Expert Witness Profiler

Tag: disability discrimination

  • Vocational Rehabilitation Expert Witness’ Analysis of the Plaintiff’s Earning Potential Rejected

    Vocational Rehabilitation Expert Witness’ Analysis of the Plaintiff’s Earning Potential Rejected

    Plaintiff, Alex Mundy, a former graduate student at the University of Wisconsin—Madison, filed this lawsuit against the Board of Regents of the Universities of Wisconsin (the Board of Regents) alleging illegal retaliation in violation of the Rehabilitation Act. Mundy claimed the Board of Regents retaliated against her by refusing to award her a coursework master’s degree because she filed a previous lawsuit alleging Professor Cameron Currie deprived her of a master’s research degree in bacteriology because of her disability in violation of the Rehabilitation Act.

    In her first case, Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. Schutz did not update his 2021 report for this case. The Board of Regents moves to exclude his testimony as inadmissible under Federal Rule of Evidence 702.

    Vocational Rehabilitation Expert Witness

    Kevin Schutz has worked for Professional Rehabilitation Services for over 35
    years, where he currently works as a vocational rehabilitation counselor. He also has a master’s degree in rehabilitation psychology.

    Get the full story on challenges to Kevin Schutz’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    In his report, Schutz opined that Mundy would be able to earn approximately an additional $20,000 per year if she had a master’s degree in bacteriology. Schutz explained that this estimate is based on a comparison of the average pay of life scientists in the Madison labor market to the average pay of public health and social service workers.

    He stated that these estimates were based on 2019 data from the Wisconsin Department of Workforce Development, and that, at the time Schutz interviewed Mundy to prepare his report, Mundy was earning $54,000 annually working as an associate project coordinator at a clinic research company, which put her in the middle of the pay range for public health and social service workers. Schutz also opined that Mundy could remediate her lost earning capacity by going back to school to earn the master’s degree, which would reduce her earning by $50,000 to $100,000 over the year or two year that it would take her to complete the degree.

    The Court held that there were fundamental problems with how Schutz applied the general method in his report despite there being nothing inherently unreliable about the method that Schutz used to evaluate the earning gap that Mundy suffered without a bacteriology master’s degree.

    Schutz concluded that her earning potential without the completed bacteriology degree was $50,000 to $60,000 per year, but with the degree it would have been $70,000 to $80,000 per year, resulting in annual lost earnings of $20,000.

    Schutz’s analysis was severely flawed

    The Court found several flaws wth Schutz’s analysis. To start, Schutz framed his analysis by citing “Examples of options available to Mundy with a completed Bachelor of Science degree in bacteriology would be positions found in life science and social science environments.” But Mundy was pursing a master’s degree in bacteriology. And she already had a master’s degree in pubic health. So it’s not clear that Schulz had properly identified Mundy’s qualifications and identified the proper comparator positions.

    Next it’s not clear what positions Schutz thought would be available to Mundy with her completed bacteriology degree. Schutz provided the “the average pay to life scientists in the Madison labor market,” but he did not explain what positions were included in reaching that average. “Life scientist” could refer to a wide range of jobs, from that of a routine laboratory technician with a technical degree to high-level research requiring an advanced degree. It is impossible to assess whether it is reasonable to compare Mundy’s earning potential with a master’s degree in bacteriology to the average life scientist salary without knowing if the jobs included in that average are ones that Mundy might be able to get. 

    Schutz’s analysis of Mundy’s earning potential without the bacteriology master’s degree had similar problems. Schutz begins by saying that Mundy’s employment options without the bacteriology degree “would revolve around employment in public health and social service types of environments,” presumably because she already had a master’s degree in public health. But the example salaries that Schutz provided were for a “health education specialist,” “community and social service specialists,” “administrative assistant types of positions,” and “administrative or social/human service types of positions.”

    Schutz’s 2024 deposition

    Schutz testified that he stood by his original opinion that Mundy has a $20,000 annual earning gap without the bacteriology degree, and he opined that he believes the earning gap will last for the remainder of Mundy’s career.

    Schutz’s deposition testimony is that Mundy, over the course of three years of work in her profession, has remediated any impairment in her earning potential. Perhaps Mundy endured some loss of earnings over the course of the last three years, but Schutz provided no opinion on that. Perhaps inflation played a role in the increase in Mundy’s salary, but Shutz provided no opinion on that either. In other words, Schutz’s own testimony earlier in his deposition contradicted his conclusion. 

    Held

    The Court concluded that Schutz’s conclusion that Mundy will endure a permanent impairment of her earning potential of $20,000 per year is a mere conclusion without supporting analysis. The Court excluded the testimony of Kevin Schutz.

    Key Takeaway:

    Alex Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. The Court found several flaws wth Schutz’s analysis. For instance, Schulz had not properly identified Mundy’s qualifications or the proper comparator positions. Besides, Schutz’s own testimony earlier in his deposition contradicted his conclusion about Mundy’s $20,000 annual earning gap.

    Case Details:

    Case Caption: Mundy, Alex V. Board Of Regents For The University Of Wisconsin System
    Docket Number: 3:22cv561
    Court: United States District Court for the Western District of Wisconsin
    Order Date: June 26, 2024
  • Court validates the objective findings of the statistics expert witness in this class action lawsuit consisting of disability discrimination claims

    Court validates the objective findings of the statistics expert witness in this class action lawsuit consisting of disability discrimination claims

    This case originated from a class action lawsuit filed by the Center for Independence of the Disabled, New York and other nonprofit organizations (collectively referred to as Plaintiffs) against the Metropolitan Transportation Authority (“MTA), New York City Transit Authority (“NYC Transit”), and the City of New York(“the City”) (collectively referred to as Defendants). The lawsuit alleged that hundreds of thousands of New Yorkers with mobility disabilities were persistently and discriminatorily excluded from accessing the New York City subway system due to the failure of the Defendants to adequately maintain the already limited number of elevators in the system. 

    The Plaintiffs contended that subway riders with mobility disabilities routinely faced abrupt and extended elevator outages lasting for months, without any prior notice or warning mechanisms like signage or announcements. Moreover, the Defendants allegedly failed to provide any alternative accommodations to facilitate the transportation of people requiring elevator access when outages occurred. The Plaintiffs asserted that the overall elevator accessibility in the New York City subway system was already poor compared to other major US cities, with only 112 (24%) of the 472 subway service line stations in New York City being wheelchair-accessible.

    Public data from the MTA demonstrates that over 9,019 elevator outages occurred during the one-year period ending on June 30, 2015. Over 4,100 of those outages were unscheduled—a predictable result of Defendants’ failure to maintain and implement adequate preventative maintenance procedures

    Plaintiffs alleged that Defendants’ failure to maintain the limited number of elevators they provide in the New York City subway system violated federal and local disability rights laws, including Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and the New York City Human Rights Law (“NYCHRL”). The Court was left to assess whether Defendants have established that they provide reasonable accommodations to class members when elevator outages prevent them from accessing the subway.

    The Defendants retained Dr. Alan J. Salzberg, a statistician, to analyze the overall median availability of elevators in the NYC subway system using MTA data. The Plaintiffs did not contest his availability calculations but argued that the aggregated figures could obscure variability. Hence, the Plaintiffs presented two rebuttal experts – Andrew D. Schwarz and Sylvia Morse – to provide context to Dr. Salzberg’s opinions. 

    The Plaintiffs also filed a motion to exclude Dr. Salzberg’s testimony, arguing that he exceeded his expertise scope, manipulated data unreliably, and made flawed assumptions, rendering his testimony unhelpful and misleading. 

    Statistics Expert Witness

    Alan J. Salzberg Ph.D., is Senior Statistician and Principal of Salt Hill. His focus is statistical analysis, sampling, estimation, and modeling, especially using large or complex datasets. Many of Dr. Salzberg’s consulting projects and research papers have related to the detection and measurement of bias. He has testified as an expert witness in statistics in federal and state court. Prior to joining Salt Hill, Alan was CEO of Analysis & Inference. Salzberg holds a Ph.D. in Statistics from the Wharton School of the University of Pennsylvania, where he also received a Bachelor of Science in Economics.

    Discussions by the Court

    In response to Plaintiffs’ motion to exclude the testimony of Defendants’ expert, Alan Salzberg, the Court engaged in a detailed discussion rooted in the parameters set by Federal Rule of Evidence 702. The Court emphasized that, under Rule 702, the party seeking to introduce expert testimony bore the burden of demonstrating that the testimony met certain criteria, including being based on sufficient facts or data, the product of reliable principles and methods, and reliably applied to the facts of the case. Additionally, the expert’s testimony had to be relevant and assist the jury in understanding the case. 

    The Court considered the motion to exclude the testimony of Alan Salzberg, the Defendants’ expert, who had submitted reports critiquing two of the Plaintiffs’ experts, Andrew Schwarz, an economist, who developed a model to demonstrate the practical implications of elevator outages on passengers traveling on certain high-usage subway routes during rush hours, and Sylvia Morse, Policy Program Manager at Pratt Center for Community Development. The Court began by addressing Salzberg’s expert report titled “Subway Accessibility Analysis.” Salzberg, was tasked with reviewing public elevators in the New York City subway system to determine the elevator, station, and station stop availability for riders with mobility disabilities. Schwarz’s analysis was “intended to highlight the impact of the frequency of inaccessibility calculated by Salzberg on the commutes of targeted types of individuals.”

    In response to Schwarz’s report, Salzberg submitted a reply report on May 2019, using the same Metropolitan Transportation Authority’s (“MTA”) Trip Planner tool that Schwarz relied on for his analysis. Salzberg performed his own analysis of the 200 trips considered by Schwarz and identified errors in Schwarz’s analysis, such as, Schwarz had not selected the 200 subway trips at random and excluded downtown Manhattan stations.

    After the Second Circuit’s remand, Salzberg submitted an update to his report, dated September 12, 2022, concerning accessible elevator, station, and station stop availability, using new data, from 2019 through 2021. In response, Plaintiffs submitted an updated report from Schwarz, dated November 23, 2022. Schwarz, using Salzberg’s statistical calculations, again examined the likelihood that a commuter taking a trip along 200 commuting routes involving subway stations commonly used by passengers with mobility disabilities would experience a failed trip during a particular period of time. The Court noted that Plaintiffs did not challenge Salzberg’s availability calculations, focusing instead on his qualifications and the assumptions underlying his statistical calculations. 

    Plaintiffs argued that Salzberg was unqualified to render an expert opinion in the case due to his lack of expertise in transportation systems, commuting patterns in New York City, or accessibility barriers for people with mobility disabilities. The Court countered this by highlighting that Salzberg analyzed the same data examined by Schwarz, who himself was an economist without expertise in transportation systems. The Court emphasized that Salzberg’s qualifications were appropriate for critiquing Schwarz’s model.

    Another argument raised by Plaintiffs was the unreliability of Salzberg’s methodologies, grounded in alleged flawed assumptions. Plaintiffs contended that these flaws rendered his opinion unreliable and unhelpful to the trier of fact. The Court, however, clarified that criticisms of methodology went to the weight of the expert’s opinion, not its admissibility. The Court stated that faults in methodology were a matter for cross-examination. 

    Plaintiffs specifically challenged Salzberg’s assumption that the MTA’s Trip Planner accurately reflected availability and delays associated with having to reroute or that passengers received timely notification of elevator outages. The Court deemed it reasonable for Salzberg to have relied on data pertaining to route availability and delays, which were maintained by the MTA in the regular course of business and were accessible to the public through the MTA’s Trip Planner online tool. The Court also noted Schwarz’s reliance on the same Trip Planner data in his analysis, highlighting that any inaccuracies would affect both analyses. Plaintiffs’ claims about data inaccuracy were considered arguments concerning the weight of the evidence and not to its admissibility.

    Another point of contention was Salzberg’s definition of a “successful” trip, where Plaintiffs argued that he deemed a trip successful regardless of its duration or onerousness. Salzberg’s use of the Trip Planner tool to determine alternative itineraries was defended by the Court, emphasizing that Plaintiffs could challenge the feasibility of these alternatives on cross-examination. 

    The Court also addressed Salzberg’s consideration of nearby stations when an elevator outage affected the original station, adding travel time to the itinerary whenever necessary. Plaintiffs contended that this introduced selection bias. The Court rejected this argument, stating that Salzberg reliance on the MTA’s Trip Planner to determine alternative itineraries demonstrated no selection bias.

    Moving to the critique of Plaintiffs’ expert Sylvia Morse, the Court outlined the situation. Morse had submitted a rebuttal report focusing on the real-world performance of the bus system and
    factors affecting rider experience, challenging two assumptions made by Salzberg. The first assumption was that transit users with mobility disabilities could always access buses, and the second was that the MTA’s Trip Planner accurately reflected a transit user’s travel time. Ultimately, Morse concluded that accessibility barriers and the unreliability of buses impeded or delayed the completion of alternative itineraries that relied on use of the bus system for transit users with mobility disabilities.  

    In response, Salzberg prepared a rebuttal report criticizing Morse’s reliance on anecdotal customer complaints and arguing that such complaints represented a tiny fraction of all accessible bus trips and was not a statistically valid basis to support a conclusion that the bus system suffered from widespread barriers to accessibility. Plaintiffs challenged Salzberg’s analysis, raising arguments that the Court deemed relevant to the weight of the evidence, not its admissibility.

    Plaintiffs faulted Salzberg for assuming that each complaint concerned only a single ride or bus operator. The Court noted that Plaintiffs had no evidence to support their assumption that a complaint could pertain to multiple trips, highlighting the lack of basis for this criticism. Plaintiffs’ challenge to Salzberg’s conclusion regarding Trip Planner’s notification of elevator outages in real time was also addressed. The Court acknowledged Plaintiffs’ freedom to challenge the persuasiveness of this opinion on cross-examination but found the assumption not unfounded enough to render the opinion inadmissible.

    Held 

    The Court denied the Plaintiffs’ Daubert motion to exclude Dr. Salzberg’s testimony, finding that their criticisms went to the weight rather than the admissibility of his opinions. The Court determined there was no basis to preclude Dr. Salzberg’s expert testimony under the applicable rules of evidence. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case highlights several important considerations regarding the admissibility of expert witness testimony. A key takeaway is that critiques of an expert’s methodology ,sometimes, generally relate to the weight of the testimony rather than its admissibility. The Court emphasized that alleged flaws in an expert’s assumptions or analysis are fodder for cross-examination but do not necessitate exclusion. Furthermore, the ruling demonstrates that rebuttal experts need not have specialized expertise in the substantive field at issue if they are commenting on another expert’s methodology. Finally, the Court highlighted that rebuttal experts should bring specialized knowledge to bear on an issue rather than just speculating or relying solely on anecdotal evidence. These insights shed light on key considerations for expert witness testimony.

  • Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Legal Gavel and Scale - Symbol of Justice

    In this case, Plaintiff Jaketra Bryant is representing her minor son, C.B., who has Autism Spectrum Disorder (autism) and Attention Deficit Hyperactivity Disorder (ADHD). They are asserting claims of unlawful racial and disability-based discrimination against Calvary Christian School of Columbus, Georgia. The school is a private elementary school affiliated with Calvary Baptist Church, receiving state and federal funding. C.B. was enrolled in the Discovery School Program, a small instruction-based program for students with learning difficulties which had a 5:1 student-teacher ratio. To qualify, students needed an Individual Education Plan (IEP), a 504 Plan, or a psychological evaluation. C.B.’s evaluation diagnosed autism and ADHD, recommending specific accommodations. 

    At first, C.B. performed well academically. However, during his seventh year, he exhibited certain behavioral issues, including temper outbursts, class disruption, throwing objects and misusing his laptop. The school recommended Applied Behavioral Analysis (ABA) therapy and medication evaluation, which the Plaintiff did not pursue initially. C.B. and another student reported racial comments, but no action was taken. 

    After more such incidents, C.B. was suspended, and the school decided to shift him to virtual instruction due to his behavioral challenges. The school required completion of ABA therapy in a classroom setting for him to return to in-person classes. A therapy plan was devised by Kya Grier Williams involving in-person instruction and shadowing. The therapy plan included fifteen hours of in-person instruction at Calvary where an assistant would shadow C.B. during class to support implementation of the plan. Alternatively, Williams offered to train Calvary staff on ABA behavioral therapy techniques for free to help ensure that the therapy plan was implemented correctly. 

    Shortly after being briefed on the therapy plan, Headmaster Koan was reluctant to go through with the execution of the plan because it required C.B.’s return to campus in person without proof of his satisfactory progress. Since the headmaster was hesitant to implement it, it led to an impasse. The school eventually considered C.B. withdrawn as a student. 

    Overall, the case involves allegations of discrimination, inadequate support for C.B.’s special needs, racial comments, and disputes over the implementation of therapy and accommodations. 

    Behavioral Therapy Expert Witness

    Calvary School moved for summary judgment on all of Bryant’s claims under the 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

    Calvary also moved to exclude the expert testimony of Bryant’s expert Kya Grier Williams M.S., BCBA, LBA on individualized behavioral interventions alleging that her recommendations were wrong. 

    Williams is a licensed behavioral therapist, dedicated to and specializing in the treatment of behavioral issues in children and adolescent diagnosed with Autism and related Developmental Disorder, and Addiction and Compulsion in teens and adults.

    Discussion by the Court 

    The Court held that based on the facts of the case, though C.B did have a disability within the meaning of the Rehabilitation Act, Bryant does not seriously dispute that C.B. violated Calvary’s behavioral standards by throwing objects in class and misusing his laptop or contend that Calvary’s progressive disciplinary responses to each incident were atypical punishments when Bryant asserts that Calvary denied C.B. the following accommodations: enforcement of the positive reinforcement behavior plan in Ms. Cameron’s class, transferring C.B. to a teacher other than Ms. Cameron, and allowing C.B. to return to in-person classes at Calvary in the spring 2021 semester under the conditions of C.B.’s ABA behavioral therapy plan.

    The Court noted that Calvary incorporated sufficient adjustments such as:

    • Implementing all of C.B.’s psychologist’s recommendations, including his recommendation that C.B. be put on a behavior plan that incorporated positive rewards,
    • Adjusting the conditions of his dismissal to enable C.B. to return in person by fall 2021 without having to enroll in another school,
    • Allowing C.B. to continue attending Calvary through its virtual learning program for the rest of fall 2020 and
    • Even granted Bryant’s request to allow C.B. to continue learning virtually in spring 2021 in an effort to accommodate C.B.

    Based on the above, the Court granted Calvary’s summary judgment motion on Bryant’s Rehabilitation Act claims. 

    The Court also held that to establish a prima facie case of discrimination, Bryant must show that:

    1. C.B. is a member of a protected class
    2. He suffered an adverse action
    3. He was qualified to attend Calvary under Section 1981 of the U.S. Code and
    4. Calvary “treated ‘similarly situated’ [students] outside his class more favorably.”

    The parties do not dispute that C.B., a black male, is a member of a protected class, that he was qualified under Section 1981 of the U.S. Code or that he suffered an adverse action when Calvary dismissed him. The Court noted that to establish discrimination, Bryant must show that Calvary treated similarly situated individuals more favorably. A “similarly situated” comparator is typically someone who engaged in the same misconduct and had a similar disciplinary history as C.B.

    Bryant contended that the increasingly racially hostile environment at Calvary exacerbated C.B.’s disability manifestations, which led to his outbursts in class.The Court noted that this argument did not show that Calvary’s asserted reasons for dismissing C.B. were excessive or unjustified based on Calvary’s progressive discipline of C.B. after each behavioral incident (first checkmark, then suspension, then removal from in-person classes). 

    The Court also granted summary judgment on Bryant’s section 1981 claim. 

    Bryant further contends the following conduct is actionable racial harassment:

    1. Student comments in a virtual meeting about “God hating blacks and gays;”
    2. Director Jones’s comment to Bryant that C.B. needs to be careful or he “would end up with his hands behind his back;”
    3. Calvary’s repeated encouragement that Bryant have C.B. evaluated for medication; and
    4. Calvary forcing another black male student to withdraw from the school. 

    The Court found that this conduct did not rise to the level of actionable racial harassment. Although the comments made by the students were offensive and unacceptable and the Court understood how Director Jones’s comments could have been interpreted as insensitive, the Court found that these isolated comments were not sufficiently pervasive such that they effectively denied C.B. equal access to education. 

    Calvary School’s repeated insistence on evaluating C.B. could not be construed as objectively offensive or race-related conduct considering Calvary School wanted to effectively manage C.B.’s repeated classroom disruptions and also because Dr. Kevin Weis, C.B.’s treating doctor, had also recommended a physician’s evaluation for potential evaluation. 

    Moreover, when Bryant contended that Calvary forced another black male Discovery School student to withdraw from Calvary around the same time C.B. withdrew, she failed to back-up her claim with adequate evidence. Also, Bryant did not dispute that Calvary also expelled at least four white students and barred two others from in-person classes during C.B.’s time at the school. 

    The Court concluded that Calvary School was entitled to summary judgment on Bryant’s Title VI of the Civil Rights Act of 1964 claims. 

    Calvary School challenged the testimony of Plaintiff’s expert Kya Grier Williams arguing that Ms. Williams lacked adequate behavioral data to base her initial hypothesis on and to add to that she never tested her initial hypothesis. Moreover, Williams recommended that C.B. receive twenty hours of intensive, one-on-one behavioral services every week, for a six-month period. Essentially, she wanted CB to have a one-on-one shadow for half the school day in case he acted out again without taking into account the possibility that more intensive interventions can even have negative consequences as far as behavioral services or accommodations are concerned.  

    Held 

    The Court granted Calvary’s summary judgment motion on Bryant’s claims under Title VI of the Civil Rights Act of 1964, under Section 1981 of the U.S. Code and Section 504 of the Rehabilitation Act as a consequence of which it terminated Calvary’s motion to exclude Bryant’s expert Kya Grier Williams as moot. The Court entered the judgment in Defendant Calvary School’s favor stating that Plaintiff shall recover nothing of Defendant and Defendant shall also recover costs of this action. 

    Key Takeaway:

    In this case, the Court ruled in the Defendant’s favor and held that even though comments made by the students were offensive and the school’s conduct can possibly come across as insensitive in more than one instance, it does not constitute actionable harassment considering the school had made necessary adjustments in accordance with the psychological evaluation to accommodate C.B. and henceforth Williams’ testimony on individualized behavioral interventions submitted by the Plaintiff to substantiate its claims against the Defendant was no longer relevant for the Court to decide the issues involved in this case based on which the Court declared the Defendant’s motion to exclude Williams’ testimony moot.