# Roe v. Cypress-Fairbanks Independent School District

> District Court, S.D. Texas · June 13, 2025

URL: https://www.frixlaw.com/law-library/cases/11071258

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** June 13, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
-3-
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.
-8-
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).

-11-

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.
-12-
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.
-14-
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.
-15-

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.
-16-

§ 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.
-19-
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).
-20-
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.
-30-
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.
-31-
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.
-34-
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.
-35-
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.
-39-
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11071258. Public record. Not legal advice.