A district judge in New York refrained from excluding testimony about Defendants’ discriminatory policies offered by housing expert witnesses, for the time being.
Plaintiffs CNY Fair Housing, Inc.; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc. (the “Organizational Plaintiffs”); Phyllis Bartoszewski; Deanna Town; and Joyce Wilcox, as administrator and representative of the estate of Lois Harter (the “Individual Plaintiffs”), brought this action, asserting claims of discrimination on the basis of disability under the Fair Housing Act of 1968 (“FHA”), New York Human Rights Law, and Ohio Civil Rights Law.
According to Plaintiffs, Defendants have denied Individual Plaintiffs and other people with disabilities reserved or designated parking spaces near the rental units owned and operated by Clover entities (“Clover properties” or “Clover senior properties”). Defendants’ representatives routinely tell residents and applicants that the company does not provide designated parking spots at their multi-family, senior living complexes for anyone, including people with disabilities. Alternatively, and contemporaneously, Defendants have told residents who have requested a designated parking space as a reasonable accommodation because of their disabilities that they must pay a fee up to $350.00 for a designated space.
Defendants filed a motion seeking to exclude from trial and deem inadmissible the opinions of Plaintiffs’ retained experts Erin Kemple and Christina Brooks.
Housing Expert Witnesses
Erin Kemple has been handling housing justice matters for nearly 30 years. She is a consultant and fair housing expert working with fair housing agencies around the country as well as working with the National Fair Housing Alliance to establish a new fair housing council in Memphis, Tennessee.
In 1989, she and a group of legal services advocates and community activists founded the Housing Discrimination Project in Holyoke, Massachusetts eventually becoming the organization’s first Legal Director and then the Executive Director. While there, Kemple assisted the founders of the Connecticut Fair Housing Center, advising them on intake and investigation procedures. In addition to her work in Massachusetts and Connecticut, Kemple is consulting with fair housing groups across the country to assist them with fair housing enforcement and community development work.
In 2022, Erin began her consulting work. She has given numerous trainings on the fair housing laws to lawyers, consumers, and housing providers as well as working with state and local officials to ensure that all communities welcome all people.
Christina Brooks has over 16 years of experience in property management. She has taken fair housing training each year for the last 12 years and am well-versed in best practices under the Fair Housing Act, and particularly regarding decisions and issues related to reasonable accommodations.
Discussion by the Court
Both Erin Kemple and Christina Brooks submitted reports dated January 31, 2023, and supplemental reports dated June 16, 2023.
Erin Kemple’s report addressed the actions the organizations took in response to Defendants’ discriminatory policies and how those actions fit into the standard fair housing organization processes and practices to address such discrimination.
Christina Brooks’ report discussed typical and accepted reasonable accommodations policies and procedures at multi-family apartment buildings and how Defendants’ procedures relate to those standards.
In support of their motion, Defendants relied on Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and caselaw precluding experts from testifying to legal conclusions. Defendants claimed that the reports “were comprised of nothing but conclusory statements that were not based on any relevant data or facts” and “did nothing to aide a trier of fact to understand any evidence or determine a fact in issue.”
Motion to Strike was Premature
The Court held that the motion to strike was, at that time, premature. Both parties filed motions for summary judgment against each other. The Court does not have to resolve the admissibility of the expert opinions before resolving the motions for summary judgment. Moreover, expert discovery was not completed at the time these issues were briefed. And until the Court rules on those motions, it is not clear which, if any, theories of liability will survive summary judgment.
The Court also noted that the parties have not adequately briefed the relevance and admissibility of some of the proposed expert testimony. With respect to the admissibility of Kemple’s testimony regarding the calculation of organizational damages, neither party has provided any caselaw regarding the type of damages that are compensable. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is a legal issue for the Court to decide, not an issue for expert testimony, and the parties did not cite to any caselaw. The parties’ dispute regarding Brooks’ testimony concerning industry standards and reasonable accommodations is best considered after the Court has resolved the parties’ legal arguments regarding reasonable accommodation under the FHA.
Held
The Court therefore denied the motion to strike the reports of Erin Kemple and Christina Brooks at this time, without prejudice to renewal. To the extent Defendants sought to renew this motion following the Court’s ruling on the pending motions for summary judgment, the parties should meet and confer before Defendants file their motion, in order to narrow the issues.
Key Takeaway:
The parties must adequately brief the relevance and admissibility of the proposed expert testimony. Neither party provided any caselaw regarding the type of damages that are compensable for the Court to rule on the admissibility of Kemple’s testimony regarding the calculation of organizational damages. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is not an issue for expert testimony, and the parties did not cite to any caselaw.
Case Details:
| Case Caption: | CNY Fair Housing, Inc. Et Al V. Clover Group Inc. Et Al |
| Docket Number: | 5:21cv361 |
| Court Name: | United States District Court, New York Northern |
| Order Date: | May 8, 2024 |
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