Benjamin Torres is a Captain with the Los Angeles County Sheriff’s Department. He claimed that he was retaliated against by the Department for having a station tattoo. Specifically, he alleged that he had been passed over for promotion because of a Department “policy” that prevents individuals with station tattoos from being promoted to Commander.
Defendants sought to exclude Plaintiff’s expert, David Reynoso, on the basis that he is unqualified to testify on First Amendment issues and Department policies, which are the subjects of the opinions disclosed in his Rule 26(a)(2)(B) report.
Law Enforcement Expert Witness
David R. Reynoso has more than 35 years of policing experience (beginning in 1990), including experience in gang and gang subculture investigations since 1992, with an “awareness and understanding” of tattoos in subcultures.
Reynoso disclosed seven topics he plans to opine on in his Rule 26(a)(2)(B) report. Opinions one, two, three, four, and five in his report deal with First Amendment issues and other issues of law.
Plaintiff has not proven that Reynoso is qualified to testify on such matters, as required by FRE 702. It is unclear how Reynoso is qualified to speak on such constitutional issues. Reynoso is not a lawyer, nor did his resume or report list experience related to First Amendment issues.
Furthermore, at Reynoso’s deposition, Reynoso failed to identify any relevant First Amendment experience. Because Reynoso has not identified any knowledge, skill, experience, training, or education that would qualify him to speak on such First Amendment and constitutional issues, the Court deemed him unqualified to speak on opinions one, two, three, four, five, and six.
Regarding opinion seven, which is Reynoso’s opinion that Plaintiff possesses the necessary qualifications to be promoted to Commander, the Court finds him unqualified to testify as to that opinion as well. Reynoso never worked for the Department and has not been involved with the Department’s policies and procedures.
Plaintiff argued that Reynoso should instead be allowed to testify on topics such as tattoo appearance policy standards in policing, the operational reality of “policy” vs “practice,” promotion process norms, and law-enforcement subculture context. Yet, these opinions were not disclosed in Reynoso’s Rule 26(a) Report. Although Rule 37(c)(1) allows the party bearing the sanctions to use information not properly disclosed if the party’s failure was substantially justified or harmless, Plaintiff made no attempt to justify why Reynoso’s additional opinions are substantially justified or harmless. As a result, the Court prohibited Reynoso from testifying on these opinions at trial.
Held
The Court granted the Defendants’ motion to exclude the testimony of Plaintiff’s expert David Reynoso.
Key Takeaway
It is unclear to the Court how Reynoso could competently opine on necessary qualifications for promotion in the Department since he has no experience related to the Department’s promotion procedures nor has he worked in the Department.
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 Daubertgrounds 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.
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.
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.
