Case 1:15-cv-01974-WJM-KLM Document 136 Filed 05/12/17 USDC Colorado Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-01974-WJM-KLM
DAVID MUELLER
Plaintiff
v.
TAYLOR SWIFT;
FRANK BELL;
ANDREA SWIFT a/k/a ANDREA FINLAY; and
JOHN DOES 1 - 5
Defendants
______________________________________________________________________
PLAINTIFF’S MOTION TO EXCLUDE TESTIMONY
OF LORRAINE BAYARD DE VOLO
______________________________________________________________________
Plaintiff David Mueller, through his counsel, M. Gabriel McFarland of Evans &
McFarland, LLC, respectfully submits Plaintiff’s Motion to Exclude Testimony of
Lorraine Bayard de Volo. As grounds therefor, Plaintiff states as follows:
I.

CERTIFICATION

The undersigned counsel hereby certifies, pursuant to D.C.Colo.LCivR. 7.1 (A),
that he has conferred with Doug Baldridge, counsel for Defendants, regarding the relief
requested in this Motion. Mr. Baldridge has indicated that Defendants will oppose the
requested relief.
II.

INTRODUCTION

Ms. Swift contends that during a June 2, 2013 meet-and-greet at the Pepsi
Center, Mr. Mueller “put his hand under [her] dress and grabbed [her] bare ass.” Mr.
Mueller’s employer, KYGO, later terminated Mr. Mueller because Ms. Swift and her

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team relayed the same to him. This suit followed. Mr. Mueller asserts five claims for
relief: (1) Intentional Interference with Contractual Obligations; (2) Tortious
Interference with Prospective Business Relations; (3) Slander per se; (4) Slander per
quod; and (5) Respondeat Superior. Ms. Swift has asserted a counterclaim for assault.
Defendants designated Lorraine Bayard de Volo, who has a PhD in political
science and is a professor of women and gender studies, as an expert witness. She has
never before served as an expert witness, and apparently has no training in psychology.
Nonetheless, according to Ms. Bayard de Volo’s written report,1 she intends to opine
that Mr. Mueller had the profile of a person likely to sexually assault women:
Sexual harassment and assault are fundamentally motived 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.
Report at 1-2. Those opinions are not based on sufficient facts or data, are not
otherwise credible or reliable, and are not admissible. Moreover, any relevance of the
proposed testimony is outweighed by the danger of unfair prejudice.

1

A copy of Ms. Bayard de Volo’s report is attached as Exhibit 1.
2

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III.

LEGAL STANDARD

A district court must act as a “gatekeeper” in admitting or excluding expert
testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004).
Admission of expert testimony is governed by Fed. R. Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
Ultimately, the Court must determine whether the expert’s opinion would assist the trier
of fact in understanding or determining a fact at issue in the case. Daubert v. Merrell
Dow Pharm., 509 U.S. 579, 592 (1993). The Court must also weigh the relevance of
any proposed expert testimony against “the danger of unfair prejudice, confusion of the
issues, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid.
403. The proponent of the expert testimony bears the burden of proving the
foundational requirements of Rule 702 by a preponderance of the evidence. United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
IV.

DISCUSSION

Even though Ms. Bayard de Volo has no training in psychology, has never met
or spoken to Mr. Mueller, and has no idea of Mr. Mueller’s upbringing or ideals, she
contends that Mr. Mueller has the profile of a person likely to commit sexually assault:


“Sexual harassment and assault are fundamentally motived 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
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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.”2


“Mr. Mueller’s pleadings and deposition testimony show that on the
evening of June 2, 2013, Mr. Mueller faced an accumulation of
perceived threats to his status consistent with the threats to status that,
according to well-accepted academic research and studies, motivates
sexual harassment and sexual assault.”3



“Threats to status revolved around his job and identity as a radio
personality, both of which were also closely tied to his sense of
masculinity.”4



“In my opinion, his stated perception of events and his view of his own
status is [sic] consistent with the circumstances under which sexual
aggressors would commit unwanted sexual contact, such as grabbing a
woman’s bottom.”5



“His testimony and pleadings also indicate his belief that unwanted
sexual contact is something that men in radio can get away with even if
other men cannot for one or a combination or reasons, including the

2

Report at 1-2.
Report at 3.
4
Id.
5
Report at 8.
3

4

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following: because Swift’s staff would be more likely to believe a man
who is in radio because he thought KYGO would defend him against
Ms. Swift’s accusation; or because such groping, if done by a man in
radio, could be excused as a joke, a misunderstanding, part of the
business, or his prerogative as a radio host who regularly met with
famous women.”6
This is exactly the type of profile evidence that is inadmissible. “A profile is a
collection of conduct and characteristics commonly displayed by those who commit a
certain crime.” People v. Robbie, 112 Cal. Rptr. 2d 479 (Cal. Ct. App. 2001) (opinion
that defendant had the characteristics of a child molester was inadmissible). “Profile”
evidence is that which attempts to link the general characteristics of, e.g., serial
murderers to specific characteristics of a defendant. See People v. Prince, 40 Cal.4th
1179, 1226 (2007). Perhaps the most frequently cited example is the drug courier
profile, which the United States Supreme Court has defined as “a somewhat informal
compilation of characteristics believed to be typical of persons unlawfully carrying
narcotics.” E.g., Reid v. Georgia 448 U.S. 438, 440 (1980). Such profile evidence is
not admissible as probative of whether or not the profiled individual committed any
specific act. See Salcedo v. People, 999 P.2d 833, 840 (Colo. 2000) (“In sum, [the
expert witness’s] drug courier profile was not helpful to the jury because it was
inherently subjective, of dubious reliability, and logically irrelevant, and because its
probative value was substantially outweighed by a risk of misleading the jury.”).

6

Id.
5

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The admission of the type of profiling testimony proffered by Ms. Bayaud de
Volo runs contrary to fundamental American values of fairness and fundamental legal
tenets of burdens of proof. If her report addressed such extreme generalizations about
race, as opposed to gender, Defendants would have been embarrassed to submit it. Ms.
Bayaud de Volo’s profiling of men is no less offensive, and certainly no more helpful
to the jury, than classic racial or ethnic profiling. See People v. Martinez, 10 Cal. App.
4th 1001, 1006, 12 Cal. Rptr. 2d 838 (1992) (“While the similarities may be a proper
consideration for law enforcement in investigating criminal activity, they are
inappropriate for consideration on the issue of guilt or innocence for the very reason
given in the drug courier profile cases: the potential of including innocent people as
well as the guilty.”); People v. Castaneda, 55 Cal. App. 4th 1067, 64 Cal. Rptr. 2d 395
(1997) (“Every defendant has the right to be tried based on evidence tying him or her to
the specific crime charged, and not on general facts accumulated by law enforcement
regarding a particular criminal profile.”).
IV.

CONCLUSION

Ms. Bayard de Volo’s opinion that men who are worried about their jobs or
receive threats to their masculinity are likely to commit sexual harassment or assault
will not assist the trier of fact. There are millions of men who worry about their jobs or
receive threats to their masculinity every day and who never sexually harass or assault
women. In other words, with the group described by Ms. Bayard de Volo, there are at
least as many men who have not or would inappropriate touch a woman. Moreover,
any potential relevance, however slight that may be, is most certainly outweighed by
the danger of unfair prejudice. Defendants cannot reasonably ask the jury to adjudge

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Mr. Mueller “guilty” of sexual assault based on the profile of some men who have
had—very generally and vaguely—similar life experiences, rather than on the evidence
of what actually occurred between Mr. Mueller and Ms. Swift on June 2, 2013.
WHEREFORE, Plaintiff respectfully requests that the Court grant Plaintiff’s
Motion to Exclude Testimony of Lorraine Bayard de Volo.
Dated this 12th day of May, 2017.
Respectfully submitted,
EVANS & MCFARLAND, LLC
By: s/ M. Gabriel McFarland
M. Gabriel McFarland
Evans & McFarland, LLC
910 13th St., #200
Golden, CO 80401
Telephone: 303.279.8300
Facsimile: 303.277.1620
Email: gmcfarland@emlawyers.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2017, Plaintiff’s Motion to Exclude Testimony
of Lorraine Bayard de Volo was filed with the Clerk of Court using the CM/ECF
system and the same served via email upon at least the following:
J. Douglas Baldridge (jbaldridge@venable.com)
Courtney A. Sullivan (casullivan@venable.com)
Katherine M. Wright (kmwright@venable.com)
s/M. Gabriel McFarland
M. Gabriel McFarland

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