Expert Witness Profiler

Tag: Employees

  • Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Plaintiffs Donrudy Loiseau, Quinton L. Hebron, and Dwayne Small (together, “the Plaintiffs”), brought an individual and class action suit against their former employer, Bozzuto’s Inc., alleging discrimination against black employees with respect to promotions, warehouse position assignments, pay, workplace discipline, and terminations.

    Plaintiffs retained Dr. David M. Lang “to analyze employment data provided by Bozzuto’s Inc. to determine whether there were racial disparities between White and Black employees, especially in pay, job roles, promotions, and terminations (but also in discipline), and if so, the extent of those disparities and whether they are statistically significant.”

    Defendants filed a Daubert motion to exclude the opinions of Lang.

    Economics Expert Witness

    Dr. David M. Lang is a Full Professor and Chair of the Economics Department at California State University, Sacramento (CSUS). He routinely teaches courses at the University of California, Davis, across the Economics, Statistics, and Mathematics Departments, with a particular focus on labor economics and econometrics.

    Lang has published eight research papers and presented his work at more than 30 academic conferences. He earned his B.A. in Economics from Stanford University and both his M.A. and Ph.D. in Economics from Washington University in St. Louis.

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

    Discussion by the Court

    Defendants challenged the Lang Reports on two grounds: that Lang’s analyses failed to consider major non-discriminatory factors, rendering his conclusions unreliable and Lang’s analyses cannot be tested or reproduced because Lang has not produced the data underlying his opinions.

    Lang’s Analysis is Unreliable Because it Failed to Account for Major Non-Discriminatory Factors

    Defendants first alleged that Lang’s analysis is unreliable because it failed to account for major non-discriminatory factors: job type and tenure, employee qualifications, and whether an employee applied for a position or sought a promotion. Defendants urged that not only is Lang’s analysis so flawed as to lack any probative value, but that the alleged lack of consideration of certain non-discriminatory factors is fatal to its admissibility altogether.

    Lang’s analysis controlled for several variables, including job title, race, and
    base pay. Other factors Lang employed included corrective reviews, voluntary termination rates, and involuntary termination rates. Therefore, the Court held that the Defendants’ characterization of Lang’s analysis as aggregated and obfuscatory is inaccurate and ignored the disaggregated data Lang included across his two reports.

    Moreover, Lang’s decision not to consider certain factors (such as job tenure) is within his discretion and implicates, at most, the probative weight of his conclusions. Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure. Moreover, Lang explained that certain other variables, such as “experience” are not amenable to review based on the data Bozzuto’s supplied. The assessment of Lang’s conclusions, in light of those factors he did and did not include within his analysis, rests with the factfinder in assessing their ultimate credibility.

    Lang Failed to Provide the Data Underlying his Opinions, Preventing Reproduction or Testing of his Analysis

    Defendants argued that “Lang’s testimony is unreliable and should be excluded because he has not produced the data underlying his opinions, and thus his analyses cannot be recreated.”

    Defendants claimed that Lang “prevented anyone from recreating or testing the accuracy of his work by purposefully conducting his work in a manner to leave no trail or evidence of his analysis.”

    However, Lang did supply the materials underlying his reports. Plaintiffs sent
    Defendants Lang’s expert materials on September 13, 2024, something Defendants acknowledged in their January 30, 2025 correspondence with Plaintiffs’ Counsel.

    Defendants tempered their initial assertion that Lang did not supply any of the materials underlying his reports by stating instead that the information supplied has not allowed the Defendants’ expert to replicate his results. As described above, this demonstrates a misunderstanding of the requirements of Rule 702 with respect to replication. Admissibility under Daubert does not demand that dueling experts supply one another with step-by-step instructions on how to replicate their results.

    Held

    The Court denied the Defendants’ Daubert motion to exclude the opinions of David M. Lang.

    Key Takeaway:

    As a general matter, variables excluded from a regression analysis impact the probative weight, not the admissibility, of expert evidence. Moreover, which variables to include in a regression analysis are within the professional judgment of the expert where certain variables may be tainted by discrimination.

    In this case, Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure.

    Case Details:

    Case Caption: Loiseau V. Bozzuto’s Inc
    Docket Number: 3:22cv1485
    Court Name: United States District Court, Connecticut
    Order Date: August 27, 2025
  • Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Washington Governor Jay Inslee issued Proclamation 21-14 (“the Proclamation”), which required state employees to be fully vaccinated by October 18, 2021, to continue employment with the state. The Proclamation carved out an exception to the vaccination requirement for employees who were entitled to disability related accommodations or accommodations related to a sincerely held religious belief under relevant anti-discrimination laws, including Title VII and the Washington Law Against Discrimination (“WLAD”).

    This litigation concerns a number of Plaintiffs who requested religious accommodations from the Washington State Department of Fish and Wildlife (“WDFW”).

    While the Plaintiffs were initially granted religious accommodations, they were informed in late September of 2021 that “no reasonable accommodation” could be found because their jobs “must at times be done in the physical presence of others.” The Plaintiffs were subsequently terminated in November of 2021.

    Defendants filed a motion to exclude the expert opinion of Dr. Harvey Risch as well as those of Lisa Brock and John Cary.

    Epidemiology Expert Witness

    Harvey Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.

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

    Human Resources Expert Witness

    Lisa Brock has worked in human resources (“HR”) for over forty years. She spent the majority of her career in healthcare. Most recently, she worked as the HR director at Overlake Medical Center and Clinics.

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

    Vocational Rehabilitation Expert Witness

    John R. Cary is a certified rehabilitation counselor (CRC) and disability management specialist (CDMS) with over 19 years of experience in providing rehabilitation counseling and case management services to individuals facing socio-economic and psychosocial challenges, multiple morbidities, and language barriers. 

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

    Discussion by the Court

    Harvey Risch

    Risch submitted two expert reports—one on the efficacy of COVID-19 vaccines and vaccine mandates and one rebuttal report. 

    In the rebuttal report, Risch opined that the vaccine mandate failed to recognize that “post infection natural immunity” is as good as if not better than vaccination.

    Defendants objected to Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation.

    Relevancy

    To begin with, Defendants maintain that “Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation should be excluded for lack of relevancy,” as they will not assist the trier of fact in understanding “a fact in issue.”

    The Court concluded that Risch’s testimony about the efficacy of COVID-19 vaccines, the role of natural immunity, and the governor’s Proclamation requiring vaccination will be excluded for lack of relevance.

    Facial challenges to the Proclamation have been rejected and the vaccine mandate itself is not at issue in this litigation—only how WDWF applied it to its employees.  Accordingly, the Court held that testimony about the efficacy of the Governor’s vaccine mandate will not aid the “trier of fact to understand the evidence or to determine a fact in issue.”

    Moreover, Defendants argued that his opinions based on “information available after WDWF made accommodation decisions regarding Plaintiffs” must be excluded as not relevant.

    Besides, Defendants added that judging an employer’s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Risch asserted that WDFW cannot establish undue hardship because “the cumulative hardship would not have been inordinate compared to the larger breakthrough infection burden from the vaccinated staff.”

    Likewise, the Court excluded Risch’s conclusions about whether Defendants provided a reasonable accommodation or established undue hardship.

    Reliability

    Defendants argued that Risch’s opinions are not the product of reliable principles and methods because he does not state “what method of analysis he applies to any of the data he includes in his report.”

    As to Risch’s opinions about the risk of breakthrough infections, Defendants argued that he “fails to compare apples to apples.”

    In determining the number of WDWF employees who could have been expected to have breakthrough infections, Risch used CDC figure of 4.3%. The 4.3% figure represented the total number of vaccinated breakthrough cases by the total number of vaccinated people from April 2021 to December 2021: 5,988,636 divided by 139,768,554. 

    The Court held that not only were Risch’s calculations incorrect, but Risch offered no information or analysis comparing the job duties and responsibilities of the hypothetical employees who would suffer a breakthrough infection with those of the unvaccinated employees. For example, it is unknown whether any of these hypothetical employees teleworked full-time or otherwise interacted with co-workers or the public.

    Thus, even if there were hypothetical employees who suffered breakthrough infections, it impossible to evaluate whether those hypothetical employees would have, or would not have, posed a greater risk than the unvaccinated Plaintiffs in this case.

    Furthermore, the Court determined that Risch’s opinion about the 4.3% figure—that it “is also likely a very large undercount” is unreliable, as Risch does not cite any peer reviewed evidence or statistical analysis that suggests that the CDC figure is an undercount or account for whether CDC itself corrected for the factors Dr. Risch opines resulted in the undercount. 

    Lisa Brock

    In her report, Brock included a step-by-step best practices guide published by the Society for Human Resources Management (SHRM) on handling requests exemptions to a vaccine requirement. She testified that her professional opinion in the report is based on her experience as a “practitioner of human resources,” and specifically the experience she gained as an “HR practitioner during the time of the proclamation and the COVID vaccine.” 

    Defendants asserted that “despite her failure to engage in a comprehensive review of any Plaintiff’s accommodation process, Brock made several unsupported factual conclusions regarding WDFW’s accommodation process and also made impermissible legal conclusions.”

    The Court held that Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. This extremely limited evidence did not “provide a complete picture of relevant events”—indeed, Brock did not review any documents specific to more than half of the Plaintiffs going to trial and did not review the accommodations policies that WDFW had in place. 

    The Court excluded Brock’s report because she offered opinions without a full understanding or knowledge of the facts of this case.

    John Cary

    On January 31, 2025—the final day of discovery—Plaintiffs submitted an expert rebuttal report from John Cary. The rebuttal deadline had been extended at the Parties request to January 14, 2025. 

    Rule 37 forbids the use of Cary’s expert report unless Plaintiffs are able to show that the failure was substantially justified or harmless. Plaintiffs could have requested leave from the Court for late supplementation but did not. Plaintiffs could have notified Defendants and the Court during the discovery hearing on January 30, 2025, but did not. Accordingly, the Court excluded Cary’s expert report.

    Held

    The Court granted the Defendants’ motions to exclude the opinions of Dr. Harvey Risch, Lisa Brock and John Cary.

    Key Takeaway:

    • The Court held that Risch did not base his critiques of the CDC’s methods in widely accepted scientific methods of analysis—and failed to explain the analytical method he is using.
    • Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. Accordingly, because Brock’s testimony lacks support from sufficient facts or data and fails to sufficiently specify the method by which she reached her conclusions, the testimony does not satisfy the Daubert standard.

    Case Details:

    Case Caption: Shirley Et Al V. Washington State Department Of Fish And Wildlife Et Al
    Docket Number: 3:23cv5077
    Court Name: United States District Court, Washington Western
    Order Date: May 13, 2025
  • Technology Expert Allowed to Testify Despite Not Using the Software Systems at Issue

    Technology Expert Allowed to Testify Despite Not Using the Software Systems at Issue

    Plaintiffs Donna Wood, Caelan Doherty, Max Goldstein, Bridget Logan, James Kyle Newman, Lakisha Watson-Moore, Tristan Angulo, Alexandra Marie Wheatley-Diaz, Robin Ceppos, and Nick Coker (together, “Plaintiffs”), individually and on behalf of all others similarly situated, bring this collective and class action against Mike Bloomberg 2020, Inc. (the “Campaign” or the “Defendant”), asserting claims under the Fair Labor Standards Act (the “FLSA”) and state labor laws.

    In November 2019, Michael Bloomberg announced his candidacy for President of the United States. The Campaign’s purpose was to advance Bloomberg’s presidential candidacy. Plaintiffs worked as Field Organizers (“FOs”) and “were tasked with primarily conducting phone calls and door-to-door canvassing with potential voters in the day-to-day functional work of the Campaign.”

    Plaintiffs offered testimony from Jonathan Jaffe as an expert witness to establish that Plaintiffs communicated data in interstate commerce so as to be individually covered by the FLSA.

    The Campaign presented arguments regarding the admissibility of his testimony under Rule 702 and Rule 403.

    Technology Expert Witness

    Jonathan Jaffe is a technology consultant, data scientist, software developer, and the founder and owner of Its-Your-Internet, an advanced technology software and general litigation support consulting firm, established in 2008.

    His areas of expertise include “how the interne works, how a data center works, how we code things, how these apps work, [and] how these applications work,” and he has testified as an expert in numerous other matters.

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

    Discussion by the Court

    Jaffe opined that “Plaintiffs and opt-in Plaintiffs transmitted data and information across state lines using the NGP Van system” and “the Thru Talk system.”

    Jaffe describes how, based on the material he reviewed, data that Plaintiffs collected would cross state lines (1) when it was stored in a single, national database located in another state, and (2) when it was aggregated to be viewed by employees in the Campaign’s headquarters in New York.

    He relied on evidence that FOs collected voter data and inputted that data into VAN and ThruTalk. Jaffe noted that, in order to transmit the data they had collected across state lines for storage in a database located in another state, Plaintiffs either manually clicked a button to “sync” or enabled an “auto-sync” feature in the software. 

    Jaffe compares the “function of the underlying system” to “a long-distance phone call [by which] an individual would not physically transport their voice across state line[s] [but] effected the transmission of their voice across state lines by dialing the number” or “mailing a package through UPS or FedEx” whereby a delivery person, rather than the sender, physically transports the package. 

    Rule 702

    The Campaign insists that Jaffe’s analysis merely “addresses an entirely different question: whether data and information that was entered in VAN and ThruTalk by Plaintiffs crossed state lines at all, at any point, by operation of the equipment being used, without consideration of whether Plaintiffs were responsible for the purported transmission.”

    The Campaign’s highly technical relevance argument—that “whether Plaintiffs transmitted data” with a specific action is a different question from whether “the software’s internal workings” or a “headquarters request for information from another state” caused the data transmission —is not supported by the case law.

    The Court stated that none of the cases cited by the Campaign establish a causation requirement for individual FLSA coverage.

    The Campaign next insists that Jaffe’s conclusions are unreliable because his “opinions and testimony are based on insufficient facts and data, and they are the product of inappropriate speculation.”

    The Court found that the Campaign’s argument, namely that “Jaffe admittedly never used the software systems at issue, and he also lacked the information required to establish that all Plaintiffs used the software systems,” does not satisfy this high bar.

    While Jaffe never used the software systems at issue, he “utilized [his] 25 years expertise and experience with developing, expanding, and evaluating Enterprise level software systems.”

    The Campaign’s assertion that Jaffe’s opinions lack reliability because “he did not confirm that all Plaintiffs used the VAN and/or ThruTalk software” and “did not have the data required to make determinations regarding the number of days that Plaintiffs may have transmitted data across state lines, the amount of time in each day that Plaintiffs may have spent transmitting data across state lines, or the volume of data that Plaintiffs may have transmitted across state lines” was likewise rejected by the Court.

    Rule 403

    The Campaign first argues that Jaffe’s opinions and testimony are not relevant within the meaning of Daubert  “because they will not assist in understanding or resolving the issue of Plaintiffs’ alleged individual FLSA coverage.” 

    However, Jaffe’s conclusions that “Plaintiffs and opt-in Plaintiffs transmitted data and information across state lines using the NGP Van system” and “the Thru Talk system” are plainly relevant to the question of whether Plaintiffs’ work involved the use of instrumentalities for communication across state lines.

    The Campaign’s argument that “Jaffe fails to present information and opinions that would assist the jury in resolving whether Plaintiffs transmitted data across state lines and whether they did so on a regular and recurrent basis, and he instead opines on whether data was transmitted across state lines at all, without consideration of whose actions caused the transmission or the frequency of transmission” does not present a danger of misleading the jury.

    Basically, Jaffe does not opine on the ultimate legal issue—whether Plaintiffs are individually covered under the FLSA.

    Held

    The Court denied the Campaign’s motion to exclude the opinions and testimony of Jonathan Jaffe.

    Key Takeaway:

    While Jaffe never used the software systems at issue, he “utilized [his] 25 years expertise and experience with developing, expanding, and evaluating Enterprise level software systems.” Moreover, Jaffe’s conclusions are plainly relevant to the question of whether Plaintiffs’ work involved the use of instrumentalities for communication across state lines.

     The Campaign’s arguments, therefore, go to the weight, rather than the admissibility, of the opinion in connection with the determination of whether Plaintiffs have met their burden to establish individual coverage under FLSA.

    Case Details:

    Case Caption: Wood V. Mike Bloomberg 2020, Inc.
    Docket Number: 1:20cv2489
    Court: United States District Court, New York Southern
    Order Date: March 31, 2025
  • Employment Law Expert Witness’ Opinion Regarding the Application of the MCA Exemption Excluded

    Employment Law Expert Witness’ Opinion Regarding the Application of the MCA Exemption Excluded

    Plaintiffs, currently or formerly employed by Defendants as lawn and landscape workers, bring this class and collective action under the Fair Labor Standards Act (“FLSA”) and state law, alleging that Defendants failed to pay overtime compensation for all hours worked in excess of 40 in a workweek.

    Defendants have retained Brian Farrington to provide an expert opinion regarding the application of the Motor Carrier Act (“MCA”) exemption to Plaintiffs—an issue that is the primary focus of the FLSA and MMWL (“Missouri Minimum Wage Law”) claims in this litigation.

    Plaintiffs move to exclude Farrington’s testimony and report under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. Rule 702, which was amended effective December 1, 2023, governs the admissibility of expert witness testimony by allowing someone “who is qualified as an expert by knowledge, skill, experience, training, or education [to] testify in the form of an opinion.”

    Employment Law Expert Witness

    Brian Farrington is a former investigator in the Wage and Hour Division of the Department of Labor. After working as an investigator for nearly 15 years in which he performed between 500 and 600 full DOL investigations, Farrington obtained his law degree. He presently practices employment law at a private law firm where his practice is focused almost exclusively on wage and hour matters. Together, Farrington has nearly 50 years of experience working primarily on wage and hour issues.

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

    Discussion by the Court

    In his report, Farrington sets forth in detail his view of the statutory and regulatory framework of the MCA exemption as further explicated by numerous federal court decisions. 

    Using his interpretation of the law he deems pertinent to the MCA exemption, Farrington then applies that law to facts that he has gleaned from the evidence in the case. He opined that “the types of employees under consideration in this lawsuit impact safety of operation of motor vehicles by driving Epic’s trucks, helping the truck drivers, loading and inspecting the trucks and trailers, maintaining and fixing the trucks and trailers, and/or combinations of such duties—to determine the application of the MCA exemption and the exempt status of Plaintiffs.”

    Analysis

    According to Plaintiffs, Farrington’s report consists entirely of inadmissible legal conclusions that are based on his interpretation of the law as it applies to his factual findings.

    In the report, Farrington analyzed the Plaintiff’s job duties through the lens of the pertinent regulations to conclude that Plaintiff’s job was exempt from the overtime requirements of the FLSA.

    While Farrington analyzes the job duties of Epic’s employees, applies various regulations to those job duties, and concludes that the DOL would find that Epic’s employees are exempt under the MCA exemption, the Court agrees with Plaintiffs that Farrington’s report in this case is not admissible as it is rife with legal conclusions drawn from an application of the law as he views it to facts as he finds them. Rather than providing the jury with objective criteria by which they can exercise independent judgment and assess the nature and extent of the activities performed by Epic’s employees, Farrington supplants the jury’s judgment with his own.

    Similarly, Farrington opines on the ultimate legal determination in this case—whether Plaintiffs are exempt by virtue of the MCA exemption—and, in doing so, usurps the role of the Court.

    Because Farrington’s opinions are not properly within the scope of expert testimony, the Court finds that the expert report should be stricken in its entirety and Farrington will not be permitted to testify at trial. The Court declined Defendants’ invitation to strike those portions of Farrington’s report that constitute legal conclusions or that usurp the jury’s role as fact finder and to permit Farrington to testify consistent with admissible statements in the report. After the Court has excised the inadmissible portions of the report, there is simply nothing left in the report on which Farrington might appropriately opine.

    Held

    The Court granted Plaintiffs’ motion to exclude Defendants’ expert Brian Farrington.

    Key Takeaway:

    When Farrington analyzed the Plaintiff’s job duties through the lens of the pertinent regulations to conclude that Plaintiff’s job was exempt from the overtime requirements of the FLSA, the Court declined Defendants’ invitation to strike those portions of Farrington’s report that constitute legal conclusions or that usurp the jury’s role as fact finder and to permit Farrington to testify consistent with admissible statements in the report. After the Court has excised the inadmissible portions of the report, there is simply nothing left in the report on which Farrington might appropriately opine.

    Rather than providing the jury with objective criteria by which they can exercise independent judgment and assess the nature and extent of the activities performed by Epic’s employees, Farrington supplants the jury’s judgment with his own.

    Case Details:

    Case Caption: Gomez Et Al V. Epic Landscape Productions, L.C., Et Al
    Docket Number: 2:22cv2198
    Court: United States District Court, Kansas
    Order Date: December 3, 2024
  • Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

    Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

    A district judge in California admitted the testimony of an industrial hygienist despite the legitimacy of her method being attacked.

    Plaintiffs, former employees of Defendant, Bay Area Rapid Transit District (“BART”) brought First Amendment, Title VII, and FEHA claims against BART after losing their jobs due to their refusal to comply with BART’s COVID-19 vaccine mandate. 

    BART disclosed, inter alia, the expert report of Nancy McClellan, an industrial hygienist. The McClellan report concluded, based on the above, that “BART worksites were moderate to high in their COVID-19 transmission risk, warranting a vaccine mandate [and the expectation of] 100% compliance,” and that “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct according to the classic hierarchy of controls.”

    Plaintiffs filed a Daubert motion seeking to exclude, or in the alternative limit, the testimony of McClellan.

    Industrial Hygiene Expert Witness

    Nancy McClellan holds a B.S. in Medical Technology from Michigan State University and a Master of Public Health with a focus on Industrial Hygiene from the University of Michigan. She has worked as an industrial hygienist for some 25 years and is certified by the American Board of Industrial Hygiene. She has served as the Chair of the American Industrial Hygiene Association, among other professional organizations, and currently serves on its Executive Board of Directors. McClellan has worked as an industrial hygiene consultant or testifying expert in several industries, including car manufacturing, pharmaceuticals, ordinance storage and testing, agriculture, and others. Expert McClellan has also worked on COVID-19. She provided guidance on controls for COVID-19 transmission in airports and other facilities, as well as the efficacy of air filtration systems on airplanes. 

    Discover more cases with Nancy McClellan as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    The Court held that the McClellan report was relevant to issues central to BART’s burden under both Title VII and FEHA. To meet its burden under Title VII, BART must show that accommodating unvaccinated employees would have imposed an undue hardship on BART.

    The McClellan report ultimately concluded that engineering controls, such as vaccination, constituted the best feasible controls during the pandemic and that, in light of her worksite risk assessment, “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct.”

    The Court also held the contents of both the McClellan report and the sources cited therein suggest that the methods underpinning McClellan’s analysis — namely the hierarchy of controls and worksite risk assessment — are common to the field of industrial hygiene. In other words, McClellan’s testimony was based on sufficient facts and data.

    McClellan is not an Expert in a Cognizable Field

    When Plaintiffs argued that McClellan is not an expert in a cognizable field: she is, instead, an “all-purpose expert” “market[ed] . . . in many divergent areas loosely categorized as industrial health,” the Court held that Plaintiffs’ characterization of McClellan’s experience omitted key details. McClellan had significant prior experience with COVID-19 and in any event, Plaintiffs’ assertion that industrial hygienists are so finely specialized as to require a “transit industrial hygienist” as opposed to an “ordinance testing industrial hygienist” was unsupported.

    The Legitimacy of McClellan’s Method was Questioned

    Plaintiffs attacked the legitimacy of McClellan’s method: ” McClellan claims that . . . the hierarchy of controls, is the same regardless of whether pickles are being made, bombs are being blown up, automotive parts [are] being made or pharmaceuticals [are] being manufactured. . . . This proves too much.”

    The Court held that the hierarchy of controls is “an ingrained part of OSHA’s regulatory framework” for air contaminants in the workplace, and has been codified in Title 29’s Occupational Safety and Health Standards. Henceforth, McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” is supported.

    McClellan Lacked Firsthand Knowledge

    Plaintiffs advanced a number of arguments attacking McClellan’s “lack of firsthand knowledge.” The Court held that an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Moreover, Plaintiffs’ suggestion that McClellan should have contacted each Individual Plaintiff prior to preparing her report cuts against the norms of expert practice.

    Held

    The Court denied Plaintiffs’ motion to exclude Defendant’s expert Nancy McClellan.

    Key Takeaway:

    When Plaintiffs contended that McClellan lacked expertise in COVID-19, vaccines, or transit agencies, the Court held that there is no requirement that an expert be a specialist in a given field.

    Also, the Court deemed McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” fully supported. According to the Court, Plaintiffs have identified various grounds for “vigorous cross-examination,” not exclusion.

    Case Details:

    Case Caption: Chavez Et Al V. San Francisco Bay Area Rapid Transit District
    Docket Number: 3:22cv6119
    Court: United States District Court, California Northern
    Order Date: June 21, 2024