Psychology Expert Witness is Unqualified to Testify as to Reputational Damages
Posted on April 4, 2025 by Expert Witness Profiler
On June 15, 2020, Michael J. Fitzgerald and Ronda and Will McNae finalized a Settlement Agreement to resolve claims related to alleged rape and sexual assault. This agreement included Fitzgerald paying a sum of money and, in return, the McNaes releasing their claims, agreeing not to contact Fitzgerald’s employer, SoftwareONE, refrain from writing about him directly and indirectly, and avoid disparaging him. Fitzgerald is now pursuing the only claim remaining in this case, a breach of contract claim against Ronda McNae for breach of the Settlement Agreement.
On March 5, 2025, this Court entered its Order Granting Plaintiff Fitzgerald’s Motion for Partial Summary Judgment as to Liability, finding that Defendant Ronda McNae breached the Settlement Agreement. This case is soon proceeding to trial to determine damages Plaintiff has sustained from Defendant Ronda McNae’s breach of the Settlement Agreement.
Plaintiff Fitzgerald disclosed three experts in connection with this case. First, he disclosed Sheri Fiske, a certified public accountant, who will testify to Fitzgerald’s purported economic damages. Second, Plaintiff disclosed Dr. Michael DiTomasso, a forensic psychologist, to testify as to his non-economic, reputational damages. Third, Plaintiff disclosed Dr. Kim Fromme, a clinical psychologist to testify that Defendant Ronda McNae’s memory of having been raped and assaulted is false, and that the parties engaged in consensual sexual relations. Defendant Ronda McNae seeks to exclude the expert opinions of these three expert witnesses pursuant to Federal Rule of Evidence 702.
Accounting Expert Witness
Sheri Fiske Schultz brings extensive experience to the table, with over 35 years in public accounting and more than 30 years of specialized expertise in the fields of forensic accounting and business valuations.
In addition to being a licensed CPA, Sheri holds the designation of Accredited in Business Valuation (ABV) and is Certified in Financial Forensics (CFF) by the American Institute of Certified Public Accountants (AICPA).
Psychology Expert Witnesses
Michael DiTomasso has specialized in the clinical and forensic evaluation of children and their parents in cases involving sexual and physical abuse, neglect, domestic violence, and systemic family pathology. He has been recognized by various courts as an expert in the areas of Child Abuse and Neglect, Domestic Violence, and Family Functioning on hundreds of occasions. DiTomasso also handles many Juvenile Delinquency and Adult Criminal cases. He holds a Ph.D. in Clinical Psychology from The University of Miami.
Kim Fromme, Ph.D., is Professor Emeritus of Clinical Psychology at The University of Texas at Austin. She has over 120 peer-reviewed publications focused on alcohol use and the effects of alcohol intoxication, including blackouts, cognitive processes, and behavioral risks. Consequently, she provides unique expertise in legal cases that involve alcohol, behavior, thinking, and memory.
Fromme has been qualified to opine on these matters in 20 civilian criminal cases, 16 civil and Title IX matters, and 53 military courts-martial. She has successfully passed three Daubert challenges.
Discussion by the Court
Sheri Fiske
Initially, the Defendant contended that Fiske’s calculations for lost quarterly and annual bonuses were unreliable and not useful. Their primary argument was that Fiske could not accurately determine Fitzgerald’s target bonus earnings. In response, the Plaintiff asserted that the Defendant overlooked the 2022 Salary Review Letter, which guaranteed specific bonus amounts (100,000 GBP quarterly and 120,000 GBP annually) as well as a a salary increase independent of company performance or Fitzgerald’s individual target achievement. Consequently, the Court rejected the Defendant’s motion on this particular point.
Defendant argued that Fiske’s calculations of the lost value of performance share units (PSU) are unreliable. Specifically, Defendant argued that Fiske’s initial calculation was incorrect. Later, Fiske updated her estimate prior to her deposition to reflect a lower, more conservative estimate of lost PSUs based on more recent information provided to Fiske from SoftwareONE dated June 6, 2023, which Fiske received after issuing her May 15, 2023 Damages Report but before her deposition on June 7, 2023.
Nonetheless, Defendant still sought to exclude the supplemental report arguing that Fiske does not know the basic facts to allow her to express a reliable opinion about the PSUs. However, when Fiske received the updated information from SoftwareONE, Fiske compared the number of PSUs Fitzgerald actually received to the number he was promised. Therefore, the Court, once again, rejected the Defendant’s motion as to this aspect.
The Court defers ruling on the following issues:
- Whether Fiske’s testimony as to calculation of the full contract amount is not helpful
- Whether Fiske should not be permitted to testify about facts and evidence that are irrelevant to her purported calculations.
Should Plaintiff seek to introduce such testimony that Defendant moves to exclude, the parties shall argue this issue to the Court outside the presence of the jury.
Dr. Michael DiTomasso
Plaintiff Fitzgerald “sought damages for the reputational harm caused by McNae both in the industry he spent his life working in, and at SoftwareONE, which he dedicated his professional life building” and “sought damages due to the personal harm he has suffered to his mental health, emotional wellbeing, and enjoyment of life.”
Defendant argued that DiTomasso was unqualified to offer an opinion on damages, specifically because he is not board certified, is not an expert in the technology market, and is not an occupational therapist. This Court agreed with Defendant that DiTomasso was unqualified to testify as to reputational damages. When asked what qualifications he has to opine on the amount of damages that should be awarded in this case, DiTomasso himself stated “none.” As to emotional damages, this Court held in its Order Granting in Part and Denying in Part Defendant Ronda McNae’s Motions in Limine that any evidence or testimony related to emotional distress will be excluded.
Kim Fromme
Defendant sought to exclude Fromme’s testimony arguing it is unreliable, unhelpful, and that the issue of whether a rape occurred is for the determination of the jury.
However, Fromme’s testimony will be necessary only if the defense of duress is permitted. Since this Court ruled in its Order Granting Plaintiff’s Motion for Summary Judgment that Defendant Ronda McNae’s duress defense will not be permitted, the Court declared this issue moot.
Held
The Court granted in part and denied in part the Defendant Ronda McNae’s motion to exclude the opinions of Sheri Fiske Schultz, Dr. Michael DiTomasso, and Dr. Kim Fromme.
Key Takeaway:
- Fiske’s calculations of lost quarterly and annual bonuses are not unreliable just because the Defendant overlooked crucial piece of evidence i.e the 2022 Salary Review Letter.
- DiTomasso is unqualified to offer an opinion on damages, specifically because he is not board certified, is not an expert in the technology market, and is not an occupational therapist.
Case Details:
| Case Caption: | Fitzgerald v. McNae |
| Docket Number: | 1:22cv22171 |
| Court Name: | United States District Court, Florida Southern |
| Order Date: | April 02, 2025 |
