Veterinary Expert Witness’ Testimony about Equine Cloning and its Role in the Polo Industry Admitted

This case concerned the unauthorized creation and sale of clones of Plaintiff La Dolfina S.A., LLC and Adolfo Cambiaso’s most important asset: their best and most famous horse, Dolfina Cuartetera (“Cuartetera”). This horse represented the development and foundation of Plaintiffs’ most competitive polo bloodlines and champion horses. Defendant D. Alan Meeker (“Meeker”), Crestview Farm, LLC (“Farm”), and Crestview Genetics, LLC (“Genetics”) (collectively “Defendants”) unilaterally sold, without authorization, clones of Cuartetera to Andrey Borodin, a Russian billionaire in exile and the owner of a polo team, Park Place Polo, that competed directly with Plaintiffs. Defendants had asserted a right to unilaterally make and sell these clones under an agreement from 2009.

The parties’ rights and obligations are governed by a series of agreements, which have been the subject of extensive briefing in this action.

Defendants filed a motion to exclude altogether the testimony of one of Plaintiffs’ proposed retained expert witnesses—Dr. Scott Swerdlin—and two of Plaintiffs’ proposed non-retained expert witnesses—Robert Jornayvaz and Santiago Ballester.

Veterinary Expert Witness

Scott Swerdlin is the president of Palm Beach Equine Clinic, the largest Sport Horse practice in the United States, with over 40 veterinarians and 80 staff and technicians. He has been in equine veterinary practice for more than 40 years.

Sports And Recreation Expert Witnesses

Robert P. Jornayvaz III has been a polo player, polo sponsor, and breeder of high goal polo horses in association with La Dolfina. Jornayvaz has won the U.S. Polo Open twice, won the U.S. Polo Triple Crown in 2017, has been in the Open finals 6 times, and is a 5-time winner of the US Gold Cup, with his team Valiente. Other achievements include winning the Sotogrande Gold Cup and the Spanish Triple Crown, as well as winning the San Jorge Open and the Jockey Club Open (30+ goals). Moreover, he is also a founder of the World Polo League, the only 26-goal polo in the world outside of Argentina. Jornayvaz also has extensive experience in breeding the world’s best polo horses, as well as race horses in both the US and Argentina.

Efficiently evaluate if investing further resources into vetting Robert P. Jornayvaz III is merited based on the findings in our Preliminary Screening Report. 

Santiago Ballester is the current President of the Argentine Association of Polo Pony Breeders (AACCP). He has extensive knowledge and experience concerning the sport of polo, polo horse breeding and cloning.

Discussion by the Court

Dr. Scott Swerdlin

Defendants argued that Swerdlin’s proposed testimony was irrelevant to any material aspect of Plaintiffs’ case, unreliable, and threatened to confuse/mislead jurors.

The Swerdlin Report purported to answer the following seven questions:

1. What are clones?;
2. What is the process of equine cloning?;
3. Why are clones produced in the polo industry?;
4. What are the qualities that make a specific polo pony clone unique and valuable?;
5. What is genetic expression?;
6. Why are pony clones used to produce embryos “F1”?; and
7. What is the accepted business relationship between a cloning service company and their client?

The Court held that Swerdlin’s testimony provided helpful context in the field of equine cloning and its role in the polo industry—areas in which most laypeople lacked any understanding. Moreover, equine cloning and its role in professional polo served as the subject matter underlying the parties’ disputed contractual/business arrangements. As to Swerdlin’s qualifications, because he was an equine veterinarian with more than four decades of experience, the Court found him to be sufficiently qualified to speak on the remaining subjects set forth in his Report.

 Robert Jornayvaz

Plaintiffs offered Robert Jornayvaz as a non-retained expert in the field of polo and polo breeding, identifying the following six topics of testimony as narrowed during the March 12, 2024, hearing: (i) Firstly, horses and their unique genetics were of critical importance to the sport of polo; (ii) Secondly, Cuartetera was unique as one of the best polo horses in the history of the sport and also as the parent of prized clone and non-clone foals, including uniquely, both mares and stallions; (iii) Additionally, unauthorized sales of Cuartetera clones constituted a loss of control of the unique genetics of Cuartetera; (iv) Furthermore, losing control over such genetics would result in irreparable harm; (v) Moreover, sale of clones was distinct from sale of babies of cloned horses; and (vi) Lastly, Cambiaso and La Dolfina stood to suffer damages as detailed in Plaintiffs’ Rule 26(a)(1)(A)(iii) damages disclosure.

Request for wholesale exclusion

Defendants sought wholesale exclusion of Jornayvaz’s testimony, arguing that much of it would have been unhelpful to the trier of fact; Jornayvaz was not qualified to testify on financial matters undergirding his damage-related opinions; his proffered testimony risked prejudicing the jury against Defendants, because Jornayvaz operated as an “unnamed party” or “de facto Plaintiff”; and Jornayvaz’s testimony exceeded the scope of non-retained experts under Fed. R. Civ. P. 26(a)(2)(C), because it was partially based on information he had obtained in the course of his involvement in this litigation.

Denial of request for wholesale exclusion

First, given Jornayvaz’s extensive experience in the specialized field of professional polo and high goal polo horse breeding—both as an athlete and as a businessman in the industry—the Court found that he was qualified to opine on the proposed topics. Second, the Court found that his specialized testimony in the somewhat esoteric field of professional polo would have been helpful to the jury within the meaning of Rule 702. As clarified during the March 12, 2024, hearing, Plaintiffs did not seek monetary damages in any of their claims: only equitable relief. Accordingly, testimony concerning the irreparable harm that allegedly befell Plaintiffs as a result of losing control of their horses’ genetic material would have been helpful to laypersons, along with testimony providing context for the industry underlying the parties’ business relationship.

Third, the Court was unconvinced by Defendants’ claim that Jornayvaz was worthy of exclusion as a de facto “unnamed party” with an interest in the outcome of this litigation. In their briefs and at the hearing, neither party could identify any authority supporting the notion that a proposed expert with a commercially aligned incentive/stake or a preexisting business relationship with a party in a proceeding could not serve as an expert. And lastly, for the reasons stated by Plaintiffs, the Court found that the bases for Jornayvaz’s proffered testimony qualified him as a “hybrid” witness not subject to the expert report requirement of Fed. R. Civ. P. 26(a)(2)(B).

The Court had held that Jornayvaz had formed his opinions both on (a) his multiple years of training and experience in the polo and equine cloning industries and (b) information produced in the course of discovery in this matter.

Moreover, the Court saw no reason to invoke the extraordinary remedy of exclusion under Federal Rule of Evidence 403.

Santiago Ballester

Lastly, Defendants sought to exclude the testimony of Santiago Ballester, the President of the Argentine Association of Polo Pony Breeders (AACCP), among other roles. At the March 12, 2024, hearing, the parties clarified that Plaintiff had withdrawn seven of the ten topics on which Plaintiffs had sought Ballester’s testimony. Following the hearing, the Court had ordered the parties to confer regarding the potential for a stipulation covering the remaining topics, i.e., topics (i)-(iii) in Plaintiffs’ Fifth Amended Rule 26 Disclosures. The Court had reserved ruling on Defendants’ request to exclude Ballester pending the parties’ response to the Court’s forthcoming Order.

Consequently, the parties indicated they had reached an agreement concerning Santiago Ballester. Plaintiffs agreed to call Ballester as a fact witness under FRE 701 on the following three subject areas, as previously narrowed: (i) the uniqueness of the Argentine Polo Pony Breed; (ii) the regulation and control of the breeding of polo ponies including horse pedigree registration; (iii) the registration of Cuartetera and clones of Cuartetera with the AACCP and the Argentine Rural Association. The Court accepted the parties’ arrangement concerning Ballester’s testimony on March 26, 2024.

Held

To sum it up, the Court denied the Defendant’s motion to exclude the testimony of Scott Swerdlin and Robert Jornayvaz. Moreover, the Court accepted the parties’ arrangement, according to which Santiago Ballester will serve as a fact witness, and his testimony will be narrowed.

Key Takeaways:

1. Dr. Scott Swerdlin’s Testimony:
   • Defendants contested the relevance and reliability of Swerdlin’s proposed testimony.
   • The Swerdlin Report aimed to address critical questions regarding equine cloning and its significance in the polo industry.
   • The Court deemed Swerdlin’s testimony valuable for providing context in a specialized field where laypeople typically lack understanding.
   • Despite challenges, Swerdlin’s extensive experience as an equine veterinarian qualified him to speak on the relevant subjects.
2. Robert Jornayvaz’s Testimony:
   • Plaintiffs presented Jornayvaz as an expert in polo and polo breeding, focusing on six narrowed topics.
   • Defendants sought to exclude Jornayvaz’s testimony, arguing it would be unhelpful, improperly influenced, and beyond the scope of expert testimony rules.
   • However, the Court disagreed with Defendants, acknowledging Jornayvaz’s expertise, the relevance of his testimony, and the lack of grounds for his exclusion.
   • Therefore, Jornayvaz’s opinions were considered valid, derived from his extensive experience.

Case Details:

Case Caption:	La Dolfina S.A. Llc Et Al V. Meeker Et Al
Docket Number:	9:20cv82231
Citation:	United States District Court, Florida Southern
Order Date:	March 12, 2024