Expert Witness Profiler

Tag: employment discrimination

  • Court confirms the admissibility of the testimony of occupational medicine expert in employment discrimination case  

    Court confirms the admissibility of the testimony of occupational medicine expert in employment discrimination case  

    This case involved a lawsuit filed by David Meza against his former employer, Union Pacific Railroad Co., alleging discrimination in violation of the Americans with Disabilities Act (ADA). Meza worked as a carman for Union Pacific until his employment was suspended after a fitness-for-duty exam.  

    Meza retained Kevin Trangle as an expert witness to support his ADA discrimination claim. Trangle intended to testify that the Federal Motor Carrier Safety Administration (FMCSA) Medical Examiner Handbook relied on by Union Pacific in evaluating Meza’s fitness for duty contained outdated medical information and was removed from the FMCSA website for that reason.  

    Union Pacific filed a Daubert motion to exclude parts of the occupational medicine expert witness’ proposed expert testimony. Specifically, Union Pacific argued Trangle should not be permitted to: 

    • Craft a factual narrative about the FMCSA’s decision to remove the 2014 Medical Examiner Handbook from its website. 
    • Opine or infer why the FMCSA removed the Handbook, including claiming its removal signaled the guidelines were outdated or unreliable.  

    Union Pacific insisted on the scientific validity of the Handbook and contended that Trangle’s testimony to the contrary was unsupported and inadmissible. Union Pacific asserted that testimony from its own experts Brian Morris, M.D., J.D., M.B.A., M.P.H. and Joel T. Cotton established the reliability of the Handbook. 

    Occupational Medicine Expert Witness 

    Dr. Kevin Trangle has over 40 years of experience as a board-certified physician in internal medicine, occupational medicine, and preventive medicine. He obtained his medical degree from the University of Minnesota Medical School in 1978 and also holds an MBA in healthcare management from Case Western Reserve University. He has served as a medical director for numerous corporations and organizations. His experience encompasses all aspects of occupational medicine including diagnosis and treatment of work-related injuries, disability evaluations, return to work assessments, corporate wellness programs, and substance abuse programs. Trangle has provided expert consultation services for attorneys, government agencies, and insurers. He has given dozens of presentations to professional organizations on occupational health topics and has published extensively in medical journals. Trangle has particular expertise regarding workplace chemical exposures, having worked extensively with the chemical industry and conducted research on industrial solvents and chemical sensitivity issues. He has also managed corporate drug testing and substance abuse programs. In summary, Trangle has comprehensive credentials and experience at the highest level in occupational and environmental medicine. 

    Discussions by the Court 

    The Court began by explaining that the admissibility of expert testimony in federal court is governed by Federal Rule of Evidence 702. Under this rule, expert opinion testimony is admissible if the expert’s knowledge will help the jury understand the evidence, the testimony is based on sufficient facts, it is the product of reliable methods, and the methods were reliably applied to the case facts. The Court acts as a gatekeeper, ensuring only relevant and reliable scientific evidence is admitted. However, the Court must not invade the role of the jury in weighing evidence and resolving credibility issues. Rule 702 favors admissibility, and expert testimony should only be excluded if it is so unsupported it cannot assist the factfinder.   

    Union Pacific sought to bar occupational medicine expert witness Trangle from opining that the Handbook was unreliable and was removed from the FMCSA website for containing outdated information. Union Pacific argued Trangle had no basis to testify the information was outdated and his opinions were unsupported. It asserted testimony from its own experts establishes the Handbook remains current and reliable. 

    Meza responded that the 2014 Handbook’s current validity was relevant evidence, Trangle was qualified to opine on the medical science being outdated, and his opinion was reliable. Meza pointed to indications the Handbook was no longer in use and was removed for containing obsolete information. Meza contended competing expert views on the Handbook should be resolved through advocacy and jury findings rather than exclusion. 

    In support of their argument, Meza cited two key pieces of evidence. Firstly, they pointed to a watermark prominently displayed on the front of the Handbook, which unequivocally stated that it was “No longer in use.” This watermark served as a clear indicator that the handbook had been rendered obsolete and was no longer considered a reliable or current source of information.

    Secondly, Meza referenced a notice of proposed regulatory guidance published in the Federal Register. This notice provided crucial context by explaining that the Federal Motor Carrier Safety Administration (FMCSA) withdrew the Handbook in 2015. The reason behind this withdrawal, as stated in the notice, was that certain information contained within the handbook had become outdated or was overly prescriptive in nature.

    The Court found Trangle’s opinions on Union Pacific’s reliance on the Handbook were not so unsupported as to be completely unhelpful to the jury. While not indisputable, his testimony could assist the jury to some degree and should be tested by the adversary process rather than excluded outright.  

    The Court stated Union Pacific’s proposed exclusions were too restrictive. Trangle should be able to explain why he believes Union Pacific should not have relied on the Handbook, even if Union Pacific disagrees. His opinions were not speculative or unsupported enough to be inadmissible. Union Pacific was permitted to challenge Trangle through its own experts and cross-examination rather than exclusion. 

    Union Pacific argued the FMCSA never found the Handbook guidelines unreliable. But the Court found Trangle should be able to tell the jury why he believes Union Pacific should not have relied on the Handbook. The Court preferred to let the adversary process test Trangle’s opinion rather than the Court excluding it upfront.  

    The Court explained it was not proper for the Court to weigh competing expert opinions or determine their correctness. Issues with Trangle’s testimony were better addressed by the adversary process with competing expert testimony and cross-examination. Where an expert opinion had sufficient grounds to assist the jury, it should be tested by competing evidence rather than be excluded outright. 

    Held  

    The Court denied Union Pacific’s motion to limit Trangle’s testimony about the Handbook being outdated and unreliable. The Court ruled that he could generally opine that the Handbook was outdated and unreliable, though more specific objections may be raised at trial. The validity of the Handbook would be resolved through competing expert views rather than the Court prohibiting testimony at the outset. The adversarial process is the appropriate means of attacking shaky but admissible 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 demonstrates several important principles regarding expert witness testimony.

    • The Court emphasized its role as a gatekeeper in evaluating reliability under Daubert, but cautioned against invading the province of the jury to weigh competing expert opinions.
    • The standard for admissibility is fairly low – expert testimony should be admitted unless it is so unsupported it cannot help the factfinder at all.
    • Doubts about usefulness should be resolved in favor of admission rather than exclusion. Fourth, weaknesses in expert opinions are better addressed through cross-examination and contrary evidence rather than outright exclusion.
    • Disagreements between experts on key facts illustrate the need to let the adversarial process test competing views.
    • The Court should not determine which expert is correct on disputed factual issues.
    • While specific objections may arise, experts should generally be permitted to offer opinions within their expertise that have potential to assist the jury. 
  • Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

    Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

    Legal case involving employment discrimination claims and expert testimony

    Plaintiff Terrence T. Batiste II has initiated legal action against Defendant Titan Medical Group LLC, asserting claims of wrongful termination and employment discrimination. These claims stem from allegations that Batiste, a homosexual black man who had explicitly communicated his identity during pre-employment interviews, experienced pay disparities and unequal treatment. He contends that his base salary was $15,000.00 lower than that of fellow managers and that he was excluded from receiving quarterly performance bonuses, resulting in a substantial income discrepancy. The case also revolves around a contentious exchange that transpired on July 17, 2020, involving Batiste and another corporate employee, Tammy Corwin, regarding the scheduling of a meeting with Titan Medical’s CEO. This exchange was documented through text messages and a recorded phone call. Subsequently, after an internal investigation, Titan Medical Group terminated Batiste’s employment on August 3, 2020. The lawsuit invokes Title VII of the Civil Rights Act of 1964 and the Nebraska Fair Employment Practices Act as legal bases for the allegations, asserting violations of these statutes in relation to employment discrimination based on race and sexual orientation. The action was removed from the District Court of Douglas County, Nebraska under 28 U.S.C. §1446 to the United States District Court for the District of Nebraska. 

    Equal Opportunity Expert Witness 

    Defendant, Titan Medical Group LLC offered the report and testimony of Timothy D. Loudon. Timothy D. Loudon is a retired attorney. Loudon spent the beginning of his career as a Nebraska Equal Opportunity Commission investigator, investigating charges of discrimination. He later represented employers and employees in private practice for 34 years. In that capacity, he advised and trained companies and management on employment practices and has drafted and reviewed personnel policies and employee handbooks, including policies addressing discrimination and harassment, affirmative action, performance evaluations, and progressive discipline. He has been identified as an expert to testify as an expert witness in human resources, performance management, performance management system and processes, employment law and policies, employment investigations, human resources training and expertise, workplace harassment/discrimination and workplace harassment/discrimination complaints. 

    Plaintiff has filed a motion to strike the testimony and report of Defendant’s expert Loudon. 

    Discussion by the Court 

    In his report, Timothy D. Loudon opined about Titan’s alleged failure to utilize progressive discipline or to conduct an annual performance evaluation for the plaintiff; the adequacy of the Titan’s investigation of the plaintiff’s complaint of racial discrimination; and Batiste’s allegation of retaliation, specifically, whether he engaged in protected activity. 

    He concluded that Titan might have failed to utilize progressive discipline but the purpose was served anyhow when Titan gave Batiste adequate notice of his performance deficiencies and that Plaintiff’s annual performance evaluation was overlooked due to rising COVID-19 cases and also financially benefited Batiste. Loudon opined that Batiste’s supervisors Jennifer Lyman, COO (hereinafter “Lyman”) as well as Carrie Miller, CFO (hereinafter “Miller”) had done an adequate job of conducting a full investigation when they ruled out the possibility of Batiste’s race being a possible factor in his altercation with Corwin. 

    Loudon further opined that Batiste must show that he engaged in “protected activity” (complained of discrimination); suffered an “adverse action” (termination); and prove a causal connection between his complaint and his subsequent termination. “Temporal proximity” (closeness in time) between the protected activity and the adverse action could be used to create an inference of retaliation and concluded that Batiste cannot meet the threshold showing that he engaged in protected activity based on these factors. 

    Batiste in turn alleged that since Loudon did not back up his claims with statistical analysis or other empirical testing or explanations of what comprises common practices in the industry without applying industry standards to the facts of the case, he had invaded the province of the Court since his opinions amounted to legal conclusions. 

    Batiste also stated that Loudon doesn’t demonstrate considerable experience when it comes to cases dealing with racism in the workplace which is crucial to evaluate the validity of Batiste’s discrimination and retaliation claims. 

    Loudon’s conclusions are not based on a reliable methodology because he has failed to cite common industry standards, customs, or practices in the report or any peer reviewed literature on the topics. 

    Batiste also argued that Loudon had given greater weight to irrelevant facts and mischaracterized testimony from witnesses in hopes of persuading the jury that the testimony meant something else than what it actually did. 

    The Court found Loudon qualified based on his education and experience but maintained that it would refrain from allowing Loudon to provide testimony regarding issues that invaded the province of the Court or the jury. The Court denied the Plaintiff’s motion to strike the testimony and report of Loudon, without prejudice to objections raised at trial contending that the Plaintiff’s objections concerned the weight instead of the admissibility of Loudon’s testimony. The Court was unable at that juncture to assess the expert’s testimony in the context of objections to be interposed at trial. The testimony might be subject to such objections as foundation, relevance, and unfair prejudice. 

    Since the proceedings are ongoing, the outcome of the case remains to be decided. 

    Held 

    The Court denied Batiste’s motion to strike the testimony and report of Defendant’s expert Loudon without prejudice to objections raised at trial. Since the issues remain unresolved, the outcome of the case is yet to be seen. 

    Key Takeaways:

    1.General vs. Specialized Expertise: The Plaintiff alleged that Loudon lacked the required experience to opine on wrongful termination cases involving racial discrimination claims but the Court admitted his testimony anyway since the topic was sufficiently within the confines of his expertise. 

    2.Weight vs. Admissibility: When the Plaintiff alleged that Loudon’s testimony was of little assistance to the trier of fact and was likely to confuse and mislead the jury because it was grounded on unreliable methodology, the Court held that these arguments called into question the weight instead of the admissibility of Loudon’s testimony. Since Plaintiff was yet to prove grounds warranting exclusion of expert Loudon, the Court found it more appropriate to assess the substance of Loudon’s testimony in light of objections raised at trial by the Plaintiff. 

    3.Experts cannot invade the province of the Court or the jury: In this case, Loudon breached the province of the Court and the jury and drew legal conclusions on their behalf when he opined that the Plaintiff cannot prove that he did engage in protected activity considering whether an activity is protected under the statute for purposes of a retaliation claim is a question of law as was held in Morris V. City of Chillicothe .