Defamation Expert’s Testimony on Economic Damages Excluded
Posted on July 24, 2025 by Expert Witness Profiler
Plaintiff Brian Menge, a former police detective with the City of Highland Park, Michigan, brought a claim against Defendant Khursheed Ash-Shafii, a Highland Park city councilman, alleging that Ash-Shafii unlawfully retaliated against him in violation of the First Amendment because of Menge’s successful settlement of a prior lawsuit against the City. The retaliation consisted of statements published by Ash-Shafii falsely accusing Menge of stealing money from the City’s criminal forfeiture fund while Menge was a police officer there. Menge retained Sameer Somal, to testify to the amount of damages Menge incurred to his income, reputation, and psyche as a result of Ash-Shafii’s false statements.
The Defendant filed a motion to exclude Somal’s testimony arguing that Somal did not meet the requirements of Rule 702.
Defamation Expert Witness
Sameer Singh Somal CFA, CFP®, CAIA is a CFA Charterholder, a CFP® professional, and a Chartered Alternative Investment Analyst. He is the CEO of Blue Ocean Global Technology, a company that assists individuals and entities with building and repairing their online reputation. He has co-authored Continuing Legal Education (CLE) programs about defamation and related topics and is a former member of the Legal Marketing Association (LMA) and the Education Advisory Council (EAC).
Discussion by the Court
Somal opined that Menge suffered “significant” damages based on Defendant Ash-Shafii’s alleged retaliatory statements. Somal separated the damages into four categories: economic, rehabilitative, reputational, and emotional distress. He determined that Menge suffered at least $283,500 in economic damages.
Economic Damages
Ash-Shafii objected first to Somal’s assessment of Menge’s economic damages of $283,500. Somal opined that Menge was entitled to economic damages in that amount based on Somal’s own “conservative estimate” that he lost the opportunity to work over the next three years with between eight and ten attorneys. He reckoned that each of these attorneys would have retained Menge for at least six to eight projects per year for an average of $1,000 per project. Ash-Shafii asserted that this testimony is unreliable because it strays from the facts of the case. He asserted that Somal failed to review certain “Request for Payment” forms that are submitted in indigent criminal cases to obtain payment for Menge’s work on an investigation and did not review Menge’s 2023 tax return.
While these points may all be grounds for impeachment, the Court held that they do not necessarily fatally undermine the admissibility of Somal’s testimony.
The problems with Somal’s testimony are more basic. For one, Somal did not appear to be assessing the economic damage to Menge’s investigation business based on any independent body of expertise — that is, based on any knowledge of the legal field in the metro Detroit region. He did not offer any foundation for innate or acquired knowledge of the practices for assignment or retention of investigators in indigent criminal defense cases or the networking customs among defense attorneys. Instead, his conclusions ultimately were based on “estimate[s]” of Menge’s lost work, which he deemed “conservative.” He projected that Menge lost the opportunity to work with between eight and ten attorneys per year, but the source of this estimate is entirely unexplained and does not correspond with any evidence in the record.
Rehabilitation Damages
Ash-Shafii next asserted that Somal offered no methodology for his opinion that a twelve-to-eighteen-month rehabilitation campaign, costing approximately $180,000, will be necessary to rehabilitate Menge’s online reputation. He pointed out that the recording of the City Council meeting containing the offending comments only has been viewed approximately 300 times on Facebook, and Somal never searched for references to Menge on Google to determine the extent of the spread of the alleged defamatory statements on the internet.
However, Ash-Shafii did not appear to take issue with Somal’s qualifications as an expert in the field of online reputation management, and Somal’s report contains a sufficiently clear basis for his $180,000 estimate. He explained that his team would have to conduct ongoing analysis and testing on important “keywords” related to Menge, and as part of their work to rehabilitate his reputation, the team would create “backlinks” — apparently prioritized by search engine algorithms — to more prominently highlight certain favorable results. In his report he quoted a cost of $15,000 a month for twelve months for these tasks. While this number may well be excessive, the Court held that Somal, by dint of his knowledge of the field, is qualified to offer his view.
While Ash-Shafii faults Somal for failing to assess the extent of the spread of the defamatory content before coming up with this estimate, it did not appear that the amount of work necessary to address harmful online content is dependent on the volume of material circulating on the internet. Moreover, Somal did opine that it was problematic that the alleged defamatory video still was published to Facebook and explained that the fact court documents mentioning the defamatory statement were readily accessible on the internet “adds another layer of complexity to the rehabilitation process.”
Reputational Damages
Ash-Shafii also took issue with Somal’s conclusion that Menge is entitled to $550,000 to $750,000 in damages based on more generalized harm to his reputation.
In his report, Somal stated that “there is no set standard to determine the actual value associated with [reputational damages]” and that calculating damages in this area “is subjective.” He then explained that in his experience, a “solid structure” for assessing damages would consider three “rings”: Menge’s immediate contacts, his prospective contacts, and strangers.
“Adding the three reputational rings together,” he “calculated and estimated that damages” totaled to “no less than $550,000 – $750,000.” How he calculated a value for each ring is not explained, and his deposition does not shed much further light, but it appeared that the figures may be based on his review of damages awards in other defamation cases.
The Court held that this opinion suffers from the twin faults of no stated methodology and no factual tether.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude testimony of Sameer Somal.
Key Takeaway:
Rule 702 requires an expert to articulate some methodological basis before he may present his testimony to a jury. And his work must bear some relation to the facts of the case. The danger of allowing Somal’s opinion based on his calculations is that it could suggest to the jury damages that do not in fact exist.
Moreover, with proper foundation, calculating Menge’s economic damages would not necessarily even require expert testimony. Trial witnesses could testify about the effects of Ash-Shafii’s defamation on Menge’s businesses and his attorney can develop testimony about the size of his business and the comparative reduction in revenue.
Case Details:
| Case Caption: | Menge V. Shafii Et Al |
| Docket Number: | 2:23cv11339 |
| Court Name: | United States District Court, Michigan Eastern |
| Order Date: | July 22, 2025 |
