By Lauren Rosh
On March 4, 2024, the United States District Court for the Northern District of Texas granted in part and denied in part a series of motions filed by Southern Methodist University (SMU) related to expert testimony.
In 2018, eight women who were former student athlete rowers at SMU filed a Title IX lawsuit against the Dallas, Texas, university alleging it did not provide equal participation opportunities. The initial complaint alleged that SMU provided inequitable funding to women’s teams, specifically to the women’s rowing team. The complaint further alleged that the university provided inequitable funding to women’s teams, failed to provide equitable quality coaching, the rowers had “unreasonable training and practice regimens,” and that the rowers were provided “substandard second-class athletic training and medical attention.”
In Feb. 2024, the court granted SMU’s motion for summary judgment on all claims brought by the plaintiffs. However, for plaintiff Kelly McGowan, the court just dismissed her claims for pain and suffering, emotional and psychological harm and loss of quality of life under Title IX. However, the court allowed McGown’s claim for compensatory damages for medical expenses for physical injuries and loss of educational opportunities and benefits, as well as her negligence claim against the university to survive.
In March, the court delivered its order on a series of motions. SMU moved to “strike portions of the expert report and exclude some testimony of Plaintiff’s expert witness, Dr. Volker Nolte, and exclude the expert testimony of Plaintiff’s expert witness, Dr. Donna Lopiano.” McGown moved to “strike the expert report and exclude the testimony of SMU’s expert witness, Tim O’Brien.”
Factual background, initial complaint
In 2018, eight former members of the SMU women’s rowing team filed a Title IX lawsuit against SMU. The named plaintiffs in the case at the time they filed the complaint are Kelly McGowan, Jessica Clouse, Lindsay Heyman, Meghan Klein, Sydney Severson and Rebekah Tate.
The plaintiffs alleged that SMU provided inequitable funding to women’s teams, did not provide equitable quality coaching, the female rowers had “unreasonable training and practice regimens,” and that the rowers were provided “substandard second-class athletic training and medical attention.”
The plaintiffs rooted their argument regarding inequitable funding in the fact that SMU’s Equity in Athletics Disclosure Act (EADA) report from 2015-16 which reflects, according to the initial complaint, “recruiting expenses of $1,129,090 for men’s teams and only $253,697 for women’s team.” The EADA requires postsecondary educational institutions that house an intercollegiate athletics program and participate in Title IV to prepare annual reports to the U.S. Department of Education regarding athletic participation and other relevant details.
Coaching, another factor to which Title IX applies to, the plaintiffs also allege is inequitable. The complaint alleges that coaches of male athletes have more experience. The plaintiffs allege they were subjected to the coach’s “own unique rowing form” that differed from the two predominate rowing forms. The plaintiffs allege this rowing technique, along with “unreasonable training and practice regimens” led them to be more susceptible to injuries, including hip injuries.
According to the initial complaint, the plaintiffs were informed that the around 2012, the university commissioned the Carrell Clinic, orthopedic and sports medicine specialists, “to audit the SMU rowing program to determine what was causing the unusually and disproportionally high amount of hip injuries in the rowing program.” The complaint alleges after reviewing the rowing, the Carrell Clinic gave SMU recommendations with how to prevent these injuries in the future, but that SMU did not implement the modifications.
The complaint alleged that not only were the rowers dealing with these injuries, but they were “subjected to heavy pressure by the coaching staff to return to regular training and practice, even while still engaging in treatment and recovery for their injuries” while also allegedly receiving substandard medical attention. The complaint provided an example that if a male athlete was in the training room at the same time as one of the female rowers, the men would receive the prioritized treatment.
About six years after these plaintiffs filed the complaint, the United States District Court of the Northern District of Texas granted SMU’s motion for summary judgment on all the claims brought by the plaintiffs with the exception of Kelly McGowan. Although the court dismissed McGowan’s claims for pain and suffering, emotional and psychological harm and loss of quality of life under Title IX, the court allowed her claim for compensatory damages for medical expenses for physical injuries and loss of educational opportunities and benefits, as well as her negligence claim against the university to move on.
According to the complaint, McGowan first noticed her hip injury during the fall of 2015 and told the trainer who informed her to stop rowing. McGowan did physical therapy for about seven weeks. Despite the trainer’s advice, her coach allegedly told her she “just needed to ‘stretch it out’” and made comments pressuring her to return quickly. When she did return, according to the complaint, the coaches had her complete a 2,000 meter on the ergometer and competed in the last two races of the season even though she was experiencing pain and the SMU sports medicine doctor who she visited “merely provided her anti-inflammatories.”
The next season she was still experiencing pain, underwent more physically therapy and requested the trainer order an MRI and X-ray however, the school did not do so and McGowan’s mother, according to the complaint, contacted SMU to insist her daughter receive an X-ray and only then, did she receive one.
She met with the doctor who informed her she should medically disqualified from rowing rendering her ineligible to receive scholarship increases.
Motion to strike and exclude expert testimony
SMU sought to strike portions of the expert report and exclude some testimony of the plaintiff’s expert witness, Dr. Volker Nolte. The university also sought to exclude the expert testimony of Plaintiff’s expert witness, Dr. Donna Lopiano. The plaintiff, McGowan, sought to strike the expert report and exclude the testimony of Tim O’Brien, SMU’s expert witness.
According to the court’s opinion, the plaintiff’s retained Dr. Nolte as a witness to testify about “rowing, including the biomechanics of the sport and effect on the human body, training and coaching of collegiate rowers andthe risk and occurrence of injuries. Specifically, . . . to provide opinions related to the incidence of hip injuries suffered by [SMU’s] rowers.” SMU alleged that Dr. Nolte’s testimony should be excluded because “1) Nolte is unqualified to provide expert testimony regarding medical causation and assessment, the standard of care for strength and conditioning coaching, athletic training, and women’s rowing coaching at United States universities, respectively; and (2) Nolte’s opinions with respect to the factors that allegedly led to a high frequency of hip injuries on the SMU rowing team, and that the frequency evidenced a ‘systemic problem’ are unreliable.”
The court granted the motion in part, striking and excluding testimony from him about the “cause of the plaintiff’s specific injury, medical opinions, or the standard of care for athletic trainers.” However, the court denied the motion otherwise, therefore, Dr. Nolte may still testify about rowing and strength coaching given his experience in rowing, coaching and educating other rowing coaches.
According to the court’s opinion, the plaintiffs retained Dr. Lopiano to testify about “SMU’sprovision of athletic opportunities to male and female athletes.” SMU alleged that Dr. Lopiano’s testimony should be excluded because “(1) they are not relevant, (2) they are unreliable, and (3) they will not assist the jury.” The court granted the motion in part stating that the testimony must be limited to discussion of Title IX treatment in the areas of “coaching, equipment, and access to medical facilities and personnel,” since those are topics relevant to the plaintiff’s claim.
Lastly, according to the court’s opinion, SMU retained O’Brien as a witness to “opine on Title IX matters and assess Dr. Lopiano’s expert reports by providing opinions on her analysis, her discussion of the various issues contained therein, and the findings she reached.” The plaintiff requested the court excluded the testimony because “(1) it consists of improper legal conclusions, (2) it will not assist the jury, and (3) it’s irrelevant and unreliable.” The court granted the motion to strike and exclude the testimony “to the extent it explains legal requirements or contains impermissible legal conclusions” but otherwise denied the motion.
Next steps
This case is set to go to trial on Dec. 2, 2024, nearly seven years after McGowan and the other original plaintiffs filed this case.
