Armstrong, government spar over witnesses
With $100M at stake in civil trial, every factor critical
The federal government’s $100 million lawsuit against Lance Armstrong doesn’t go to trial until November. But both sides are duking it out over who gets to testify about a crucial question in the case:
How much was the U.S. Postal Service harmed as a result of Armstrong ’s doping on the USPS cycling team?
The sides hired experts to support their arguments. And now each side is asking a federal judge to forbid the other’s experts from testifying at trial — a decision that could dramatically impact how the jury sees the case.
“The government’s strategy to use these so-called experts to establish damages is doomed to fail,” Armstrong ’s attorneys said in new court filings.
The issue is critical. The government is suing Armstrong on behalf of the Postal Service, which paid $32.3 million to sponsor Armstrong ’s cycling team from 2000 to 2004.
It argues that Armstrong ’s cycling team violated its sponsorship contract by using performance-enhancing drugs and blood transfusions to cheat in races — and then lied about it to continue receiving payment.
If the government can prove the sponsorship had no value be- cause of the doping, the government could get triple its money back from Armstrong under the False Claims Act — nearly $100 million.
In Armstrong ’s defense, his attorneys say the Postal Service wasn’t damaged and instead profited nicely from the sponsorship while Armstrong ’s team was wearing the Postal Service jersey at the height of his fame. They hired an expert to prove it: Douglas Kidder, who estimated the Postal Service obtained $257 million in earned media exposure as a result of the sponsorship.
The government wants him out.
“Mr. Kidder is not competent to testify about earned media in general, much less in the context of the facts of this case,” said the request submitted by government attorneys, including Chad Readler, the acting assistant attorney general for the civil division of the Justice Department. “The Court should not permit this testimony to be presented to the jury.”
Armstrong ’s attorneys previously tried to have the case thrown out in summary judgment and made the same argument about how the Postal Service suffered no damages. U.S. District Judge Christopher Cooper denied that request in February and said the jury would weigh that evidence.
The government will be “entitled to present admissible evidence regarding the negative publicity the Postal Service received following the disclosure of Armstrong ’s PED use, just as Armstrong will be permitted to present admissible evidence of the sponsorship’s positive benefits,” Cooper wrote then. “Should the government prove liability, it will then be up to the jury to weigh the evidence on both sides of the scale and decide whether the government can prove it sustained actual damages and, if so, the corresponding amount.”
The government hired an expert, Larry Gerbrandt, who conducted a report that said there were nearly 1.5 billion media impressions of Armstrong ’s doping and another 154 billion impressions from online media coverage.
He argued that this negative publicity reduced the value of the sponsorship.
Armstrong ’s attorneys say he’s not qualified and want him out, along with two other expert government witnesses. Both sides recently filed the motions in limine, which are attempts to exclude the other’s evidence from trial.
“The government would like to offer Mr. Gerbrandt’s counting exercise and allow the jury to speculate that the USPS suffered harm as a result of the summary and that such harm exceeded the benefits the USPS enjoyed under the sponsorship,” said the request submitted by the firm Keker Van Nest & Peters. “The jury cannot be allowed to speculate on this critical issue.”