IN THE CIRCUIT COURT OF THE Fwit.ENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA.

CASE NO. 502009CA040800X30030

JEFFREY EPSTEIN,

PlaintiffiCounter-Defendant,

-vs-

SCOTT ROTHSTEIN individually and J. individually,

Defendants/Counter-Plaintiffs.

#### AMENDED RESPONSE TO PLAINTIFF/COU NDANT JEFFREY EPSTEIN'S MOTION TO STRIKE DEFEND TER-PLAINTIFF'S DAMAGES EXPERT WITNESS. DR. BERNA N. AND TO EXCLUDE HIS TES

Counter-Plaintiff, J. by alt through undersigned counsel, hereby files this Response to Plaintiff/Counter-Def t Je y Epstein's Motion to Strike Expert Witness, Dr. Bernard Jansen, and to ExclujdCit ony, and as ground therefore states:

#### LEVANT FACTS

After having fil icious action against Epstein attempts to avoid responsibility b g to exclude expert testimony regarding the massive dissemination of the spurious in his lawsuit against Dr. Bernard Jansen is a tenured full-time profe e College of Information Sciences and Technology at the Pennsylvania State University and is the Director of Information Searching and Learning Laboratory at the college (Report, p.24).1 Dr. Jansen is also the principal scientist at the Qatar Computing Research Institute (Report, p.24). In addition, he has over 20 years of experience in the United States Military dealing with computer science issues (Report, p.76). Dr. Jansen has authored over 250 academic publications focusing in the area of web analytics and related topics (Report, pp.28-39). Most recently, Dr. Jansen was the testifying expert in the highly publicized trial of the spo reporter Erin Andrews's suit against Marriott International, where he was qualified as an o analyze the dissemination of the unauthorized video of Ms. Andrews on the Intern p.77).

Dr. Jansen is highly qualified to render an opinion in this ork that he has performed in this case is entirely within his area of expertise, as • ove and outlined more fully in his curriculum vitae.

Dr. Jansen was retained to analyze the exte IS"e issemination on the Internet of the malicious accusations against raised • Sc 's lawsuit (Depo, pp. 6-102, 18, Report; pp.3-4). Dr. Jansen limited his work to ' de ormation from the date Epstein's lawsuit was filed until the day of his report 2017 (Report, p.5). During that time, the primary allegations contained exclusiv stein's suit, i.e. that was involved in Rothstein's criminal conduct, has bee ed in 74 online media sites in 104 separate stories or articles with a combined 9,669 dail visitors (Depo. p.16; Report, p.5). As explained in detail in his report and again in • osition, Dr. Jansen conducted his web analytic work using the most reliable and co ve approach in the industry (Depo. pp.71-81).

<sup>1</sup> This is a reference to Dr. Jansen's report, dated October 20, 2017, which was attached as Exhibit H to Epstein's Motion to Strike. His curriculum vitae was submitted as an exhibit to his deposition on December 1, 2017 (Depo. pp. 4-5)

<sup>2</sup> This is a reference to the transcript of Dr. Jansen's deposition, taken on December 1, 2017, which was attached as Exhibit E to Epstein's Motion to Strike.

Dr. Jansen explained that it is not possible to look at the traffic to a page for a certain day or to view the readerships of a specific article (Depo., pp.48-49). Dr. Jansen therefore determined average daily traffic to a given site over the period of a week or a month (Depo., 48; Report, p.15). These figures are what are used in the industry to determine daily readership of websites (Depo., p.53; Report, p.10).

Dr. Jansen took several measures to ensure his analysis was conservative. ample, he used the lowest number for the unique daily visitor count reported by the eSt is services so that the numbers would not be inflated. His conservative approach a examining only on-line sources and not any print or broadcast media that inc formation in question (Depo. p.74-76). Dr. Jansen also did not include articles for which he was unable to verify the visitor data to confirm the number of use 78-79; Report, p.6). So, out of the S 74 sites that contained articles with the langu ( od lion, he included the traffic of only 58% in his potential daily visitors total beta e s co not validate the traffic numbers for the other 42% (Depo. p.78). He did not inc is for multiple articles published by the same site with different publication da . p.80). He also did not include the counts of those people who may have been sear using a site such as Google and saw the allegations in the search results listing 80).

Addi r. Jansen did not include numbers for any dissemination of Epstein's malici lions beyond that of the actual visitors to the site in question. Thus, he did not count any times the articles were emailed or linked to another story not including the language in question here (Depo., p.79-80; Report, p.6), or any face-to face dissemination (Depo., p.78; Report, p.6).

Finally, as to the conservative aspect of Dr. Jansen's search, he did not include dissemination of Epstein's false allegations against contained in the book Filthy Rich, by James Patterson and John Connolly (Depo., p.76; Report, p.6). This book was an account of the rise and fall (so far) of Jeffrey Epstein and includes the allegations raised by Epstein that was involved in Scott Rothstein's Ponzi scheme.

## LEGAL ARGUMENT

### A. Basic Standards for Admission of Expert Testimony

Section 90.702, Florida Statutes, dealing with the admission o O SA testimony, provides:

If scientific, technical, or other specialized 'mowled understanding the evidence or in determining a fa expert by knowledge, skill, experience, trainin g\\o ,, form of an opinion or otherwise, if: ist the trier of fact in a witness qualified as an non may testify about it in the

- (1) The testimony is based upon su or data;
- (2) The testimony is the produ reli e principles and methods; and
- (3) The witness has appli ciples and methods reliably to the facts of the case.

Here, Epstein argues o ff~aj Dr. Jansen's testimony is not relevant to any fact in issue and will not assist the the tin understanding the evidence or in determining a fact in issue.

#### B. Dr. J stimony is Admissible as it will Assist the Jury in Determining PI mages

A c malicious prosecution is considered a personal tort. Cate v. Oldham, 450 So.2d 224, 227 1984)(citing Bros. Real Estate & Inv. Co. v. = 109 So. 623 (Fla. 1926). "The gravamen of the action is injury to character." Bros., 109 So. at 227 (citing Tidwell v. Witherspoon, 21 Fla. 359, 360-61 (1885)). As Epstein acknowledges (Motion, p.12), damages in a malicious prosecution action include damages to reputation, shame, humiliation, and mental anguish. Bros., 109 So. at 626; Ware v. United States, 971 F. Supp. 1442, 1471 (M.D. Fla.

1997)(recognizing that "injury to ... reputation, shame, humiliation, mental anguish, and hurt feelings flowing from ... prosecution" are all damages resulting from malicious prosecution); see also Tackett Plastics, Inc. v. Bowsmith, Inc., 614 So.2d 30, 31 (Fla. 2d DCA 1993Xrecognizing that harm to reputation, humiliation, embarrassment, and mental suffering are valid damages in malicious prosecution action); Turkey Creek, Inc. v. , 567 So.2d 943, 948 (FI . 1st DCA 1990), approved, 609 So.2d 14 (Fla. 1992)(noting that harm to reputation is a vglldielement of damages for malicious prosecution); City of Coconut Creek v. 47 20, 825 (Fla. 4th DCA 1985Xexplaining that a malicious prosecution action is "a v remedy' to right a harm to reputation).

Many of these elements of damages in malicio (t Ac rio 11) ion claims are the same as elements of damages in defamation claims. See G #4t ,. % o rt Welch, Inc., 418 U.S. 323, 350 (1974); Boyles v. Mid-Florida Television (C Nof v So.2d 627, 636 (Fla. 5th DCA 1983), approved, 467 So. 2d 282 (Fla. 1985); M—7f....e s He d Pub. Co. v. Ane, 423 So.2d 376, 390 (Fla. 3d DCA 1982), approved, 458 So. 2 ' a. 1984); see also Fla. Stan. Jury Instruct. 405.10 (damages for defamation incl a inj to reputation, shame, humiliation, mental anguish, and hurt feelings). Thus, the some elements of damages raised here and the evidence used to prove such dama y the same as in a defamation case, does not support Epstein's' claim that s d ming an impermissible defamation claim within this malicious prosecution action.

In a malicious prosecution case, the Oklahoma Supreme Court stated (Browning v. Ray, 440 P.2d 721, 724 (Okla. 1968)):

[G]encral damages for injury to reputation and emotional or mental distress, the precise amount of which by their very nature is almost impossible of proof and which damages almost certainly result if one has been maliciously prosecuted, may be awarded if plaintiff has established the other essential elements of an action for malicious prosecution. We recognize that the amount of such damages for injury to reputation and for distress will be determined, at least in major part, by the gravity of the offense charged and the publicity given the prosecution of plaintiff.

See also Shweitzer v. Mg 456 P.2d 882, 884 (N.M. App. 1968) (citing Browning for same principle).

Additionally, courts have evaluated the propriety of damage awards ' malicious prosecution cases based, in part, on the amount of publicity attendant to the ch ges. See Colegrove v. City of Corning, 388 N.Y. S.2d 964 (N.Y.A.D. 1976) ( for malicious prosecution and false arrest were not excessive based on, inter e "attendant adverse publicity" and its effect on the plaintiff, his wife and his chit: 695 S.W. 2d 189 (Tenn. App. 1985) (damages awarded in =dial lion case not excessive because, inter alia, "the widespread publicity" of the char (ts i . 0 Brian, 79 A.2d 769 (Conn. 1951) (damages awarded in malicious prosecut not excessive based on the "widespread publicity" attendant of litigation). In ure to document the publicity associated with the wrongful litigation can be reli or to limit a plaintiff's damages. See v. Soileau, 448 So.2d 1268 (La. 1984).

Epstein ro hast et a single case holding that the extent of the publicity associated with wrongful l" i) tio ' not a proper element of damages in a malicious prosecution case.

t to Dr. Jansen, it is clear he is an expert on the dissemination of information on the intclpet and he has used his expertise to track the dissemination of the injurious content of Epstein's wrongfully filed lawsuit. As his testimony clearly demonstrated, he focused on the subject matter of the false allegations that was involved in the criminal activity of Rothstein and the underlying Ponzi scheme. Tracking the dissemination of that information, which

emanated from the wrongful lawsuit filed by Epstein, requires an expert given the technical complexities of tracking data on the intemet.

The information provided by Dr. Jansen is certainly outside the purview of the typical juror. Evidence requiring technical computer knowledge beyond the expertise of a typical lay juror as to an issue in the case is generally admissible. See Marten Transp., Ltd. v. Platffbrm A rt., Inc.. 184 F. Supp. 3d 1006, 1010 (D. Kan. 2016) (holding that testimony of computer pant with experience in computer forensics and data recovery offered expertise bey f the typical lay juror concerning search techniques, including the use of intemet itv ould be helpful to a jury); Khoday v. Symantec Corp., 93 F. Supp. 3d 1067, 1073 15), as amended (Apr. 15, 2015)(holding that testimony of web archive mana ible because his specialized knowledge of the website archiving and retrieval •uld offer assistance to the jury in understanding the issues in the case).

Epstein argues that Dr. Jansen's a ( Sontiill not help the trier of fact because he did not testify whether the malicious sui it inst by Epstein caused shame, humiliation, mental anguish, alp nu¢ eelings (Motion, p.14). This argument is misplaced. All relevant evidence is adm §90.402. Evidence is relevant if it tends to prove or disprove a material fact. §9 , Dr. Jansen's testimony is relevant to the issue of damages suffered as a result of 's malicious prosecution of because the extent of the dissemination of the fdt; \\HI I ems made by Epstein bears directly on how much "shame, humiliation, and mental anguish" has suffered.

Dr. Jansen testified at his deposition that the allegations raised in Epstein's suit against (that he was a participant in Scott Rothstein's Ponzi scheme) were disseminated on 74 media sites in 104 different articles. Based upon conservative figures, Dr. Jansen opined that those articles reached at least 9,665,542 people. This testimony establishes the scope of the dissemination of the false and malicious accusations raised against in Epstein's suit. That testimony is without a doubt relevant as to whether and to what degree suffered damages such as harm to reputation, humiliation, and mental anguish.

Dr. Jansen is not attempting to be an expert on monetizing Plaintiff's intangible losses, nor on the causation of Plaintiff's intangible damages. And he does not need to be an on those etermination of the amount of intangible damages in personal injury tort actin t liarly within the province of the jury." Bould v. Touchette, 349 So.2d 1181, 11 been specifically applied in Florida to damages in malici c ) tton cases. See McDonald v. Sport, 296 So.2d 648 (Fla. 3d DCA 1974); Maiborn :St c 6 So.2d 720 (Fla. 1952); Schlesser v. Levinson, 406 So.2d 1265 (Fla. 4ih DCA 19 , no expert is authorized to testify as to a methodology for monetizing a plaintiff' ' gi damages. subjects to assist the jury or to present admissible testimony. It is well-settle( 7). That principle has

Epstein claims that Dr. J timony should be excluded because he could not specifically testify that all th on the websites which disseminated the critically false information actually dem people who viewed that subject matter. This fact does not make the testimony an t or helpful to a jury. As discussed above, Dr. Jansen used extremely conservative establishing the numbers of articles, published, websites hosting, and daily uniqu ffic. The testimony is relevant to establish the size of readership of the media sites in question. It will certainly be helpful for the jury to understand the scope and the spread of the sites in determining whether was in fact damaged by dissemination of the relevant articles on the sites. For instance, according to Dr. Jansen, the Palm Beach Daily News has average daily unique traffic of 8,320 visitors and the Miami Herald has average daily traffic of 183,000 visitors.

If the jury were to hear that the articles were disseminated only on the Palm Beach Daily News website, on one occasion, it would certainly evaluate claim differently than if the articles were also disseminated in the Palm Beach Post, New York Daily News (1,785,333 unique daily visitors), and Forbes (3,942,600 daily unique visitors).

Additionally, Epstein's argument runs directly into a fundamental principle of jurisprudence that a defendant cannot benefit from his own wrongdoing. In Bigelo 0 Radio Pictures, 327 U.S. 251, 265 (1946):

The most elementary conceptions of justice and public po e that the wrongdoer shall bear the risk of the uncertainty which his o wro g has created. That principle is an ancient one, and is not restricted to age in antitrust suits. [Citations omitted].

In this case, Epstein maliciously filed a false vJ t plgainst accusing him of criminal conduct, racketeering, and participation • fiCi ss e Ponzi scheme which Epstein knew was receiving nationwide publicity. As is n om the context of his filing the lawsuit, Epstein intended that it would harm E only in his reputation but also in the performance of his profession, more particul h eA ay to pursue civil actions against Epstein on behalf of clients, L.M., E.W., Jane Doe. Epstein obviously knew, and intended, that reputatio oul su er from this lawsuit, and that such harm is difficult to remedy and to quantify. ou not be heard now to argue that evidence, in this case expert testimon ighly qualified witness utilizing established methodologies is incompetent to provide th ury guidance in determining the appropriate damages.

The Florida Supreme Court has stated (McCall v. Sherbill, 68 So.2d 362, 364 (Fla. 1953)):

There are many types of cases in which the damages may be certain, but the amount of damage may be uncertain. However, such uncertainty will not necessarily preclude recovery.

More specifically, the Court has recognized that some degree of speculation is inherent in any jury award for intangible damages (Seaboard Coast Line IL Co. v. McKelvey, 270 So.2d 705, 706 (Fla. 1972)):

Quite obviously some speculation enters into most personal injury actions, but the yardstick does not exist which can measure future humiliation, pain and suffering of the injured with sufficient certainty to divest a jury of exercising its sound discretion to determine the damage award based upon the evidence and me of each case under consideration.

r Dr. Jansen's testimony provides a valuable aid to the jury in assessing the ig! issemination of Epstein's false charges. Thus, while some degree of speculation i iu n any jury award of intangible damages, that is not a basis to exclude his testimo Ac )

Epstein acknowledges that the trial court has ' matters are proper subjects of expert opinion testim/S t 712 (Fla. 4th DCA 1999) (Motion, p.15). Epste ( s lbsin, expertise that he applied in analyzing t (se ation of the gravamen of Epstein's malicious lawsuit. As such, Epstein does no basis to demonstrate that this Court is compelled, prior to trial, to exclude Dr. Jan imony. He has also cited no comparable case in which the tion" in determining which ryant v. Buerman, 739 So.2d 710, dispute that Dr. Jansen has a recognized exclusion of such testim urred. Epstein's criticisms of the limited nature of Dr. Jansen's testimony can be ed ng cross-examination of the expert because they go the weight of the testimony, n sst ility. See Florida Dept of Transp. v. Armadillo Partners, Inc., 849 So.2d 279

The definition of relevant evidence is evidence tending to prove or disprove a material fact. §§90.401, 90.402, Fla. Stat. Here, Dr. Jansen's testimony tends to prove that the false gravamen of Epstein's suit against was widely disseminated throughout the intemet to multiple websites which were viewed by millions of people during the relevant time period. As noted

previously, the extent of the publicity of the scurrilous lawsuit is a relevant consideration in determining the plaintiff's damages. This is true not only for the intangible losses associated with reputational damage, but also the shame and humiliation experienced by the plaintiff in being subjected to that adverse publicity which had no foundation in fact.

Epstein does not cite any particular principle of admissibility that justifies excl ion of Dr. Jansen's testimony. Instead, he criticizes Dr. Jansen for issues he did not address s causation and the monetization of Plaintiff's intangible damages. However, that is f L n levant to this Court's determination. The question is whether Dr. Jansen's testim i ful to the jury in determining the extent of the dissemination of the critical against . Clearly, Dr. Jansen's testimony will damage to the Plaintiff by defining the scope of As its, o charges. That is information that a layperson w c 1 ib of qualified to access and, of course, would m ers of the jury. See Fla.Std.Civ.Jur.lns. 2012. not be permitted to investigate themselv m er of Epstein's lawsuit o the jury in evaluating the dissemination of Epstein's false

a. 1995), the Florida Supreme Court authorized the psychologist, or other qualified professionals on the issue by the death of a survivor's decedent. In that situation, the expert g the loss, yet it was deemed helpful and admissible to assist the jury ngible losses. In Angrand v. Key, 657 So admission of testimony of psy of the pain and suffering obviously was no in evaluatin

v. Hartford South Inc., 724 So.2d 183 (Fla. 51° DCA 1999), the court authorized the admission of testimony of an expert on human perception, regarding how an average alert driver could fail to see two people who ran in front of his truck. In that case, the expert could not specifically testify as to causation of the accident at issue, nor testify as to the particular perceptions or conduct of the defendant. Nonetheless, that testimony was deemed helpful to the jury in evaluating the issues before it.

# C. Epstein's Irrelevant Arguments

This is not a defamation action. Epstein refuses to accept what has already been established in this case: has stated a valid cause of action for malicious prosecutiog. Epstein's repeated claims that once again. Although some of the elements of damages of a malicious propel the same as those that may arise in a defamation claim, that does no is actually improperly pursuing a defamation claim e rejected laim may be e cause of action into a defamation case. Loss of reputation, shame, and humili c ' are td damages caused by the distinct effect of a malicious prosecution just as they t a amation action.

Epstein's Motion quotes from pleadings and i d and suggests that because the word "defamation" or the phrase "defamatory per ' Its, ized at various times, that this must be a defamation action. There is no logic to t n ion. Defamation is a generic term as indicated from the following definition in th ebster dictionary: "the act of communicating false statements about a person that ' reputation of that person." Similarly, "defamatory per se" while certainly having p application in defamation cases, is also generically defined as "a statement that is of itself and is not capable of an innocent meaning." (Black's Law Dictionary 4 0).

he essential elements of a malicious prosecution claim is that the allegations in the wrongfully filed lawsuit against the plaintiff be without merit and that there was an absence of probable cause for alleging them. Obviously, that means that there must be false material contained within the charging document that is disproved (or abandoned) in the underlying case, resulting in a bona fide termination in favor of the plaintiff. As noted above, the damages available in a

malicious prosecution action include the damages to the plaintiff's reputation, and the shame and humiliation caused by the false charges. Thus, false statements are an inherent part of any malicious prosecution case and the impact of those charges and their dissemination are directly linked to the issue of damages.

Epstein contends that a malicious prosecution action focuses on the civil proceeding and not "handpicked allegations," which is irrelevant to Dr. Jansen's testimony. D n's work involved tracking the dissemination of the critical subject matter of Epste• ious lawsuit, i.e. that was involved in the criminal conduct masterm implemented by Rothstein. That cannot be characterized as a "handpicked allega • " b Cher was the gravamen of Epstein's scurrilous lawsuit which damaged ,the Court should ignore that irrelevant argument.

"Slis Stl\\ Epstein's motion makes many argum ob, t, ve no application to the admissibility of Dr. Jansen's testimony. These include t ' s iss with an allegation in Epstein's complaint that knew or should have 1m e three civil actions he filed against Epstein were "weak." Dr. Jansen did not do y s h of the internet regarding the subject matter of the three civil cases brought agains in for sexual molestation and whether they were weak. Thus, this subject has no pla4;idS ' this dfotion which challenges Dr. Jansen's testimony, and therefore it should

lso falsely claims that has admitted to having "no reputational damage" (Motion, p.7), relying primarily on statements that has worked hard subsequent to the filing of Epstein's malicious lawsuit in 2009 to "resurrect" his reputation among those in the local community who know him. That is not the equivalent of an admission of no reputational damages, nor is the fact that is not seeking economic damages for lost income. As noted previously, extensive case law in Florida holds that a plaintiff in a malicious prosecution action is entitled to recover intangible damages for the loss of reputation, as well as the shame and humiliation suffered as a result of the maliciously prosecuted litigation. Moreover, that issue is entirely independent of the admissibility of Dr. Jansen's testimony.

Finally, Epstein resurrects his contention that the litigation privilege applies. However, the Fourth District ruled against him as a matter of law and he conceded in the Florida me Court that its decision in Debrincai v. Fischer, 217 So.3d 68 (Fla. 2017), resolv As a result, that determination is law of the case. Moreover, that issue has n o lationship to the admissibility of Dr. Jansen's testimony.

Epstein has set forth no valid reason fo s lbhes " the expert testimony of Dr. Jansen. The jury should have the benefit of hearing malicious claims Epstein raised a, a s testimony on the mass dissemination of the rds.

For the reasons discuss Epstein's Motion to Strike Expert Witness, Dr. Bernard Jansen, and to Exclude Hl tjmony must be denied.

CAS

I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list, by email, on January 30, 2018.

Jack Scarola, Esq.\
SEARCY DENNEY SCAROLA\
BARNHART & SHIPLEY, P.A.\
2139 Palm Beach Lakes Blvd.\
West Palm Beach, FL 33409\
eservice@searcylaw.com\
jsx@searcylaw.com\
and\
BURLINGTON & ROCKENBACH, P.A.\
Courthouse Commons/Suite 350\
444 West Railroad Avenue\
West Palm Beach, FL 33401\
(561) 721-0400\
Attorneys for Bradley J. [REDACTED]\
pmb@FLAppellateLaw.com\
njs@FLAppellateLaw.com\
kbt@FLAppellateLaw.com

By:/s/ Philip M. Burlington\
PHILIP M. BURLINGTON\
Florida Bar No. 285862

By:/s/ Nichole J. Segal\
NICHOLE J. SEGAL\
Florida Bar No. 41232

/kbt

#### SERVICE LIST

E pstein v. Rothstein,

Case No. 502009CA040800XXXXMB

Scott J. Link, Esq.

Kara B. Rockenbach, Esq.

Angela M. Many, Esq.

LINK & ROCKENBACH, P.A.

1555 Palm Beach Lakes Boulevard, Suite 301

West Palm Beach, Florida 33401

(561) 727-3600

Scott@linkrocklaw.com

ICara@linkrocklaw.com

Troy@linkrocldaw.com

Eservice@linkrocIdaw.com

Tina@linkrocklaw.com

Angela@linkrocklaw.com

Tanya®Iinkrocklaw.com

Attorneys for Jeffrey Epstein

Jack Goldberger, Esq.

ATTERBURY, GOLDBERGER

& WEISS, P.A.

250 S. Australian Ave., Ste.

West Palm Beach, FL 3

(561) 659-8300

jgoldberger@a

smahoney®a

Attorneys for J reyftpstein

ards, Esq.

FE, WEISSING,

, FISTOS & LEHRMAN, P.L.

ir t uderdales, AFLve;3S3te01. 2

4. 524-2820

Mark Nurik, Esq. staff.eftle@pathtojustice.com

LAW OFFICES OF MARC S. NURIK n brad@pathtojustice.com

1 E. Broward Blvd., Ste. 700

Fort Lauderdale, FL 33301

(954) 745-5849

marc@nurildaw.com

Attorneys for Scott Rothstein