In an earlier article, I pointed out that essential figures in the Exponent report contained (what appeared to be) an important misrepresentation: that transients purporting to represent Logo gauge initialization had not really been initialized with the Logo gauge. The same point was later (and independently) made in a technically oriented sports blog. Exponent’s misrepresentation (“trick”) exaggerated the “decline” – a word that climate readers will be amused to find in discussion of this topic. To effectively defend their client, in my opinion, this was perhaps the most important job for Brady’s technical experts. And, out of all the technical issues, because this issue involved a misrepresentation – be it unintentional or intentional – this was arguably the technical issue with the biggest upside for Brady’s legal team, since misrepresentations have an entirely different legal weight than errors. In today’s post, I’ll look at the transcript to see how Snyder (the technical expert) and Kessler (the lead lawyer) did on this issue. I’ll also suggest a face-saving solution for Goodell.
Exponent’s Trick
One of the most fundamental technical findings of the Wells Report was the following:
regardless of the assumptions made with respect to the gauges used pre-game and at halftime, the measurements recorded for the Patriots game balls at halftime cannot be entirely explained by the Ideal Gas Law (or variations thereof) when applied to the most likely game conditions and circumstances.
Exponent was aware of the uncertainty over whether pregame measurements of Patriot balls had been made with the Logo or Non-Logo gauge and argued that there was unexplained deflation even with Logo Gauge initialization. The keys to this analysis was their comparison of observations to transients in Figures 27 and 30, both of which, together with Figure 26, were said to “the scenario in which the footballs were set with the Logo Gauge“.
In my post on June 29 entitled Exponent’s Transients: Botch or Bodge, I pointed out that it was simply not possible for Exponent’s transient purporting to show Logo Gauge initialization to have been produced with Logo Gauge initialization and that Exponent had mis-characterized how the figure was produced. The transients in Figures 26, 27 and 30 were therefore significantly too high relative to Exponent’s description and subsequent use of the figure. I surmised that Exponent had used the Master Gauge for initialization, not the Logo Gauge to initialize the transients:
The Patriot dry transient in Figure 27 is consistent with initialization using the Master Gauge, but not with initialization using the Logo Gauge, as stated and as supposedly the point of the comparison. This seems like a botch, rather than a bodge, on Exponent’s part and, if so, ought to require a corrigendum, if not retraction.
About a month later, Back Picks arrived at the same conclusion, stating it as follows:
Only they fail to present an adjusted curve! Figure 26 [SM: which has the same transients as Figure 27] is simply wrong. The curve shows a dry starting halftime value of over 11.5 PSI for the expected Patriot values. But a Master-adjusted Patriot ball would actually be 12.17 PSI in the pre-game according to Exponent. A dry football is expected to be 11.20 PSI at 48 degrees if it were set at 12.17 PSI in a 67 degree environment in the pre-game, as Exponent is attempting to model. The graph is not master-adjusted, even though Exponent claims it is. It is a clear error and needs to be corrected. [my bold]
Back Picks illustrated the point with the following figure that improved on my rendering. In the corrected figure, even at the very adverse 67 deg F assumption (the temperature most disadvantageous to Patriots) the average time of Patriot measurement without inconsistency with the transients increased from an upper limit of 2 minutes (as in Exponent Figure 27) to nearly 6 minutes – easily accommodating the observations. With 71 deg F initialization, the time limit increased even further.
Figure 1. Showing the error in Exponent’s Figure 27 (and the same transients are used in Figure 30) from Back Picks.
Once again, this is not an error in a small detail, but an error that goes to the heart of Exponent’s claim that there are issues regardless of which gauge was used for pre-game initialization of Patriot balls.
The Hearing
Brady’s technical expert, Edward Snyder, raised the issue of the Logo Gauge, but inexplicably did not challenge Exponent’s transients in Figures 26, 27 and 30.
In direct, Snyder observed that a pre-game measurement of 12.5 psi with the Logo Gauge equated to a measurement of 12.17 psig using the Master Gauge and, allowing for this inaccuracy, 8 of 11 footballs were in compliance. (This is an important and essential issue but is not a direct challenge to the Exponent mispresentation of their Figures 26, 27 and 30.)
In cross-examination, Snyder was challenged on Patriot statements that they had tendered balls at 12.5 psi. Snyder (in my opinion, reasonably) pointed out that there was no data on the calibration of the Patriot gauge and there was no basis on which one could say that it might not have had a similar bias to referee Anderson’s Logo gauge. This is an important issue, but does not touch on Exponent’s misrepresentations of Figures 26, 27 and 30.
Caligiuri
In Kessler’s cross-examination of Caligiuri (Exponent), he failed to confront him with the misrepresentations in Figure 26, 27 and 30. On occasion, his questions came close to the topic, but he was presumably unaware of the misrepresentations and missed opportunity after opportunity.
On the other hand, Caligiuri was aware of the issue and his answers are instructive. Caligiuri appears to say that they did not do tests with Logo gauge initialization because that was not “consistent with the physical facts”:
Q. Second, do you agree, you saw the criticism number 3 that Dr. Snyder presented, and he indicated that you should have recalibrated the starting pressures through the master gauge because you were comparing those starting pressures to the halftime pressures, which you did to the master gauge. Do you agree that you should have done that?
A. No.
Q. So you think it’s appropriate to take one set of pressures, not do the master gauge and compare it to another set of pressures through the master gauge; that’s your opinion?
A. No. The opinion is, in fact, the 12.5 we used is a master gauge reading. It is —
Q. You didn’t do — for the two balls you tested at halftime, logo or non-logo, you translated to the master gauge, right?
A. Correct.
Q. And for the starting time, you didn’t do any translation to the master gauge, whether it was logo or non-logo, right? You didn’t make any change?
A. You said “starting time.”
Q. The pre-game measurement, you didn’t do any translation to the master gauge there?
A. The master gauge is 12 and a half percent — 12 and a half psi, and we used 13.0 psi for the Colts.
Q. Did you do any calculation for the pre-game testing to convert the measurements recorded to something in the master gauge?
A. The master gauge conversion, if you convert the 12.5 psi comes from use of the logo gauge pre-game. And that, as Dean Snyder says, is 12.17 percent — 12.17 psi. You can put that in there and you can do Ideal Gas Law calculations, but they are not consistent with the physical facts.
At this point (or earlier), Kessler ought to have confronted Caligiuri with the misrepresentations about Figures 26, 27 and 30, but doesn’t seem to have realized the importance of the issue. So instead of pointing out and confronting Caligiuri with Exponent’s (false) claims that the transients in Figures 26, 27 and 30 had been “set” with the Logo gauge, Kessler went off into an argument about Exponent’s basis for believing that the Non-Logo gauge had been used – an important topic, but one that could have been pursued after dealing with Exponent’s misrepresentations:
Q. They are not consistent with what physical fact?
A. The fact that if that was happening, then the Patriots gave the referees 12.17 psi balls, below the League minimum.
Q. How do you know that the Colts — and, I’m sorry. How do you know that the Patriots and the referee were both not using something equivalent to the logo gauge?
A. So you’re asking me to assume that all three of these people, the Patriots pre-game, the Colts pre-game, and Mr. Anderson pre-game all used the same gauge that were exactly the same amount off? All the tests —
Q. No.
A. I’m sorry; go ahead.
Q. I am asking the following. You have never seen or tested or looked at the Colts’ gauge or the Patriots’ gauge pre-game, right?
A. That’s correct.
This line of questioning then spiraled off into a discussion of gauges – an important topic, but again without confronting Exponent’s misrepresentation.
While the transcript is not as on point as one would like, it certainly supports the surmise that Exponent calculated the transients in Figures 26, 27 and 30 with pressures set at 12.5 and 13.0 psig using the Master Gauge, not the Logo Gauge (as shown in the figures, which misrepresented the procedure.)
Caligiuri explained why he thought that initialization of transients with the Master Gauge was the “right” procedure, but did not explain why Exponent’s report stated that they had “set” the footballs using the Logo Gauge, when they had actually used the Master Gauge. Kessler, apparently one of the finest litigation lawyers of his generation, advised by an able and experienced expert, then totally fanned on an essential question much to the detriment of the truth in the matter and to the detriment of his client. The net result is that Exponent’s misrepresentations were left unchallenged, together with Exponent’s false findings based on these figures. The incident should be a warning about the vagaries of legal processes even with very competent lawyers.
That Exponent’s misrepresentation lingers on is disquieting. On the other hand, it’s the sort of thing that could give the parties a basis of face-saving settlement for Goodell at Exponent’s expense. Suppose that Goodell said something along the following lines:
I have learned that the technical analysis in the Wells Report contained an important and erroneous mis-statement of procedure – in key figures, simulations and transients, said to have been set using the Logo Gauge, were actually set using the Master Gauge. After correcting this error, we can no longer say that there was unexplainable deflation regardless of assumptions on gauges. While there are disquieting texts, without being sure that there was unexplainable deflation, we can no longer conclude that an offence took place. We have already announced strict measures to ensure that a similar controversy cannot arise in the future.