On September 3, 2020, Plaintiffs Dalila Yeend and Bounnam Phimasone (together with Elvin Minaya Rodriguez, Lisa LaPointe, and Shantadewie Rhamee, “Plaintiffs”) commenced this action against Akima Global Services, LLC a/k/a AGS (“AGS” or “Defendant”) in New York State Supreme Court, asserting state law claims pertaining to their civil immigration detention at the Buffalo Federal Detention Facility (“BFDF”).
On October 16, 2020, Defendant removed this action to federal court. Almost two years later, Plaintiffs Yeend and Phimasone filed an amended complaint with class action allegations and claims for unjust enrichment and violations of the Trafficking Victims Protection Reauthorization Act (“TVPRA”) and the New York Labor Law (“NYLL”).
Defendant sought to preclude the testimony of Dr. Stuart Grassian and Dr. Michael Childers.
Psychiatry Expert Witness
Dr. Stuart Grassian is a board-certified psychiatrist and former faculty member of Harvard Medical School with experience in “evaluating individuals who were in conditions of confinement in prisons, ICE detention facilities, and secure psychiatric hospitals[.]”
He has authored articles on topics such as the psychiatric effects of solitary confinement and the effects of restricted and isolated conditions of confinement, and has previously provided expert testimony in cases regarding conditions of confinement.
Industrial Engineering Expert Witness
Dr. Michael Childers is a Professor in the Department of Labor Education at the University of Wisconsin-Madison, holds an M.S. and Ph.D. in workforce education and development and a B.S. in industrial engineering, and has worked on numerous “time studies” to assess “the time that should be allowed to perform work activities.”
Discussion by the Court
Dr. Stuart Grassian
Grassian opines “to a reasonable degree of medical certainty, that for a reasonable person in the position that the Batavia detainees find themselves, and with the attitude, threats, and punishments inflicted on those who refused to work, the work program at ICE-Batavia is coercive in nature.” In addition, Grassian concluded that (i) “[t]he conditions of the detention center collectively amount to a deprivation scheme;” (ii) “AGS exploits detainees’ access to resources and safety in order to coerce workers into working for wages that few people would voluntarily accept;” and (iii) “to a reasonable degree of medical certainty the Voluntary Work Program (“VWP”) at Batavia was psychologically damaging and scarring for the detainees exposed to it.”
Relevance
Grassian’s report includes a lengthy recitation of selected record evidence, as well as references to the amended complaint. Indeed, of his less than fourteen-page report, approximately seven pages appear to be direct quotes from interview notes taken by Grassian’s assistant, witness declarations, depositions, and the amended complaint. Additionally, in multiple areas of his report, Grassian appears to inject his subjective characterizations of detainee testimony to bolster his conclusions regarding the VWP.
The Court found that Grassian’s report largely recites testimony and characterizes it in a manner that is favorable to Plaintiffs and, thus, impermissibly “construct[s] a factual narrative based upon record evidence.”
In addition, and most notably, the Court found that Grassian’s expected testimony would impermissibly “tell the jury what results to reach.”
By opining that (i) “AGS exploits detainees’ access to resources and safety in order to coerce workers into working;” and that (ii) “the [VWP] at Batavia was psychologically damaging and scarring for the detainees exposed to it,” Grassian is essentially telling the jury that Defendant knowingly coerced participation in the VWP and that the detainees exposed to the VWP at the BFDF did, in fact, feel psychologically coerced.
Dr. Michael Childers
Childers was retained to (i) determine the work time necessary for the performance of certain VWP tasks; and (ii) calculate the amount BFDF detainees would have been compensated for performing those tasks had they been paid the minimum wage.
Childers also used those work times to calculate what AGS would have had to pay its own non-detainee employees, making market wages, to do the same work performed by detainees in the VWP.
i. Qualifications
Defendant argued that Childers’ background in industrial engineering, education, and labor relations is not relevant to assessing required staffing levels and associated costs at a secure federal detention facility, and that Childers lacked the requisite specialized knowledge related to federal contracts, regulations, or detention facilities necessary to render opinions on those topics.
Here, Defendant did not dispute that Childers held advanced degrees in workforce education and development. Childers’ curriculum vitae indicated that he is currently teaching courses on topics such as “contract costing, budget and financial analysis, . . . and stopwatch time study.” Defendant also did not dispute Childers’ attestation that he has “conducted hundreds of time studies in manufacturing, warehousing, service, and government organizations.”
Additionally, Childers has previously provided expert deposition testimony in a number of cases, many involving labor law claims.
Childers utilized resources that are common in the field in which he holds degrees and instructs, as well as schematics and internal documents from the BFDF, to calculate the average number of hours an individual would need to complete certain labor while in the VWP. He then used those work hour determinations to calculate the wages detainees would have earned if paid the minimum wage, and the wages AGS would have had to pay its own non-detainee employees for such labor if they were paid the market wage.
Accordingly, the Court found that Childers is qualified to render the opinions set forth in his report.
ii. Sufficient Facts or Data and Reliable Methodology
In his report, Childers describes the materials on which he relies and the assumptions he makes in reaching his conclusions. Specifically, Childers relied on the Association of Physical Plant Administrators’ (“APPA”) methodologies, applicable Federal Service Contract Act (“SCA”) wage data, discovery documents, and deposition testimony in this matter to determine the rate at which AGS would substitute market labor for detainee labor “but for the work program.”
Childers calculated: (1) the amount detainees would have made if they were making the minimum wage, and the savings AGS arguably retained from paying detainees only one dollar per day; and (2) the cost that would have been required to replace detainee labor with full-time, non-detainee AGS employees, and the savings AGS purportedly retained from not doing so and instead paying detainees one dollar per day.
The Court found that this methodology is sufficiently reliable.
Defendant nonetheless asserted that the data that Childers extrapolated from the APPA Guidelines is too generic, overly inclusive, and failed to consider certain data adjustments that Defendant contended should have been made. However, similar to disagreements as to an expert’s qualifications, disputes as to faults in an expert’s use of a particular methodology “are grist for cross-examination, and go towards weight, not admissibility.”
Moreover, Childers was instructed to assume that “AGS operates the Batavia immigrant detention facility and must do so by standards issued by the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE).” As such, Childers’ assumption that AGS would be responsible for the damages calculated does not render his conclusions or methodologies unreliable.
iii. Relevance
Moreover, Childers’ damages analyses utilize various specialized resources to calculate work times and wage rates that the Court finds are not easily interpreted by a lay person. In addition, Childers performs technical calculations not readily undertaken by a lay person, including calculation of the cost that Defendant would have incurred to pay outside contractors to perform the work covered by the VWP during the relevant time periods. The Court determined that this precisely the type of assistance that Rule 702 and Daubert allow.
Held
The Court granted in part and denied in part the Defendant’s motion in limine to exclude the testimony of Stuart Grassian and Michael Childers.
Key Takeaways:
- Defendant failed to explain why Childers’ undisputed experience in other work settings, including with “government organizations,” would be inapplicable in the detention setting, nor is it apparent to the Court. Indeed, the Court found that Childers’ experience, particularly with respect to conducting time studies, is sufficiently applicable here. Moreover, disputes as to the strength of an expert’s credentials generally go to the weight, not the admissibility, of the expert’s testimony.
- Expert testimony must be carefully circumscribed to assure that the expert does not usurp either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it. The Court fiound that Grassian’s report largely recites testimony and characterizes it in a manner that is favorable to Plaintiffs and, thus, impermissibly “constructs a factual narrative based upon record evidence.”
Case Details:
| Case Caption: | Yeend Et Al V. Akima Global Services, LLC |
| Docket Number: | 1:20cv1281 |
| Court Name: | United States District Court, New York Northern |
| Order Date: | March 31, 2025 |
