United States' Motion to Exclude Expert Testimony of Plaintiffs'

How could Dubinsky make such an obvious mistake? Theanswer is that he is confused about the facts. In his reportDubinsky proceeds as though there are only two possibilities.For instance, at page 8 and note 15 of his report Dubinskyindicates that there will be a later discussion of theremoteness of outcome 3 (the $10 million payoff) occurring. Butthe only later discussion centers on the remoteness of outcome 2($2.21 billion payoff) . (Dubinsky at 19-21.) In effect,Dubinsky misattributes the remote likelihood of the $2.21billion payoff to the $10 million payoff. There is nodiscussion or analysis in his report regarding the likelihood ofthe $10 million payoff, which would be necessary for one toconclude that the swaps (if viewed by themselves) lacked profitpotential.To summarize, the profit potential of the swaps bythemsel ves is not important, since the principals viewed theswaps as an integral part of a larger transaction. By focusingon the swaps by themselves Dubinsky has analyzed only a subsetof the relevant transaction.Furthermore, assuming arguendothat the profit potential of the swaps by themselves isimportant, Dubinsky's analysis is flawed. Dubinsky focusesmyopically on the chances for a $2.21 billion payout (which theprincipals concede is remote), but does assess the likelihood ofa $10 million payout.- 11 -