United States' Motion to Exclude Expert Testimony of Plaintiffs'

e a payoff of at least $552.5 million, equal to one-fourth of$2.21 billion.)Dubinsky argues that outcome 1 would result in a loss andthat the likelihood of outcome 2 was remote. In theirdeposition testimony, both Montgomery and Beal stated thatoutcome 2 was a remote possibility. (Dubinsky at 19-21 (quotingdeposi tions) . ) Thus the fact that outcome 2 was a remotepossibili ty is not in dispute. After considering thelikelihoods of outcomes 1 and 2, Dubinsky skips to theconclusion that there was "no reasonable opportunity to earn areasonable non-tax profit from the 'swaps.'" (Id. at 19.) Thedifficulty is that Dubinsky does not consider the likelihood ofoutcome 3, receipt of a $10 million payout.This is like a Monty Hall game with three doors. You pay$2.5 million to play. Behind Door 1 is nothing. Behind Door 2is $2.21 billion. Behind Door 3 is $10 million. The contestantis told that the likelihood of getting the prize behind Door 2($2.21 billion) is remote. Based on this information, is itpossible to determine whether playing the game holds areasonable profit potential? Of course not, not without knowingthe likelihood of getting what is behind Door 1 (nothing) orDoor 3 ($10 million). Dubinsky ignores the possibility that allof the swaps might settle in the money; he ignores Door 3.- 10 -