to participation count and roster management,” and her “opinions suffer from a lack of reliable methodology.” Niblock v. Univ. of Ky, 2023 U.S. Dist. LEXIS 130823. Anders v. Cal. State Univ. Fresno, No. 1:21-CV-179-AWI-BAM, 2021 U.S. Dist. LEXIS 76990, 2021 WL 1564448, at *14 (E.D. Cal. Apr. 21, 2021).
The court respected Dr. Lopiano’s involvement and experience in women’s sports but did not believe her qualifications “provide a foundation . . . to answer a specific question.” Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994). Her survey methodology and efforts to analyze the EADA results regarding Title IX are beyond her skillset and provide no helpful evidence regarding the suit. Adhering to common law and standards set to exclude unreliable and impermissible testimony, the court “ORDERS that the defendants’ motion to exclude the expert testimony of Dr. Donna Lopiano (DE 92) is GRANTED.” Niblock v. Univ. of Ky, 2023 U.S. Dist. LEXIS 130823.
Dr. Lopiano’s Response
After the court’s decision, Dr. Lopiano issued the following statement:
“Having testified in 25 to 30 cases related to Title IX’s athletics requirements in which my athletics qualitative and quantitative gender equity assessment methodology has been both consistent and accepted by the courts, this ruling did come as a surprise. It is not unusual for segments of an expert’s report to be excluded, but in 30 years of doing this work, to the best of my recollection, I’ve never been precluded from testifying in court. It is important to note that Plaintiffs still have the ability to appeal this finding after the Court renders a final verdict for the bench trial.
“I’m grateful that other judges in other cases have found my opinions and testimony to be not only admissible but very helpful to providing the Court with a better understanding of colleges athletics work and the interplay between college athletics and gender equity. See Ohlensehlen v. Univ. of Iowa, 509 F. Supp. 3d 1085, 1100 (S.D. Iowa 2020) (“The Court finds Dr. Lopiano to be highly credible and her opinion exceedingly reliable. . . . Dr. Lopiano is a highly accomplished expert on gender equity in intercollegiate athletics and Title IX compliance.”); Lazor v. Univ. of Connecticut, 560 F. Supp. 3d 674, 682 (D. Conn. 2021) (finding Dr. Lopiano’s testimony credible and helpful to the court).
“I did appreciate the fact that while the Court did grant the University’s motion to exclude my testimony at trial, the judge noted at trial that she ‘found Dr. Lopiano to be a very competent person, it’s just I didn’t find her testimony to be helpful to us in this context. When I said it was incompetent evidence, I didn’t mean to cast a disparaging light on a very competent person.’
“I hope that the judge’s decision to preclude my testimony was based on the fact that she did not feel that expert testimony was necessary to her understanding of the issues.”
