Wayfarer oppose Lively's "unsigned" motions to exclude their rebuttal damages expert: Michael Wagner

Added: 2026-05-04

[00:00:02]Hey guys. So, okay, we're going to just start going through these Dalbert uh motion oppositions.

[00:00:08]There are two different formats. So when the Dalbert motions were filed two weeks ago, they um Lively sort of filed hers completely differently to Wayfairer in the sense that Lively filed um oppositions to each of Wayfairer's um experts individually as their own standalone motions. Wayf Farer however did an entire document likeund and plus over 100 pages. It was I think it was close to 170.

[00:00:45]Um what they have done for the opposition is they have filed followed the same format. So where way farer filed their really big document covering all of Lively's um experts, Lively has responded in the same way. So when we do Blake Lively's it's one great big document and and what I'm going to do is go through do a video for each expert I think to break that up.

[00:01:17]Um what and then likewise um Wayf Farer have then responded to um to oppose Lively's motion to exclude each of their experts as standalone motions.

[00:01:36]So um makes my life easier in many ways when they do that. But you know I'm kind of good.

[00:01:43]So, we're going to go through the first of Wayfairer's oppositions.

[00:01:48]Um, Blake Globe is seeking to exclude the opinions and testimony of their expert, Michael Wagner.

[00:01:56]So, um, yeah, and Wagner is basically he's a rebuttal damages expert. So, uh, he's to rebut I think it's Kendrick. Um, we we'll see more as we go through it, but I'm pretty sure um Kenrich is one of the lively experts he's seeking to um to rebut. And um we're going to go through this now and just just see right this is Wayf Farer's argument for why their own expert should be allowed to testify and give their opinions.

[00:02:39]Um, it's only I think the actual motion is only about six pages long. So, this is not a long motion at all.

[00:02:49]Um, okay. Lively's motion to exclude defendants rebuttal damages expert Michael Wagner mischaracterizes Wagner's opinions and confuses the roles of affirmative and rebuttal experts.

[00:03:02]Wagner, whose qualifications cannot be seriously questioned, performed precisely the task charged to rebuttal expert witnesses. He criticized the methodologies and opinions of Lively's experts.

[00:03:15]Each of Wagner's opinions is the product of reliable principles and methods and will help the jury understand the evidence. The motion to exclude should be denied.

[00:03:28]Okay, so the first argument, rebuttal experts have a less demanding task than affirmative experts.

[00:03:39]Um, I'm just looking at this I'm just looking at this um footnote actually that come with the end of that that first opening paragraph.

[00:03:53]Lively filed identical memoranda seeking the same relief. Neither was signed by Lively's attorney of record as required by Oh, yeah. She didn't sign her motion.

[00:04:06]She didn't sign her motion cuz I remember someone saying, "Oh, who who wrote this?" And when I went to look, there was no signature.

[00:04:13]So, um, Wayf Faraher actually seeking the court to strike her motion um based on that alone.

[00:04:25]Um yeah, because I remember saying, "Oh, li's got a real issue with not signing things." I think I made that point. But yes, um the the memorandas that lively actually filed two um yeah, she filed two identical motions trying to exclude Michael Wagner's testimony. Um and actually I've got them up. So this is um this is docket number 1315, right? And this is the start bit.

[00:05:01]And if we go to the bottom, there's no signature. That's the end of the that's the intended the end of the entire document.

[00:05:09]There's no signature page which there needs to be. Um and then likewise um if I just share the other screen. So this is document 1330. Yeah. So sorry this is if we go back to 1335. I didn't introduce that very well. Try that again. Um this is 1335. Plaintiff Blake Lively's motion to exclude testimony of Michael Wagner.

[00:05:37]And you can see at the top um document 1315.

[00:05:43]Right. And again, just to show you, no signature page.

[00:05:49]And then you go to document 1330, right? So, it's a different docket number.

[00:05:59]Um, again, no signature page. That's the end of the document. So, uh, yeah, there they are right. And they are seeking to, um, have those motions stricken because they are not signed. And I remember when I was in there, I was like, "Oh, there's no signature.

[00:06:17]Is this getting to be a pattern of Blake Lively?"

[00:06:21]Um, but yeah. Um, Wayfairer did actually pick up on that. Okay. Um, okay. So, let's continue. Rebuttal experts have a less demanding task than affirmative experts, which is true.

[00:06:36]Wagner is a rebuttal expert. Defendants are not calling him to provide an alter an alternative damages calculation, but to explain the methodological flaws in the opinions of lily's damages experts.

[00:06:49]While rebuttal experts are not excused from the rigors of rule 702, it is well established that they have a less demanding task because they have no burden to produce models or methods of their own. They only need attacks of plaintiffs experts.

[00:07:06]This is because the task of a rebuttal expert is different from that of an affirmative expert. A rebuttal expert by nature criticizes the methodology and/or opinions of another.

[00:07:17]Rebuttal can be properly undertaken by poking holes in another's arguments.

[00:07:23]Rebuttal does not require deploying a groundup analysis of the very same argument.

[00:07:29]Disagreement with an expert's conclusions are not a basis or exclusion. Rather, the opposing party may question those conclusions via cross-examination.

[00:07:42]The overall theme of Lively's motion is that Wagner fails to offer his own methodology and fails to offer affirmative opinions. Those argives are misplaced. For example, Lively attacks Wagner for opining that various alternative causes could have caused a decline in sales for Lively's brand without opining on alternative causes that actually cause the decline.

[00:08:06]But as a rebuttal expert, Wagner has no burden to show what actually caused the decline in sales. Rather, his evidence is offered to show the jury that the opinions offered by Lively's experts are not sufficiently supported and do not take into consideration all the relevant factors they should have considered in arriving at the damages opinions.

[00:08:26]Without Wagner's rebuttal testimony, the jury will simply assume that Lively's experts did what experts in the field usually do. They did not.

[00:08:37]And defendants must be permitted to offer testimony to explain why.

[00:08:50]So the next argument is that Wagner is qualified to critique Lively's damages experts.

[00:08:57]A witness may qualify as an expert based on his knowledge, skill, experience, training, or education.

[00:09:04]Lively does not seriously challenge Wagner's overall qualifications as a damages expert and does not challenge his qualifications to appine honor brands underperformance and for good reason.

[00:09:18]I feel like we're building up with something here. A storm Wagner holds both a master's of business administration and a jurist doctor. He has decades of experience at a certified public as a He has decades of experience as a certified public accountant, including as a partner at Price Waterhouse. Wow. Where Oh, here's the punch line. Where he worked alongside Lively's own damages expert, Jeffrey Kinrich.

[00:09:53]Oh, oh my god. I'm sorry. The filings lately are sending me. So what they're saying is um yeah, Lively is not challenging his qualification to be a damages expert because he used to work with her own expert.

[00:10:08]That's amazing.

[00:10:11]Um he has um let me start that again.

[00:10:17]He has specialized in computation of commercial damages um for almost 50 years and has been qualified and testified as an expert 147 times at trial and 39 times in arbitration.

[00:10:34]He has authored 33 publications, the majority of which deal with commercial damages and was the editor of litigation services handbook. I mean, that's a really quite an impressive resume for being a, you know, a trial witness, expert witness in this type of trial.

[00:10:54]Contrary to Lively's contention, Wagner is not being offered as a legal expert, an expert in social media manipulation, or an expert in the entertainment industry. He is being offered solely as a rebuttal damages expert.

[00:11:10]Um, okay. Wagner should be permitted to cr to critique Kendrick's opinion that profits earned by Lively's brands would inexorably flow through to Lively.

[00:11:25]Wagner will critique the simplistic testimony of Lively's brand damages expert Jeffrey Kinrich that Lively's damages may be calculated as a difference between the but four profits for Lively's brands and the actual profits in each case multiplied by Miss Lively's ownership percentage in the relevant companies.

[00:11:46]Wagner will explain why this formula does not in fact capture true cash flow damages to Lively associated with lost sales. Contrary to Lively's contentions, this is not an opinion on legal standing, nor are defendants seeking to launder legal arguments through the authority of an expert witness.

[00:12:06]Rather, Wagner assumes that Lively does have standing and offers a critique of Kinrich's methodology and measure of damages.

[00:12:16]For instance, Wagner faults Kinri's analysis because simply multiplying by Blake Lively's ownership percentage does not make it lost cash flow damages to Blake Lively.

[00:12:30]Wagner explains that to properly calculate Lively's lost profits, Kendrick would need to establish lost cash flow to her directly.

[00:12:39]Ragna also appropriately criticizes Kendrick's unsupported assumption that Lively owns 100% of LOL Hatter, the entity through which she owns a stake in Betty B and Family Hive.

[00:12:53]Wagner further criticizes Kendrick because the evidence Kinrich reviewed does not demonstrate that any cash would flow to Lively, while the projections Kinrich reviewed indicated a need for a cash infusion rather than distributions.

[00:13:11]Wagner will not testify about the legal standing and will not refer to case law.

[00:13:15]Wagner's opinions are consistent with the purpose of standard rebuttal expert opinions criticism of Lively's experts methodology.

[00:13:27]Wagner should be permitted to critique Lively's experts failure to consider alternative causes of Liel's alleged losses or aortion damages between the impact of defendants alleged unlawful actions and unrelated negative press.

[00:13:48]Lively falsely claims that Wagner is planning to appine that defendants did not in fact engage in online manipulation.

[00:13:57]Using this mischaracterization is jumping off is as a jumping off point.

[00:14:02]Lively argues that Wagner is not qualified to offer such an opinion and that the opinion is not helpful to the jury and unreliable.

[00:14:10]These arguments miss the mark.

[00:14:14]Wagner will not opine on whether online manipulation occurred. Rather, Wagner criticizes Lively's damages experts for failing to analyze any possible alternative causes of Lively's claimed losses, including a failure to consider and analyze negative press against Lively published prior to the alleged retaliation campaign.

[00:14:35]Ragna also appines on various other business related factors that may have caused sales to fail to live up to the projections Kinrich relied on, including an increasingly competitive market and flat sales at Blake Brown's retailer Target.

[00:14:56]Yeah, it's Target's fault. Target just did not sell sell her products very well.

[00:15:02]And Ragna explains the forecasting problems involved in Kinrich's use of a best case best case ambition project prepared more than a year before Blake Brown was launched.

[00:15:14]This is standard rebuttal and Wagner is eminently qualified to offer this opinion.

[00:15:20]Wagner also criticizes Lively's experts failure to aortion damages. For example, Ragna appines that lielies experts do not perform any analysis that separates out or aortions the impact from defendants actions versus negative press that has nothing to do with defendants.

[00:15:38]That is a really good point. That is incredibly important because you know not everyone loved her. Like even if she let's just say right for a moment let's just hear me out. Let's just say for a moment right Lively proved that WF Farah somehow smeared her. Okay. And caused a backlash. Not 100% of that backlash is ever going to be caused by way farer.

[00:16:03]Not everyone loved her. As much as she would like us all to believe that there are people who did not like her, did not like her products, did not like her acting, don't like her history, don't like her husband, who will, you know, you know, there there are even people who know her, went to school or have acted with her, who have come out, you know, I'm pretty sure Sweet and Salty Lynn has some history. I can't remember. I want to say school, but I'm not 100% sure. So, don't quote me on that, but I'm pretty sure like she's one of the people that has been discussing this case. She's a content creator and she organically has a very good reason for not liking Blake Lively.

[00:16:46]Same with Justify Flur. You know, it's personal experience of Blake Lively. So >> um yes to to pass out okay even if Lively is successful the damages how much are actually due to wayfairer if she's not kind of separated out everything then that's problematic. She can't claim that way farer are responsible for every bad word said about her.

[00:17:16]Uh, and yeah, that's a great argument and a great rebuttal.

[00:17:25]The failure of Lively's experts to consider and aortion damages to alternative courses is not an opinion on whether online manipulation occurred, much less who was and was not responsible.

[00:17:38]Although Lively challenges Wagner on the grounds that he did not attempt to quantify Lively's damages, as a rebuttal expert, Wagner is not required to perform an affirmative analysis.

[00:17:51]Lively claims Wagner's alternative causation criticisms are unhelpful because they depend on the conclusions of dependent expert Nicole Alexander.

[00:17:59]Not so. While Wagner notes the opinions provided by Alexander, he explicitly states that those opinions arise in addition to my opinions expressed in this report. Even so, an expert may rely upon the findings of other experts to re to reach his own conclusions employing his independent expertise.

[00:18:22]Um in RMV MVMSC Flamina, um although the expert explicitly discusses and repeatedly relies upon the the expert opinions of his colleagues who have expertise different from his own, he does so to support his own analysis and conclusions based upon his own expertise.

[00:18:48]In any event, Ragna's opinion criticizing LIL's experts failure to analyze alternative causes of loss is not an affirmative opinion as to whether an online retaliation campaign occurred, but a criticism of Lively's experts failures. Thus, his opinion will assist the Trier fact to determine the reliability of Lively's own experts opinions.

[00:19:12]Magna should be permitted to critique Marks and Sipple's opinions regarding Lively's redacted Wagner criticizes an analysis performed by liveli's experts Richard Marks and Michael Sipple in arriving at their damages opinions related to redacted.

[00:19:29]For example, Wagner post points sorry Wagner points to a host of factors affecting redacted that marks did not consider including redacted.

[00:19:39]Redacted and redacted.

[00:19:42]Wagner also criticizes Markx and Simple for failing to identify redacted and for assuming without any analysis and contrary to the testimony of her own manager that redacted.

[00:19:52]Finally, Wagner criticizes Sipple's red redacted precisely the kind of opinions one would expect from a rebuttal damages expert.

[00:20:03]As a rebuttal damages expert, these opinions fall within Wagner's expertise.

[00:20:09]Wagner does not offer an opinion on the redacted, but he does note the deficiencies in both Marks and Sipple's analysis.

[00:20:17]Nor is Wagner's opinion inadmissible simply because he considered the opinion of expert Emanuel Nunees informing his opinion. Wagner's report notes that Mr. Nunes's comments are consistent with his own criticisms, namely redacted.

[00:20:34]Wagner specifically noted in deposition that his opinion would not change even if Nunez's conclusions were incorrect.

[00:20:43]Lively asserts that Wagner's criticisms regarding Lively's alleged lost earnings are unreliable because he ignores testimony that Lively was committed to working full-time after the release of the film.

[00:20:57]Misunderstands the nature of the offers Lively has received since the film's release. ignores testimony from actual Hollywood professionals and ignores that Miss Lively's past offers are not an adequate proxy for her future offers and takes a sliver of deposition testimony from Lively's agent out of context.

[00:21:20]However, none of these criticisms of Wagner's analysis establish that he did not have access to sufficient facts or data or that he did not apply his methodology reliably. To the extent Lively disagrees with Wagner, she is free to cross-examine him at trial.

[00:21:38]Wagner should be permitted to critique Humphrey's opinion on reputational damages.

[00:21:45]Lively asserts Wagner cannot appine on Ashley Humphrey's reputational harm calculations because he possesses no expertise on how the media ecosystem operates.

[00:21:56]However, Wagner does not purport to appine on the amount of reputational harm suffered by Lively. He only appines that Humphrey's analysis did not consider that winning a highly publicized lawsuit may help to repair the reputational harm of which Lively complains.

[00:22:14]Wagner is is qualified to criticize Humphrey's methodology in calculating damages based on her failure to consider important factors affecting those calculations.

[00:22:25]Nor is Wagner's opinion on this point unreliable because he did not provide evidence that her reputational harm would be eliminated. Again, lively mistakes Wagner's opinion. Wagner criticizes Humphre for not considering that a victory in this lawsuit would go a long way towards restoring reputational harm, thus diminishing her damages.

[00:22:48]He does not apply that Lively's alleged reputational harm would be eliminated.

[00:22:54]Conclusion. For all of the foregoing reasons, the court should strike plaintiff's motion for failure to comply with rule 11 of the federal rules of civil procedure or in the or in the alternative deny plaintiff's motion.

[00:23:08]That's from Ellen. I love that. That was that was absolutely great. Um yeah, that was a great filing.

[00:23:21]Uh, so there was um there is I went to have a look to see if the because there's a an attached um exhibit to this motion. I went to have a look, but it is actually still unsealed, so I can't show you that for now. Um, we'll see if that gets unsealed eventually.

[00:23:38]Um, okay. Um, let me know what you think. I think this is a really well-ritten response. I love it.