Expert Witness Profiler

Tag: Discrimination

  • Occupational Therapy Expert Witness Allowed to Opine on the Suitability and Necessity of the Health Center Policy for Firefighters

    Occupational Therapy Expert Witness Allowed to Opine on the Suitability and Necessity of the Health Center Policy for Firefighters

    Jeremy Knorr (“Plaintiff”) worked as a firefighter for the Daisy Mountain Fire District (“the District”) from 1992 until 2019, when he was terminated at least in part due to his inability to comply with a new fitness policy (“the Health Center Policy”), adopted by the Daisy Mountain Fire District Board (“the Fire Board”) in late 2017, that required all District firefighters to take a yearly treadmill test and receive a Metabolic Equivalent Task (“MET”) score—which is a measure of cardiorespiratory and aerobic fitness—of at least 12.

    In this action, Plaintiff has sued the District, the Fire Board, and the individual members of the Fire Board (together, “Defendants”) for age discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) and for disability discrimination in violation of the Americans with Disabilities Act (“ADA”).

    Defendants retained Mark Hyland to “review and analyze the necessity for, and the requirements of, the Health Center Policy at the Daisy Mountain Fire
    District and to explain the various tests offered by the District to measure cardiovascular and aerobic fitness ability” while Plaintiff retained Michael Stokes to “calculate and revise the present value of the loss of earnings, income and fringe benefits sustained by Plaintiff.”

    Plaintiff moved to exclude the opinions of Hyland while Defendant filed a motion to exclude the opinions of Stokes.

    Occupational Therapy Expert Witness

    Mark Hyland is a licensed occupational therapist, is “certified in functional capacity evaluation,” has been the director of clinical operations at STI for nearly 30 years, has “performed extensive research and analysis into the health and fitness needs of local business in various industries” including “the Phoenix, Glendale, Goodyear, Prescott and Tempe Fire Departments,” has “consulted on the subject of various government rules, regulations, and laws, including the [ADA] and OOSHA compliance,” and has testified as an expert in multiple occasions since 2001.

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

    Economics Expert Witness

    Michael J. Stokes earned a Master’s in Business Administration from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He is a partner at Beta Business, a leading consulting firm throughout the Southwest. Beta Business provides economic analysis reports, research and expert testimony for economic damage claims involving personal injury, wrongful death, employment (loss of earning capacity) and more.

    Want to know more about the challenges Michael J. Stokes has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Mark Hyland

    Hyland opined that the “the District has a legitimate interest and duty to determine and ensure its employees can perform their duties safely.”

    Plaintiff moves to preclude Hyland from testifying on the grounds that “1) Hyland is not medically qualified to testify regarding several areas and 2) the few areas he may have experience with do not require expert testimony.”

    Hyland is not medically qualified to testify regarding several areas

    Plaintiff’s primary objection to Hyland’s remaining opinions is that Hyland is unqualified to render them because they call for medical expertise but Hyland is not a doctor and did not play a direct role in administering the treadmill tests at STI. Although this challenge is not frivolous, the Ninth Circuit has emphasized that Rule 702 “is broadly phrased and intended to embrace more than a narrow definition of qualified expert.”

    The Court is satisfied that this background, training, and experience as the director of clinical operations provides the necessary “minimal foundation” for Hyland to be qualified to opine on the the suitability and necessity of the Health Center Policy for firefighters; whether Plaintiff’s inability to comply with the Health Center Policy precluded Plaintiff from performing the functions of his job; the differences between the treadmill test, the walking test, and the bike test; and how Plaintiff would have fared on the latter two tests.

    Nor is there any merit to Plaintiff’s contention that Hyland’s opinions on these topics should be excluded because they are contradicted by other evidence. As the Ninth Circuit has repeatedly emphasized, “[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”

    The few areas Hyland may have experience with do not require expert testimony

    As an initial matter, Plaintiff argues in his motion that several of Hyland’s proffered opinions should be excluded as irrelevant and unfairly prejudicial because they relate to obvious, undisputed issues that do not require expertise.

    However, Defendants make no effort to respond to these arguments in their response. Instead, they contend— incorrectly—that “the only opinions [Plaintiff] challenges are Hyland’s opinions regarding the fitness tests provided to the District’s employees, the suitability and availability of other tests, and [Plaintiff’s] overall health and fitness levels” and then proceed to offer a defense of those opinions. It follows that Defendants have forfeited any defense of the subset of Hyland’s opinions challenged on relevance/403 grounds and have thus not met their burden of establishing the admissibility of those opinions.

    Accordingly, the Court excluded Hyland’s first (“Firefighters require a high standard of physical fitness for safe and efficient job performance for their essential job demands.”), second (“The District had a legitimate interest and duty to determine and ensure its employees can perform their duties safely and that its employees are not a danger to themselves, their coworkers, and members of the public”), and fifth (“Cardiovascular standards are necessary for firefighters to adequately perform their job and for the health and safety of the firefighters, their coworkers, and the public.”) opinions.

    Hyland’s opinions are not based on methods and procedures of science, but rather on subjective belief or unsupported speculation

    Plaintiff’s motion also raises a fleeting challenge to the reliability of Hyland’s opinions but Hyland explains in his report that the Health Center Policy “was developed and based upon National Fire Protection Association (‘NFPA’) 1500 & 1582,” which “standards include, among other factors, spirometry pulmonary function screening and sub-maximal ECG performance tests”; that Hyland has also reviewed “[r]esearch with firefighters [that] indicates that a minimum aerobic capacity of 12.0 METS . . . is necessary for safe fire ground operations.” The Court held that Hyland has adequately explained how his opinions are “grounded in an accepted body of learning or experience in the expert’s field” and has also adequately “explain[ed] how the conclusion is so grounded.”

    Hyland’s opinions are not subject to exclusion based on late disclosure

    As background, under the scheduling order in this case, expert opinions were subject to a staggered disclosure schedule—the “party with the burden of proof on an issue” was required to provide expert disclosures by a certain date and the “responding party (not having the burden of proof on the issue)” was required to provide expert disclosures about a month later. Both sides were subject to the same deadline for completing expert depositions, which was about a month after the responding party’s disclosure deadline.

    Plaintiff’s hyper-technical argument, raised for the first time in his reply, is that because Defendants have now clarified that Hyland’s opinions are intended to support Defendants’ affirmative defenses (as opposed to being used to undermine Plaintiff’s claims), they should have been disclosed by the first expert disclosure deadline in the scheduling order rather than the second, slightly later one. But even assuming this is correct, the Court held that the fact that Hyland’s opinions were disclosed about one month late would not automatically compel their exclusion.

    As per Rule 37, any late disclosure was harmless because Plaintiff still received Hyland’s report more than a month before the expert-deposition deadline and was, in fact, able to depose him by that deadline.

    Michael Stokes

    Stokes calculated the present value of the loss of earnings, income and fringe
    benefits sustained by Plaintiff as $749,041. When doing so, Stokes assumed that but for Plaintiff’s termination, Plaintiff would have worked for an additional 13.5 years as a firefighter. Stokes also used Plaintiff’s past earnings as a firefighter as the foundation for his assumptions about what Plaintiff would have earned during this 13.5-year period.

    Defendants argued that Stokes’ opinions should be excluded because they are based on the false assumption that Plaintiff would have worked for another 13.5 years as a firefighter but-for his termination. According to Defendants, this assumption is false because Plaintiff successfully applied for disability benefits in 2020, with a disability onset date of February 20, 2019. Defendants conclude: “Stokes’ did not know [Plaintiff] is disabled. This fundamental error permeated throughout Stokes’ entire analysis, including wrongfully relying upon a ‘normal work life expectancy’ rather than a disability work expectancy, and wrongfully assuming no disability exists in his calculation of [Plaintiff’s] claimed economic damages.”

    Stokes’ opinion is based upon incorrect and incomplete facts

    Stokes assumed, for purposes of his calculations, that Plaintiff would have worked for another 13.5 years as a firefighter (until the age of 64.6) and also used Plaintiff’s past earnings as a firefighter as the foundation for his assumptions about what Plaintiff would have earned during this 13.5-year period. If it were undisputed that Plaintiff became permanently disabled as of 2019, such that Plaintiff was thereafter unable to hold any paying job, there is a strong argument that Stokes’ assumptions would simply be too untethered to reality to permit the admission of his opinions.

    However, Plaintiff retained the ability to continue working and earning wages and will continue to work until the age of 64.6, just as Stokes assumed. Furthermore, although the disability finding may eliminate the possibility that Plaintiff could have held one particular job—his previous job as a firefighter—following his termination, this at most means that Stokes’ assumptions about the amount of wages Plaintiff would have earned from his 13.5 years of posttermination work are incorrect. The Court held that the possibility that Stokes’ calculated damages figure may need to be reduced, because it is based on an inaccurate assumption, is not a reason to categorically exclude Stokes from testifying.

    Held

    1. The Court granted in part and denied in part the Plaintiff’s motion to exclude Mark Hyland.
    2. The Court denied the Defendants’ motion to exclude Michael Stokes.

    Key Takeaway:

    Despite Hyland’s lack of medical expertise, the real reason the Court limited his opinions was that the Defendants forfeited any defense of the subset of Hyland’s opinions challenged on relevance/403 grounds, and therefore, they did not meet their burden of establishing the admissibility of those opinions.

    Stokes did not know that the Plaintiff is disabled but his testimony was admitted despite this fundamental error.

    Case Details:

    Case Caption: Knorr V. Daisy Mountain Fire District Et Al
    Docket Number: 2:22cv608
    Court: United States District Court for the District of Arizona
    Order Date: September 18, 2024
  • Court refuses to exclude expert testimony on the application of local zoning regulations

    Court refuses to exclude expert testimony on the application of local zoning regulations

    In 2014, Plaintiffs asked Defendant to rezone a parcel of land from Agricultural (“AG-2”) to Community Facilities Planned Development (“CFPD”). They needed the rezoning to build a 72-bed residential substance abuse treatment center and detoxification facility. Plaintiffs were initially successful. Defendant’s staff and hearing examiner recommended rezoning because the facility was compatible with the surrounding area’s mixed-use character. But the success was short-lived.

    The Lee County Board of Commissioners unanimously voted against the rezoning at a public hearing on August 5, 2015.

    Plaintiffs disputed why their application failed. According to them, the Board rejected the rezoning because of community opposition to the facility. 

    Plaintiffs pursued multiple avenues to get the zoning approval. On August 1, 2019, they filed this Americans with Disabilities Act (“ADA”) suit seeking monetary damages, declaratory relief, and injunction relief. Plaintiffs have alleged that Defendant (1) intentionally discriminated against them and their proposed patients when it denied the rezoning application, and (2) did not provide a reasonable accommodation.

    Defendant, Lee County, pursuant to Federal Rule of Evidence 702 (“Rule 702”), sought to exclude the improper expert opinions of Plaintiffs’ designated expert witnesses, Veronica Martin (“Martin”) and Mary Magno Mouracade, M.D. (“Mouracade”).

    Project Management Expert Witness

    Veronica Martin is a Senior Planner/Project Manager with 17 years’ experience at TDM Consulting, a civil engineering and planning firm. She has testified as an expert on planning matters more than 40 times.

    Want to know more about the challenges Veronica Martin has faced? Get the full details with our Challenge Study report. 

    Internal Medicine Expert Witness

    Mary Magno Mouracade is a medical doctor and is board certified in internal medicine, nephrology, and integrated medicine, and is board-eligible for certification in addiction medicine.

    She is the Chief Medical Officer for Kimberly Regenesis in Ft. Myers, Florida.

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

    Discussion by the Court

    First, Defendant maintained that neither Martin nor Mouracade had any specialized knowledge to help the Court understand the evidence or determine a fact. Second, Defendant claimed that Martin will usurp the Court’s role by stating legal conclusions on reasonable accommodations and the application of local zoning regulations. Third, both expert opinions are based on flawed methods and are not based on facts or data.

    The Eleventh Circuit has recognized that the barriers to opinion testimony are more relaxed in a bench trial where the judge is serving as factfinder and the Court is not concerned about “dumping a barrage of questionable scientific evidence on a jury.” The Court held that Defendant’s concerns about Plaintiffs’ experts are more appropriately discussed at trial when all the facts can be considered.

    If any shortcomings about an expert’s qualifications arise, or part of any expert’s testimony seems unhelpful or unreliable, Defendant may present its arguments through “vigorous cross examination and the presentation of contrary evidence.”

    Held

    The Court denied Defendant’s motion in limine to exclude the testimony of Plaintiff’s designated expert witnesses, Veronica Martin and Mary Magno Mouracade.

    Key Takeaway:

    The Court, sitting as trier of fact, is in the best position to distinguish between persuasive and insufficient expert evidence at trial.

    In Gibbs V. Gibbs, 210 F.3d 491 (5th Cir. 2000), it was held that most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.

    Case Details:

    Case Caption: Kimberly Regenesis, Llc, Et Al V. Lee County, A Florida Political Subdivision
    Docket Number: 2:19cv538
    Court: United States District Court, Florida Middle
    Order Date: June 24, 2024
  • Economics Expert Witness’ Testimony on Disparities in Promotion Admitted

    Economics Expert Witness’ Testimony on Disparities in Promotion Admitted

    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 Daubert grounds 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.

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

    Human Resources Expert Witness

    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.

    Discover more cases with Michael Campion as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Expert Report of Christopher Erath, Ph. D.

    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.

    Case Details:

    Case Caption: Savage v. City of Springfield
    Docket Number: 3:18cv30164
    Court: United States District Court, Massachusetts
    Order Date: June 3, 2024

  • Safety Expert Witness’ Analysis of the Alleged Discrimination deemed Inadmissible

    Safety Expert Witness’ Analysis of the Alleged Discrimination deemed Inadmissible

    A district judge in California barred a safety expert witness from testifying about lack of intentional discrimination despite being qualified to offer an opinion on the subject matter.

    Plaintiff Melvin Patterson is deaf. He brought this action under Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act against Defendants Six Flags Theme Parks, Inc., Six Flags Entertainment Corp., and Park Management Corp. (collectively, Defendants). 

    Plaintiff alleged Defendants discriminated against him by refusing to provide an American Sign Language (ASL) interpreter for planned visits to Defendants’ amusement park, Six Flags Discovery Kingdom in Vallejo, California. 

    In anticipation of the trial, Plaintiff moved in limine to exclude the testimony of Defendants’ retained expert, Robert F. Minnick, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert I), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 

    Plaintiff contended that Minnick is not qualified, his anticipated testimony is unreliable and unhelpful, his testimony contains pure conclusions of law, and he improperly offered opinions as to other witnesses’ state of mind.

    Safety Expert Witness

    Robert F. Minnick is a safety, compliance, and engineering technical executive with broad-based experience in designing, implementing, and sustaining improvements for resort hotels, theme parks, and entertainment facilities worldwide.

    Specifically, he is an expert in ADA compliance and provides consulting services to theme parks to improve the customer experience for persons with disabilities and barrier removal. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.  He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.

    Don’t let the Patterson V. Six Flags Theme Parks Inc. be your only lens into Robert Minnick – order his Profile for a 360-degree view of his professional record.

    Discussion by the Court

    Minnick describes the following opinions in his report, which the Court has numbered for ease of reference:

    1. “After examining the documents listed [in my report], I do not find any evidence of discrimination by the Defendant. I saw evidence of one Six Flags Guest Relations employee getting confused about their service offerings for persons with disabilities, but no intentional discrimination.”
    2. “Requests for ASL interpreters are very rare at Six Flags Discovery Kingdom. . . . Since requests are so rare, it’s not surprising to this expert that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.
    3. “Melvin Patterson appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
    4. “Park operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” 
    5. “Same day service for a rare request is not a reasonable accommodation.”

     Minnick’s testimony goes to the ultimate issues of law

    As a preliminary matter, Defendants have shown that Minnick is at least minimally ‘qualified as an expert’ under Rule 702 based on his experience and knowledge regarding ADA compliance and accessibility in theme parks and other businesses from 2002 until today, despite his lack of ‘granular’ experience.

    To begin, opinions (1) and (5)—that there is no “evidence of discrimination by the Defendant” and that same-day interpretive services are not reasonable—are “inappropriate subjects for expert testimony.”

    Minnick offered legal conclusions—that there was no discrimination and offering same-day ASL interpretive service is not reasonable. The Court held that his testimony inappropriately goes to the ultimate issues of law and is therefore inadmissible. 

    Nor would opinions (1) and (5) “help the trier of fact to understand the evidence or to determine a fact in issue.” As described in his report, opinions (1) and (5) are based on Minnick’s review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings.

    He does not explain how he used his expertise to evaluate that evidence. For that reason, it is unclear what helpful testimony Minnick could provide that is outside “the common knowledge of the average layman.”

    Minnick’s opinions are properly for the trier of fact

    Next, opinions (2) and (3) are about another person’s state of mind. Questions of state of mind are properly for the trier of fact.

    The Court held that Minnick therefore cannot testify at trial “that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.”

    Nor may Minnick testify at trial that Plaintiff “appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”

    Minnick provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored. In conclusion, Opinion (2) also lacked any analytical foundation.

    Minnick did not explain the basis of his opinion or what method he used to reach it

    What remains, then is opinion (4), i.e., that “[p]ark operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” Minnick did not explain the basis of this opinion or what method he used to reach it. He did not describe any research. Nor did he know how many days it took for an average or typical amusement park, let alone these particular Defendants, to obtain an in-person sign language interpreter or even an interpreter via the use of Video Remote Interpreting services. Nor did he testify about the industry standards for the amount of time needed to honor requests for ASL interpreters.

    Instead, he explained that Disney, his former employer, “asks for two-week notice” because that particular theme park attracts a lot of international guests, and it would take time to find appropriate foreign language sign language interpreters—for example, a British sign language interpreter or a Chinese sign language interpreter.

    He also testified vaguely at his deposition that the relevant standard “depends,” and he said theme parks “need to establish their policy . . . based on availability of services around the park.” Although he states different theme parks have different policies “based on their experience,” he does not appear to know what Defendants’ experience is and why Defendants’ policies are reasonable, if they are, in light of those experiences.

    Held

    The Court granted Plaintiff’s motion in limine to exclude Robert F. Minnick’s expert testimony.

    Key Takeaways:

    • An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Expert testimony that consists of legal conclusions is unhelpful and inadmissible. Robert Minnick’s testimony-that there was no discrimination and offering same-day ASL interpretive service is not reasonable-inappropriately goes to the ultimate issues of law and is therefore inadmissible. 
    • Minnick’s opinions about there being no discrimination would not help the trier of fact to understand the evidence or to determine a fact in issue. His opinions are based on his review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings. He does not explain how he used his expertise to evaluate that evidence.
    • Minnick’s opinion that requests for ASL interpreters are very rare at Six Flags Discovery Kingdom lacked analytical foundation. He provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored.

    Case Details:

    Case Caption: Patterson V. Six Flags Theme Parks Inc., Et Al
    Docket Number: 2:21cv2398
    Court Name: United States District Court, California Eastern
    Order Date: May 09, 2024
  • Premature Motion to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

    Premature Motion to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

    A district judge in New York refrained from excluding testimony about Defendants’ discriminatory policies offered by housing expert witnesses, for the time being.

    Plaintiffs CNY Fair Housing, Inc.; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc. (the “Organizational Plaintiffs”); Phyllis Bartoszewski; Deanna Town; and Joyce Wilcox, as administrator and representative of the estate of Lois Harter (the “Individual Plaintiffs”), brought this action, asserting claims of discrimination on the basis of disability under the Fair Housing Act of 1968 (“FHA”), New York Human Rights Law, and Ohio Civil Rights Law.

    According to Plaintiffs, Defendants have denied Individual Plaintiffs and other people with disabilities reserved or designated parking spaces near the rental units owned and operated by Clover entities (“Clover properties” or “Clover senior properties”). Defendants’ representatives routinely tell residents and applicants that the company does not provide designated parking spots at their multi-family, senior living complexes for anyone, including people with disabilities. Alternatively, and contemporaneously, Defendants have told residents who have requested a designated parking space as a reasonable accommodation because of their disabilities that they must pay a fee up to $350.00 for a designated space.

    Defendants filed a motion seeking to exclude from trial and deem inadmissible the opinions of Plaintiffs’ retained experts Erin Kemple and Christina Brooks.

    Premature Motions to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

    Housing Expert Witnesses

    Erin Kemple has been handling housing justice matters for nearly 30 years. She is a consultant and fair housing expert working with fair housing agencies around the country as well as working with the National Fair Housing Alliance to establish a new fair housing council in Memphis, Tennessee.

    In 1989, she and a group of legal services advocates and community activists founded the Housing Discrimination Project in Holyoke, Massachusetts eventually becoming the organization’s first Legal Director and then the Executive Director. While there, Kemple assisted the founders of the Connecticut Fair Housing Center, advising them on intake and investigation procedures. In addition to her work in Massachusetts and Connecticut, Kemple is consulting with fair housing groups across the country to assist them with fair housing enforcement and community development work.

    In 2022, Erin began her consulting work. She has given numerous trainings on the fair housing laws to lawyers, consumers, and housing providers as well as working with state and local officials to ensure that all communities welcome all people.

    Get in-depth insights into Erin Kemple’s expert witness experience by requesting her Expert Witness Profile today.

    Christina Brooks has over 16 years of experience in property management. She has taken fair housing training each year for the last 12 years and am well-versed in best practices under the Fair Housing Act, and particularly regarding decisions and issues related to reasonable accommodations.

    Gain a comprehensive understanding of Christina Brooks’ qualifications and casework history with her Expert Witness Profile report.

    Discussion by the Court

    Both Erin Kemple and Christina Brooks submitted reports dated January 31, 2023, and supplemental reports dated June 16, 2023. 

    Erin Kemple’s report addressed the actions the organizations took in response to Defendants’ discriminatory policies and how those actions fit into the standard fair housing organization processes and practices to address such discrimination.

    Christina Brooks’ report discussed typical and accepted reasonable accommodations policies and procedures at multi-family apartment buildings and how Defendants’ procedures relate to those standards.

    In support of their motion, Defendants relied on Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and caselaw precluding experts from testifying to legal conclusions. Defendants claimed that the reports “were comprised of nothing but conclusory statements that were not based on any relevant data or facts” and “did nothing to aide a trier of fact to understand any evidence or determine a fact in issue.”

    Motion to Strike was Premature

    The Court held that the motion to strike was, at that time, premature. Both parties filed motions for summary judgment against each other. The Court does not have to resolve the admissibility of the expert opinions before resolving the motions for summary judgment. Moreover, expert discovery was not completed at the time these issues were briefed. And until the Court rules on those motions, it is not clear which, if any, theories of liability will survive summary judgment. 

    The Court also noted that the parties have not adequately briefed the relevance and admissibility of some of the proposed expert testimony. With respect to the admissibility of Kemple’s testimony regarding the calculation of organizational damages, neither party has provided any caselaw regarding the type of damages that are compensable. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is a legal issue for the Court to decide, not an issue for expert testimony, and the parties did not cite to any caselaw. The parties’ dispute regarding Brooks’ testimony concerning industry standards and reasonable accommodations is best considered after the Court has resolved the parties’ legal arguments regarding reasonable accommodation under the FHA.

    Held

    The Court therefore denied the motion to strike the reports of Erin Kemple and Christina Brooks at this time, without prejudice to renewal. To the extent Defendants sought to renew this motion following the Court’s ruling on the pending motions for summary judgment, the parties should meet and confer before Defendants file their motion, in order to narrow the issues. 

    Key Takeaway:

    The parties must adequately brief the relevance and admissibility of the proposed expert testimony. Neither party provided any caselaw regarding the type of damages that are compensable for the Court to rule on the admissibility of Kemple’s testimony regarding the calculation of organizational damages. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is not an issue for expert testimony, and the parties did not cite to any caselaw. 

    Case Details:

    Case Caption: CNY Fair Housing, Inc. Et Al V. Clover Group Inc. Et Al
    Docket Number: 5:21cv361
    Court Name: United States District Court, New York Northern
    Order Date: May 8, 2024
  • Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Defendant Amazon.com Services, Inc. (“Amazon.com”) initially hired Marcellus McMillian as a seasonal fulfillment associate and then promoted him to fulfillment associate in the make on demand department. Defendants employed him for more than a year, starting on January 11, 2017. McMillian’s back was injured in an unrelated car accident on or around August 3, 2017, and he went on medical leave. McMillian accused the Defendants of discriminating against him because of his disability and requests for accommodation.

    Defendants’ vocational rehabilitation expert, William B. Skilling, testified that he formed an opinion that McMillian was “highly employable” because McMillian’s skills were allegedly “transferable to many different occupations.” Skilling testified that he created a chart in his report where he identified “appropriate” positions for McMillian as a part of his transferable skills analysis. He then went on to testify that he formed an opinion that the occupations listed on the chart in his report are “substantially similar” to McMillian’s position with the Defendants. He testified that he made assumptions about McMillian’s rate of pay based on his job description, and was unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. Skilling’s report also makes a reference to other positions being “substantially similar” to McMillian’s position with the Defendants.

    Plaintiff requested the Court to preclude reference to and testimony of any legal conclusions from Skilling, including references in his report, and his testimony that other positions were “substantially similar” to McMillian’s position during his employment with the Defendants.

    Vocational Rehabilitation Expert Witness

    William B. Skilling has worked in the field of rehabilitation for more than 45 years. Since 1973, he has completed more than 5,000 assessments and has testified as an expert in his field on nearly 500 occasions in state and federal courts.

    Between 1982 and 1992, Skilling was under contract as a Vocational Expert by the Social Security Administration Office of Disability Adjudication and Review, while at the same time providing vocational rehabilitation services to injured workers through private contracts in Washington, Oregon, California, and Alaska.

    Discussion by the Court

    Plaintiff argued that Skilling was not qualified to opine on other employment opportunities because he made assumptions about McMillian’s rate of pay based on his job description. He was, hence, unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. He also did not know how long McMillian’s commute was and did not interview McMillian.

    Plaintiff also argued that pursuant to FRE 702(1) Skilling’s testimony, and conclusory, unfounded opinion that other positions identified in his report were substantially similar to McMillian’s position, would not help the trier of fact understand the evidence or decide an issue of fact.

    There are certain factors that a jury can consider when determining whether other positions were “substantially similar”, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. One of the agreed upon jury instruction regarding Defendants’ affirmative defenses pertaining to migration, identified that the jury must determine whether “employment substantially similar to Marcellus McMillian’s former job was available to him.” While evidence of other jobs can reasonably be admitted as evidence, the question of whether the jobs are substantially similar is one for a jury to decide.

    Defendants argued that Skilling’s analysis focused more heavily on some of the other relevant factors, such as locality and the required skill, background, or experience. The Court found that the Plaintiff’s counsel forced the “substantially similar” usage on the expert witness in order to bring this Motion. To the extent Plaintiff objected to Skilling’s conclusion or believed his conclusion were unsupported, Plaintiff was free to elicit such weaknesses during cross-examination. 

    Held

    The Court denied Plaintiff’s motion to exclude reference to and testimony of any legal conclusions from Defendant’s expert William Skilling.

    Key Takeaway:

    The test under Daubert  is not the correctness of the vocational rehabilitation expert witness’s conclusions but the soundness of his methodology. Attacks to the factual underpinnings of an expert’s opinions bear on the weight of the opinion, not its admissibility.

    Case Details:

    Case Caption: McMillian v. Golden State FC LLC
    Docket Number: 2:19cv2121
    Court: United States District Court, California Central
    Order Date: February 6, 2024

  • Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Employment Law expert's testimony excluded

    Plaintiff Amanda Benson, a female firefighter/EMT, has initiated legal proceedings alleging violations of her civil rights against multiple defendants, including the City of Lincoln, Nebraska, various city officials, and personnel from Lincoln Fire and Rescue (LFR). Benson was hired by LFR as a Firefighter/EMT on July 1, 2013, and was permanently assigned to Station 8 and the Engine 8 crew for C shift on October 15, 2014. Subsequently, she became Acting Captain on Engine 1 at Station 1 and later Acting Captain of Truck 1 at the same station. 

    Benson contends that she experienced sexual discrimination, harassment, and retaliation throughout her tenure with LFR. The alleged mistreatment were largely linked to conduct attributed to Captain Shawn Mahler, who was the leader of the Truck crew at Station 8. She formally lodged complaints with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, and with the federal Equal Employment Opportunity Commission (EEOC) on October 14, 2020. Notably, many of Benson’s claims regarding discrimination, harassment, and retaliation are tied to Captain Mahler’s actions. 

    A significant incident occurred on April 26, 2021, during which LFR responded to a warehouse fire involving both Benson’s crew in Truck 1 and Mahler’s crew in Truck 8. Benson asserts that Mahler abandoned her during this event, posing a potential threat to her and her crew’s safety. On May 5, 2021, Benson reported the incident and lodged a formal complaint with her superiors at LFR, contending that Mahler’s actions during the warehouse fire could have potentially killed or seriously injured her and her team. 

    Following an internal investigation, Fire Chief David Engler, who is not a party to this litigation, concluded that Benson’s allegations against Mahler were false and that her behavior amounted to obstructing LFR’s operations and casting discredit on the department. Consequently, Engler found “good cause” for her dismissal. 

    Benson disputed the findings of the internal investigation and commenced legal action by filing her original Complaint in Lancaster County, Nebraska’s District Court on July 6, 2018. The defendants opted to remove the case to federal court. However, her Fourth Amended Complaint, submitted on November 11, 2021, stands as her current operative pleading. 

    In her Fourth Amended Complaint, Benson asserts eight distinct causes of action. Her primary claims include allegations of a sexually hostile work environment, retaliatory harassment, sexual discrimination, and retaliation, with some claims brought under the Nebraska Fair Employment Practice Act (NFEPA) and others under Title VII of the Federal Civil Rights Act. Furthermore, she alleges violations of the Equal Protection Clause of the United States Constitution against both the City of Lincoln and individual defendants. 

    The Defendants countered by jointly filing an Answer on December 6, 2021, wherein they denied Benson’s claims and put forth various affirmative defenses. A subsequent court ruling addressed a Motion for Partial Summary Judgment by Benson and a Motion for Summary Judgment by the defendants. The court denied Benson’s motion concerning certain affirmative defenses and rejected the defendants’ motion for summary judgment regarding all claims detailed in Benson’s Fourth Amended Complaint. Benson offered the testimony of a forensic psychiatry expert and employment law expert to substantiate its claims of employment discrimination, harassment, and retaliation. As discussed below, the Court excluded the testimony of the employment law expert but admitted the testimony of the forensic psychiatry expert.

    Forensic Psychiatry and Employment Law Expert Witness

    Defendant filed successive Daubert motions to exclude the testimony of Benson’s experts Dr. Christiane Tellefsen, M.D. and Amy Johanna Oppenheimer J.D., B.A. 

    Dr. Christiane Tellefsen is a board-certified general and forensic psychiatrist, retained to provide opinions regarding Amanda’s medical diagnoses, causation, and damages. 

    Amy Oppenheimer is an attorney retained to offer expert opinions on the acceptable human resources practices of employers in response to complaints of workplace discrimination, harassment, and retaliation and whether Defendants’ actions with respect to Benson met the standard of care. 

    Discussion by the Court 

    Dr. Christiane Tellefsen

    Dr. Christiane Tellefsen was retained by Benson to opine on whether or not Benson had an disorder and if she did, Tellefsen was required to assess the possible effects it could have on Benson’s employment at the Lincoln Fire Department in Lincoln, Nebraska. Tellefsen was of the opinion that Benson had major depressive tendencies which exacerbated her PTSD symptoms resulting from her employment at the Lincoln Fire Department and that the nature of her condition was chronic which necessitated ongoing treatment. 

    Dr. Tellefsen reviewed the report of a neuropsychological evaluation conducted by Defendants’ expert Dr. Robert George Arias, Ph.D. and on her second report dated December 10, 2020 opined that Dr. Arias’ report was inconsistent with Benson’s history and treatment and the symptoms of personality disorder listed by him were either incorrect, such as pill abuse, or more fully consistent with her PTSD. Dr. Tellefsen opined that Benson relapsed into her depressive tendencies and anger issues stemming from her abusive childhood as a result of her situational stress at the Fire Department. She also attributed  Benson’s physical problems resulting from her work related injuries and her loss of relationships to situational work-related stress. 

    Defendants have not challenged the qualifications of Expert Tellefsen but have instead questioned the relevance of Tellefsen’s testimony contending it was of little assistance to the trier of fact. Expert Tellefsen has not elaborated which aspect of Benson’s employment exacerbated her mental health problems or how discrimination, retaliation or harassment worsened her mental health condition and not workplace stressors common to all firefighters.  

    But the Court however held that Tellefsen’s opinions were suggestive of Benson’s deteriorating mental health being linked to the discrimination, retaliation and harassment she was subjected to at her workplace instead of workplace stressors common to all firefighters because Tellefsen had acknowledged, especially in her deposition, that despite the existence of both sources of stress, Benson was able to cope successfully with the common stressors.  

    Defendants also contended that Tellefsen’s testimony lacked a reliable methodological basis considering her diagnosis of the sources of Benson’s mental health issues was not based on verifiable test results or scientific testing. For instance, Tellefsen by her own admission had ceased to use the Minnesota Multiphasic Personality Inventory (MMPI). 

    The Court noted that Tellefsen’s forensic methodology of conducting a psychiatric examination was universally recognized in the psychiatric community as a reliable method for differential diagnosis and causation analysis. Besides, the Court was of the opinion that the jury should take into account the sufficiency and validity of the reasons that Tellefsen stated for precluding the use of MMPI instead of rejecting her testimony for not using that one particular diagnostic tool. The Court admitted the testimony of Expert Tellefsen but nevertheless permitted the defense to pursue the issue through means of cross examination. 

     Amy Oppenheimer

    Oppenheimer is an attorney not licensed in Nebraska who was retained by Benson as a human resources expert to review the Defendant’s human resource practices with regard to allegations of discrimination, harassment and retaliation. Oppenheimer was tasked with opining on typical and acceptable human resource practice with regard to responding to and investigating complaints of employment discrimination.  

    Oppenheimer listed multiple flaws and deficiencies in the Defendant’s response to and investigation of Benson’s workplace discrimination, harassment and retaliation claims and concluded that Defendant’s termination of Benson was wrongful. 

    The Court held that Oppenheimer’s opinions were of no assistance to the trier of fact. The Court does not question the reliability of Oppenheimer’s testimony or her qualifications but held that Oppenheimer opined on matters of law which invaded the province of the Court such as her testimony on the acceptable human resource practices Defendant was supposed to follow to conduct its investigation of Benson’s claims seeks to define the “standard of care” followed by the Defendants by something other than this Court’s statement of the applicable law. Moreover, the testimony by Oppenheimer about reasonable investigation techniques that Defendants could have employed does not properly demonstrate the inadequacy of the investigation techniques Defendants did use. 

    Held 

    The Court denied the Defendants’ Daubert motion to exclude the testimony of Plaintiff’s expert Tellefsen but granted the Defendants’ Daubert motion to exclude the Testimony of Plaintiff’s expert Oppenheimer. Since the issues involved in this case are yet to be resolved, the outcome of the case remains to be seen. 

    Key Takeaways: 

    1. Legal Conclusions: The expert is not allowed to invade the jury and the Court’s province by drawing conclusions as to matters of law. Oppenheimer in the instant case sought to define the “standard of care” by something other than the Court’s statement of the applicable law which served as basis to exclude her testimony. 
    1. Reliability of the testimony: Defendant sought to exclude the testimony of expert Tellefsen primarily because she precluded the usage of MMPI, a standardized diagnostic tool which did not warrant exclusion as was held by the Court because the Defendant was required to look into the sufficiency and validity of the reasons Tellefsen cited for excluding MMPI.