Expert Witness Profiler

Tag: Harassment

  • Psychology Expert Allowed to Opine on EMDR Therapy

    Psychology Expert Allowed to Opine on EMDR Therapy

    Oriental Trading Company, Inc. (“OTC”) is a retailer of novelties and gifts. Plaintiff Keith Kirksey is an African American male who began his employment with OTC on or about June 1, 2017.

    According to Kirksey, during his employment, he experienced a series of racially targeted incidents including the placing of a noose in his workspace and the placing of a clown head with, what he perceived as, a noose around its neck where Kirksey would see it. He reported these incidents to OTC who indicated it would investigate. Kirksey was dissatisfied with OTC’s investigation, and its outcome, and thereafter felt unfairly targeted by OTC in retaliation for his reporting.

    Kirksey filed a complaint against OTC stemming from his employment alleging claims of race discrimination, retaliation, and harassment/hostile work environment as well as negligent infliction of emotional distress.

    In an effort to establish his claims, Kirksey engaged Jerry Authier, Ph.D. as an expert. Authier is clinical psychologist licensed in Nebraska who was retained to conduct a psychological evaluation of Kirksey. In an effort to rebuke Kirksey’s claims, OTC designated Timothy D. Loudon as an expert in the field of human resources and workplace investigations.

    OTC filed a motion in limine to exclude the testimony of Plaintiff’s expert witness Authier and Kirksey filed a motion to exclude the testimony of Loudon.

    Psychology Expert Witness

    Jerry L. Authier, Ph.D. is a clinical psychologist licensed in Nebraska. He has been practicing psychology in Omaha since 1973.

    He obtained his bachelor’s degree in psychology and doctorate in clinical psychology. Throughout his 50-year career, Authier was the director of behavioral science at the University of Nebraska and Clarkson Family Medicine and saw patients in private practice. Authier has authored various articles and books and presented at a range of conferences, primarily during his years as an educator.

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

    Human Resources Expert Witness

    Timothy D. Loudon has a juris doctor degree, is licensed to practice law in multiple states, and has practiced labor and employment law in various capacities since 1981.

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

    Discussion by the Court

    Authier

    OTC did not move to preclude Authier from testifying altogether but sought
    to limit his testimony to that of a treating provider. OTC primarily argued that Authier’s opinions should be excluded because the foundation of Authier’s opinions rest solely on information Kirksey (and perhaps his counsel) conveyed to him.

    Authier opined that Kirksey suffers from post-traumatic stress disorder, persistent depressive disorder with paranoid ideation, and generalized anxiety disorder. He further concluded that Kirksey’s negative psychological and psychiatric symptoms are attributable to Kirksey’s time working at OTC. In reaching these conclusions, Authier used a diagnostic interview, Minnesota Multiphasic Personality Inventory, 2nd Edition (“MMPI-2”) and the Sachs Sentence Completion Test. Authier further opined that Kirksey would need weekly psychotherapy sessions for an indeterminate amount of time but “at least a year if not longer and possibly the rest of his life.”

    During his deposition, taken almost a year after his diagnostic interview, Authier testified that Kirksey did not participate in weekly therapy sessions with him. Authier stated that at the time he wrote his opinion he believed weekly therapy sessions would be the best way for Kirksey to recover from his symptoms.

    Authier further testified that he is not an expert in EMDR therapy but stated it might be of help to Kirksey, when done with a specialized provider, to work through some of the symptoms of trauma. Similarly, Authier testified that he is not licensed to prescribe medication but that “the research shows that [psychotherapy along with medication] is the best way to help people that are struggling with psychiatric and psychological symptoms.

    Analysis

    First, OTC argued that Authier’s opinions are irrelevant because the June 18, 2020, incident (of which Authier’s opinion relies) is outside the applicable statute of limitations for Plaintiff’s claims in this lawsuit.

    However, the Court found that Authier’s opinions regarding Kirksey’s conditions and the source of those conditions is wholly relevant to the ultimate issues in this case and his testimony would be useful to the finder in fact when deciding those issues.

    OTC sought to exclude Authier’s opinions as to EMDR therapy and psychotropic medications based on his qualifications. While Authier testified that he is not an expert in EMDR nor a medical doctor, his limited opinions on these two topics fall within his purview of a clinical psychologist.

    Authier did consider whether Kirksey’s symptoms could be attributable to other causes – such as childhood trauma. He determined based on his testing and clinical experience that this was unlikely. Moreover, when presented with records from a prior provider, Authier did not change his opinion.

    The Defendant did not identify any plausible alternative cause of Kirksey’s conditions, thus strengthening the Court’s conclusion that the methodology employed by Authier is reliable. In addition to the diagnostic interview, Authier had approximately 16 sessions with Kirksey which confirmed Authier’s impressions and diagnosis of Kirksey.

    Authier’s clinical impressions, based on his standardized diagnostic tools and his diagnostic evaluation, is that Kirksey is experiencing symptoms and those symptoms are tied to his time at OTC.

    Moreover, OTC sought to exclude Authier’s opinion relating to his original recommendation that Kirksey participate in weekly psychotherapy sessions, arguing it is speculative and unsupported by the facts. The Court found that this information may provide context to the testimony at trial.

    Loudon

    Loudon opined about OTC’s handling of each of Kirksey’s complaints. To sustain a claim against OTC for a racially hostile work environment, Kirksey must show (1) he is a member of a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment was based upon race, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the racially discriminatory harassment and failed to take prompt and effective remedial measures to end the harassment.

    At the time of trial, the “promptness” and “effectiveness” of an employer’s response is a question of fact for the jury to resolve and a matter for the Court to instruct.

    Allowing Loudon to testify as an expert to the “adequacy” and “reasonableness” of OTC’s investigation would invade the province of the jury.

    Held

    • The Court denied Defendant Oriental Trading Company’s motion in limine to exclude the testimony of Plaintiff’s expert witness Jerry Authier.
    • The Court granted Plaintiff Keith Kirksey’s motion to exclude the testimony of Timothy Loudon.

    Key Takeaway

    With respect to differential diagnosis, opinion testimony is unreliable “only when an opponent points to a plausible alternative cause of the injury and the doctor offers no explanation for concluding that it was not the sole cause.”

    OTC’s attacks regarding the completeness of Authier’s methodology go to the weight and not the admissibility of his testimony.

    Case Details:

    Case Caption: Kirksey V. Oriental Trading Company Inc.
    Docket Number: 8:24cv268
    Court Name: United States District Court, Nebraska
    Order Date: March 09, 2026
  • 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.