Plaintiff Kimberly McKinney filed a wrongful termination action against Land O’Lakes, citing its failure to accommodate her disability and work limitations stemming from injuries she sustained due to an unsafe condition at work.
Defendant sought to preclude the testimony of Plaintiff’s retained experts Dr. Joseph Penbera and Dr. Julie Armstrong.
Economics Expert Witness
Joseph J. Penbera earned a B.A. from Rutgers in 1969, a masters in public administration from The Baruch School (CUNY) in 1970 and a Ph.D. from American University in 1973.
He is forensic economist whose work has been accepted in local, state, and
Federal jurisdictions as well as in various international venues.
Psychology Expert Witness
Julie Armstrong earned a bachelor of science in nursing from the Consortium of Cal. State Colleges and Universities in 1988, a Masters in nursing/clinical nurse specialist from U.C.L.A. in 1990 with a specialty in psychiatric/mental health nursing, and a Doctor of Psychology degree from Pepperdine University in 1996.
She has conducted more than a thousand clinical interviews or evaluations for psychological injury or impairment for the Workers’ Compensation Appeals Board in California. As of 2025, she has testified in Court or Administrative hearings approximately 60 times.
Discussion by the Court
I. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY PENBERA
Defendant sought to preclude Plaintiff’s expert, Dr. Joseph Penbera, from: (1) testifying to lost wages that allegedly accrued after January 1, 2024 through trial, (2) offering opinions based on unreliable methodology and testifying as to legal conclusions; and (3) testifying as to punitive damages.
A. Opinions on lost income and benefits since May 28, 2023
1. Admissibility of Penbera’s expert testimony
Penbera calculated Plaintiff’s lost income and benefits based on Plaintiff’s past wages. Defendant raised several objections regarding the method Penbera utilized in calculating lost wages, but such objections go to the weight of Penbera’s opinion, not its admissibility. Penbera’s report indicates that, among other information, he reviewed Plaintiff’s earnings statements from “12/23/2018 to 1/13/2024” and from “6/15/2023 to 5/15/2025.” Those include Plaintiff’s earnings statements showing her 2023 income and deductions through May 2023, when she was put on leave or terminated, and showing her 2024 income and deductions through mid-December 2024.
To the extent the Defendant argued that Penbera relied on incomplete pay data from the relevant years or failed to adequately consider Plaintiff’s earnings in earlier years, “it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.”
The Court made it clear that Penbera is not precluded as a general matter from offering expert opinions on Plaintiff’s lost income and benefits.
2. Lost income and benefits damages based on events occurring between Plaintiff’s 2022 injury and her starting a new position in March 2024
Defendant asserted that Penbera’s opinions rest “entirely” on 2024 and 2025 factual allegations that are not part of plaintiff’s claims in this action. But that is incorrect. For example, Penbera’s report reflects that, among other data, he considered Plaintiff’s past wages from January through May 2023 in calculating Plaintiff’s lost income for the period from her alleged constructive termination in May 2023 through her starting a new position in March 2024.
Penbera’s report also included calculations of Plaintiff’s future lost income and benefits after December 2024. But the parties agreed that Plaintiff obtained a new job position with Defendant in March 2024. And while Plaintiff was allegedly terminated from that new position in December 2024, that termination is not part of Plaintiff’s claims in this action.
To the extent Plaintiff’s future lost income and benefits are based on Plaintiff’s alleged wrongful termination in December 2024, which is not a claim at issue in this case, testimony as to such damages would not be relevant to Plaintiff’s claims at trial. The Court held that Penbera will be precluded from testifying as to lost income and benefits damages that are due to Plaintiff’s December 2024 termination. However, to the extent certain such future losses are attributable to actions that are the subject of Plaintiff’s claims—for example, Plaintiff’s loss of future benefits due to her lost income in the period from May 2023 to March 2024—then Penbera’s testimony as to such specific future losses would be admissible to that extent.
B. Punitive Damages
Defendant argued that Penbera should be precluded from testifying about punitive damages because he was not designated to testify about punitive damages.
Plaintiff appeared to concede that Penbera cannot provide expert testimony as to punitive damages. Plaintiff did not disclose Penbera as an expert on any punitive damages issue, and Penbera’s expert report did not include an opinion regarding punitive damages.
Penbera was therefore precluded from testifying as an expert as to punitive damages and may not offer any opinion as to Defendant’s financial documents or financial condition. Plaintiff did not dispute the exclusion of expert opinion or expert testimony on this issue.
II. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY ARMSTRONG
Defendant sought (1) to preclude Plaintiff’s expert Julie Armstrong from testifying as to Plaintiff’s emotional distress and non-economic damages because, Defendant claims, Armstrong’s testimony is based on events in 2024 that are outside the scope of the litigation, (2) to preclude Armstrong’s testimony because it is not based on any medical or employment records, and (3) to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages.
Analysis
First, Defendant argued that Armstrong’s opinions should be precluded because they are based on Plaintiff’s factual allegations concerning events outside the scope of Plaintiff’s claims, including Plaintiff’s assertion that in December 2024 Defendant wrongfully terminated her from her new position, and that in September 2024 Defendant posted graphic photos of Plaintiff’s injury.
While Defendant argued that Armstrong relied insufficiently on the relevant period in reaching her expert opinions, that is incorrect. Armstrong’s report refers at length to Plaintiff’s account of her circumstances from her injury in November 2022 to her re-hiring by Defendant in March 2024.
Second, Defendant also objects that Armstrong’s opinion relies solely on her experience and her interview and testing of Plaintiff and not on medical or employment records. This argument likewise goes to the weight of Armstrong’s testimony, not to its admissibility.
Armstrong explained that her opinion is based largely on her clinical interview of Plaintiff, during which Armstrong administrated the Structured Inventory of Malingered Symptoms (SIMS) and Millon Clinical Multiaxial Inventory-IV (MCMI-IV) tests.
Third, Defendant sought to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages. Armstrong was not Plaintiff’s treating provider and did not review Plaintiff’s contemporaneous medical records, and she did not observe Plaintiff’s emotional state or symptoms during the period from 2022 to March 2024.
But the Court held that Armstrong may testify to her observations of Plaintiff’s emotional distress symptoms and disorder when she evaluated plaintiff in July 2025, and the extent to which plaintiff’s account of her alleged adverse workplace experiences from her 2022 injury to her rehiring in March 2024, if true, could substantially contribute to such ongoing emotional distress symptoms.
Held
The Court granted in part and denied in part Defendant’s motions in limine to preclude the testimony of Dr. Joseph Penbera and Dr. Julie Armstrong.
Key Takeaway
Under Daubert, the district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.
Case Details:
| Case Caption: | McKinney V. Land O’Lakes, Inc. |
| Docket Number: | 1:23cv1304 |
| Court Name: | United States District Court, California Eastern |
| Order Date: | June 21, 2026 |
Leave a Reply