Roe v. Cypress-Fairbanks Independent School District

FOR THE SOUTHERN DISTRICT OF TEXAS June 13, 2025

HOUSTON DIVISION Nathan Ochsner, Clerk

JANE ROE, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. H-18-2850

§

CYPRESS-FAIRBANKS INDEPENDENT §

SCHOOL DISTRICT, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff, Jane Roe, is pursuing a claim against defendant,

Cypress-Fairbanks Independent School District (“CFISD”) for

violating Title IX of the Education Act of 1972 (“Title IX”), 20

U.S.C. § 1681 et seq., by responding with deliberate indifference

to a sexual assault that she suffered on a CFISD campus at the

hands of a fellow student in March of 2014 during her freshman year

of high school.1 Pending before the court is Defendant’s Motion

for Summary Judgment on Damages (“Defendant’s MSJ”) (Docket Entry

No. 96), in which CFISD moves the court for judgment as a matter of

law and asks the court to strike testimony of Roe’s damage experts.

Also pending are Plaintiff Jane Roe’s Motion to Strike Expert

Designation and Exclude Testimony of Mia M. Martin and Request for

Sanctions (“Plaintiff’s Motion to Strike and Exclude Martin

Testimony”) (Docket Entry No. 100), and Plaintiff Jane Roe’s Motion

1Plaintiff’s First Amended Complaint and Jury Demand

(“Plaintiff’s First Amended Complaint”), Docket Entry No. 84,

pp. 9-19 ¶¶ 36-95. Page numbers for docket entries refer to the

pagination inserted at the top of the page by the court’s

Flores (“Plaintiff’s Motion to Strike and Exclude Flores

Testimony”) (Docket Entry No. 102). For the reasons stated below

Defendant’s MSJ will be granted with respect to Roe’s claims for

loss of past and future earnings and earning capacity, and for the

cost of a college education, and denied with respect to Roe’s

claims for loss of educational opportunities and benefits.

Defendant’s request to strike the testimony of Roe’s damage experts

will be granted in part and denied in part, Plaintiff’s motion to

strike the designation and exclude the testimony of Virginia V.

Flores will be granted, Plaintiff’s motion to strike the

designation and exclude the testimony of Mia M. Martin will be

granted, and Plaintiff’s motion for sanctions will be denied.

I. Background

This case arises from Roe’s brutal sexual assault by a fellow

student at Cypress Creek High School in March of 2014 when she was

a fourteen year old freshman. Roe alleges that after reporting the

assault, the severity of her injuries, and subsequent harassment to

CFISD, CFISD failed to investigate or to provide her support, and

ultimately recommended that she drop out of school, which she did

in March of 2016 as a seventeen year old junior.2 In November of

2The factual background has been recounted in previously

issued Memorandum Opinions and Orders. See e.g., Docket Entry

Nos. 55, pp. 3-14, and 83, pp. 2-10. See also Defendant’s MSJ,

Docket Entry No. 96, pp. 11-15, and Plaintiff Jane Roe’s Response

(continued...)

2016 Roe obtained her general education development (GED)

certificate.3

After achieving the age of majority, Roe filed her Original

Complaint alleging that CFISD violated Title IX by (1) maintaining

policies, practices, and customs that created a heightened risk she

would be assaulted; (2) exhibiting deliberate indifference to

warning signs that she would be assaulted; and (3) responding to

her sexual assault with deliberate indifference.4 Roe also asserted

a claim under 42 U.S.C. § 1983 alleging that CFISD violated the

Equal Protection Clause of the Fourteenth Amendment by maintaining

policies that exhibited deliberate indifference to her

constitutional rights.5 Roe sought inter alia declaratory relief

and compensatory damages for emotional distress.6 The court

2(...continued)

in Opposition to Defendant’s Motion for Summary Judgment

(“Plaintiff’s Response to Defendant’s MSJ”), Docket Entry No. 98,

pp. 6-11.

3See Employability Assessment prepared by Reg L. Gibbs (“Gibbs

Report”), p. 4, Exhibit J to Defendant’s MSJ, Docket Entry No. 97-

10, p. 7 (citing Testimony of Roe, September 23, 2019, p. 8:10-13).

The Gibbs Report also appears in the record as Exhibit B to

Plaintiff’s Response to Defendant’s MSJ, Docket Entry No. 99,

pp. 21-42. For the sake of consistency all references to this

report will be to the first-filed version, Docket Entry No. 97-10.

4Plaintiff’s Complaint, Docket Entry No. 1, pp. 16-18 ¶¶ 81-

92.

5Id. at 18-21 ¶¶ 93-106.

6Id. at 21 ¶ 107.

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granted CFISD’s motion to dismiss Roe’s § 1983 claim,7 and later

granted CFISD’s motion for summary judgment on her Title IX

claims.8 Roe did not appeal the dismissal of her § 1983 claim, but

did appeal the grant of summary judgment on her Title IX claims.

The Fifth Circuit affirmed the court’s grant of summary judgment on

Roe’s pre-assault Title IX claims but reversed summary judgment on

her post-assault Title IX claim, holding that

[t]he totality of the circumstances, including the

District’s lack of investigation, awareness of the pre-

assault abusive relationship, failure to prevent in-

person and cyber-attacks from Doe and other students

post-assault, and failure to provide any academic or

other appropriate support to Roe, culminated in exactly

what Title IX is designed to prevent — the tragedy of Roe

dropping out of school. A reasonable jury could find

that the District violated Title IX based on these facts.

Roe v. Cypress-Fairbanks Independent School District, 53 F.4th 334,

342 (5th Cir. 2022), cert. denied, 144 S. Ct. 1002 (2024).

While Roe’s appeal was pending before the Fifth Circuit, the

Supreme Court issued an opinion holding that emotional distress

damages are not available under federal Spending Clause statutes.

See Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562,

1576 (2022). Following the Supreme Court’s denial of CFISD’s

Petition for Writ of Certiorari, the parties submitted a Joint

Status Report (Docket Entry No. 74), agreeing that Cummings

impacted the damages available to Roe under Title IX but

7Memorandum Opinion and Order, Docket Entry No. 14.

8Amended Memorandum Opinion and Order, Docket Entry No. 55.

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disagreeing about the extent of the impact. On May 16, 2024, the

court entered a Memorandum Opinion and Order (Docket Entry No. 83),

granting Roe’s Motion for Leave to Amend Plaintiff’s Original

Complaint Regarding Damages (Docket Entry No. 78), and setting

deadlines for the parties to designate new damage experts and

produce reports, and for CFISD to file a motion for summary

judgment on damages or advise the court that it would not file such

a motion. On May 21, 2024, Roe filed Plaintiff’s First Amended

Complaint and Jury Demand (Docket Entry No. 84). On June 4, 2024,

CFISD filed Defendant’s Motion for Partial Dismissal of Roe’s First

Amended Complaint (Docket Entry No. 85). On July 8, 2024, Roe

designated damages experts.9 On August 9, 2024, the court entered

a Memorandum Opinion and Order (Docket Entry No. 92) denying as

moot CFISD’s motion to partially dismiss Roe’s amended complaint,

and holding that the only live claim in this action is Roe’s Title

IX claim for post-assault deliberate indifference. On August 23,

2024, the court entered an Order Extending Deadlines Related to

Damages (Docket Entry No. 94), extending the deadlines for CFISD to

designate “any expert of damages” to September 30, 2024, and to

file a summary judgment motion on damages to October 7, 2024. On

September 30, 2024, CFISD designated damages experts,10 and on

October 7, 2024, CFISD filed the pending MSJ.

9Notice of Disclosure under Fed. R. Civ. P. 26(a)(2), Docket

Entry No. 91.

10Defendant’s Certification of Expert Witnesses, Docket Entry

No. 95.

II. CFISD’s Motion for Summary Judgment

Roe’s amended complaint seeks inter alia nominal and

compensatory damages in an amount to be determined at trial.11 In

pertinent part Roe alleges:

82. As a result of Defendant’s actions and inaction

related to dating violence, Roe’s sexual assault,

and as a result of her ongoing harassment by

Perpetrator and his proxies, Roe was deprived of a

multitude of educational opportunities and/or

benefits provided by CFISD, including but not

limited to:

! academic instruction and support

! career and technical education opportunities

! athletics

! extracurricular activities

! counseling and mental health services

! complaint procedures[.]

83. The deprivation of educational opportunities and

benefits Roe suffered caused her economic loss,

including but not limited to costs associated with

remedial education, loss of earnings and diminished

earning capacity.12

A. New Evidence

After Roe filed her First Amended Complaint she engaged three

damages experts to help prove her economic losses: Kimberly

J. Vannest, Ph.D. (“Vannest”), an educator; Reg Gibbs, MS

(“Gibbs”), a vocational rehabilitation expert; and Thomas Roney

11Plaintiff’s First Amended Complaint, Docket Entry No. 84,

p. 23.

12Id. at 17 ¶¶ 82-83.

(“Roney”), an economist.13 Roe engaged Vannest to “identify[] the

relevant ‘educational opportunities’ and ‘benefits’ required to be

provided to students in Texas public schools generally and CFISD

specifically and to explain the impact on students who are deprived

of these opportunities and benefits.”14 Vannest concluded that

CFISD knew from repeated indicators that Jane Roe was in

need of help and at risk for harm. CFISD had multiple

federal, state, and local policies in place to address

these needs and prevent harm. CFISD did not implement

these required safety-relevant and gender-discrimination

policies. As a result, Ms. Roe experienced harm that

prevented access to educational opportunities, services,

and benefits, pushing Ms. Roe out of High School, and

ultimately resulting in Ms. Roe dropping out.15

Roe engaged Gibbs to conduct an employability assessment.16

Absent Roe’s alleged injury, Gibbs “envisioned two scenarios for

how [her] future would have unfolded.”17 In the first scenario, Roe

“would have followed the example of her parents and earned a high

13See Plaintiff’s Expert Disclosures, pp. 1-3, Exhibit A to

Plaintiff’s Motion to Strike and Exclude Martin Testimony, Docket

Entry No. 101, pp. 3-5.

14Expert Opinion of Kimberly J. Vannest, PhD. (“Vannest

Report”), p. 3, Exhibit I to Defendant’s MSJ, Docket Entry No. 97-

9, p. 4. The Vannest Report also appears in the record as

Exhibit A to Plaintiff’s Response to Defendant’s MSJ, Docket Entry

No. 99, pp. 3-15, and as Exhibit D Plaintiff’s Motion to Strike and

Exclude Martin Testimony, Docket Entry No. 101, pp. 33-45. For the

sake of consistency all references to this report will be to the

first-filed version, Docket Entry No. 97-9.

15Id. at 3, Docket Entry No. 97-9, p. 4.

16Gibbs’ Report, p. 1, Docket Entry No. 97-10, p. 4.

17Id. at 11, Docket Entry No. 97-10, p. 14.

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school diploma. She would have made a transition to [the] labor

force, earning an income commensurate with her educational level.”18

In the second scenario, Roe “would have capitalized on her athletic

ability and secured a scholarship in volleyball or softball,

facilitating her earning of either an associate or a baccalaureate

degree from a university. These achievements would have led to

higher earnings than in Scenario One.”19 Gibbs states that

[a]ccording to the U.S. Department of Labor, the average

annual earnings of females aged twenty-five and above

were as follows in 2023:

! Less than a high school diploma: $32,188

! High School diploma: $40,040

! Associate degree: $46,540

! Baccalaureate degree: $68.536[.]20

Gibbs opines that Roe

was deprived of the opportunity to obtain an athletic

scholarship, which has led to a significant alteration in

her educational journey. Without further education, she

faces the prospect of continued work at entry-level jobs

accessible to someone with a GED only for the remainder

of her work life. The consequent wage loss can be

calculated by comparing the amount that she might have

earned with an associate or baccalaureate degree to her

earning potential with a GED only.21

18Id.

19Id.

20Id.

21Id.

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Gibbs also opines that “[s]hould [Roe] decide now to pursue higher

education without a scholarship, she will bear the financial

responsibility for her studies. The cost associated with such a

decision can be estimated using current tuition and fee data from

Texas educational institutions,”22 and that it would now cost Roe

$7,160 to obtain an associate degree from a community college;

$21,200 to obtain an associate degree from a Texas university; or

$42,400 to obtain a baccalaureate degree.23

Roney is a consulting economist. Roe engaged Roney “to

determine the economic damages suffered by [Roe].”24 Based on

Gibbs’ assessment of Roe’s employability, Roney concluded that

“[t]he present value of [Roe’s] past and future loss of earnings is

$120,461.00 if she attains a high school diploma, $529,158.00 if

she earns an associate’s degree, and $1,074,761.00 if she obtains

a bachelor’s degree.”25

22Id.

23Id. at 11-12, Docket Entry No. 97-10, pp. 14-15.

24Assessment of Economic Loss in the Matter of [Jane Roe]

(“Roney Report”), p. 1, Exhibit K to Defendant’s MSJ, Docket Entry

No. 97-11, p. 2. The Roney Report also appears in the record as

Exhibit C to Plaintiff’s Response to Defendant’s MSJ, Docket Entry

No. 99, pp. 44-57. For the sake of consistency all references to

this report will be to the first-filed version, Docket Entry

No. 97-11.

25Id. at 8, Docket Entry No. 97-11, p. 9. See also id. at 10,

Docket Entry No. 97-11, p. 11 (showing calculations).

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B. Applicable Law

Title IX provides in pertinent part that “[n]o person . . .

shall, on the basis of sex, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Although Title IX has no

express remedies, in Cannon v. University of Chicago, 99 S. Ct.

1946, 1952 and 1967 (1979), the Supreme Court held that it

encompasses an implied right of private action. In Franklin v.

Gwinnett County Public Schools, 112 S. Ct. 1028, 1038 (1992), the

Court held that plaintiffs can recover both monetary damages and

equitable relief for intentional violations of Title IX. Because

Title IX invokes Congress’s power to place conditions on the grant

of federal funds provided by the Spending Clause, U.S. Const., Art.

I, § 8, cl. 1, the Court has characterized Title IX and other

Spending Clause statutes as “much in the nature of a contract: in

return for federal funds, the [recipients] agree to comply with

federally imposed conditions.” Davis v. Monroe County Board of

Education, 119 S. Ct. 1661, 1670 (1999). The Court has also held

that “Title IX’s contractual nature has implications for . . . the

scope of available remedies.” Gebser v. Lago Vista Independent

School District, 118 S. Ct. 1989, 1998 (1998). In Barnes v.

Gorman, 122 S. Ct. 2097, 2101-02 (2002), the Court observed — in

the context of another Spending Clause statute — that “[o]ne of

these implications . . . is that a remedy is ‘appropriate relief’

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. .. only if the funding recipient is on notice that, by accepting

federal funding, it exposes itself to liability of that nature.”

In Cummings, 142 S. Ct. at 1569-71, the Court held that remedies

available for violation of two other Spending Clause statutes, i.e.

S 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and

§ 1557 of the Patient Protection and the Affordable Care Act

(“ACA”), 42 U.S.C. § 18116, do not include damages for emotional

distress. Reasoning that a Spending Clause funding recipient is

only subject to “those remedies traditionally available in suits

for breach of contract,” id. at 1571, the Court explained that

because emotional distress damages are not traditionally available

in breach of contract actions, federal funding recipients would not

have clear notice of their potential liability for emotional

damages when they were deciding whether they should accept federal

dollars. Id. at 1572-74 (citations omitted). The Court

instructed lower courts deciding whether a specific category of

damages is available under a Spending Clause statute, to consider

whether “a prospective funding recipient, at the time it ‘engaged

in the process of deciding whether [to] accept’ federal dollars,

[would] have been aware that it would face such liability?” Id. at

1570-71. District courts in this circuit apply Cummings to Title

IX claims. See e.g., McGowan v. Southern Methodist University, 715

F. Supp. 3d 937, 955 (N.D. Tex. 2024); Doe v. University of

Mississippi, No. 3:18-cv-138-DJP-ASH, 2024 WL 3011133, at *3 (S.D.

Miss. June 14, 2024).

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C. Application of the Law to the New Facts

Asserting that “the only economic damages that Roe has

disclosed (or attempted to prove) are highly speculative losses

associated with her claimed inability to obtain a college

scholarship, and her past and future earning capacity,”26 CFISD

argues that it is entitled to summary judgment on Roe’s damage

claims because “the resulting economic damages she claims to have

suffered cannot be recovered as a matter of law.”27 Relying

primarily on B.R. v. F.C.S.B., 718 F. Supp. 3d 504 (E.D. Va. 2024),

University of Mississippi, 2024 WL 3011133, and Doe v. Fairfax

County School Board, No. 1:18-cv-614, 2023 WL 424265 (E.D. Va.

January 25, 2023), CFISD argues that

[t]he claim that Roe would have obtained a full athletic

scholarship, simply because she participated in athletics

as a freshman in high school, is too speculative and

attenuated to survive summary judgment, and Roe also

cannot demonstrate that the District’s response to the

alleged assault proximately caused this alleged injury.28

CFISD argues that “Roe’s claims for loss of past and future

earnings and diminished earning capacity are too speculative and

attenuated to justify relief, and Roe lacks any evidence of but-for

causation.”29 Acknowledging that Roe is “seeking compensatory

damages, declaratory relief, and nominal damages,” CFISD moves the

26Defendant’s MSJ, Docket Entry No. 96, p. 6.

27Id.

28Id. at 22.

29Id. at 27.

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court for judgment as a matter of law on all of Roe’s damage claims

arguing that “Roe is not entitled to present either damages theory

to a jury.”30

Quoting Davis, 119 S. Ct. at 1675, for stating that “students

must not be denied access to educational benefits and opportunities

on the basis of gender,” Roe responds she has alleged that she “was

deprived of a multitude of educational opportunities and benefits

provided by CFISD,”31 on which her education expert, Vannest

elaborated.32 Citing Montgomery v. District of Columbia,

No. 18-1928 (JDB), 2022 WL 1618741, at *25 (D.D.C. May 23, 2022),

Roe argues that post-Cummings, courts “have analogized ‘loss of

opportunity’ to ‘benefit of the bargain,’” and have recognized that

“[q]uantifying the value of loss of opportunity is a task more

appropriately performed by a jury after trial than by a court on

summary judgment.”33 Roe also argues that she “may recover damages

that are consequences of or result from the lost educational

opportunities and benefits,” and that “[l]oss of earning capacity

is one of those consequences.”34

30Id. at 30.

31Plaintiff’s Response to Defendant’s MSJ, Docket Entry No. 98,

pp. 13-14.

32Id. at 14-17 (citing Vannest Report, pp. 9-13, Docket Entry

No. 97-9, pp. 10-14).

33Id. at 18.

34Id. at 19.

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1. CFISD Is Not Entitled to Summary Judgment on Roe’s Claims

for Nominal and Compensatory Damages for Loss of

Educational Opportunities and Benefits

Asserting “[t]he claim that Roe would have obtained a full

athletic scholarship, simply because she participated in athletics

as a freshman in high school, is too speculative and attenuated to

survive summary judgment,”35 CFISD argues that “[e]ven outside the

context of Title IX, courts routinely reject assertions like Roe’s

because they are too speculative to justify relief.”36 The problem

with this argument is that although the Gibbs Report contains an

estimation of the current cost of a higher education without an

athletic scholarship,37 Roe is neither claiming that she would have

obtained a full athletic scholarship nor seeking damages for loss

of an athletic scholarship; Roe is seeking damages for loss of

educational opportunities and benefits, and loss of past and future

earnings and earning potential.38 Although the lost educational

opportunities and benefits for which Roe seeks damages include an

opportunity to participate in high school athletics and compete for

an athletic scholarship, in her motion to strike the designation

and exclude the testimony of CFISD’s Athletic Director, Virginia

35Defendant’s MSJ, Docket Entry No. 96, p. 22.

36Id. at 23.

37Gibbs’ Report, pp. 11-12, Docket Entry No. 97-10, pp. 14-15.

38Plaintiff’s First Amended Complaint, Docket Entry No. 84,

p. 17 ¶¶ 82-83; Plaintiff’s Response to Defendant’s MSJ, Docket

Entry No. 98, pp. 13-18.

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Flores, Roe argues that CFISD “offers this expert for no

understandable purpose [because t]he general difficulty in

obtaining an athletic scholarship is in no way relevant to [her]

damage claims.”*’? Roe explains that she

does not claim anywhere she would have received a

scholarship to play college sports if the assault had not

occurred. Roe does not claim anywhere she would have

even chosen to play college sports. Roe has only ever

claimed she missed out on the chance to continue her

participation in athletics and the opportunity to compete

for a scholarship.*°

Roe does not argue and her experts do not opine that she was

likely to have obtained an athletic scholarship, and CFISD is not

seeking summary judgment on Roe’s claim for lost educational

opportunities and benefits. Quoting Fairfax County School Board,

2023 WL 424265, at *5, Roe asserts that “[l]lost educational

opportunities lie at the heart of the Title IX private right of

action cases.”*' Citing University of Mississippi, 2024 WL 3011133,

at *4-*5, and McGowan, 715 F. Supp. 3d at 954, Roe argues that

“courts in the Fifth Circuit[] consistently recognize that

compensatory damages arising from lost educational opportunities

and benefits remain available for violations of Title IX [post-

Cummings].”** Quoting Fairfax County School Board, 2023 WL 424265,

*Plaintiff’s Motion to Strike and Exclude Flores Testimony,

Docket Entry No. 102, p. 5.

“Td.

“'Plaintiff’s Response to Defendant’s MSJ, Docket Entry No. 98,

p. 13.

“Td. at 14.

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at *5, Roe argues that “compensatory damages that are not based on

specific monetary harm but stem directly from lost opportunities

suffered as a result of discrimination can nonetheless serve as a

basis for damages in private right of action cases based on

Spending Clause statutes.”*

In University of Mississippi, 2024 WL 3011133, at *4, the

court denied the defendant’s motion for summary judgment on the

plaintiff’s claim for lost educational opportunities and benefits

explaining that

Title IX protects these very interests, so contract

damages were foreseeable based on lost educational

opportunities. And while reasonable certainty is

required, juries routinely make equally difficult

findings in other contexts, like quantifying monetary

damages for sexual harassment under Title IX.

2024 WL 3011133, at *5. In McGowan the court observed that

“Lo]ther district courts have found that compensatory damages for

loss of educational opportunities and benefits remain available for

violations of Spending Clause statutes post-Cummings,” 715 F. Supp.

3d at 955, and rejected the defendant’s argument that “compensatory

damages for loss of educational opportunities and benefits are

precluded as a matter of law.” Id. at 956. Courts in other

circuits have reached similar conclusions. In support of its

holding the University of Mississippi court quoted Fairfax County

School Board for stating that

faJlthough it is true that principles of contract law

place the burden on the plaintiff to prove damages with

reasonable certainty, Restatement (Second) of Contracts

“Td. at 13.

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§ 352 cmt. a (1981), compensatory damages that are not

based upon specific monetary harm but stem directly from

lost opportunities suffered as a result of discrimination

can nonetheless serve as a basis for damages in private

right of action cases based on Spending Clause statutes.

2024 WL 3011133, at *4 (quoting Fairfax County School Board, 2023

WL 424265, at *4). See also A.T. v. Oley Valley School District,

No. 17-4983, 2023 WL 1453143 at *4 (E.D. Pa. February 1, 2023)

(denying summary judgment on the plaintiff’s Title IX claims for

inter alia “lost opportunity”). Courts addressing claims brought

under other statutes subject to the Spending Act post-Cummings have

similarly held that plaintiffs may recover damages for lost

opportunities. See Chaitram v. Penn Medicine-Princeton Medical

Center, No. 21-17583 (MAS) (TJB), 2022 WL 16821692, at *2 (D.N.J.

November 68, 2022) (holding in a case brought under the

Rehabilitation Act and the ACA for inter alia “loss of opportunity”

that “Cummings does not foreclose compensatory damages under an

expectation-interest theory”); Montgomery v. District of Columbia,

No. 18-1928 (JDB), 2022 WL 1618741 at *25 (D.D.C. May 23, 2022)

(holding in a case brought under the Americans with Disabilities

Act that “while [the plaintiff] cannot recover either emotional

distress or reputation damages in light of Cummings, he may be able

to recover some small amount of damages to compensate him for the

opportunity he lost when he was denied the ability to meaningfully

access and participate in his [police] interrogations”).

On this record and in light of the Fifth Circuit’s order of

remand, whether CFISD deprived Roe of educational opportunities and

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compensate her for that loss are fact issues for the jury. See

Fairfax County School Board, 2023 WL 424265, at *5 (“This Court

finds that . . . loss[] of educational opportunities remain

recoverable post-Cummings and that it would be premature at this

time to preclude Plaintiff from presenting evidence related to

compensatory damages for lost educational opportunities and

benefits.”). See also id. at n. 2 (“[A]t least one other court has

instructed a jury [that] they may award [nominal or symbolic]

damages where the actual damages ‘have no monetary value.’ . . .

Cf. Restatement (Second) of Contracts § 346(2) (Am. L. Inst. May

2022 Update)(permitting award of nominal damages ‘[i]f the breach

caused no loss or if the amount of the loss is not proved’).”).

Since, however, the allegations in Roe’s First Amended Complaint

list educational opportunities and benefits of CFISD high school

students,44 the Vannest Report elaborates on those educational

opportunities and benefits,45 and Roe asserts that she does not

claim that she would have received a scholarship or that she would

even have chosen to play college sports,46 the educational

opportunities and benefits at issue in this case are those afforded

to CFISD high school students during the years that Roe would have

44Plaintiff’s First Amended Complaint, Docket Entry No. 84,

p. 17 ¶¶ 82-83.

45Vannest Report, pp. 9-13, Docket Entry No. 97-9, pp. 10-14.

46Plaintiff’s Motion to Strike and Exclude Flores Testimony,

Docket Entry No. 102, pp. 5-6.

attended had CFISD not allegedly responded to her assault with

deliberate indifference. The educational opportunities and

benefits at issue in this case do not include loss of an athletic

scholarship or consequences stemming therefrom. Therefore, CFISD’s

request to bar expert testimony regarding Roe’s loss of a potential

athletic scholarship and the costs of a post-secondary education

will be granted.

2. CFISD Is Entitled to Summary Judgment on Roe’s Damage

Claims for Loss of Past and Future Earnings and

Diminished Earning Capacity

Citing the reports and expected testimony of Roe’s experts,

Gibbs and Roney, CFISD argues that “Roe’s claim for loss of past

and future earnings and diminished earning capacity are too

speculative and attenuated to justify relief, and that Roe lacks

evidence of but-for causation [for such damages].”47 Relying

primarily on B.R., 718 F. Supp. 3d at 504, University of

Mississippi, 2024 WL 3011133, and Fairfax County School Board, 2023

WL 424265, CFISD moves the court for summary judgment on these

claims and asks the court to preclude Roe from presenting evidence

or argument in support of recovery for these types of damages.48

47Defendant’s MSJ, Docket Entry No. 96, p. 27.

48Id. at 27-30.

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Asserting she “may recover damages that are consequences of or

result from [her] lost educational opportunities and benefits,”49

and citing the Gibbs and Roney reports Roe responds that

[m]any of the outcomes Dr. Vannest describes are not

susceptible to precise measurement and must necessarily

be left to the jury’s discretion. However, some of the

consequences are measurable — at least to some

ascertainable degree. Loss of earning capacity is one of

those consequences.50

Citing Texas tort cases, Roe argues that “[l]ost earning capacity

is an assessment of the plaintiff’s capacity to earn a livelihood

prior to injury and the extent to which the injury impaired that

capacity.”51 Roe argues that

[b]uilding on Vannest’s report, Gibbs provides potential

earning streams based on several scenarios beginning with

comparing Roe’s earning capacity as a person who obtained

a GED with a person who earned a high school diploma. He

follows with earning capacity projections based [on]

increasing levels of education stopping with an

undergraduate degree. . . Roney, an economist, provides

the present value associated with each of the

scenarios.52

Roe argues that

[a] reasonable jury could conclude that had [she] not

been deprived of the opportunities and benefits CFISD

provided to other students, she would have graduated from

49Plaintiff’s Response to Defendant’s MSJ, Docket Entry No. 98,

p. 19.

50Id.

51Id. at 20.

52Id. at 21 (citing Gibbs Report, pp. 11-12, Docket Entry

No. 97-10, pp. 14-15, and Roney Report, pp. 6-8, Docket Entry

No. 97-11, pp. 7-9).

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high school and chosen any one of the alternative paths

Gibbs outlines. It is within the province of the jury to

determine which path Roe would have been more likely to

choose and it is up to the jury to determine the amount

of damages using the expert’s opinions as a guide.53

In B.R. the plaintiff brought a Title IX action alleging inter

alia that a county school board responded with deliberate

indifference to reports that she had been sexually assaulted,

harassed, threatened, and bullied during her seventh grade year.

The plaintiff sought a variety of damages, including for lost

future earnings and earning capacity, and for past and future

educational expenses. 718 F. Supp. 3d at 507. One of the

plaintiff’s experts opined that she was totally incapable of

working, and based on her receipt of a law-related internship, id.

at 516, they opined that but for the defendant’s actions “she would

have gone after college to obtain a professional degree and . . .

‘thrived as a physician or attorney.’” Id. at 509. The school

board moved for summary judgment arguing that the plaintiff’s claim

for lost future earnings and earning capacity was barred by

Cummings, 142 S. Ct. at 1562, because her generalized claims for

lost earnings were too speculative and attenuated to constitute

traditional contract damages. B.R., 718 F. Supp. 3d at 515-16.

The court granted the school board’s motion explaining that

“consequential damages relating to lost economic opportunities are

not recoverable simply because a plaintiff specifies an

53Id. at 24.

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aspirational position, as they must have been anticipated or

contemplated at the time of contracting.” Id. at 516. In response

to B.R.’s argument that the court’s rejection of her experts’

opinions would immunize school officials from the consequences of

life-altering injuries based on a student’s age when Title IX

violations occur, the court cited Justice Breyer’s dissent in

Cummings, 142 S. Ct. at 1582, for having observed that the majority

opinion would mean that students who suffer discrimination at

school may be denied remedies. The court remained unpersuaded that

Cummings did not apply or that traditional contract principles

would enable B.R. to recover the generalized and speculative

damages that she sought for her alleged lost earnings capacity.

B.R., 718 F. Supp. 3d at 516.

In University of Mississippi a college sophomore suspended for

sexual misconduct filed a Title IX action seeking inter alia

damages for lost opportunities to graduate from college and earn a

professional salary. 2024 WL 3011133, at *1. Based on the

plaintiff’s deposition testimony that when he was suspended he was

“thinking about whether or not [he] wanted to go to law school,”

id. at *7, his expert calculated damages based on average salaries

for lawyers in Nashville, Tennessee. Id. Holding that the

plaintiff’s “thinking” about attending law school did not provide

a sufficient foundation for the expert’s damage calculation, the

court excluded that testimony. Id. The court explained that

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“thinking” about being a lawyer early in your college

career and having good grades in high school is not

enough to create a triable fact. Nothing beyond

speculation suggests that [the plaintiff] would have

applied for law school, been admitted, graduated, passed

the bar, and then found a job practicing law in

Nashville.

Id. The court also excluded expert testimony that had the

plaintiff graduated from college he would have earned $80,000.00

per year for the first two years and $120,000.00 per year

thereafter as unsupported by any facts in evidence. Id. at *8.

In Fairfax County School Board the plaintiff brought Title IX

claims against school administrators alleging that they had acted

with deliberate indifference in response to reports that she had

been sexually harassed by another student. 2023 WL 424265, at *1.

The plaintiff sought damages for inter alia “lost future earnings

and earning capacity.” Id. at *4. The court granted the

defendant’s motion in limine to preclude the plaintiff from

presenting evidence or argument for recovering damages for

diminished earning capacity and lost employment opportunities. Id.

at *7. The court explained that the plaintiff’s

amended complaint inadequately pleads any loss of

identifiable professional opportunities, and Plaintiff

cannot cure this now by presenting evidence or expert

testimony that Plaintiff has since experienced general

difficulty obtaining employment or has generally earned

less than she would have absent Defendant’s alleged Title

IX violations.

Id. at *6. The court based its ruling an the Fourth Circuit’s

holding in Rice v. Community Health Association, 203 F.3d 283, 289

-23-

(4th Cir. 2000), that plaintiffs in breach of contract actions

seeking consequential harm to their profession career must plead

and prove the loss of “‘future identifiable professional

opportunities that would have been available to [them] absent the

breach’ and that were in contemplation of the parties at the time

of their contract.” Fairfax County School Board, 2023 WL 424265,

at *6 (quoting Rice, 203 F.3d at 289).

Quoting B.R., 718 F. Supp. 3d at 516, Roe argues that “[t]hese

cases stand for a simple proposition: ‘Consequential damages

relating to lost economic opportunities are not recoverable simply

because a plaintiff specifies an aspirational position, as they

must have been anticipated or contemplated at the time of

contracting.’” Roe argues that her damage experts

do not base their calculations of her diminished earning

capacity on some “aspirational” position or cursory

curiosity. Rather, the calculations are firmly grounded

in the loss of educational opportunities and benefits as

defined by Dr. Vannest and by CFISD itself in its

policies and on its website. The calculations are based

on outcomes that were undeniably “anticipated or

contemplated” by both Roe and, at least based on its

representations to students and parents, CFISD. Roe and

CFISD anticipated that Roe would graduate from high

school. Based on the programming offered to CFISD

students, Roe anticipated that she would graduate career

and/or college-ready and CFISD contemplated that its

students would seek vocational training or higher

education.54

Apart from educational opportunities and benefits offered to

CFISD high school students, Roe’s First Amended Complaint contains

54Id. at 22-23.

-24-

no allegations of identifiable future educational or employment

opportunities that would have been available to her absent CFISD’s

alleged Title IX violations. Instead, she only generally alleges

that “[t]he deprivation of educational opportunities and benefits

[that she] suffered caused her economic loss, including but not

limited to costs associated with remedial education, loss of

earnings and diminished earning capacity.”55 Neither these

allegations nor the evidence provided by Roe’s experts are

sufficient to support a claim for loss of past and future earnings

and earning capacity based on speculation that Roe might have

received an athletic scholarship, attended college, and attained a

college degree.

Roe argues that “[t]he record contains evidence that [she]

contemplated college both before and after her Title IX injury,”56

but she cites only evidence that her grandparents, with whom she

lived, were Texas certified teachers,57 that her grandfather worked

with her on her softball skills and discussed with her the

possibility of earning an athletic scholarship to attend college,58

55Plaintiff’s First Amended Complaint, Docket Entry No. 84,

p. 17 ¶ 83.

56Plaintiff’s Response to Defendant’s MSJ, Docket Entry No. 98,

p. 23.

57Id. (citing Declaration of Judy Welch, Docket Entry No. 42-3,

p. 2 ¶ 4).

58Id. (citing Declaration of Gale Welch, Docket Entry No. 42-4,

pp. 2-4 ¶¶ 3, 5, and 14).

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and that when asked about damages in her deposition, she answered:

“I want to be able to recover enough to . . . further my education

in college.”59 Based on this evidence a reasonable jury could not

find that before Roe suffered her alleged injury her contemplation

of attending college or earning an athletic scholarship was

anything more than an aspirational position or that but for CFISD’s

alleged Title IX violation she was likely to have received an

athletic scholarship or pursued a college education. The court

concludes therefore that CFISD is entitled to summary judgment on

Roe’s claims for the current cost of attending college based on her

failure to receive an athletic scholarship, and for her alleged

loss of past and future earnings and earnings capacity based on her

failure to receive a college degree as too remote, speculative, and

conjectural to support recovery. See University of Mississippi,

2024 WL 3011133, at *7; B.R., 718 F. Supp. 3d at 516. See also CQ,

Inc. v. TXU Mining Co., L.P., 565 F.3d 268, 278 (5th Cir. 2009)

(“The universal rule for measuring damages for the breach of a

contract is just compensation for the loss or damage actually

sustained . . . A party may not recover damages for breach of

contract if those damages are remote, contingent, speculative or

conjectural.”).

59Id. (citing Oral Deposition of [Jane Roe], Exhibit E to

Plaintiff’s Response to Defendant’s MSJ, p. 124:22-24, Docket Entry

No. 99, p. 77).

-26-

Whether CFISD is entitled to summary judgment on Roe’s claim

for loss of past and future earnings and earning capacity based on

her failure to receive a high school diploma similarly turns on

Roe’s failure to submit supporting evidence sufficient to create a

genuine issue of material fact for trial. Quoting the Vannest

Report for stating that she “did not just ‘drop’ out of Cypress

Creek High School, CFISD ‘pushed’ her out,”60 Roe argues that “[a]

reasonable jury could conclude that had Roe not been deprived of

the opportunities and benefits CFISD provided to other students,

she would have graduated from high school and chosen any one of the

alternative paths Gibbs outlines.”61 But missing from the summary

judgment record is any evidence from which a reasonable jury could

find that but for CFISD’s alleged deliberately indifferent response

to Roe’s assault, she “would have followed the example of her

parents and earned a high school diploma. She would have made a

transition to [the] labor force, earning an income commensurate

with her educational level.”62 The evidence demonstrates that Roe’s

academic and behavioral struggles predate not only CFISD’s alleged

post-assault deliberate indifference, but also her transfer to

CFISD, and the alleged assault, which occurred in March of 2014.

For example:

60Id. at 19 (citing Vannest Report, pp. 11-12, Docket Entry

No. 97-9, pp. 12-13).

61Id. at 24.

62Gibbs’ Report, p. 11, Docket Entry No. 97-10, p. 14.

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Culture the first semester of her sixth grade year.

[Exhibits A-B].63

! Roe failed Math the first semester of her eighth

grade year. [Exhibit C].64

! Roe scored “unsatisfactory” on most of the

standardized tests that she took during her eighth

grade year. [Exhibit D].65

! Roe failed Math, Science, and U.S. History the

second semester of her eighth grade year.

[Exhibit E].66

! Roe failed Biology I and English I the first

semester of her ninth grade year. [Exhibit F].67

! In seventh grade, Roe was disciplined seventeen

times, including for excessive talking, acting out,

being disruptive, vandalism/criminal mischief on

school property, cursing, shouting, refusing to

work, and other nuisance behavior. [Exhibit G].68

! In eighth grade, Roe was disciplined twenty-nine

times, including for refusing to work, excessive

taking, acting out, skipping class, inappropriate

language/gestures, and other nuisance behavior.

[Exhibit G].69

63Defendant’s MSJ, Docket Entry No. 96, p. 17 (citing Roe’s

school record, Exhibits A and B to Defendant’s MSJ, Docket Entry

Nos. 97-1, p. 2, and 97-2, pp. 2-3).

64Id. (citing Roe’s school record, Exhibit C to Defendant’ MSJ,

Docket Entry No. 97-3, p. 2).

65Id. (citing Roe’s school record, Exhibit D to Defendant’ MSJ,

Docket Entry No. 97-4, p. 2).

66Id. (citing Roe’s school record, Exhibit E to Defendant’ MSJ,

Docket Entry No. 97-5, p. 2).

67Id. (citing Roe’s school record, Exhibit F to Defendant’ MSJ,

Docket Entry No. 97-6, p. 2).

68Id. (citing Roe’s school record, Exhibit G to Defendant’ MSJ,

Docket Entry No. 97-7, p. 3).

69Id. (citing Roe’s school record, Exhibit G to Defendant’ MSJ,

Docket Entry Nos. 97-7, pp. 2-3).

poor, Roe argues that “[t]he gist of CFISD’s argument seems to be

that since [she] was not a historically high-achieving student in

the first place, . . . [she] was anticipated to fail and CFISD

contemplated her dropping out.”70 But Roe fails to cite any

evidence from which a reasonable jury could find that but for

CFISD’s alleged response to her assault, she would have graduated

from high school, entered the workforce, and earned more than she

has been able to earn with a GED. While Roe offers Gibbs’

comparison of the earning capacity of a person who obtains a GED to

that of a person who earns a high school diploma,71 and based on

that comparison Roney opines that “[t]he present value of [Roe’s]

past and future loss of earnings is $120,461.00,”72 Gibbs and Roney

both attribute Roe’s failure to obtain a high school diploma to the

assault she suffered in March of 2014, not to CFISD’s response to

that assault.73 Moreover, Roe fails to cite evidence of any

specific employment opportunity that she lost because she has a GED

and not a high school diploma. Roe bears the burden of responding

70Plaintiff’s Response to Defendant’s MSJ, Docket Entry No. 98,

p. 16.

71Gibbs Report, p. 11, Docket Entry No. 97-10, p. 14.

72Roney Report, p. 8, Docket Entry No. 97-11, p. 9.

73See Gibbs Report, p. 11, Docket Entry No. 97-10, p. 14

(“envision[ing] two scenarios for how Roe’s future would have

unfolded, had the assault never occurred”); Roney Report, p. 2,

Docket Entry No. 97-11, p. 3 (“This report assesses the economic

loss to [Jane Roe] and arising from her injury on March 10,

2014.”).

to CFISD’s motion with evidence showing with reasonable certainty

that she suffered the claimed loss of past and future earnings and

earning capacity. Roe’s speculation that but for CFISD’s response

to her assault she would have graduated with a high school diploma,

and the expert reports premised on that speculation, fail to create

a genuine issue of material fact for trial. Nor does Roe cite any

evidence from which a reasonable jury could conclude that when

CFISD accepted federal funding it contemplated being held liable

for the diminished earning capacity of a student who suffers

discrimination in violation of Title IX and then fails to obtain a

high school diploma. See Cummings, 142 S. Ct. at 1571.

The court concludes therefore that CFISD is entitled to

summary judgment on Roe’s claims for loss of past and future

earnings and earnings capacity based on her failure to receive a

high school diploma as too speculative and conjectural to support

recovery. See University of Mississippi, 2024 WL 3011133, at *7;

B.R., 718 F. Supp. 3d at 516; CQ, 565 F.3d at 278. Alternatively,

the court concludes that CFISD is entitled to summary judgment on

Roe’s claims for loss of past and future earnings and earning

capacity because she fails to cite any evidence capable of

establishing that when CFISD accepted federal funding it

contemplated being held liable for the diminished earning capacity

of a student who suffers discrimination in violation of Title IX

and then fails to obtain a high school diploma. See Cummings, 142

S. Ct. at 1571.

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III. Motions to Strike and Exclude

Citing Rule 702 of the Federal Rules of Evidence and Daubert

v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993),74

CFISD seeks to strike as too speculative and attenuated to go to

trial, expert opinions relating to Roe’s “hypothetical ability to

obtain an athletic scholarship,”75 “costs of higher education,”76 and

“diminished earning capacity.”77 Citing the same legal authority,

Roe moves to exclude or limit the opinion testimony of CFISD’s,

retained expert, Mia M. Martin (“Martin”),78 and CFISD’s non-

retained expert, Virginia V. Flores (“Flores”).79

A. Applicable Law

Federal Rule of Evidence 702 allows expert testimony to be

admitted that assists the trier of fact to understand the evidence

or determine a fact in issue. Rule 702 states:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if the proponent

74Defendant’s MSJ, Docket Entry No. 96, pp. 9-10.

75Id. at 25.

76Id. at 27.

77Id. at 30.

78Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 100.

79Plaintiff’s Motion to Strike and Exclude Flores Testimony,

Docket Entry No. 102.

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demonstrates to the court that it is more likely than not

that:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or

data;

(c) the testimony is the product of reliable

principles and methods; and

(d) the expert’s opinion reflects a reliable

application of the principles and methods to the facts of

the case.

When asked to do so, a district court must make a preliminary

determination as to whether the requirements of Rule 702 are

satisfied with respect to a particular expert’s proposed testimony.

See Daubert, 113 S. Ct. at 2796 (citing Fed. R. Evid. 104(a) (“The

court must decide any preliminary question about whether a witness

is qualified, . . . or evidence is admissible.”). Courts act as

gatekeepers of expert testimony “to make certain that an expert,

whether basing testimony upon professional studies or personal

experience, employs in the courtroom the same level of intellectual

rigor that characterizes the practice of an expert in the relevant

field.” Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167, 1176

(1999). To be qualified an expert “witness must have such

knowledge or experience in [his] field or calling as to make it

appear that his opinion or inference will probably aid the trier in

his search for truth.” United States v. Hicks, 389 F.3d 514, 524

(5th Cir. 2004), cert. denied, 126 S. Ct. 1022 (2006). To be

-32-

relevant the reasoning or methodology underlying the expert’s

testimony must be applicable to the facts in issue. See Curtis v.

M&S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999). To be

reliable the reasoning or methodology underlying the expert’s

testimony “must be grounded in the methods and procedures of

science and must be more than unsupported speculation or subjective

belief.” Id. (citing Daubert, 113 S. Ct. at 2795-96). The Daubert

analysis “does not judge the expert’s conclusions themselves.” Guy

v. Crown Equipment Corp., 394 F.3d 320, 325 (5th Cir. 2004).

If a party retains an expert to provide testimony in

anticipation of litigation (a retained testifying expert), the

party must provide a written report that includes the information

specified in Federal Rule of Civil Procedure 26(a) (2) (B). If the

party does not retain the expert in anticipation of litigation (a

non-retained expert), the party need only provide a disclosure

stating the information specified in Federal Rule of Civil

Procedure 26(a) (2) (C).

B. Analysis

1. CFISD’s Request to Strike Roe’s Expert Witness Testimony

Roe designated three experts on damages: Vannest; Gibbs; and

Roney.®*° These experts are expected to testify regarding issues

*°See Plaintiff’s Expert Disclosures, pp. 1-3, Exhibit A to

Plaintiff’s Motion to Strike and Exclude Martin Testimony, Docket

(continued...)

~33-

related to Roe’s damages for loss of educational opportunities and

benefits and for loss of past and future earnings and earning

capacity.81 CFISD argues that expert testimony relating to Roe’s

“hypothetical ability to obtain an athletic scholarship,” “costs of

higher education,” and “diminished earning capacity,” should be

stricken and excluded because it would be highly speculative and

too attenuated to justify relief.82 Because for the reasons stated

in § II.C.1, above, the court has already concluded that the

alleged loss of educational opportunities and benefits at issue in

this case do not include loss of an athletic scholarship or

consequences stemming therefrom, including the cost of a college

education, and because for the reasons stated in § II.C.2, above,

the court has found that CFISD is entitled to summary judgment on

Roe’s claims for loss of past and future earnings and earning

capacity, CFISD’s request to strike the testimony of Roe’s experts

in support of these claims will be granted as not needed to help

the jury decide any fact at issue.

80(...continued)

Entry No. 101, pp. 3-5.

81Id.

82Defendant’s MSJ, Docket Entry No. 96, pp. 25-30.

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2. Roe’s Motions to Strike and Exclude

On September 30, 2024, CFISD designated retained expert,

Martin, an attorney, and non-retained expert, Flores, CFISD’s

current athletic director and former girl’s basketball coach at

Cypress-Woods High School.83 Roe moves to strike the designations

and exclude the testimony of both of these experts (Docket Entry

Nos. 100 and 102).

(a) Flores

CFISD designated Flores as a non-retained expert witness to

provide testimony regarding “the likelihood of any female high

school athlete going to play at the college level,” and “the

likelihood of any female high school athlete getting a scholarship

in any amount to play at the college level.”84 Because for the

reasons stated in § II.C.1, above, the court has already concluded

that the alleged loss of educational opportunities and benefits at

issue in this case do not include loss of an athletic scholarship

or consequences stemming therefrom, including the cost of a college

education, Roe’s motion to strike the designation of non-retained

expert Flores and to exclude her testimony will be granted as not

needed to help the jury decide any fact at issue.

83Defendant’s Certification of Expert Witnesses, Docket Entry

No. 95.

84Defendant’s Designation of Expert Witnesses, p. 2, Exhibit

B to Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 101, p. 9.

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CFISD designated Martin as an expert

expected to testify regarding issues relating to

Plaintiff’s past, present and/or future damages related

to the alleged loss of educational opportunities and

benefits she suffered as a result of what Plaintiff

alleges to be deliberate indifference on the part of

Defendant [CFISD]. Her report is attached . . .85

Seeking to strike Martin’s expert designation and exclude her

report and testimony, Roe argues that CFISD has flouted the court’s

orders by designating a purported liability expert not a damages

expert,86 and that her testimony is inadmissible under Federal Rule

of Evidence 702 because she is not qualified as an expert on Title

IX damages, her testimony is neither relevant nor reliable and

usurps the role of the court and the province of the jury, and her

report fails to apply reliable methodology.87 CFISD responds that

Martin’s designation does not violate the court’s orders regarding

new experts because she is a damages expert in the same way that

Vannest is a damages expert,88 and that Martin is a proper expert

witness under Rule 702.89

85Id. at 1, Docket Entry No. 101, p. 8.

86Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 100, pp. 8-10.

87Id. at 10-20.

88Defendant’s Response to Plaintiff Jane Roe’s Motion to Strike

Expert Designation and Exclude Testimony of Mia M. Martin and

Request for Sanctions (“Defendant’s Response to Plaintiff’s Motion

to Strike and Exclude Martin Testimony”), Docket Entry No. 104,

pp. 4-7.

89Id. at 10-17.

Damages Expert

Asserting that “although CFISD disingenuously designated

Martin as a damages expert, CFISD actually retained Martin to

testify as a liability expert,” and that the “Court reopened

discovery only for the purposes of designating damages experts,”

Roe argues that “[f]or this reason alone, the Court should strike

Martin’s report and exclude her testimony as a witness.”90 Roe’s

argument that Martin was retained as a liability as opposed to a

damages expert is supported by the paragraph in Martin’s report

labeled “Expert Assignment,” which says that

Counsel for Defendant, [CFISD], Thompson and Horton, LLP,

retained me to render an opinion whether CFISD, through

its appropriate administrators and other employees, was

deliberately indifferent in its response to known

information concerning alleged discrimination,

harassment, and retaliation after the alleged sexual

assault of Plaintiff Jane Roe . . . on or about March 14,

2014, while she was a student at CFISD’s Cypress Creek

High School . . .

As explained in more detail below, based on my review,

research, and analysis and my years of professional

experience, it is my opinion that CFISD acted in a

reasonable manner in response to known information

concerning Roe and it was not deliberately indifferent in

its dealing with Roe.91

CFISD responds that “Martin’s designation does not violate the

Court’s order regarding new experts, because . . . Martin is a

damages expert in the same way that . . . Vannest is a damages

90Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 100, p. 10.

91Expert Report Mia M. Martin (“Martin Report”), p. 2, Exhibit

C to Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 101, p. 14.

intertwined,”93 CFISD argues that “Martin’s purpose is to rebut many

of the factual conclusions drawn by Dr. Vannest, which Roe will

presumably rely on to argue to the jury that the District was

deliberately indifferent to her sexual assault.”94 CFISD then cites

several ways in which Martin’s report rebuts Vannest’s conclusions.

For example, citing Vannest’s opinion that “CFISD did not follow

[its] own discipline and complaint policies, depriving Ms. Roe of

the opportunity to participate in the district’s complaint process

or otherwise be heard,”95 CFISD argues Martin opines that “[p]arents

and students also bear responsibility for making themselves aware

of general expectations and information as included in the Student

Handbook and Student Code of Conduct.”96 Other examples of issues

on which CFISD argues Vannest opines and Martin counters include

reasons for the post-assault drop in Roe’s grades and her

withdrawal from school athletics, and CFISD’s failure to offer Roe

certain programs and services following the assault.97 Regarding

the latter, Martin opines that

92Defendant’s Response to Plaintiff’s Motion to Strike and

Exclude Martin Testimony, Docket Entry No. 104, p. 4.

93Id.

94Id. at 14.

95Id. at 7 (quoting Vannest Report, p. 11, Docket Entry No. 97-

9, p. 12).

96Id. at 8 (quoting Martin Report, p. 10, Docket Entry No. 101,

p. 22).

97Id. at 7-10.

Plaintiff’s expert points to various programs that CFISD

failed to offer Doe. [sic] CFISD offered her the same

programs and services available to other students. The

District did not refuse to allow Roe to participate in

any academic program she requested. Even if the District

could have offered her other programs that might have

maximized her educational experience at CFISD, that

possibility is not relevant to Plaintiff’s claims of

unlawful conduct.98

Roe’s First Amended Complaint seeks damages for the loss of

educational opportunities and benefits that she alleges she

suffered because of CFISD’s deliberately indifferent response to

the sexual assault she suffered while a student at a CFISD high

school. Roe retained Vannest, an educational expert, to help the

jury understand the types of educational opportunities and benefits

available to high school students in Texas in general and in CFISD

in particular, and “to explain the impact on students who are

deprived of these opportunities and benefits.”99 In response, CFISD

retained Martin, a school law attorney, who acknowledges that she

was retained to render an opinion as to whether CFISD responded to

Roe’s assault with deliberate indifference, and who offers an

opinion on the ultimate issue of liability, i.e., “that CFISD acted

in a reasonable manner in response to known information concerning

Roe and it was not deliberately indifferent in dealing with Roe.”100

The fact that Martin’s report counters opinions offered in

98Martin Report, pp. 13-14, Docket Entry No. 101, pp. 25-26.

99Vannest Report, p. 3, Docket Entry No. 97-9, p. 4.

100Martin Report, p. 2, Docket Entry No. 101, p. 14.

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Vannest’s report does not overcome the fact that unlike Vannest’s

report, Martin’s report does not address the types of educational

opportunities and benefits available to high school students in

Texas in general and in CFISD in particular, or the impact on

students who are deprived of these opportunities and benefits.

Instead, Martin merely opines that Roe is not entitled to damages

because CFISD was not deliberately indifferent. Because whether

CFISD responded to Roe’s assault with deliberate indifference is

the ultimate issue of liability, CFISD improperly designated Martin

as a damages expert.

(2) Martin’s Testimony Is Inadmissible

Martin is a professional consultant who served as General

Counsel for Richardson Independent School District for 21 years.101

Roe argues that Martin is unqualified to serve as an expert witness

on damages in this case because she has no demonstrated Title IX

expertise, i.e., “no relevant specialized training or experience,

no list of publications, no participation in any relevant

professional associations.”102 Asserting that Martin’s testimony is

neither relevant nor reliable, Roe argues that it is inadmissible

under Federal Rules of Evidence 702 and 704 because instead of

101Id.

102Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 100, p. 12.

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offering opinions that would assist the jury to understand the

evidence or to determine a fact in issue,

[s]he concludes repeatedly that CFISD’s response to Roe’s

sexual assault was “reasonable” [and that] . . . “[e]ven

if its response was not perfect, it was not deliberately

indifferent and did not subject Plaintiff to harassment

or retaliation.” . . . From open to close, Martin’s

“expert report” is nothing more than a legal brief

advancing argument disguised as opinion.103

Asserting that “[w]hether CFISD’s actions were ‘reasonable’ is the

central question in this case the jury must decide,”104 Roe argues

that “[n]either party may retain an expert to tell the jury how to

answer that question.”105 Asserting that “Martin makes no effort to

establish that she has applied any reliable methodology or specific

recognized educational basis in reaching her conclusions,” Roe

argues that Martin “fails to establish any purported standard of

care” and “provides no rationale for how she concludes, in a way

superior to a layman, that CFISD’s actions did not amount to

deliberate indifference.”106

Acknowledging that Martin “does occasionally reach conclusions

that Dr. Vannest’s factual findings . . . failed to . . . rise to

103Id. at 17.

104Id. at 19 (citing Roe, 53 F.4th at 346-48).

105Id.

106Id. at 20.

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the level of deliberate indifference under Title IX,” CFISD

argues that

is not grounds to strike her report, or her status as an

expert witness in this case, altogether. At most, these

are issues that can be addressed during or prior to her

testimony during trial. Striking her as a witness

altogether is an excessive remedy for what is at worst a

very mild problem with her report.108

Relying primarily on Doe v. Wharton Independent School District,

2017 WL 932935 (S.D. Tex. 2017), and Roohbakhsh v. Board of

Trustees of Nebraska State Colleges, 2019 WL 5653448 (D. Neb.

2019), CFISD argues that “courts have . . . decided that there are

roles for even attorneys to play as experts in Title IX cases.”109

In Wharton the court held that competing Title IX experts

would not be allowed to express opinions regarding the ultimate

fact question of whether the defendant school district responded

with deliberate indifference to the plaintiff’s reports of a

teacher’s sexual harassment and assaults, 2017 WL 932935, at *1,

but would be allowed to testify “as to their respective standards

of care for implementing Title IX and anti-discrimination

policies.” Id. at * 2. In Roohbakhsh the court similarly allowed

competing Title IX experts to testify as to the statute’s history

and purpose and as to industry standards of implementation, but

107Defendant’s Response to Plaintiff’s Motion to Strike and

Exclude Martin Testimony, Docket Entry No. 104, p. 12.

108Id.

109Id.

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explaining that “[w]hether the College was ‘deliberately

indifferent’ to the risk of harm to [the plaintiff] is beyond the

proper role of expert witness and would supplant the jury’s role in

evaluating and determining the facts.” 2019 WL 5653448, at * 4.

Missing from CFISD’s response is a cite to any parts of Martin’s

report addressing Title IX’s history and purpose, industry

standards, or applicable standards of care. Moreover, even if

Martin’s report did address these issues, they are issues of

liability, not damages. By arguing that liability and damages are

“inextricably intertwined,”110 and that “Martin’s purpose is to

rebut many of the factual conclusions drawn by Dr. Vannest, which

Roe will presumably rely on to argue to the jury that the District

was deliberately indifferent to her sexual assault,”111 CFISD

essentially admits that Martin’s report and testimony relate to

liability, not damages. But as Roe points out, “[t]he deadline for

designating liability experts has long passed.”112

Because in her report Martin clearly states that she was

retained to render an opinion as to whether CFISD responded to

Roe’s sexual assault with deliberate indifference, because the

110Id. at 4.

111Id. at 14.

112Plaintiff Jane Roe’s Reply to Defendant’s Response to Motion

to Strike Expert Designation and Exclude Testimony of Mia M. Martin

and Request for Sanctions, Docket Entry No. 106, p. 7 (citing

Docket Entry No. 28, setting a deadlines of December 20, 2019, for

Plaintiff’s experts and January 31, 2020 for Defendant’s experts).

reasonable manner and was not deliberately indifferent in response

to Roe’s assault,113 and because CFISD fails to point the court to

opinions in Martin’s report that would assist the jury to

understand the types of educational opportunities and benefits

available to high school students in Texas in general and in CFISD

in particular, or to explain the impact on students who are

deprived of these opportunities and benefits, the court concludes

that even if Martin is qualified to testify as a Title IX expert,

her testimony is inadmissible because it would usurp the role of

the court and the province of the jury. Therefore, Roe’s motion to

strike Martin’s designation and exclude her report and testimony

will be granted.

IV. Roe’s Motion for Sanctions

Roe seeks attorneys fees and expenses incurred in connection

with filing her motion to strike and exclude Martin’s designation

and testimony under Federal Rule of Civil Procedure 16(f)(2) for

failure to obey a scheduling or pretrial order,114 under 28 U.S.C.

§ 1927 for multiplying proceedings unreasonably and vexatiously,115

and under the court’s “inherent power ‘to manage [its] own affairs

113Martin Report, p. 2, Docket Entry No. 101, p. 14.

114Plaintiff’s Motion to Strike and Exclude Martin Testimony,

Docket Entry No. 100, p. 21.

115Id. at 21-22.

cases.’”116 In support of this motion Roe recounts the post-remand

procedural history of the case arguing that CFISD caused

unnecessary delay, burdened her, and wasted the court’s time by

opposing her motion for leave to amend her complaint to clarify

that she seeks more than emotional distress damages that were

disallowed by the Supreme Court in Cummings, 142 S. Ct. at 1576, by

seeking an extension of time to designate damages experts, and

ultimately designating as a damages expert an attorney retained as

a liability expert.117 CFISD responds that sanctions are not

warranted under any theory because none of its actions are

sanctionable.118 Although after careful consideration of Martin’s

report, the applicable law, and the parties’ arguments, the court

has concluded that Martin’s designation as a damages expert should

be stricken and her report and testimony excluded as inadmissible,

the court is not persuaded that sanctions are warranted.

Rule 16(f)(2) allows courts to impose sanctions in the form of

fees and costs “incurred because of any noncompliance with this

rule.” Although the court has concluded that Martin’s designation

should be stricken and her testimony excluded because her opinions

relate to liability not damages, sanctions are not warranted under

Rule 16(f)(2) because CFISD designated Martin as a damages expert

116Id. at 22.

117Id. at 23-26.

118Defendant’s Response to Plaintiff’s Motion to Strike and

Exclude Martin Testimony, Docket Entry No. 104, pp. 14-17.

designating damages experts.

Section 1927 provides that “[a]ny attorney . . . who so

multiplies the proceedings in any case unreasonably and vexatiously

may be required by the court to satisfy personally the excess

costs, expenses, and attorneys’ fees reasonably incurred because of

such conduct.” Because

sanctions under § 1927 must be predicated on actions that

are both “unreasonable” and “vexatious.” . . . [there

must] be evidence of bad faith, improper motive, or

reckless disregard of the duty owed to the court. . .

Because of the punitive nature of § 1927 sanctions,

and in order not to chill legitimate advocacy, the

provision must be strictly construed. . .

Edwards v. General Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998)

(internal citations omitted). In Chambers v. NASCO, Inc., 111

S. Ct. 2123, 2131-38 (1991), the Supreme Court upheld the

imposition of sanctions in the form of attorneys’ fees and

associated costs pursuant to the court’s inherent powers against a

litigant who had repeatedly engaged in bad-faith conduct. The

Court held that when sanctions under applicable rules and statutes

are inadequate, a court may call upon its inherent powers to assess

attorneys’ fees against a party who has “acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.” 111 S. Ct. at

2133 (internal citations omitted). “Because of their very potency,

inherent powers must be exercised with restraint and discretion.”

Id. at 2132. Sanctions are not warranted under 28 U.S.C. § 1927 or

the court’s inherent powers because the court is not persuaded that

with improper motive, or reckless disregard of the duty owed to the

court. Nor is the court persuaded that Martin’s designation

unreasonably and vexatiously multiplied these proceedings.

Therefore, Roe’s motion for sanctions will be denied.

V. Conclusions and Order

For the reasons stated in § II.C.1, above, CFISD’s motion for

summary judgment is DENIED with respect to Roe’s claims for loss of

educational opportunities and benefits afforded to CFISD high

school students during the years that Roe would have attended a

CFISD high school but for CFISD’s alleged deliberately indifferent

response to her sexual assault. For the reasons stated in

§ II.C.2, above, CFISD’s motion for summary judgment is GRANTED

with respect to Roe’s claims for loss of past and future earnings

and earning capacity and for the cost of higher education. For the

reasons stated in § III.B.1, above, CFISD’s request to strike the

testimony of Roe’s expert witnesses is GRANTED with respect to

Roe’s claims for loss of past and future earnings and earning

capacity and for the cost of higher education, and DENIED with

respect to Roe’s claims for loss of educational opportunities and

benefits. Defendant’s Motion for Summary Judgment on Damages,

which includes CFISD’s request to strike the testimony of Roe’s

expert witnesses, Docket Entry No. 96, is therefore GRANTED in PART

and DENIED in PART.

For the reasons stated in § III.B.2(a), above, Plaintiff Jane

Roe’s Motion to Strike Expert Designation and Exclude Testimony of

Virginia V. Flores, Docket Entry No. 102, is GRANTED.

For the reasons stated in § III.B.2(b), above, Plaintiff Jane

Roe’s Motion to Strike Expert Designation and Exclude Testimony of

Mia M. Martin is GRANTED. For the reasons stated in § IV, above,

Plaintiff Jane Roe’s Request for Sanctions is DENIED. Plaintiff

Jane Roe’s Motion to Strike Expert Designation and Exclude

Testimony of Mia M. Martin and Request for Sanctions, Docket Entry

No. 100, is therefore GRANTED in PART and DENIED in PART.

This case will be controlled by the following schedule.

The JOINT PRETRIAL ORDER shall be filed by July 3, 2025.

Plaintiff is responsible for timely filing of the complete joint

pretrial order. No motions in limine will be allowed. The parties

may discuss potential evidentiary issues in pretrial memoranda

filed with the Joint Pretrial Order.

DOCKET CALL will be held on July 11, 2025, at 2:30 p.m. No

instrument filed within three days of Docket Call will be

considered. All issues may be ruled on at Docket Call, and the

case will be set for trial if a complete joint pretrial order has

been filed.

SIGNED at Houston, Texas, on this the ce oe June, 2025.

“SIM LAKE

SENIOR UNITED STATES DISTRICT JUDGE

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