The first expert, Ronald Butters, Ph.D., was previously identified by the Plaintiffs months ago. Dr. Butters is former chair of both the Linguistics Program and the Department of English at Duke University. A summary of Dr. Butters’ expected testimony was provided as follows:
“2) Dr. Ronald Butters will draw upon his knowledge of linguistics and the teaching of composition with particular reference to the recognition and avoidance of ambiguity in written documents to testify regarding the conclusions made by an ordinary reasonable speaker of contemporary American English when examining the language of Game 5 of the Fun 5’s scratch-off ticket.
3) The general substance of Dr. Butters’ opinions are as follows:
a. Ordinary reasonable speakers of contemporary American English would conclude from examining GAME 5 of the Texas Lottery Commission (TLC)’s 2014 “Fun 5’s” scratch-to-play game card that the purchasers had won a prize that the undisclosed parameters of the game may not have been designed to award. If a game player scratches off the box labeled “5X BOX” and finds a Money Bag “ ” symbol and then scratches off the “PRIZE” box, this will cause the game player to understand that he or she has won a prize that is five times the amount exposed by scratching off the “PRIZE” box. The relevant language of the GAME 5 card is the independent sentence, “Reveal a Money Bag ‘ ’ symbol in the 5X BOX, win 5 times that PRIZE.” b. It is my understanding that the parameters of the game were designed to award players who revealed a Money Bag ‘ ’ symbol 5 times the amount in the “PRIZE” box only if they had won the first (tic-tac-toe) stage of the game by scratching off, from among the nine star-symbol boxes, “three ‘5’ symbols in any one row, column or diagonal.” However, the fact that the instructions are framed as two separate sentences indicates to readers that the two parts of the game are independent; that is, the player has two chances to win. Readers will not infer that an if-then relationship exists between them merely because two sentences are in collocation one after another. c. Moreover, the understanding that GAME 5 of the “Fun 5’s” is a two ways-to-win game is reinforced for players because three of the other four games are two-ways-to-win games. Moreover, by adding clarifying language to the second sentence, e.g., the words “bonus,” “multiplier,” or “the PRIZE won” (instead of the allegedly ambiguous “that PRIZE”), the language of GAME 5 could easily have been written to accurately reflect the parameters of the game. With respect to this latter point, speakers will not understand “that PRIZE” to refer to ‘a prize that has been won in the tic-tac-toe first part of the game’, but rather ‘the prize that is revealed under the “PRIZE” box’. The word that is a deictic pronoun; the default referent for a deictic pronoun in ordinary speaker understanding is the nearest and least complicated antecedent. In this case, the nearest and most uncomplicated antecedent is “PRIZE in PRIZE box.” The idea ‘prize that you would have won if you had won the tic-tac-toe portion of the game’ is not the nearest antecedent, and it is far too complicated and cognitively obscure to act as a reasonable antecedent.
The methodology used by Dr. Butters to arrive at his opinions is as follows:
d. My opinions are based upon the application of general principles of the science of linguistics, particularly the branches of linguistics called syntax, discourse analysis, semantics, and semiotics. In addition, I have drawn upon my experience as scholar, teacher, and administrator in university writing programs that are dedicated to the teaching and production of clear and coherent writing.”
A newly added expert is Jacqueline M. Henkel, Ph.D. who is an associate professor in the Department of Rhetoric and Writing at the University of Texas in Austin. A summary of Dr. Henkel’s expected testimony was provided as follows:
“2) Dr. Henkel will testify regarding the meaning of the instructions printed on the Fun 5’s scratch-off ticket at issue, and a reader’s interpretation of those instructions. In doing so, she will rely upon her expertise regarding the English language, including: English writing, writing instruction, and grammar; rhetorical analysis; English language linguistics; narrative theory; and discourse theory.
3) The general substance and methodology of Dr. Henkel’s opinions are as follows:
a. The two sentences in the instructions of game 5 of the Fun 5’s ticket are much more liable to interpretation as an either/or choice—as separate routes to a winning ticket—as opposed to winning the second part being dependent upon winning the first part.
b. Writers can shape readers’ interpretive responses through repeated syntactic and semantic patterns. In this case, since ticket-holders are most likely to read the ticket like any other text—from left to right and from top to bottom—they will have read four sets of game instructions before encountering the fifth game. Like the fifth game, three of those sets of instructions take the form of two imperatives. In each case those two sentences represent two paths to a win—an either/or choice. Game 4 exemplifies the pattern: gamers can win by revealing three symbol 5’s in a row or by finding two 5’s and a star in one row. There is no suggestion that one need do both to win—that is, succeed in two rows. It thus makes sense that gamers would similarly interpret the instructions for Game 5. The language supports such an interpretation, and the instructions similarly outline different tasks in different parts of the game box (in two rows in Game 4, in a diagonal, column, or row and a lower row in Game 5).
c. If readers’ expectations are shaped in one direction, then it is incumbent on the writer to clearly mark a change or break in another direction. For example, in this case, a break in the pattern might have been marked with
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a suggestive title (“The Texas Two-Step 5”) and an instructive heading marked with clarifying adverbs (“If you win in step one, you may then try your luck in step two! First . . . .”). The creators might have additionally underscored the point through “visual rhetoric,” by marking through the artwork that Game 5 was a distinctive or culminating game.
d. Although someone might possibly construe the demonstrative determiner in the phrase “that prize” of the second sentence of Game 5 to refer to the “prize” revealed by winning tic-tac-toe according to the instruction of the first sentence, deictic analysis reveals this to be an unlikely reading. Readers/hearers are disposed to construe as relevant the (syntactically) nearest possible referent for a deictic element. In this case the nearest referent for “that prize” is actually in the same sentence, namely the “moneybag” prize revealed in the 5x box (and the prize box connected to it), a prize revealed within the scope of the second instruction alone. Beginning writers are often told to clarify pronouns or other devices with uncertain or multiple antecedents; this is called “vague reference,” a term found in any grammar handbook. Once again, the two instructions make sense as independent paths to a win.
e. If it were intended that a player had to win the first part of Game 5 (the tic-tac-toe) in order to be eligible to win 5X the prize in the second part of Game 5, there are various alternative ways in which the instructions could have been written to convey this intent.”
GTECH has also designated William Abington who is a CPA and Certified Fraud Examiner. GTECH describes his anticipated testimony as follows:
“He may testify regarding the damages claimed by Plaintiffs and Intervenors once they explain the methodology they are using to calculate their alleged damages. Furthermore, Mr. Abington may testify regarding the statistical probability of the alleged prizes and damages sought by Plaintiffs and Intervenors.
Mr. Abington might possibly develop additional mental impressions and opinions as additional discovery materials become available for his review. Once a reasonable time has passed after Plaintiffs and Intervenors have actually disclosed their methodology, Mr. Abington will be made available for deposition, if Plaintiffs and/or Intervenors wish to explore the additional mental impressions and opinions. Mr. Abington specifically reserves the right to offer additional opinions based on any new opinions or explanations offered by experts designated by Plaintiffs or Intervenors.”