eBay Seeks To Exclude Social Psychologist Dr. Adam Galinsky As Expert In Cyberstalking Suit
eBay is seeking to exclude social psychologist Dr. Adam D. Galinsky as an expert witness in ongoing cyberstalking lawsuit, saying Galinsky's "pseudoscientific testimony is not based on any reliable scientific method...relies on an improper use of 'social framework' analysis, and will not aid the jury but rather will encroach on its role as finder-of-fact."
The bizarre corporate plot unfolded in the summer of 2019, targeting Ina and David Steiner for their reporting on eBay at EcommerceBytes and seeking to unmask the identity of Fidomaster / unsuckEBAY, an anonymous commenter and source who also sparked the ire of top executives at the company.
Court records revealed sordid details of the harassment that included disturbing deliveries of live insects, bloody pig masks and funeral wreaths as well as threatening messages, doxxing that ultimately escalated to in-person stalking and an attempted break-in at the hands of high-level eBay security personnel.
Liz Morton
Sr Director Security Jim Baugh, Director of Global Resiliency David Harville, Security Manager Philip Cooke, Sr Manager Special Operations Brian Gilbert, Sr Manager Global Intelligence Stephanie Popp, Global Intelligence Manager Stephanie Stockwell, and Security Analyst Veronica Zea all pleaded guilty and have been sentenced for their roles in these crimes.
eBay signed a deferred prosecution agreement with the Department of Justice that forced the company to admit to a detailed recitation of all the relevant facts involving six felony offenses with eBay paying a $3 Million fine and undergoing 3 years of enhanced compliance monitoring in order to avoid further criminal prosecution related to this matter.
But importantly, that $3 Million was paid to the US Treasury, not the victims, leaving the Steiners to pursue compensation through the civil court system.
The ongoing lawsuit names the seven criminal defendants plus eBay, ex-CEO Devin Wenig, ex-Communications Chief Steve Wymer, ex-SVP Global Operations Wendy Jones, and security company Progressive F.O.R.C.E Concepts (PFC), claiming direction and support for the harassment came from the very top of eBay's c-suite.
The Steiners originally sought $700 Million in total damages, which has now been reduced to $500 Million after some claims for punitive damages were dismissed while others were allowed to move forward following a November ruling by Judge Patti Saris.
Recent filings show the breakdown of damages sought now sits at $50 Million in compensatory and $450 Million in punitive damages, with Dr. Galinsky's report and testimony being a key component of the Steiners legal strategy to show how executive communications directly led to the harassment campaign and subsequent harm suffered by the victims using social psychology concepts like "the leader amplification effect", in group/out group tribalistic dynamics, and the social effects of defamation.
But eBay says the Steiners' other experts have so far only been able to show no more than $2.3 Million in economic losses, leaving a monumental gap between what the company calls an "outlandish demand" and what they say the facts will support.
Plaintiffs demand over $50 million dollars in compensatory damages and $450 million in punitive damages. Yet Plaintiffs’ own damages expert puts their economic losses at no more than $2.3 million, and the evidence shows that their emotional distress, while substantial, is far from debilitating and likely to wane.
So to bridge the chasm between their outlandish demand and what the facts will support, Plaintiffs enlist the help of proposed expert Adam D. Galinsky, Ph.D.
If allowed to testify at trial, Dr. Galinsky, a social psychologist, intends to opine that “the financial damages awarded should be significant” and that only “[a] large dollar amount” can “undo the defamation and damage” to Plaintiffs.
Dr. Galinsky reaches this conclusion not by examining evidence of the Steiners’ mental health, not by assessing evidence of financial damage, and not by conducting any investigation into Plaintiffs’ reputations.
Rather, he arrives at his ultimate opinions by purportedly applying general social psychology principles to draw conclusions about what happened in this particular case.
Excerpts from Galinsky's report show the kinds of general social psychological conclusions eBay refers to, for example, this section about how tribalism drove the behavior of eBay employees and possible long-term consequences for the Steiners.
Or this section about the Leader Amplification Effect:
Unfortunately, Galinsky's report also shows some glaring mistakes, for example assuming then Chief Legal Officer (Marie) Oh Huber was a man, despite the emails the report refers to clearly showing her full name - not to mention that eBay's corporate website and other relevant internal and external resources that are still accessible today would have shown her full name and/or picture with a basic Google search.
That email was part of a chain which also included Wenig, Wymer, Baugh, and another member of eBay's legal team (then VP Litigation, IP Assets, Site Trust, now Chief Ethics Officer, Aaron Johnson) discussing the Fidomaster/unsuckEBAY twitter account, with the Steiners and EcommerceBytes only being mentioned in the final "Whatever. It. Takes" reply from Wymer - a distinction that Galinsky also appears to have missed in his analysis.
Wymer confirmed he had previously discussed the issue with Baugh and explored all angles with Twitter but had been unable to get @unsuckEBAY killed.
Oh Huber echoed the frustration, but she and Johnson advised there wasn't a strong claim to appeal to Twitter to kill unsuckEBAY's account.
Baugh chimed in that his team had been investigating for weeks and were close to discovering the identity and location of unsuckEBAY.
Oh Huber accepted that answer with a smiley face emoji, saying she would hold off on pursuing further legal steps in light of Baugh's investigation.
Leading Wymer to proclaim how utterly vexed by the situation he was, saying any effort to "solve" the problem should be explored...Whatever. It. Takes.
It's inexplicable how anyone could review those emails as shown in documents filed in this case (let alone do even a cursory review of eBay's leadership structure and existing compliance efforts at the time of these events) and not catch something as simple as the fact the Chief Legal Officer was a woman - a point eBay seized on during their deposition of Dr. Galinsky in an effort to undermine his suitability as an expert witness.
Q. And you mention General Counsel Huber. Who is General Counsel Huber?
A. I believe he was a counsel for eBay.
Q. Do you know that General Counsel Huber's name is Marie, it's a woman?
A. Oh, sorry about that. I apologize.
Steiner et al v. eBay Inc. et al 1:21-cv-11181 Doc 545 Exhibit B
The grueling deposition transcript goes on for over 400 pages, with many other questions revealing what eBay claims to be either errors, improper analyses, gross overgeneralizations, or examples of Dr. Galinsky opining on subjects outside his field of supposed expertise - including grilling the Dr. about two past research articles he co-authored that were retracted because they continued data that was later found to have been falsified by Dr. Francesca Gino, one of the other co-authors.
eBay said "despite opining that 'a bad apple within an organization only produces bad behavior when the corporate and cultural conditions allow them to do so,' Dr. Galinsky denied that his collaboration with Gino on papers later retracted for research fraud means that his research team had a culture of fraud", providing a chart to illustrate alleged inconsistencies with how Galinsky applied social psychology principles in each circumstance.
Perhaps most alarmingly, the deposition revealed Dr. Galinsky had only reviewed four documents from this entire case when creating his report - leaning extensively on the Plaintiffs' Amended Complaint (which is basically what the Steiners' allege to have happened, not a finding of fact) while acknowledging he did not review any of the responses filed by any of the defendants in this case rebutting claims made in that complaint.
eBay's motion to exclude Dr. Galinsky's testimony argues he is unqualified to render an opinion about the harm suffered by the Steiners; his opinions are not tied to the facts of the case; and he should not be allowed to extrapolate from broad population-level social science findings about how people tend to behave to determine what actually happened in a particular case.
Dr. Galinsky’s opinions about Plaintiffs’ injuries should be excluded also because they are not “based on sufficient facts or data.”...
...Start with Dr. Galinsky’s bald assertion that the Steiners “suffer[ed] irreparable harm to their reputation.”
Far from basing that conclusion on “specifics of the record,” Dr. Galinsky’s report cites not a single fact evidencing harm to the Steiners’ reputation. It cites no facts because Dr. Galinsky investigated no facts...
The same flaws infect Dr. Galinsky’s opinion that the Steiners’ “well-being” was “severely” harmed...According to his testimony, Dr. Galinsky did not review the Steiners’ primary care physician records or mental healthcare provider records; Ms. Steiner’s journal; or any of the forensic psychiatry reports prepared in this case. Nor did he interview the Steiners, even though that “[c]ould have been” relevant...
...Dr. Galinsky’s opinion that Plaintiffs have suffered financial harm is equally ungrounded. He cites no evidence for his assertion that Steiner Associates’ “financial performance” was “damage[d].” In fact, he admitted that he did not “do a specific financial analysis” of the business’s revenue or even review any financial records.
The sole “fact” cited in his report — that “EcommerceBytes’ business revenue decreased by 64% over a two-year period,” — is simply plucked from Plaintiffs’ complaint. And even though Dr. Galinsky agreed that “there are other reasons why business revenue would decline other than just somebody’s reputation,” he did not analyze the extent to which the alleged revenue decrease was caused by Defendants.
Indeed, despite opining that the Steiners’ reputational harm caused their financial harm, Dr. Galinsky neither interviewed nor reviewed communications involving the Steiners’ advertisers — their business’s sole source of revenue.
He did not even know that Stamps.com — which according to the Steiners accounted for nearly 60% of their total advertising revenue in 2019 and 2020 — had renewed its relationship with the Steiners after public disclosure of the Natick events. Yet that fact is devastating to Dr. Galinsky’s opinion...
...Dr. Galinsky compounds the problem by also being unable to explain how he selected the few facts he did consider...Of the thousands of pages of discovery produced in the case, Dr. Galinsky reviewed just four documents, and could not recall how or why he selected those four.
The deposition also revealed Dr. Galinsky was to be paid $1,500 per hour for writing the report and $2,000 per hour for deposition and trial time - and that while his scientific and academic endeavors make up the bulk of his career, to the extent which he offers his services as an expert witness, it has always been to testify on the side of Plaintiff's in lawsuits, never Defendants.
In fact, Dr. Galinsky's own website even claims his expert reports and testimony have generated more than $1 Billion in verdicts and settlements for his clients, which have included Duke lacrosse players who were falsely accused of rape and Dominion Voting Systems in their case against Fox News.
eBay used the reference to the Dominion case to corner Galinski into an embarrassing admission - not only was part of his opinion excluded in that case, but he claims he was not aware of the exclusion and could not remember what his findings were in regard to punitive damages in that matter.
Q. Have you ever been disqualified as an expert?
A. Not that I'm aware of.
Q. Have you ever had part of your opinion disqualified as an expert?
A. I am not aware, but I'm about to be told that I have, so...
...Q. Do you have Exhibit 4 in front of you?
A. Yeah.
Q. And that's an order from the matter of Dominion, et al., v Fox News?
A. Yeah...
...Q. And if you look at page 3 of the document. It says, "Fox's motion to
exclude the expert testimony of Adam Galinsky is granted with reference to Adam Galinsky's opinion on page 32 of his report on why punitive damages are important." Do you see that?A. I do see that.
Q. So does that refresh your recollection that you actually have been disqualified as an expert in certain respects?
A. I don't know if I saw this. But if I did, then it does refresh my memory.
Q. And what was your report with regard to punitive damages in that matter?..
...A. I mean, I don't have the report in front of me so I would have to
go back and look at it.Steiner et al v. eBay Inc. et al 1:21-cv-11181 Doc 545 Exhibit B
The Steiners have not filed a response to eBay and the other defendants' motions to exclude Galinsky as an expert witness and the court has not yet ruled on these motions as of time of publishing.
A tentative trial date was previously set for March of this year but has since been pushed out to an unspecified time by delays and extensions - though it is still expected to happen sometime in 2025, assuming no settlement is reached.
Stay tuned for updates as the case continues and remember - VAR+ subscribers get exclusive access to the Value Added Resource eBay cyberstalking case document archive!
