In 2020, DuJuan McCoy-owned Circle City Broadcasting sued Dish Network on the grounds that it refused to offer fair-market compensation for airing WISH-8, Indianapolis’ home for The CW, and MyNetwork sibling WNDY-23. Central to McCoy’s argument is that Dish’s decision was racially motivated. In March 2021, a federal judge ruled the lawsuit could proceed, with a motion to dismiss the suit filed by Dish denied.
Now, an intriguing new twist in the case has emerged, and it sees Dish fail in its attempt to block supplemental expert testimony on behalf of Circle City from a key figure at BIA Advisory Services.
Circle City Broadcasting’s disclosure of expert witness Dr. Mark R. Fratrik, SVP/Chief Economist at BIA, “touched off a squabble,” an Indianapolis Federal judge that will preside over the case explained in an order release this week.
What was DISH Network’s beef? The direct broadcast satellite service provider contends that Fratrik’s opinion “is unsupported, unreliable, and relies upon irrelevant information.” As such, DISH moved to exclude Fratrik’s testimony. Circle City, without conceding any shortcomings, moved to supplement Fratrik’s expert opinion and offered to make Fratrik available for a supplemental deposition.
That’s the focal point of the order regarding the expert witness disclosure from Dr. Fratrik, and as U.S. Magistrate Judge for the Southern District of Indiana Tim Baker sees it, a suppemental deposition is acceptable — but with one important caveat. Circle City will need to reimburse DISH for any resulting “reasonable fees and costs,” and by modifying case management deadlines. “[T]ime reasonably spent preparing for and deposing Fratrik a second time, as well as court reporter fees associated with a second deposition, are expenses that DISH should not have to incur,” the judge ruled.
And, given that this case is not set for trial until May 23, 2022, sufficient time exists to allow DISH to depose Fratrik on his supplemental report, Baker added. “All of this minimizes any resulting prejudice to DISH.”
DISH’s key fight against the expert testimony of Fratrik centers on his damages expert report, filed with the court on September 10; his damages calculations rely upon a contract rate that Circle City and Comcast agreed to that Circle City never proposed to DISH. Baker agreed with DISH that this was problematic, but concluded that Circle City hopes to resolve any perceived (or actual) problems with Fratrik’s opinion by providing “additional information that may eliminate DISH’s concerns.”
The additional information is what DISH tried to block, noting that it has “spent substantial time and money investigating and challenging Fratrik’s opinions as well as working with a defense damages expert.”
Now that Circle City is taking care of the expenses, DISH has, in the judge’s view, no reason not to allow Fratrik’s words to hold merit in the case.
