Expert Witness Profiler

Tag: Reliable Methodology

  • 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. 
  • Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case 

    Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case 

    Image: Female Athletes Participating in Sports - Title IX Violations Case

    Title IX violations expert testimony

    Plaintiffs, Elizabeth Niblock and Meredith Newman filed this class action complaint against the University of Kentucky Director of Athletics, Mitch Barnhart, President, Eli Capilouto and Board of Trustees (collectively “UK”) alleging practices violative of the Title IX of the Education Amendments Act of 1972, an act prohibiting sex-based discrimination of any form in any school or any other education program that receives funding from the federal government. UK has refused to add any female sports to help bridge the participation gap between male and female student athletes. Due to lack of women’s opportunities, female student athletes are being deprived of the same scholarship opportunities as male student athletes. In other words UK is promoting men’s sports at the expense and detriment to women’s sports.  

    Gender Equity Expert

    Plaintiffs have offered the testimony of expert, Donna Lopiano, the president of Sports Management Resources, LLC, her own, single-member LLC through which she runs a consulting practice “that focuses on helping educational institutions and sport organizations solve sports program integrity, equity, growth, and management challenges.” Donna Lopiano has opined that UK was not accommodating the interests and abilities of female students under Prongs One, Two, or Three of Title IX’s participation options which emphasize on the number of male and female student-athletes being proportional to the overall male and female student enrolment in the institution, on the school in question demonstrating a history and continuing practice of expanding athletic opportunities for female students to align with their interests and on schools with disproportionate athletics programs not currently expanding, to comply with Title IX by demonstrating that their existing program adequately accommodates the interests of female students. Lopiano further testified that UK failed to regularly and properly assess the interests and abilities of the underrepresented sex for the purpose of identifying unmet interests and abilities.  

    Lopiano also concluded that UK had only considered adding the financially least expensive and alumni/audience appealing women’s sports, women’s sports that have never appeared on UK interest and ability surveys. 

    Lopiano stated that UK would be unable to count its current UK sideline cheerleading squad and the dance team as varsity sports and participants as varsity athletes, whether or not coaches, scholarships or other services were being provided to these programs and also added that UK’s proposed plan to add a women’s Stunt and women’s junior varsity soccer team did not achieve Prong One gender equity. UK demanded exclusion of the testimony of Plaintiff’s expert Donna Lopiano. 

    Discussion by the Court 

    Defendant contended that all of Lopiano’s proposed opinions should be excluded considering they constitute legal conclusions or are otherwise inadmissible for various reasons such as lack of required qualifications or lack of a reliable basis. 

    The Court admitted the Defendant’s argument that Lopiano crossed the line into impermissibility when Lopiano opined about UK’s current compliance with Title IX. Plaintiff replied that Lopiano merely wanted to establish industry standards for compliance yet in her report Lopiano “compares what UK has done on all elements—compares it to what Title IX requires” and stated that her report was “all about the University of Kentucky’s fact situation compared to the Title IX standards.” Moreover, Lopiano’s expert report does not consist of opinions about other universities’ compliance. The Court held that Lopiano’s opinions amounted to legal conclusions. 

    Defendant also alleged that Lopiano’s opinions on participation derived from the Equity in Athletics Disclosure Act (“EADA”) survey analysis are premised on the cursory analysis performed by Lopiano and hence are unreliable, irrelevant, and unhelpful to the trier of fact. Lopiano testified that she compared a University’s EADA submissions with website participant counting data and actual NCAA (National Collegiate Athletic Association) squad lists instead of performing the comparison and using only publicly available EADA data to form the basis of some of her conclusions. 

    The Court also found that Lopiano ceased to examine the specifics of UK’s Cheer or Dance teams in performing her analysis and though Plaintiff contends this argument should go to the weight of Lopiano’s testimony instead of its admissibility, the Court held that whether certain teams should be counted for the purposes of Title IX compliance fell under its domain instead of Lopiano’s and henceforth it could not be reasonably concluded if Lopiano’s testimony was relevant or helpful to the trier of fact. 

    When the Defendant testified that Lopiano’s opinions regarding the UK’s athletic interest surveys should be excluded considering she was unqualified to offer such opinions, the Court observed that despite Lopiano’s extensive history and involvement in women’s sports and the area of Title IX, she was not a survey design expert and by her own admission had relied on another survey design expert’s work to form her own conclusions and held that her opinions regarding athletic interest surveys were beyond her area of expertise. 

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

    Held 

    The Court excluded the opinions and testimony of Plaintiff’s expert Donna Lopiano because they consisted of legal conclusions, lacked a reliable basis and Lopiano opined on topics beyond her area of expertise. The outcome of the case is yet to be decided since the issued involved in the case still remain unresolved. 

    Key Takeaways:

    1. Legal Conclusions: The Court found that Lopiano compared the University of Kentucky’s fact situation with the standards and requirements of Title IX of the Education Amendments Act of 1972 without following it up with reports of other universities’ compliance as was required for objective assessment. The Court, henceforth, concluded that the testimony of Lopiano amounted to legal conclusions in this case. 
    1. Reliability: The Court held that Lopiano’s conclusions lacked a reliable premise on account of being based on publicly available Equity in Athletics Disclosure Act (“EADA”) data instead of her own comparisons or specifics of UK’s Cheer or Dance teams not being adequately examined by her in performing her analysis. 
    1. Qualification: Though recognized as one of the foremost national experts on gender equity in sport, Lopiano, unfortunately, by her own admission is not a survey design expert. Usually the Court deems an expert qualified to opine if the topic is sufficiently within the confines of the expert’s scope of expertise but athletic interest surveys were not within the confines of Lopiano’s expertise.