Plaintiff Toby Pack, a CSX employee, applied for leave under the Family and Medical Leave Act (FMLA) due to chronic kidney stones. Although CSX initially approved Pack’s application, it subsequently charged him with FMLA misuse and terminated him.
Pack sued, alleging that CSX fired him in retaliation for his taking FMLA leave. Pack intended to offer the expert testimony of Beth De Lima, but CSX argued that De Lima’s testimony should be excluded.
Human Resources Expert Witness
Beth B. De Lima has extensive experience in developing and implementing HR programs and policies that relate to federal and state employment legislation. She has been assisting corporate, non-profit, and governmental clients with HR policy development and implementation since 1992.
She has worked closely with clients to establish and maintain compliance with federal and state employment legislation, including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
De Lima’s report touches on several topics, including employees’ legal rights under the FMLA and employers’ legal obligations under the FMLA.
A. Relevance
The jury in this case will be asked to determine whether CSX terminated Pack in retaliation for Pack’s use of FMLA leave. CSX argued that De Lima’s opinion is not relevant to that question.
The Court agreed. CSX’s alleged noncompliance with industry standards did not make it any more likely that CSX retaliated against Pack. If CSX had deviated from its own standard procedures in investigating Pack, that might be probative of retaliation.
But CSX having different procedures from other companies did not show that CSX’s explanation for terminating Pack is “unworthy of credence.”
B. Reliability
In her report, De Lima said that the industry standards to which she alludes are “set forth by the Society for Human Resource Management.” But the report never cited specific documents or guidance promulgated by this organization. During her deposition, De Lima confirmed that the standards on which she relied are “written down.” However, when asked which of the sources in her bibliography support her opinions, she was unable to provide an answer. Instead, she asserted that the FMLA itself supports her opinions. When asked which part of the FMLA supports her opinions, she said “it’s not clear.”
In his supplemental briefing, Pack identified five publications from The Society for Human Resources Management which he claims supported De Lima’s opinion. But the supplement never asserted that De Lima actually relied on those publications in forming her opinion and none of the publications are included in De Lima’s bibliography.
Since neither Pack nor De Lima has identified the basis for De Lima’s testimony, they are too unreliable to be admitted under Federal Rule of Evidence 702. Even if De Lima’s opinion were relevant, the Court would exclude it under Rule 702.
Held
The Court granted Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Plaintiff’s expert Beth De Lima.
Key Takeaway
Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.
Case Details:
Case Caption:
Pack V. CSX Transportation, Inc.
Docket Number:
3:24cv688
Court Name:
United States District Court, West Virginia Southern
Plaintiffs are current and former AutoZone employees, all of whom held roles as Store Managers between the years 2019 and 2022 and worked under district managers who oversaw operations in Montana.
Due to AutoZone’s demographic structure, the collective currently includes Plaintiffs that work in AutoZone stores outside of Montana. Plaintiffs alleged that AutoZone willfully misclassified them as overtime-exempt, denying them overtime compensation for hours of work in excess of forty hours per week, in violation of the Fair Labor Standards Act.
Liesl Mae Fox has been a statistical consultant for over twenty-five years, including conducting analyses in the fields of litigation and medical research, and has testified as an expert witness.
Ramona Powell is a nationally certified Senior Professional in Human Resources. With a proven track record as an expert witness, Powell provided professional opinions and testimony in a wide range of employment-related matters.
A. Defendants’ motion to exclude expert Dr. Liesl Fox
Defendants sought to exclude Plaintiffs’ expert, Dr. Liesl Fox, from serving as an expert witness in this case. It appeared that Fox relied on data provided by Plaintiffs’ counsel to determine the average hours worked by each Plaintiff. According to Defendants, this data conflicts with the testimony of the individual Plaintiffs, rendering Fox’s opinions unreliable.
The Court was inclined to grant Defendants’ motion to exclude the testimony of expert Dr. Liesl Fox. The calculations of the remaining Plaintiffs’ average hours worked “constitute basic math that a jury can compute without the opinion of an expert.” Notwithstanding the foregoing, the Court reserves ruling on the motion at this time.
B. Defendants’ motion to exclude expert Ramona Powell
Next, Defendants requested that the Court exclude Ramona Powell pursuant to Rule 702 “because her report is unreliable, her testimony improperly invades the province of the jury by making legal conclusions, and allowing her testimony under such circumstances would confuse the jury and be unfairly prejudicial to AutoZone.” The Court reserves ruling on the motion at this time.
However, to the extent Powell offered opinions on the ultimate issue in this case—whether Defendants properly classified Plaintiffs as exempt from FLSA’s overtime requirements—such opinions will be excluded. These opinions invaded the province of the Court and/or the jury.
Held
The Court reserved ruling on both motions to exclude the testimony of Dr. Liesl Fox and Ramona Powell.
Key Takeaway
The Court must determine whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, and whether the opinion will help the trier of fact.
This action arises out of Plaintiff Jon Evans’ employment with Defendant Critter Control Operations, Inc.
During this employment, Plaintiff brought multiple concerns to Defendants’ Human Resources (HR) staff Ms. Rebecca Dye regarding “unfair treatment, safety concerns, and potentially fraudulent activity.” After eight and a half months of employment, Defendants terminated Plaintiff on October 18, 2021. Since then, Plaintiff has become employed elsewhere.
Michael J. Stokes earned an MBA from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He has 8 years of experience in providing expert analysis and testimony related to forensic economics, accounting, finance and statistics.
In preparation of her report, Ingegneri reviewed the operative pleading, deposition transcripts of Ms. Dye and other employees of Critter Control, and over two dozen documents that were referenced during those depositions. She concluded that Plaintiff’s allegations of serious misconduct are required to be “investigated promptly and thoroughly,” but “this did not appear to occur.”
Analysis
First, Defendants argued that Ingegneri’s testimony will not help the trier of fact to understand the evidence or to determine a fact at issue because she did not use any specialized knowledge. Whether Defendants—specifically, their HR staff—faithfully applied those policies and practices is not as intuitive as Defendants contend, as it would require some baseline knowledge of the HR industry.
Second, Defendants argued that Ingegneri failed to “identify any specific principles or methods,” failed to “apply any specific principles and methods to the facts,” and made speculative conclusions. The content of the report showed otherwise. Ingegneri expressly stated the standards of internal investigations and handling employee complaints established by publications, reviewed Defendants’ own policies, and applied those standards and policies to specific facts she derived from a list of documents and party testimony.
Third, Defendants argued that Ingegneri’s testimony is unreliable because she based her report on incomplete information or false assumptions. According to Defendants, at Ingegneri incorrectly assumed that Defendants never investigated Plaintiff’s allegations. The Court did not adopt Defendants’ interpretation. Ingegneri concluded that a prompt and thorough investigation “did not appear to occur,” not that no investigation occurred at all.
Fourth, Defendants argued that Ingegneri’s conclusions pertaining to Defendants’ investigation are not relevant to Plaintiff’s wrongful termination claim. According to Defendants, Ingegneri analyzed and opined “on allegations unrelated to the live claims” by listing the various categories of complaints made by Plaintiff before his termination that include, for example, wage and hour issues. But several of these complaints relate to the alleged “unlawful business practices” in which Plaintiff refused to participate, and those complaints are relevant to Plaintiff’s wrongful termination claim.
Michael Stokes
In preparing his report, Stokes reviewed three “alternative” pre-termination annual salaries ($100,000; $130,000; and $165,000), Plaintiff’s work life expectancy based on his age at the time of termination, and an allocation of fringe benefits. Based on this information, Stokes concluded that the present value of loss of Plaintiff’s earnings and benefits ranged from $442,661 to $1,206,330.
Analysis
Defendants argued that the three base earnings Stokes used to calculate damages are improper because they are “aspirational” and higher than Plaintiff’s actual earnings in the eight months he was employed by Defendants ($51,589) or that he could have earned over the entire year ($72,703). But they did not argue that Stokes’ methods and application of those methods to those numbers, aspirational as they might be, were unreliable. Plaintiff contended, and the Court agreed, that the use of hypothetical base earnings goes to the testimony’s weight, not admissibility
Defendants further took issue that the salary hypotheticals are borne only from Plaintiff’s counsel’s assumptions, so Stokes’ report violated Federal Rule of Civil Procedure 26(a)(2)(B). Here, Stokes’ report openly recited what base earnings he relies upon for his calculations and explains that the source of those earnings was Plaintiff’s counsel. The Court found that this disclosure sufficient for the purposes of Rule 26.
Defendants’ concern that there is no evidence Plaintiff ever made, or was on track to make, $100,000, $130,000, or $165,000 while in Defendants’ employ is well-taken, however. In response, Plaintiff alludes to evidence that supports these numbers but has not yet made a specific showing of it apart from stating that a co-worker made “nearly $120,000.” The Court will entertain Defendants’ objection if that foundational evidence is not admitted before Stokes testifies.
Moreover, the fact that Stokes did not account for Plaintiff’s supposed mitigation of damages is another example of a point Defendants may test before the jury.
Finally, Defendants argued that Stokes’ declaration is an improper supplement to his report. It is not. Stokes’ declaration is only used to support Plaintiff’s responsive brief to Defendants’ motion, and the Court reviews it as such.
Held
The Court denied Defendants’ Daubert motions to exclude the testimony of Plaintiff’s experts Laura Ingegneri and Michael J. Stokes.
Key Takeaway
The use of hypotheticals, on its own, does not render an expert’s testimony unreliable. Rather, the proper vehicle through which the hypotheticals can be tested is cross-examination and introduction of contrary evidence.
Oriental Trading Company, Inc. (“OTC”) is a retailer of novelties and gifts. Plaintiff Keith Kirksey is an African American male who began his employment with OTC on or about June 1, 2017.
According to Kirksey, during his employment, he experienced a series of racially targeted incidents including the placing of a noose in his workspace and the placing of a clown head with, what he perceived as, a noose around its neck where Kirksey would see it. He reported these incidents to OTC who indicated it would investigate. Kirksey was dissatisfied with OTC’s investigation, and its outcome, and thereafter felt unfairly targeted by OTC in retaliation for his reporting.
Kirksey filed a complaint against OTC stemming from his employment alleging claims of race discrimination, retaliation, and harassment/hostile work environment as well as negligent infliction of emotional distress.
In an effort to establish his claims, Kirksey engaged Jerry Authier, Ph.D. as an expert. Authier is clinical psychologist licensed in Nebraska who was retained to conduct a psychological evaluation of Kirksey. In an effort to rebuke Kirksey’s claims, OTC designated Timothy D. Loudon as an expert in the field of human resources and workplace investigations.
OTC filed a motion in limine to exclude the testimony of Plaintiff’s expert witness Authier and Kirksey filed a motion to exclude the testimony of Loudon.
Psychology Expert Witness
Jerry L. Authier, Ph.D. is a clinical psychologist licensed in Nebraska. He has been practicing psychology in Omaha since 1973.
He obtained his bachelor’s degree in psychology and doctorate in clinical psychology. Throughout his 50-year career, Authier was the director of behavioral science at the University of Nebraska and Clarkson Family Medicine and saw patients in private practice. Authier has authored various articles and books and presented at a range of conferences, primarily during his years as an educator.
Timothy D. Loudon has a juris doctor degree, is licensed to practice law in multiple states, and has practiced labor and employment law in various capacities since 1981.
OTC did not move to preclude Authier from testifying altogether but sought to limit his testimony to that of a treating provider. OTC primarily argued that Authier’s opinions should be excluded because the foundation of Authier’s opinions rest solely on information Kirksey (and perhaps his counsel) conveyed to him.
Authier opined that Kirksey suffers from post-traumatic stress disorder, persistent depressive disorder with paranoid ideation, and generalized anxiety disorder. He further concluded that Kirksey’s negative psychological and psychiatric symptoms are attributable to Kirksey’s time working at OTC. In reaching these conclusions, Authier used a diagnostic interview, Minnesota Multiphasic Personality Inventory, 2nd Edition (“MMPI-2”) and the Sachs Sentence Completion Test. Authier further opined that Kirksey would need weekly psychotherapy sessions for an indeterminate amount of time but “at least a year if not longer and possibly the rest of his life.”
During his deposition, taken almost a year after his diagnostic interview, Authier testified that Kirksey did not participate in weekly therapy sessions with him. Authier stated that at the time he wrote his opinion he believed weekly therapy sessions would be the best way for Kirksey to recover from his symptoms.
Authier further testified that he is not an expert in EMDR therapy but stated it might be of help to Kirksey, when done with a specialized provider, to work through some of the symptoms of trauma. Similarly, Authier testified that he is not licensed to prescribe medication but that “the research shows that [psychotherapy along with medication] is the best way to help people that are struggling with psychiatric and psychological symptoms.
Analysis
First, OTC argued that Authier’s opinions are irrelevant because the June 18, 2020, incident (of which Authier’s opinion relies) is outside the applicable statute of limitations for Plaintiff’s claims in this lawsuit.
However, the Court found that Authier’s opinions regarding Kirksey’s conditions and the source of those conditions is wholly relevant to the ultimate issues in this case and his testimony would be useful to the finder in fact when deciding those issues.
OTC sought to exclude Authier’s opinions as to EMDR therapy and psychotropic medications based on his qualifications. While Authier testified that he is not an expert in EMDR nor a medical doctor, his limited opinions on these two topics fall within his purview of a clinical psychologist.
Authier did consider whether Kirksey’s symptoms could be attributable to other causes – such as childhood trauma. He determined based on his testing and clinical experience that this was unlikely. Moreover, when presented with records from a prior provider, Authier did not change his opinion.
The Defendant did not identify any plausible alternative cause of Kirksey’s conditions, thus strengthening the Court’s conclusion that the methodology employed by Authier is reliable. In addition to the diagnostic interview, Authier had approximately 16 sessions with Kirksey which confirmed Authier’s impressions and diagnosis of Kirksey.
Authier’s clinical impressions, based on his standardized diagnostic tools and his diagnostic evaluation, is that Kirksey is experiencing symptoms and those symptoms are tied to his time at OTC.
Moreover, OTC sought to exclude Authier’s opinion relating to his original recommendation that Kirksey participate in weekly psychotherapy sessions, arguing it is speculative and unsupported by the facts. The Court found that this information may provide context to the testimony at trial.
Loudon
Loudon opined about OTC’s handling of each of Kirksey’s complaints. To sustain a claim against OTC for a racially hostile work environment, Kirksey must show (1) he is a member of a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment was based upon race, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the racially discriminatory harassment and failed to take prompt and effective remedial measures to end the harassment.
At the time of trial, the “promptness” and “effectiveness” of an employer’s response is a question of fact for the jury to resolve and a matter for the Court to instruct.
Allowing Loudon to testify as an expert to the “adequacy” and “reasonableness” of OTC’s investigation would invade the province of the jury.
Held
The Court denied Defendant Oriental Trading Company’s motion in limine to exclude the testimony of Plaintiff’s expert witness Jerry Authier.
The Court granted Plaintiff Keith Kirksey’s motion to exclude the testimony of Timothy Loudon.
Key Takeaway
With respect to differential diagnosis, opinion testimony is unreliable “only when an opponent points to a plausible alternative cause of the injury and the doctor offers no explanation for concluding that it was not the sole cause.”
OTC’s attacks regarding the completeness of Authier’s methodology go to the weight and not the admissibility of his testimony.
Plaintiff Andrew Brown alleged that CSX Transportation, Inc. violated his rights under the Family and Medical Leave Act (FMLA) by subjecting him to CSX’s attendance policy and by suspending and ultimately terminating him for taking FMLA leave.
Brown hired Beth De Lima, a “Human Resource / Vocational Rehabilitation consultant,” to offer an expert opinion on whether CSX “met Human Resources Industry Standards of Care regarding the implementation of FMLA.” CSX filed a motion to exclude the testimony of De Lima.
Human Resources Expert Witness
Beth B. De Lima is an expert in the HR aspects of employment regulation compliance, litigation, and vocational rehabilitation.
She is nationally certified as a Senior Professional in Human Resources with a state-specific certification in California (SPHR-CA) by the Society for Human Resource Management (SHRM), a SHRM Senior Certified Professional (SHRM- SCP) and has been appointed to sit on the Employee Health, Safety, and Security Special Expertise Panel.
De Lima opined that CSX’s directive to curb and discourage and interfere with an employee’s usage of FMLA led to mass layoffs of seasoned, tenured, decade long employees as a result of the organization’s failure to ensure they implement HR Industry Standards of Care for a federally protected employee leave benefit known as the FMLA.
A. Opinions Unrelated to Whether CSX Had a Good Faith Belief that Brown Dishonestly Used FMLA Leave During the 2017-2018 Holidays
To begin with, the Court noted that De Lima’s report included opinions on matters that were never at issue or are no longer at issue in this case, including CSX’s attendance policy and the American with Disabilities Act (ADA). CSX argued that these opinions should be excluded as the Court has “dismissed the attendance policy claims” and as “there is no ADA claim in this case.”
CSX also argued that De Lima’s testimony on the “implications of CSX’s policies regarding misuse of FMLA leave on weekends and to extend time off” should be excluded as they are irrelevant to the issue in this case — whether CSX had a good-faith belief that Brown dishonestly used FMLA leave over Christmas 2017 and New Year’s 2018.
The Court agreed that De Lima’s opinions regarding the attendance policy and the ADA should be excluded.
However, the Court did not agree that De Lima’s testimony about CSX’s policies regarding FMLA leave on weekends and to extend time off are irrelevant. Although Brown was terminated because of FMLA misuse over the 2017-2018 end-of-year holidays, CSX’s decision to charge Brown with FMLA misuse during that period was partially based on the fact that CSX previously had warned Brown that he was improperly using FMLA leave either before or after his rest days and on weekends. Under the circumstances, it cannot be said that De Lima’s testimony about the implications of CSX’s policies regarding FMLA use on weekends and to extend time off would not logically advance a material aspect of Brown’s case. Indeed, this evidence is probative of whether CSX had a good faith belief that Brown dishonestly used FMLA leave over the 2017-2018 holidays.
B. Reliability
CSX argued that De Lima’s opinions and testimony are not reliable because: (1) De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply, (2) her testimony is not based on sufficient facts or data, (3) she made broad conclusions from unrepresentative samples, and (4) her report contains many errors and mischaracterized the record.
De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply
Contrary to CSX’s contention, De Lima identified the standards set forth by Society for Human Resource Management (SHRM) as the source of the “HR Industry Standards” on which she relies.
CSX further argued that to the extent De Lima “claimed that she relied on her experience to develop these supposed standards, her testimony and opinions are unreliable because she failed to explain ‘how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’”
De Lima explained in her report that she applied generally accepted HR standards as set forth by SHRM, “an organization founded in 1948” that “has over 285,000 members across more than 165 countries and more than 575 chapters in the United States.”
De Lima’s testimony is not based on sufficient facts or data
CSX noted that De Lima asserted there was a clear management directive to curb, discourage, and interfere with employees’ use of FMLA, but he did not cite anything specific.
However, CSX did not claim that this portion of the report is an impermissible characterization of the evidence.
CSX also argued that De Lima made other unsupported assertions that certain documents implicitly or explicitly embody nefarious principles, which they plainly do not. Although CSX may disagree with De Lima’s interpretation of the letter and the disciplinary policy, CSX has not demonstrated that it is unreliable.
CSX further argued that De Lima’s testimony is unreliable as “there is simply too great an analytical gap between the data and the opinion proffered.” Although De Lima references CSX’s handling of discipline of two other employees, a review of De Lima’s report demonstrated that she did not base her opinions on CSX’s handling of the other cases.
Therefore, CSX has not demonstrated that there “is too great an analytical gap between the data and the opinion proffered.”
De Lima’s testimony is unreliable because her report is replete with errors and mischaracterizes the record
CSX claimed that the report inaccurately stated that “CSX’s FMLA policy says that ‘if FMLA is utilized in a manner [CSX] deems to impact the staffing of the organization’ then the ‘approved use of FMLA leave will be documented as negative attendance’” under CSX’s attendance policy.
CSX identified three other mischaracterizations in De Lima’s report. First, CSX stated that De Lima grossly mischaracterized the record by asserting that, “in 2016, CSX’s HR Department informed employees that ‘utilizing FMLA leave would be reported as misuse,’” when the letter actually stated that “using FMLA leave to avoid certain work assignments, to extend time off . . ., to be off on a holiday, the weekend, or to avoid working overtime is considered not only misuse, but fraudulent use of this federally required benefit.”
Second, CSX contended that De Lima’s statement that “CSX made no effort to determine if the FMLA use was consistent with the already approved medical certificates for the impacted employees” and never requested documentation from employees “to clarify the validity of the FMLA usage” conflicts with the testimony of Jolanda Johnson, Manager, Benefits–FMLA, who testified that, before charging employees, she reviewed the medical reasons for leave to determine whether they clearly explained a need for leave over the holidays.
Third, CSX challenged De Lima’s statement that “‘as an alternative to complying with the FMLA process for curing, CSX is simply ignoring the need to determine if the need for FMLA leave can be confirmed by curing the medical certificate and just moves on with the termination.’”
None of the alleged factual discrepancies or mischaracterizations warrant excluding De Lima’s opinions and testimony. The Court found De Lima’s methodology sufficiently reliable. The alleged flaws in De Lima’s methodology raised by CSX would be addressed during cross-examination.
C. Assistance to the Trier of Fact
Next, CSX argued that De Lima’s opinions—off-base critiques of whether CSX engaged in a “curing process,” adequately trained its managers, and abided by “HR industry standards”—are not relevant to the question of whether Brown was subjected to unlawful retaliation.
From De Lima’s testimony that CSX’s investigation fell below HR industry standards, a jury could infer that CSX did not have a good faith belief that Brown dishonestly took FMLA leave over the 2017-2018 end-of-year holidays and that CSX terminated Brown in retaliation for taking FMLA leave during that period. Accordingly, De Lima’s opinion on whether CSX complied with industry standards in investigating suspected FMLA misuse would be helpful to the jury.
However, De Lima’s report consisted of many legal conclusions. De Lima frequently opined or implied that CSX’s policies and procedures regarding suspected FMLA misuse violate the FMLA. De Lima also offered her interpretation of an employer’s obligations under the FMLA.
The Court agreed with CSX that it would be improper to allow De Lima to testify about these issues at trial as they are legal conclusions. However, De Lima may still opine that CSX did not comply with industry standards in investigating suspected FMLA misuse as that is not a legal conclusion.
CSX also challenged De Lima’s statement that the “focus in the Investigations seems to be the impact of the employee’s FMLA leave on the operations of the railroad’s workforce availability when employees are utilizing FMLA.” The Court is not persuaded.
The challenged portions of De Lima’s report may factor into the jury’s determination on whether CSX had a good faith belief that Brown misused FMLA leave, but they do not merely tell the jury what result to reach. Accordingly, this is not a basis for excluding De Lima’s opinions and testimony.
D. Rule 403
In the alternative, CSX argued that De Lima’s testimony should be excluded pursuant to Rule 403 because it is unfairly prejudicial, confuses the issues, and would mislead the jury. CSX contended that De Lima’s report contains language that is “inflammatory” and “over-the-top.” CSX further argued that De Lima’s “confused report” is not relevant as it “misunderstands both the applicable regulation and the issues in this case.” However, as De Lima is expected to testify at trial, the Court held that her “opinions will be presented via her sworn testimony, and her report may be used to refresh her recollection or for impeachment, but the report itself is hearsay and is not admissible.”
Held
The Court granted in part and denied in part Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Beth De Lima.
Key Takeaway
As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.
Case Details:
Case Caption:
Brown V. CSX Transportation,, Inc.
Docket Number:
8:24cv2777
Court Name:
United States District Court for the Middle District of Florida, Tampa Division
Plaintiff Brian Kniffen brought claims against Defendant East Wenatchee Water District under the Washington Law Against Discrimination, the federal Americans with Disabilities Act, and the Washington common law tort of wrongful discharge in violation of public policy.
Kniffen was a Utility Field Inspector (“UFI”), and his job consisted, at least in part, of inspecting various entities served by the water district, which involved opening and closing water valves. In May 2019, Kniffen experienced an on-the-job injury to his back while torquing a valve.
After the injury, Kniffen was restricted with respect to lifting, squatting, and crawling. In August of 2019, he underwent an extraforaminal discectomy, a procedure on his lower back, and continued to work on a light duty basis, including the assistance of another employee to turn valves. In June of 2020, Kniffen called for assistance with a water valve, but no one was available, and he reinjured his back while twisting. As a result, he reopened his original worker’s compensation claim from May 2019.
Defendant sought to exclude Plaintiff’s expert witness, Allison West‘s testimony on its human resources practices.
Human Resources Expert Witness
Allison Kracov West received a Bachelor of Arts from the University of Colorado, Boulder, and a Juris Doctor from Golden Gate University School of Law in 1994. She maintained a practice in employment law in San Francisco until she opened a consulting service in 2000, dealing with workplace investigations and human resource training.
West has delivered trainings on employment issues to public and private entities and has been a speaker at human resources association conferences. She holds certificates demonstrating proficiency in human resource practices and attends continuing education courses.
Defendant moved to exclude West’s testimony, arguing that she offered legal conclusions and made speculative assertions about human resource practices. Plaintiff assured that West will not provide testimony at trial on what reasonable accommodation law is or any legal conclusions about whether the law was violated, but argued that her opinion is well supported and will provide the jurors with additional context beyond the scope of general knowledge.
Defendant argued that West’s testimony would offer nothing more than what the jurors may deduce for themselves after the presentation of evidence and is essentially full of legal conclusions.
In forming her opinion and amendment, West reviewed the record as well as a “variety of resources that assist Human Resource (HR) professionals to develop industry standards that are recognized as ‘standard,’ ‘reasonable,’ or ‘best practices’ for the handling of employer-employee issues in all aspects of human resources.” Given her background in employment law and consulting work, West appeared to be well versed in such standards.
Analysis
The Court agreed with Defendant that some of West’s testimony unduly usurped the role of the Court and the jury, and therefore is excluded. West’s report detailed instruction on Washington State law, included findings that appeared speculative—such as the assertion that potential points for accommodation “fell through the cracks”—and offered conclusions that were properly left for the jury.
Though Plaintiff argued that the ultimate issue of law is whether an accommodation is reasonable, not whether Defendant failed to engage in the interactive process, the Court disagreed, finding them intertwined. Therefore, to be admissible at trial, West had to limit her testimony to: (1) what the accommodation and interactive process looks like, including the proper role of administrators; (2) examples of reasonable accommodations; (3) how employers typically engage in the process of accommodating disabled employees; and (4) what steps Defendants took in the accommodation and interactive process.
By focusing her opinion on these specific topics, West could help the jury evaluate whether the Defendant followed human resource standards—without directly stating a legal conclusion herself.
Held
The Court granted in part the Defendant’s motion to exclude the testimony of Allison West.
Key Takeaway:
The admissibility of expert testimony, whether scientific or not, must assist the trier of fact to determine a fact in issue by providing information “beyond the common knowledge. While an opinion is not objectionable just because it embraces an ultimate issue, an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.
Washington Governor Jay Inslee issued Proclamation 21-14 (“the Proclamation”), which required state employees to be fully vaccinated by October 18, 2021, to continue employment with the state. The Proclamation carved out an exception to the vaccination requirement for employees who were entitled to disability related accommodations or accommodations related to a sincerely held religious belief under relevant anti-discrimination laws, including Title VII and the Washington Law Against Discrimination (“WLAD”).
This litigation concerns a number of Plaintiffs who requested religious accommodations from the Washington State Department of Fish and Wildlife (“WDFW”).
While the Plaintiffs were initially granted religious accommodations, they were informed in late September of 2021 that “no reasonable accommodation” could be found because their jobs “must at times be done in the physical presence of others.” The Plaintiffs were subsequently terminated in November of 2021.
Harvey Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.
Lisa Brock has worked in human resources (“HR”) for over forty years. She spent the majority of her career in healthcare. Most recently, she worked as the HR director at Overlake Medical Center and Clinics.
John R. Cary is a certified rehabilitation counselor (CRC) and disability management specialist (CDMS) with over 19 years of experience in providing rehabilitation counseling and case management services to individuals facing socio-economic and psychosocial challenges, multiple morbidities, and language barriers.
Risch submitted two expert reports—one on the efficacy of COVID-19 vaccines and vaccine mandates and one rebuttal report.
In the rebuttal report, Risch opined that the vaccine mandate failed to recognize that “post infection natural immunity” is as good as if not better than vaccination.
Defendants objected to Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation.
Relevancy
To begin with, Defendants maintain that “Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation should be excluded for lack of relevancy,” as they will not assist the trier of fact in understanding “a fact in issue.”
The Court concluded that Risch’s testimony about the efficacy of COVID-19 vaccines, the role of natural immunity, and the governor’s Proclamation requiring vaccination will be excluded for lack of relevance.
Facial challenges to the Proclamation have been rejected and the vaccine mandate itself is not at issue in this litigation—only how WDWF applied it to its employees. Accordingly, the Court held that testimony about the efficacy of the Governor’s vaccine mandate will not aid the “trier of fact to understand the evidence or to determine a fact in issue.”
Moreover, Defendants argued that his opinions based on “information available after WDWF made accommodation decisions regarding Plaintiffs” must be excluded as not relevant.
Besides, Defendants added that judging an employer’s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Risch asserted that WDFW cannot establish undue hardship because “the cumulative hardship would not have been inordinate compared to the larger breakthrough infection burden from the vaccinated staff.”
Likewise, the Court excluded Risch’s conclusions about whether Defendants provided a reasonable accommodation or established undue hardship.
Reliability
Defendants argued that Risch’s opinions are not the product of reliable principles and methods because he does not state “what method of analysis he applies to any of the data he includes in his report.”
As to Risch’s opinions about the risk of breakthrough infections, Defendants argued that he “fails to compare apples to apples.”
In determining the number of WDWF employees who could have been expected to have breakthrough infections, Risch used CDC figure of 4.3%. The 4.3% figure represented the total number of vaccinated breakthrough cases by the total number of vaccinated people from April 2021 to December 2021: 5,988,636 divided by 139,768,554.
The Court held that not only were Risch’s calculations incorrect, but Risch offered no information or analysis comparing the job duties and responsibilities of the hypothetical employees who would suffer a breakthrough infection with those of the unvaccinated employees. For example, it is unknown whether any of these hypothetical employees teleworked full-time or otherwise interacted with co-workers or the public.
Thus, even if there were hypothetical employees who suffered breakthrough infections, it impossible to evaluate whether those hypothetical employees would have, or would not have, posed a greater risk than the unvaccinated Plaintiffs in this case.
Furthermore, the Court determined that Risch’s opinion about the 4.3% figure—that it “is also likely a very large undercount” is unreliable, as Risch does not cite any peer reviewed evidence or statistical analysis that suggests that the CDC figure is an undercount or account for whether CDC itself corrected for the factors Dr. Risch opines resulted in the undercount.
Lisa Brock
In her report, Brock included a step-by-step best practices guide published by the Society for Human Resources Management (SHRM) on handling requests exemptions to a vaccine requirement. She testified that her professional opinion in the report is based on her experience as a “practitioner of human resources,” and specifically the experience she gained as an “HR practitioner during the time of the proclamation and the COVID vaccine.”
Defendants asserted that “despite her failure to engage in a comprehensive review of any Plaintiff’s accommodation process, Brock made several unsupported factual conclusions regarding WDFW’s accommodation process and also made impermissible legal conclusions.”
The Court held that Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. This extremely limited evidence did not “provide a complete picture of relevant events”—indeed, Brock did not review any documents specific to more than half of the Plaintiffs going to trial and did not review the accommodations policies that WDFW had in place.
The Court excluded Brock’s report because she offered opinions without a full understanding or knowledge of the facts of this case.
John Cary
On January 31, 2025—the final day of discovery—Plaintiffs submitted an expert rebuttal report from John Cary. The rebuttal deadline had been extended at the Parties request to January 14, 2025.
Rule 37 forbids the use of Cary’s expert report unless Plaintiffs are able to show that the failure was substantially justified or harmless. Plaintiffs could have requested leave from the Court for late supplementation but did not. Plaintiffs could have notified Defendants and the Court during the discovery hearing on January 30, 2025, but did not. Accordingly, the Court excluded Cary’s expert report.
Held
The Court granted the Defendants’ motions to exclude the opinions of Dr. Harvey Risch, Lisa Brock and John Cary.
Key Takeaway:
The Court held that Risch did not base his critiques of the CDC’s methods in widely accepted scientific methods of analysis—and failed to explain the analytical method he is using.
Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. Accordingly, because Brock’s testimony lacks support from sufficient facts or data and fails to sufficiently specify the method by which she reached her conclusions, the testimony does not satisfy the Daubert standard.
Case Details:
Case Caption:
Shirley Et Al V. Washington State Department Of Fish And Wildlife Et Al
Carol Stepien is a former employee of the National Oceanic and Atmospheric Administration (“NOAA”) in Seattle. She worked at the Pacific Marine Environmental Laboratory (“PMEL”), a lab within NOAA, an agency in the Department of Commerce. She contended that NOAA had discriminated against her based on her sex and age, subjected her to a hostile work environment, and retaliated against her when she complained. NOAA countered that Stepien had engaged in various forms of misconduct, including mistreating colleagues, as detailed in an extensive, independent investigation.
Stepien sought to exclude Erick West‘s testimony regarding mitigation, backpay, front pay, and lost retirement benefits while NOAA sought to exclude some of the opinions of Deborah Diamond, Stepien’s expert on “HR and [i]nvestigations.”
Economics Expert Witness
Erick West has bachelor’s and master’s degrees in economics from the Washington State University and has been working as an economist since 2003. He is a forensic economist who serves as the President of West Economics, Inc. He has extensive experience investigating economic damages involving hundreds of different occupations and industries.
Deborah Diamond has worked as “a federal manager, management official, agency-grievance examiner, and certified mediator,” and has “extensive knowledge of federal government human-resource policies and procedures, including those regarding discipline.” She has worked as an EEO Officer and an investigator for the IRS, and as an independent fact-finder and licensed private investigator.
Stepien contended that although she has diligently searched for another job since leaving NOAA, she has been unable to obtain other employment. NOAA asserted an affirmative defense that Stepien failed to mitigate her damages, and disclosed Erick West as a rebuttal expert regarding Stepien’s claimed damages.
West opined about the amount of Stepien’s past lost wages, health, and TSP benefits; her future lost wages, health, and TSP benefits; and her future lost FERS pension benefits. He calculated how her salary would have increased over time had she remained employed with NOAA, and noted the cash awards she could have received. West also opined that “with a reasonable job search effort, Stepien should have been able to secure alternative employment by at least April 1, 2023 that was commensurate with her education and extensive work experience.” He bases that conclusion on statistics from the U.S. Bureau of Labor Statistics (“BLS”) regarding the average duration of unemployment for job seekers in 2021 and 2022.
Methodology
Stepien argued that West cannot opine regarding whether she conducted a reasonable job search. Stepien also argued that West should not be permitted to testify regarding whether she would have found a job within two years based on BLS data because those statistics are “not even tailored to a person of her educational background and experience.”
The Court held that the the problem here is not the reliability of BLS data in general, but the fact that West fails to set forth how he reached his assumption that it should have taken Stepien no more than two years (three to four times the average length of time) to obtain a job “that was commensurate with her education and extensive work experience.”
West did not specify what that methodology was or how he applied it here to discern the amount of time it should have taken Stepien to secure another job.
Helpfulness to the Trier of Fact
West’s report listed six positions “that are commensurate with Stepien’s education and employment history.” The Court held that opinion to be the province of a vocational expert, which West was not.
Even if West had the requisite experience to opine on this issue, his opinion about other “commensurate” positions is not helpful to the trier of fact because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.
However, Stepien did not dispute that West’s analysis of Stepien’s alleged lost past and future wages and benefits, salary growth at NOAA, her paid health benefits, employer-paid retirement benefits, worklife expectancy, and life expectancy were within his expertise, consistent with Rule 702.
NOAA’s Motion to Exclude Certain Testimony of Deborah Diamond
NOAA noted that Diamond offered opinions “about the investigatory process, or what she describes as ‘investigating the investigations.’” Although NOAA contended that those opinions “are of little relevance,” it “did not challenge them.”
NOAA objected to Diamond’s opinions about whether NOAA’s selected discipline complied with NOAA and DOC policies and “industry standards” as well as its administrative leave policy. It also sought to exclude Diamond’s opinions about whether NOAA retaliated against Stepien.
Diamond opined on generally accepted standards of performance, included a chart regarding how NOAA “addressed Stepien’s performance/conduct issues compared to the standard practices for addressing performance/conduct issues,” opined that discipline should be “progressive,” and opined “on whether the discipline imposed was administered appropriately” to Stepien. She described generally accepted standards regarding when and how administrative leave should be used. Diamond opined, among other things, that “[f]or most human resource professionals, the decision to discipline Dr. Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation foundin Department of Commerce’s policies and the applicable Equal Employment Opportunity (EEO) laws.”
Helpfulness to the Trier of Fact
The Court held that the issue is not whether NOAA followed best practices but rather whether it followed its own policies, and whether its stated reasons for its actions were honest or the product of discrimination or retaliation. For the same reasons, Diamond’s opinions regarding adherence to industry standards and her suggestion of a lengthier progressive discipline process would not be helpful to the trier of fact. Moreover, NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.
NOAA also argued that Diamond’s opinions about why the agency placed Stepien on administrative leave and requested a supplemental investigation are speculative and must therefore be excluded. Diamond opined during her deposition that NOAA might have (1) extended Stepien’s leave to create an opportunity for her to engage in further misconduct, (2) obtained a supplemental report from the investigators for improper reasons, and (3) added a broad conduct unbecoming allegation because the agency was not confident that other charges would be sustained.
However, Diamond conceded that she had not seen any evidence to support her theory regarding the supplemental report and was speculating regarding the inclusion of the conduct unbecoming charge. The Court ruled that her “unsubstantiated speculation and subjective beliefs” do not equate to the specialized knowledge required for admissibility under Rule 702.
Legal Conclusions
NOAA argued that Diamond’s opinions regarding retaliation go to the ultimate issue, which is the province of the trier of fact. Diamond’s report opined: “For most human resource professionals, the decision to discipline Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable EEO laws.”
Stepien argued that those statements do not “offer opinions that state whether Defendant retaliated or discriminated against Stepien,” but they are opinions on that front. The Court excluded those opinions as improper legal conclusions.
One issue remained: NOAA argued that Diamond cannot base her opinions on evidence that Stepien allegedly “misappropriated” from NOAA. Stepien sought to strike that argument and the corresponding declaration paragraphs that addressed it. The Court found that Diamond’s non-investigation-related opinions were inadmissible for other reasons and declared the issue moot for purposes of this motion but added that it may be renewed in an appropriate motion in limine.
Held
The Court granted in part and denied in part Stepien’s motion to exclude the testimony of Erick West, and granted NOAA’s motion to exclude certain testimony of Deborah Diamond.
Key Takeaway:
The Court ruled that West’s opinions regarding the “average duration of unemployment” for other workers and “what specific jobs are “commensurate with Stepien’s education and employment history” were inadmissible because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.
Diamond stated that the agency “did not follow some of its own policies and generally accepted standards when investigating and resolving Stepien’s EEO and 955 complaints, administering discipline in a constructive, progressive, consistent and timely manner, or following the rules for placing Stepien on extended administrative leave.” The Court held that NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.
A district judge in Massachusetts admitted the findings of an expert economist meant to advance a theory of disparate impact.
Plaintiffs Marc Savage (“Savage”) and Randolph Blake (“Blake”) (collectively referred to as “Plaintiffs”), a retired and current employee, respectively, of the Fire Department for the Defendant City of Springfield (“City” or “Springfield”), pursued claims of race discrimination against the City.
Plaintiffs, who are Black, cited the Defendant’s failure to enforce the City’s residency ordinance which has denied promotional opportunities to Black and Hispanic firefighters. According to the Plaintiffs, Defendants maintained a racially hostile work environment and retaliated against them for engaging in protected activity.
Plaintiffs indicated that they intended to call Dr. Christopher Erath as an expert during trial in connection with their claim that the City’s failure to enforce the City’s Residency Ordinance had a disparate impact on minority firefighters by depriving them of promotional opportunities within the department. Defendants asserted that Erath’s testimony should be excluded on Daubertgrounds because disparities in promotion were not sufficiently significant to draw an inference of causation necessary to make out a prima facie case of disparate impact.
Economics Expert Witness
Christopher Erath received A.B. degrees in Economics and Mathematics from Bowdoin College and a Master’s and Ph.D. in Economics from the University of Wisconsin. Erath’s primary area of interest is labor economics. He has served as an expert witness in numerous matters involving damages in employment discrimination and wage and hour claims and has also prepared extensive studies of statistical liability in employment proceedings and opined on class certification issues.
Michael Campion is an Industrial and Organizational Psychologist and specializes in human resource management and organizational behavior. Dr. Campion operates a small consulting firm that has conducted over 1200 projects on a wide range of human resource topics for nearly 170 clients in both private and public sector settings. He has been a Professor of Management at Purdue University since 1986. Previously he worked full time for 8 years at IBM and Weyerhaeuser Cos.
Erath indicated that he was asked to address two questions, as follows: (1) Are there racial differences in the rate at which employees satisfied the City of Springfield’s residency requirement?; and (2) Are there racial differences in the composition of the department’s officer ranks?
According to Erath, his understanding was that any firefighter hired or promoted on or after March 17, 1995, was required to live in the City.
In conducting his analysis, Erath utilized the spreadsheet provided by Plaintiffs’ counsel to calculate the percentage of firefighters who satisfied the residency ordinance by race (black, Hispanic, and white), both globally and by rank (firefighter, lieutenant, captain, and above). He then performed Fisher’s Exact tests to determine the likelihood that the different compliance rates by race could have occurred by chance. Finally, he calculated the percentage of firefighters of each race (black, Hispanic, and white) who achieved each rank (firefighter, lieutenant, captain, and above).
Erath concluded that there was a high and statistically significant correlation between residency compliance and race among uniformed employees of the Springfield Fire Department and that if Springfield consistently enforced the 1995 residency requirement, the enforcement action would have disproportionately disqualified whites.
B. Defendants’ Rebuttal Expert
Defendants submitted an affidavit from Michael Campion, Ph. D., in rebuttal to the opinions of Erath. To begin with, Campion found fault with Erath’s analysis because it relied on data going back to 1984, rather than limited to the time periods established by the Court, for Plaintiff’s claims and for including the entire pool of Springfield fire fighters, rather than just those qualified for promotion.
The Springfield Fire Department considered candidates who met the minimum experience requirements, took and passed the civil service exam, and had results coming within the 2n+1 formula for promotions.
Campion then undertook his own analysis using what he maintains is a proper candidate pool for purposes of determining disparate impact in promotion consisting of candidates on the promotional lists from 2015 to the present.
Campion claimed to find no statistical evidence of adverse impact for the jobs in either minority group during the period of the case.
C. Motion to Exclude the Testimony of Christopher Erath
Defendants contended that despite Erath’s use of the Fisher’s Exact test, the underlying data included stale data that goes back over thirty years and did not comport with Massachusetts Civil Service law governing eligibility for promotion because it included the entire pool of firefighters employed by SPD, without considering the Civil Service requirements.
Defendant argued that if it involves the relevant statistical pool, consisting only of minorities and non-minorities qualified to undertake the ranked positions of Lieutenant, Captain, District, Chief, and Deputy Chief within the Springfield Fire Department during the pertinent time-period, the Court cannot draw an inference of causation based on the disparities in promotion.
Plaintiffs argued that Defendants’ failure to disclose Campion as an expert under Rule 26 before the Court’s January 18, 2022 deadline compromised their ability to engage in requisite discovery, including deposing Campion.
The Court held that Defendants were free to try to expose what they viewed as the shortcomings of Erath’s opinions on cross-examination, including by posing questions based on Campion’s analysis. However, the Court did not permit Defendants to call Campion as an expert witness based on their excused and unexcusable failure to comply with the deadline.
Held
The Court denied Defendant’s motion to exclude opinion testimony and declaration evidence of Christopher Erath.
Key Takeaway:
The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. In other words, cross-examination was the appropriate tool for probing the underpinning of Erath’s testimony and not outright preclusion of his expert opinions.
In the summer of 2020, Alexandria L. Erwin, the Plaintiff, was hired by OBI Seafoods, LLC, the Defendant, to work as a fish processor at its Egegik, Alaska fish processing plant. Erwin, who is Black, reported instances of racial harassment and discrimination in the workplace. She claimed that coworkers made explicit comments objectifying her and complained of seeing graffiti of swastikas and other derogatory terms on the bunkhouses where she lived for the summer, along with slogans like “white power” being directed toward her in the workplace. After Erwin engaged in OBI’s investigation concerning some of the allegations, Erwin received an unfavorable performance evaluation from OBI managers. Erwin was initially told she was eligible for rehire but her review was subsequently modified by the managers to indicate that she was “ineligible for rehire.”
On August 21, 2023, Plaintiff listed Judith Clark on her Expert witness Disclosure and provided OBI with a copy of Clark’s report pursuant to Federal Rules of Civil Procedure 26(a)(2)(B). The Plaintiff indicated that Clark, informed by her years of experience and extensive training on human resources practices, would testify regarding typical employer practices and human resources standards related to addressing, investigating, and remedying reports of discrimination and harassment, as well as preventing retaliation in the workplace. According to Erwin, “standard human resources and employment practices” constituted matters central to the case and made Clark’s testimony all the more relevant considering the average person was not typically familiar with such terms.
Defendant OBI Seafoods, LLC (“OBI”) requested the Court to grant the Motion to Exclude Plaintiff’s Expert Witness, Judith Clark. OBI argued that Clark’s report on the Plaintiff’s employment frequently ventured beyond the scope of permissible expert testimony by making conclusions of law or defining the law. As a result, the report did not meet the standards of reliability and relevance set forth in the Daubert test.
Human Resources Expert Witness
Judith Clark, SPHR, CPC, is a highly experienced human resources professional with over 40 years of industry expertise, including more than 30 years in consulting. She has an extensive background in teaching, having served as adjunct faculty at the University of Washington for 27 years and at the Atkinson School of Management at Willamette University. Clark holds multiple certifications, including Senior Professional in Human Resources (SPHR) from the Human Resource Certification Institute, Certified Professional Consultant (CPC) from the International Guild of Professional Consultants, and Certified Professional in Public Sector HR Management (IPMA-CP) from the International Public Management Association – HR Division. She has also made significant contributions to the field through her leadership roles, including serving on the national Board of the Society for Human Resource Management (SHRM) for six years and completing a six-year term on the Board of the SHRM Foundation.
Discussion by the Court
Erwin enlisted Clark as a “Human Resources (HR) expert” to provide testimony on typical employer practices and human resources standards regarding responding to, investigating, and remedying reports of discrimination and harassment, as well as preventing retaliation at work. Additionally, Clark was tasked with rebutting the testimony of OBI’s four witnesses. OBI moved to exclude Clark’s testimony, arguing that it was neither reliable nor relevant. Erwin countered that Clark’s testimony was reliable, drawing from her extensive experience and training in human resources practices, and relevant because standard human resources and employment practices are often unfamiliar to the average person and are crucial to the case.
OBI argued that Clark’s testimony lacked reliability, stating it was based on personal opinions rather than professional expertise. They asserted that Clark’s testimony lacked sufficient methodology and failed to meet the expected analytical rigor of a testifying expert, as it did not sufficiently explain the fundamental basis for her opinions or how exactly her “relevant” experience was applied to the facts. OBI contended that Clark’s report lacked reference to any objective, independent validation to support her conclusions, citing Easton v. Asplundh Tree Experts, Co., Case No. C16-1694RSM (W.D. Wash. Sept. 12, 2017)and Arjangrad v. JP JPMorgan Chase Bank, N.A. Case No. 3:10-cv-01157-PK (D. Or. May 23, 2012)where similar expert testimony was excluded from consideration.
Erwin countered by asserting that Clark’s testimony was reliable, arguing that Human Resources (HR) does not fit into the traditional category of science that Daubert considerations are developed to address. Erwin highlighted Clark’s over 40 years of experience in HR and maintained that her extensive professional experience validated her opinions, as they were grounded in well-established industry practices.
The Court observed that reliability in expert testimony necessitated a solid basis in the knowledge and experience of the relevant discipline. When addressing testimony concerning “non-scientific” issues, the typical Daubert factors like peer review and potential error rates are not applicable. In such cases, the reliability of the testimony heavily relies on the expertise and experience of the expert rather than the methodology or theory behind it. However, when an expert primarily relies on experience, they must elucidate how that experience led to their conclusion, why it constitutes a sufficient basis for their opinion, and how it is reliably applied to the facts. The trial court’s gatekeeping function requires more than merely accepting the expert’s assertions at face value.
Henceforth, human resources experts, despite operating in a “non-scientific” field, are still subject to scrutiny under Rule 702. In Easton, the district court excluded an HR expert witness because his report failed to identify the source of his cited “HR best practices” before jumping into impermissible conclusions about the defendant employer’s policies and actions being “reasonable, especially despite the lack of explanation or analysis as to how those policies and actions were consistent with any HR ‘best practices.’” Similarly, in the Arjangrad case, the district court deemed an HR specialist’s expert testimony unreliable because the expert failed to clarify how his experience in discrimination investigations or advising employers and HR professionals informed his understanding and definition of generally accepted standards of HR investigation practices.
Even with a liberal interpretation of Rule 702 in favor of admissibility, Clark’s expert testimony failed to illustrate how her experience informed her conclusions on best or “typical” practices in the HR field. The Court noted a lack of methodological connection between her experience and her conclusions.
As for OBI’s contention that Clark opined beyond the acceptable bounds of an expert on HR practices and standards, the Court disagreed in part, observing that certain portions—but not all—of Clark’s report threatened to invade the role of the jury and judge by asserting legal conclusions. Nevertheless, because Clark’s expert testimony was unreliable, the Court decided exclude her testimony and declined to address that portion of the Daubert test.
Held
The Court granted OBI Seafoods, LLC’s motion to exclude Plaintiff’s Expert Witness Judith Clark.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The Court’s decision to exclude Judith Clark’s expert testimony in the case Alexandria L. Erwin filed against OBI Seafoods, LLC underscores the critical importance of reliability and relevance in expert testimony. While Clark was designated as a Human Resources (HR) expert to provide insight into typical employer practices and HR standards, the Court ultimately deemed her testimony unreliable. This ruling highlights the necessity for expert witnesses to clearly demonstrate how their experience informs their conclusions, particularly in non-scientific fields like HR. The Court’s discussion emphasized the need for a methodological nexus between an expert’s experience and their conclusions, which Clark’s testimony lacked. The decision draws attention to the rigorous standards that expert witnesses must meet, including the clarification of the basis for their opinions and the reliable application of their experience to the case at hand. In summary, this case underscores the importance of thoroughness, clarity, and methodological rigor in expert testimony, serving as a reminder of the Courts’ gatekeeping function in ensuring the integrity and reliability of evidence presented.
