When Mr. DeRosier returned to competition, the stigma of
being identified as a “doper” allegedly prevented him from competing in the 2010
U.S. National Track and Field Championships, and he has been unable to pursue
his sprinting career since then. He also claimed that he lost out on valuable
shoe endorsement contracts and potential future employment as a coach due to his
consumption of the MHA. Therefore, Mr. DeRosier filed a complaint against
USPLabs, LLC, and its chief executive officer, for negligence, strict liability,
breach of implied warranty of merchantability, negligent misrepresentation,
fraudulent concealment, and unfair or deceptive trade practices under the
Maryland Consumer Protection Act. The complaint alleged loss of past earnings
and future earning capacity, and non-economic losses, due to the Defendants’
failure to warn Mr. DeRosier that Jack3D contained MHA. Mr. DeRosier sought $1.8
million in damages.
The Defendants moved to exclude the testimony of Mr.
DeRosier’s proffered expert witness, Mr. Eric Merriweather (“Mr.
Merriweather”). Mr. Merriweather’s report asserted that “if not for [Mr.
DeRosier’s] positive test for a banned substance in 2009,” Mr. DeRosier
would have received endorsement contracts and appearance fees and prize
money, including a five-year base salary from a shoe endorsement contract
totaling $450,000. The report concluded that Mr. DeRosier would have earned
approximately $1,685,000 over five years, if he had not taken Jack3D.
The Defendants argued that Mr. Merriweather’s testimony
was inadmissible because he lacked the qualifications to provide an informed
estimation of damages, and because he employed an unreliable and
unprincipled methodology to reach his conclusions. They contended that Mr.
Merriweather had neither the expertise nor the experience to qualify as a
damages expert, and that his credibility was further undermined by the fact
that he was Mr. DeRosier’s “friend” and “mentor” and wrote the report free
of charge.
Specifically, Mr. Merriweather’s report provided
estimates as to Mr. DeRosier’s lost earnings and earning capacity, but it
failed to support those estimates with even the most basic information about
Mr. DeRosier’s past records or rankings, or with relevant industry
standards. Neither the report nor Mr. Merriweather’s subsequent deposition
provided information that would be necessary to support the assertions
contained within his report, such as Mr. DeRosier’s previous rankings, race
times, or career trajectory. For example, the report projected that Mr.
DeRosier would have earned $650,000 for top scores in major national and
international competitions, and $500,000 in appearance fees and prize money,
but did not provide a specific breakdown as to how many races he would have
had to run per year and how he would have had to have been ranked in those
races to achieve those earnings. Indeed, Mr. Merriweather testified that he
did not know – either at the time of his deposition or at the time of
writing the report – Mr. DeRosier’s past rankings. He did not even know how
many races Mr. DeRosier had run in previous years. Not to mention, Mr.
Merriweather did not even know Mr. DeRosier’s age, the status of his health,
projected career length or trends in his sprinting speeds over time.
Further, the report offered no information about Mr. DeRosier’s past
earnings as a competitive runner. To top it off, Mr. Merriweather testified
that he could not remember exactly how he reached some of his financial
estimates.
In sum, Mr. Merriweather’s report and subsequent
deposition were utterly lacking in information about industry standards, the
earnings and racing practices of similarly situated athletes, and even basic
personal facts about Mr. DeRosier that could support his estimates about
lost earnings and earning capacity. Therefore, the Court concluded that
there was “simply too great an analytical gap between the data in the
opinion proffered” to admit Mr. Merriweather’s testimony. “An essential part
of the court’s gate keeping function is to ensure that the expert testimony
is more than mere speculation,” and the Court could not find that Mr.
Merriweather’s testimony, though sincere, rose above the level of
conjecture. Thus, without reaching the question of Mr. Merriweather’s
qualifications as an expert witness, his testimony was excluded based on its
wholly speculative inconclusory methodology.
Absent the evidence proffered by Mr. Merriweather, Mr.
DeRosier lacked evidence of damages, which was a required element in each of
his claims. Without Mr. Merriweather’s testimony, Mr. DeRosier could not
establish his future lost earnings or earning capacity with any degree of
reliability.
Having failed to establish damages or harm resulting
from the Defendants’ allegedly tortious acts, Mr. DeRosier could not meet
his burden to establish a prima facie case on any of the claims he set
forth. Therefore, summary judgment was granted in the Defendants’ favor.
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