Expert Witness Profiler

Tag: Retaliation

  • Economics Expert Not Allowed to Opine on Income Losses

    Economics Expert Not Allowed to Opine on Income Losses

    Plaintiffs Shazad Buksh (“Buksh”) and Krishna Gathani (“Gathani”) brought this case alleging, among other causes, discrimination and retaliation by Defendants William Sarchino, Southwestern Vermont Medical Center and Southwestern Vermont Health Care. To calculate their damages, both Plaintiffs disclosed the economic expert witness Stephanie Seguino, Ph.D.

    Economics Expert Witness

    Stephanie Seguino, Ph.D. is “Emerita Professor Economics at the University of Vermont (UVM) with expertise in quantitative data analysis as well as gender and racial inequality and labor market discrimination,” who held her position at UVM from 1995 to 2022, as well as the positions of Chair of the Economics Department and Associate Dean of the College of Arts and Sciences.

    She received a Ph.D. in Economics from American University in 1994. Seguino has also “published extensively in peer-reviewed journals,” has “two co-authored edited books,” serves “as associate editor of two economics journals,” and is on the editorial board of a third economics journal.

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

    Discussion by the Court

    I. Updated Buksh Report

    On December 10, 2024, Seguino signed a new expert report for Buksh. The purpose of this report was to “provide an estimate of the Plaintiff’s loss in earnings… and the present value of lifetime medical costs associated with bladder cancer treatment.” Seguino now estimates Buksh’s lost income at $1,844,549, and the “present value of projected medical costs for bladder cancer treatment” at $10,054,800.

    II. Updated Gathani Report

    On December 10, 2024, Seguino signed a new expert report for Gathani.The updated report calculates Gathani’s “lost income due to retaliation at SVMC” in the amount of $384,940.96.

    In her report, Seguino writes that “Gathani was delayed in attaining the qualifications for licensure as a surgical podiatrist by one year and three months due to the defendants’ alleged conduct, which required the plaintiff to pursue his residency in another program.” Seguino thus estimates his income losses “using information from his pay stubs and bonus payment from his first employment since completing his residency.” Accordingly, Seguino calculates Gathani’s “lost income” as “1.25 years of salary as a surgical podiatrist.”

    A. Motion to Exclude Seguino’s Opinion on Buksh

    Defendants sought to exclude Seguino’s expert testimony, arguing in part that Seguino’s opinion is not based upon reliable data and methodology. The Court agreed.

    In Parts I, II, and III of her opinion, Seguino used only two data points to calculate what Buksh’s salary would have been as a surgical podiatrist: the salaries she had access to, those of the other two Plaintiffs in this case (Gathani and Saman).

    If the two data points are considered a sample that is meant to represent surgical podiatrists, then the problem here is not necessarily the use of a small sample of data to estimate the salary of a group; the problem is that no explanation has been given about why the sample set of two could be representative of the entire group.

    Buksh argued that “there is government data on the earnings of podiatrists but not surgical podiatrists” and thus “the defense criticizes Seguino for not using a large sample of incomes from surgical podiatrists across the country but does not state that such a resource is available.” Yet Buksh has the burden to show at least that it is “more likely than not” that his expert’s testimony is based on sufficient facts or data, and is the product of reliable principles and methods.

    Buksh also argued that Seguino’s calculations are conservative and they favor the defense because she took the difference between the BLS data for nonsurgical income to calculate the difference between that and surgical income, rather than using Buksh’s actual income figures—if she had used his actual income, then “the loss in Part II would have been considerably higher.”

    But this argument echoes the problems the Defendants pointed out with Seguino’s methods—why is the BLS data for nonsurgical income “considerably” higher than Buksh’s actual income? And why didn’t Seguino consider that in her calculations—if there is a factor that is depressing Buksh’s salary as a non-surgical podiatrist below the average of what other non-surgical podiatrists make, might that same factor mean that he could make considerably less than the population of two she is comparing his salary to?

    B. Motion to Exclude Seguino’s Opinion on Gathani

    Seguino bases her estimate of Gathani’s lost income for his first year. She did not subtract his actual income in that year (earned in New York, at a new podiatry residency program) from the amount of “lost income.” Nor did she adjust the amount at all, for the reasons explained in footnote one of her report. Essentially, then, Seguino has copied the exact income that Gathani earned as a surgical podiatrist in his first year and estimated that this amount is his lost income in this case.

    There is not much analysis that Seguino adds, nor does she use much “methodology” for the Court to evaluate. In her report, she stated that: “I estimate Gathani’s income losses, using information from his pay stubs and bonus payment from his first employment since completing his residence.” As explained above, this means that Seguino copied the number from Gathani’s first year of practice.

    Held

    The Court granted both motions to exclude Stephanie Seguino’s testimony.

    Key Takeaway

    Here, the trier of fact is not helped by an expert explaining that Gathani could have earned the exact amount in his first year of practicing as a surgical podiatrist as what he did, in fact, earn in his first year of practicing as a surgical podiatrist.

    Case Details:

    Case Caption: Buksh V. Foot
    Docket Number: 2:21cv190
    Court Name: United States District Court for the District of Vermont
    Order Date: July 06, 2026
  • Human Resources Expert Not Allowed to Opine on Employees’ Rights

    Human Resources Expert Not Allowed to Opine on Employees’ Rights

    Plaintiff Toby Pack, a CSX employee, applied for leave under the Family and Medical Leave Act (FMLA) due to chronic kidney stones. Although CSX initially approved Pack’s application, it subsequently charged him with FMLA misuse and terminated him.

    Pack sued, alleging that CSX fired him in retaliation for his taking FMLA leave. Pack intended to offer the expert testimony of Beth De Lima, but CSX argued that De Lima’s testimony should be excluded.

    Human Resources Expert Witness

    Beth B. De Lima has extensive experience in developing and implementing HR programs and policies that relate to federal and state employment legislation. She has been assisting corporate, non-profit, and governmental clients with HR policy development and implementation since 1992.

    She has worked closely with clients to establish and maintain compliance with federal and state employment legislation, including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

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

    Discussion by the Court

    De Lima’s report touches on several topics, including employees’ legal rights under the FMLA and employers’ legal obligations under the FMLA.

    A. Relevance

    The jury in this case will be asked to determine whether CSX terminated Pack in retaliation for Pack’s use of FMLA leave. CSX argued that De Lima’s opinion is not relevant to that question.

    The Court agreed. CSX’s alleged noncompliance with industry standards did not make it any more likely that CSX retaliated against Pack. If CSX had deviated from its own standard procedures in investigating Pack, that might be probative of retaliation.

    But CSX having different procedures from other companies did not show that CSX’s explanation for terminating Pack is “unworthy of credence.”

    B. Reliability

    In her report, De Lima said that the industry standards to which she alludes are “set forth by the Society for Human Resource Management.” But the report never cited specific documents or guidance promulgated by this organization. During her deposition, De Lima confirmed that the standards on which she relied are “written down.” However, when asked which of the sources in her bibliography support her opinions, she was unable to provide an answer. Instead, she asserted that the FMLA itself supports her opinions. When asked which part of the FMLA supports her opinions, she said “it’s not clear.”

    In his supplemental briefing, Pack identified five publications from The Society for Human Resources Management which he claims supported De Lima’s opinion. But the supplement never asserted that De Lima actually relied on those publications in forming her opinion and none of the publications are included in De Lima’s bibliography.

    Since neither Pack nor De Lima has identified the basis for De Lima’s testimony, they are too unreliable to be admitted under Federal Rule of Evidence 702. Even if De Lima’s opinion were relevant, the Court would exclude it under Rule 702.

    Held

    The Court granted Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Plaintiff’s expert Beth De Lima.

    Key Takeaway

    Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.

    The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.

    Case Details:

    Case Caption: Pack V. CSX Transportation, Inc.
    Docket Number: 3:24cv688
    Court Name: United States District Court, West Virginia Southern
    Order Date: May 06, 2026
  • Law Enforcement Expert Not Allowed to Opine on Tattoo Appearance Policy Standards

    Law Enforcement Expert Not Allowed to Opine on Tattoo Appearance Policy Standards

    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.

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

    Discussion by the Court

    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.

    Case Details:

    Case Caption: Benjamin Torres V. County Of Los Angeles
    Docket Number: 2:25cv4155
    Court Name: United States District Court, California Central
    Order Date: February 03, 2026
  • Law Enforcement Expert’s Testimony on Workplace Dynamics Admitted

    Law Enforcement Expert’s Testimony on Workplace Dynamics Admitted

    Solangie Acosta was a Muskegon Heights Police Department(“MHPD”) law enforcement officer between 2017 and 2022 who brought nine claims against her former employer, alleging discrimination on the basis of sex, disability status, and an exercise of her worker’s compensation rights.

    Defendants filed a motion to preclude testimony by Acosta’s expert Wendy Patrick, a former prosecutor and law enforcement trainer, who intended to testify regarding law enforcement practices and the difficulty that officers face in making complaints, including sexual harassment complaints, against other officers and their superiors.

    Law Enforcement Expert Witness

    Wendy L. Patrick, J.D., Ph.D. has been researching, training, presenting, and publishing within the field of gender discrimination and sexual harassment for over 20 years. She regularly teaches and trains on the insidious progression of gender-based discrimination and harassment within professional relationships, why victims remain employed in positions of power inequality when they are targeted, and the hallmarks of a discriminatory workplace culture.

    Patrick is a certified Institute of Criminal Investigation (ICI) Certified Trainer for law enforcement and provides consulting services and training in trauma-informed sexual assault response and investigation on a national level.

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

    Discussion by the Court

    Defendants moved to preclude Patrick’s testimony on “empirical documentation and testimony regarding workplace dynamics including discrimination, sexual harassment, and retaliation within a male-dominated workplace” and “the potential adverse effects likely to impact a female law enforcement officer targeted as described.”

    Defendants argued that Patrick lacked sufficient qualifications and that Patrick’s expert report “at no point even attempts to discuss, reference, or even acknowledge the facts of this case” given that “the only [case-specific] documents reviewed and information considered was Plaintiff’s First Amended Complaint.”

    Acosta responded that Patrick’s expert report and curriculum vitae establish that she has specialized knowledge as a certified law enforcement trainer and as a published author regarding law enforcement practices. Acosta submitted persuasive authority from federal trial courts indicating that such testimony may be admissible in sexual harassment cases involving police officers.

    Defendants, however, have not presented any controlling Sixth Circuit authority indicating that general expert testimony on the subjects noted in Patrick’s report should be excluded on the facts presently before the Court.

    The Court concluded that Defendants have failed to establish the wholesale inadmissibility of Patrick’s expert testimony.

    That said, Defendants are free to object to specific opinions offered by Patrick if they, for example, violate Federal Rule of Evidence 403 or any other applicable rules. Defendants are also free to object if Patrick attempts to apply her general testimony to the specific facts of this case to the extent that Patrick failed to disclose such an opinion in her expert report.

    Held

    The Court denied Defendants’ motion in limine to exclude the testimony by expert Wendy Patrick without prejudice subject to the guidance provided above.

    Key Takeaway

    Expert testimony about the tendencies of victims of sexual harassment does not require specific knowledge about the parties. Experts routinely offer general testimony about their field of expertise without knowledge of the case at bar.

    Case Details:

    Case Caption: Acosta V. Muskegon Heights
    Docket Number: 1:23cv972
    Court Name: United States District Court, Michigan Western
    Order Date: January 06, 2026
  • Economics Expert’s Opinion on Career Earnings Prospects Admitted

    Economics Expert’s Opinion on Career Earnings Prospects Admitted

    This case involves a Federal Employers Liability Act (“FELA”) claim for emotional distress and a Federal Railroad Safety Act (“FRSA”) whistleblower claim based on alleged retaliation.

    Despite the failure to timely file the required documents, the Union Pacific’s Employee Assistance Program (“EAP”) granted Nathan Walker a grace extension of his medical leave of absence.

    On May 14, 2022, Walker was flagged in the EAP system for revocation of leave because he failed to timely submit the required medical documents. Union Pacific revoked Walker’s medical leave, placed him in an absent without leave status (“AWOL”), and sent a termination letter to Walker for failure to protect employment. On May 23, 2022, Walker’s counselor cured the defect, and EAP extended Walker’s medical leave of absence until October of 2022. On October 19, 2022, Walker was released from his medical leave of absence and ultimately did return to work.

    Walker asserted that Union Pacific unlawfully retaliated against him for engaging in protected activity under the FRSA.

    Walker designated Dr. Kenneth G. McCoin, Ph.D. as his economic expert. Union Pacific filed the instant Daubert motion, arguing that (1) McCoin’s methodology and calculations are based off incorrect facts, and (2) his expert opinion is “fundamentally unsupported” and irrelevant because it has no “validity when applied to the pertinent factual inquiry.”

    Economics Expert Witness

    Kenneth Glen McCoin is a consulting economist and a chartered financial analyst. He holds a Ph.D. in Economics from the University of Houston. His professional experience includes serving as Chief Economist at American General Capital Management. He also taught investments and corporate finance at Houston Baptist University.

    Want to know more about the challenges Kenneth G. McCoin has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    First, Union Pacific argued that McCoin has been excluded by a previous Court and thus should be excluded by this Court as well. However, even if other courts have given little weight to McCoin’s testimony or excluded him as an expert, that does not mean his ostensible testimony here will not satisfy a Daubert analysis. 

    Union Pacific argued that McCoin based his methodology and calculations off incorrect facts because his appraisal of Walker’s earning capacity was “based on the wholly incorrect assumption that [Walker] had not returned to work.”

    However, Union Pacific noted that Walker was released from his medical leave of absence and returned to work on October 18, 2022. Union Pacific asserted that McCoin’s opinion is misleading because it assumes a leave of absence three times longer than the actual leave.

    Walker conceded that McCoin’s statement of his return-to-work date was an incorrect statement of fact in his report. However, in an affidavit, McCoin stated that he is providing an appraisal of the earning capacity of Walker from the alleged date his economic loss began and continues through his remaining work life. Therefore, Walker contended that fact is not critical to McCoin’s opinion because his opinion is dependent on evaluating a pre-injured Walker and that person’s career earnings prospects.

    Analysis

    The Court’s role is to ensure that the admitted expert testimony is both reliable and relevant.

    McCoin attests that he is determining what Walker “more likely than not could have earned in wages through the rest of his work life if not for his injury.” McCoin further attested that his calculations are not based on what Walker’s actual wages are or will be for any period since his injury or in the future.

    It is within the province of the jury, not the Daubert gatekeeper, to analyze and weigh an expert’s findings to determine whether they do in fact support his conclusion.”

    Therefore, the Court found the methodology used by McCoin acceptable under Daubert. Additionally, any reliance on incorrect facts in forming some of his opinions did not render all his opinions inadmissible.

    Held

    The Court denied Union Pacific’s Daubert motion to exclude the opinions of Dr. Kenneth McCoin .

    Key Takeaway

    The original reliance on the incorrect facts goes to the weight of his testimony not the admissibility of the testimony itself. Thus, the Court concluded that McCoin’s expert testimony is admissible as both relevant and reliable.

    Case Details:

    Case Caption: Walker V. Union Pacific Railroad Co
    Docket Number: 5:23cv740
    Court Name: United States District Court, Louisiana Western
    Order Date: November 14, 2025
  • Law Enforcement Expert Witness’ Opinion About Officer’s Demeanor Has Marginal Relevance

    Law Enforcement Expert Witness’ Opinion About Officer’s Demeanor Has Marginal Relevance

    Joshua Briggs was arrested for Disorderly Conduct and Harassment because he called Anchorage Police Officer Orean Yi a pig. Briggs filed this lawsuit alleging that he was arrested without probable cause in retaliation for exercising his First Amendment rights.

    Officer Yi asserted that he had probable cause to arrest Briggs because Briggs was making sufficient noise to violate Anchorage’s Disorderly Conduct Ordinance, AMC 08.30.120(A)(2).

    Briggs filed a motion to exclude the report and testimony by Defendants’ expert, James Borden, maintaining that Borden is “not qualified to testify on any matter in this case and his opinions are neither relevant nor reliable under Federal Rule of Evidence 702 and the standards set forth in Daubert.”

    Law Enforcement Expert Witness

    James Borden has over 24 years of combined experience in law enforcement, force analysis, and video review and examination. James is court certified as an expert in the Following Topics: Controversial Use of Force, Police Performance Dynamics, Forensic Video Examination, Officer/subject movement dynamics, Controversial Officer-Involved Shootings, and Attentional Issues related to Officer-Involved Critical Incidents, Police Training and Police Policy, Procedure and Practice.

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

    Discussion by the Court

    a. Qualifications and Reliability

    Briggs maintained that “none of Borden’s listed qualifications demonstrate expertise in determining what constitutes ‘legitimate law enforcement action,’ whether an arrest is ‘based on proper elements,’ whether a person has ‘committed the misdemeanor crime of Disorderly Conduct,’ whether the elements of harassment have been met, or whether Yi made ‘a mistake of the mind and not of the heart.’”

    The parties have filed Borden’s curriculum vitae and expert report, as well as a list of cases in which Borden has participated as an expert. The Court held that a review of Borden’s curriculum vitae demonstrates that he is qualified to testify as an expert on the use of force and police practices based on his experience as a police officer and his training on use-of-force issues.

    As to whether Borden’s opinions are derived from reliable principles and methods, Borden’s expert report explained that he reviewed relevant case documents, including any video evidence, to develop an understanding of the facts, and then analyzes the officer’s actions “to determine what the officers did, as well as their stated justification for what they did and why they did it.”

    He then “compares what the officers did and their reasons for doing so with the objective standards derived from police training and accepted police practice.” In Borden’s case, “relevant reliability concerns . . . focus upon personal knowledge or experience.” The Court found that reviewing case material and relevant documents, and then providing an assessment of the events in light of Borden’s personal experience in law enforcement, is a sufficiently reliable methodology.

    b. Relevance

    To be admissible, expert testimony must be relevant to the case: it must “help the trier of fact to understand the evidence or determine a fact in issue.”

    Borden’s Testimony

    Borden’s report contains four opinions:

    1. Opinion 1: Engagement. I believe Officer Yi had a legitimate law enforcement goal and objective in his arrest of Briggs for Disorderly Conduct, a violation of AMC 8.30.120(A)(2). Although detention was a component of the arrest, the detention was brief, and Briggs was released from the scene. The video evidence shows that Briggs appeared to be antagonistic during the detention.

    2. Opinion 2: Legitimate Law Enforcement action. Taking all evidence as factual and accurate, Briggs committed the misdemeanor crime of Disorderly Conduct in the presence of Officer Yi. Briggs’ behavior affected other individuals and caused other patrons in the store at the time of the occurrence to leave the premises without completing their transactions. With the elements of the violations being cited in multiple case documents, and prosecutorial merit being established by the Municipal Attorney’s Office, the charges were approved.

    3. Opinion 3: Use of Force. Officer Yi made the practical and appropriate decision to use handcuffs and detain Briggs as he was arrested. Force used was minimal to include controlling the movement of Briggs, the use of handcuffs and placing him in the back of the patrol car.

    4. Opinion 4: Harassment Charge. The Harassment violation, Code 8.10.110(A)(l), was not a valid charge. However, the elements of this Harassment charge were in place, a sworn officer generally cannot be a victim of Harassment. I believe Officer Yi and others made this oversight. However, the Harassment charge was ancillary to the charge of disorderly conduct and not the only charge that Briggs was issued a summons for. Additionally, Briggs was not taken into custody and booked into jail for the charges.

    Analysis

    The primary issue in this case is whether Officer Yi had probable cause to arrest Briggs during the exchange in the gas station. A dispute of material fact remains as to the volume of Briggs’ speech and any effect on the other patrons of the gas station, facts which are relevant to whether Officer Yi had probable cause.

    Opinion 1 essentially concludes that Officer Yi had probable cause to arrest Briggs for disorderly conduct, which is an impermissible legal conclusion. The Court held that Opinion 1 also does not aid the jury in determining the disputes of fact that remain, and Borden’s opinion as to Briggs’ detention is irrelevant, as the detention is not at issue in this case.

    The Court held that Opinion 2 is inadmissible for the same reason as Opinion 1: it is an impermissible legal conclusion.

    Opinion 3 has marginal relevance, as Briggs does not allege a use-of-force claim and Officer Yi’s use of handcuffs and his placement of Briggs in his patrol car is not disputed and its legality is not at issue. And yet as Briggs acknowledges, Officer Yi’s demeanor during the incident “may be relevant to his credibility.” Whether Officer Yi’s decision to use handcuffs and detain Briggs in the patrol car was “practical and appropriate” could similarly have relevance to Officer Yi’s credibility. The Court held that Borden may testify as to Opinion 3.

    The Court held that Opinion 4 is inadmissible because it is irrelevant and would not help the trier of fact understand the evidence or determine a fact in issue. It is undisputed that the harassment charge was dismissed in state court for lack of probable cause. Further, Opinion 4 is an improper legal conclusion.

    c. Rule 26

    In their opposition, Defendants contended that Borden could testify about numerous other topics that are not mentioned in his report. These topics include “how officers are trained to understand the difference between a suspect simply engaging in first amendment speech and what constitutes pre-assaultive indicators like body movement and tone during such encounter”; and “whether Officer Yi’s actions and decision to search the contents of the wallet for identification and contraband is appropriate under these circumstances.” On the current record, the Court held that Borden cannot testify as to any of those topics because they were not disclosed in his expert report. In other words, Borden’s expert report fails to contain a statement of the opinions Defendants raise above.

    Held

    The Court granted in part Briggs’ motion to exclude the testimony of James Borden; Borden can only testify as to Opinion 3 in his report.

    Key Takeaways:

    • The Court found that reviewing case material and relevant documents, and then providing an assessment of the events in light of Borden’s personal experience in law enforcement, is a sufficiently reliable methodology.
    • The Court held that Borden is qualified to testify as to police practices based on his personal knowledge and experience.
    • The Court decided that Borden’s opinion about Officer Yi’s decision to use handcuffs and detain Briggs in the patrol car has marginal relevance.

    Case Details:

    Case Caption: Briggs V. Yi Et Al
    Docket Number: 3:22cv265
    Court: United States District Court, Alaska
    Order Date: December 23, 2024
  • Hiring a Neutral Medical Expert Witness is Not Necessary When Complex Questions Are Not Raised

    Hiring a Neutral Medical Expert Witness is Not Necessary When Complex Questions Are Not Raised

    Plaintiff being a state prisoner proceeding pro se with a civil rights complaint sought the appointment of an expert witness in the field of psychiatry and mental health treatment and care and a neutral expert familiar with policies and procedures of the California Department of Corrections and Rehabilitation.

    Plaintiff alleged that while he was housed at Mule Creek State Prison (“MCSP”), defendants A. Chandra, K. Mohr, J. Quiring, J. Charon, and J. Weiss: (a) retaliated against Plaintiff in violation of the First Amendment by, inter alia, verbally threatening plaintiff, and issuing a rules violation report (“RVR”) asserting false allegations in retaliation for Plaintiff filing a grievance against defendant A. Chandra; (b) violated Plaintiff’s Eighth Amendment rights by, inter alia, housing him in segregated housing and detention, resulting in a long term deprivation of outdoor exercise, despite Plaintiff’s chronic depressive disorder and serious medical and mental health needs; and (c) conspired to violate plaintiff’s constitutional rights. In addition, Plaintiff alleged that Defendants Quiring and Weiss violated Plaintiff’s due process rights in connection with the hearing on the rules violation report asserting false allegations.

    Discussion by the Court

    Psychiatric and Mental Health Expert

    In his first motion, Plaintiff sought the appointment of an expert witness in the field of psychiatry and mental health treatment and care.

    Plaintiff argued that this case involved complex issues of fact, and an expert is required to assist the Court in evaluating Plaintiff’s medically diagnosed chronic depressive disorder and serious medical needs and determining whether subjecting him to C-Status segregated housing and detention and the lengthy deprivation of outdoor exercise “severely aggravated [Plaintiff’s] condition or caused him serious harm and injury.” 

    Prison Electronic Records Expert

    Plaintiff sought the appointment of a neutral expert familiar with policies and procedures of the California Department of Corrections and Rehabilitation (“CDCR”) regarding the maintenance and retention of prison records who can audit all existing records kept and maintained within the MCSP Electronic Records Management System (“ERMS”) computer relevant to RVR #006953258 and testify as to “the actual date said RVR was generated with information [inputted] by Defendant A. Chandra reporting the CDCR disciplinary charges against [Plaintiff].”

    Analysis

    First, to the extent Plaintiff seeks appointment of an expert witness for his benefit, or to prove his case, the Court has no authority to grant such motion. Rule 706(a) of the Federal Rules of Evidence permits the Court to appoint only neutral expert witnesses. An expert appointed pursuant to Rule 706 does not serve as an advocate for either party and each party retains the ability to call its own experts. 

    Second, Courts do not invoke Rule 706 simply to “appoint an expert on behalf of an indigent civil party.”

    Third, the Court held that the Plaintiff’s motions for a neutral expert witness are premature. A neutral expert witness may be necessary where there is “some evidence, admissible or otherwise, that demonstrates a serious dispute that could be resolved or understood through expert testimony.”  At the time Plaintiff filed his motions, the parties were still engaged in discovery, and Plaintiff’s motion to compel discovery responses is pending. There are no pending motions on which the Court may require special assistance, such as to resolve a motion for summary judgment.

    Finally, at least at this juncture, the Court held that Plaintiff’s claims of deliberate indifference to serious medical and mental health needs, retaliation and conspiracy are not so complex as to require an expert witness. 

    Held

    The Court found that at this stage of the proceedings an expert witness is not necessary and would not be significantly useful to the factfinder to comprehend a material issue in this case.

    Key Takeaway:

    Plaintiff contended that a neutral medical expert is required to evaluate whether the long term deprivation of outdoor exercise severely aggravated Plaintiff’s medical or mental health needs, causing him injury. However, Plaintiff’s claims do not raise “probing, complex questions” or require consideration of complex scientific evidence.

    Case Details:

    Case Caption: Garcia V. Chandra Et Al
    Docket Number: 2:22cv1221
    Court Name: United States District Court, California Eastern
    Order Date: November 13, 2024
  • Human Resources Expert Witness’ Testimony About Retaliation Excluded

    Human Resources Expert Witness’ Testimony About Retaliation Excluded

    Carol Stepien is a former employee of the National Oceanic and Atmospheric Administration (“NOAA”) in Seattle. She  worked at the Pacific Marine Environmental Laboratory (“PMEL”), a lab within NOAA, an agency in the Department of Commerce. She contended that NOAA had discriminated against her based on her sex and age, subjected her to a hostile work environment, and retaliated against her when she complained. NOAA countered that Stepien had engaged in various forms of misconduct, including mistreating colleagues, as detailed in an extensive, independent investigation.

    Stepien sought to exclude Erick West‘s testimony regarding mitigation, backpay, front pay, and lost retirement benefits while NOAA sought to exclude some of the opinions of Deborah Diamond, Stepien’s expert on “HR and [i]nvestigations.” 

    Economics Expert Witness

    Erick West has bachelor’s and master’s degrees in economics from the Washington State University and has been working as an economist since 2003. He is a forensic economist who serves as the President of West Economics, Inc. He has extensive experience investigating economic damages involving hundreds of different occupations and industries.

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

    Human Resources Expert Witness

    Deborah Diamond has worked as “a federal manager, management official, agency-grievance examiner, and certified mediator,” and has “extensive knowledge of federal government human-resource policies and procedures, including those regarding discipline.” She has worked as an EEO Officer and an investigator for the IRS, and as an independent fact-finder and licensed private investigator. 

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Deborah Diamond’s expert testimony. 

    Discussion by the Court

    Stepien’s Motion to Exclude Erick West

    Stepien contended that although she has diligently searched for another job since leaving NOAA, she has been unable to obtain other employment. NOAA asserted an affirmative defense that Stepien failed to mitigate her damages, and disclosed Erick West as a rebuttal expert regarding Stepien’s claimed damages.

    West opined about the amount of Stepien’s past lost wages, health, and TSP benefits; her future lost wages, health, and TSP benefits; and her future lost FERS pension benefits. He calculated how her salary would have increased over time had she remained employed with NOAA, and noted the cash awards she could have received. West also opined that “with a reasonable job search effort, Stepien should have been able to secure alternative employment by at least April 1, 2023 that was commensurate with her education and extensive work experience.” He bases that conclusion on statistics from the U.S. Bureau of Labor Statistics (“BLS”) regarding the average duration of unemployment for job seekers in 2021 and 2022.

    Methodology

    Stepien argued that West cannot opine regarding whether she conducted a reasonable job search. Stepien also argued that West should not be permitted to testify regarding whether she would have found a job within two years based on BLS data because those statistics are “not even tailored to a person of her educational background and experience.”

    The Court held that the the problem here is not the reliability of BLS data in general, but the fact that West fails to set forth how he reached his assumption that it should have taken Stepien no more than two years (three to four times the average length of time) to obtain a job “that was commensurate with her education and extensive work experience.”

    West did not specify what that methodology was or how he applied it here to discern the amount of time it should have taken Stepien to secure another job. 

    Helpfulness to the Trier of Fact 

    West’s report listed six positions “that are commensurate with Stepien’s education and employment history.” The Court held that opinion to be the province of a vocational expert, which West was not.

    Even if West had the requisite experience to opine on this issue, his opinion about other “commensurate” positions is not helpful to the trier of fact because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

    However, Stepien did not dispute that West’s analysis of Stepien’s alleged lost past and future wages and benefits, salary growth at NOAA, her paid health benefits, employer-paid retirement benefits, worklife expectancy, and life expectancy were within his expertise, consistent with Rule 702.

    NOAA’s Motion to Exclude Certain Testimony of Deborah Diamond

    NOAA noted that Diamond offered opinions “about the investigatory process, or what she describes as ‘investigating the investigations.’” Although NOAA contended that those opinions “are of little relevance,” it “did not challenge them.”

    NOAA objected to Diamond’s opinions about whether NOAA’s selected discipline complied with NOAA and DOC policies and “industry standards” as well as its administrative leave policy. It also sought to exclude Diamond’s opinions about whether NOAA retaliated against Stepien.

    Diamond opined on generally accepted standards of performance, included a chart regarding how NOAA “addressed Stepien’s performance/conduct issues compared to the standard practices for addressing performance/conduct issues,” opined that discipline should be “progressive,” and opined “on whether the discipline imposed was administered appropriately” to Stepien. She described generally accepted standards regarding when and how administrative leave should be used. Diamond opined, among other things, that “[f]or most human resource professionals, the decision to discipline Dr. Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable Equal Employment Opportunity (EEO) laws.”

    Helpfulness to the Trier of Fact 

    The Court held that the issue is not whether NOAA followed best practices but rather whether it followed its own policies, and whether its stated reasons for its actions were honest or the product of discrimination or retaliation. For the same reasons, Diamond’s opinions regarding adherence to industry standards and her suggestion of a lengthier progressive discipline process would not be helpful to the trier of fact. Moreover, NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

    NOAA also argued that Diamond’s opinions about why the agency placed Stepien on administrative leave and requested a supplemental investigation are speculative and must therefore be excluded. Diamond opined during her deposition that NOAA might have (1) extended Stepien’s leave to create an opportunity for her to engage in further misconduct, (2) obtained a supplemental report from the investigators for improper reasons, and (3) added a broad conduct unbecoming allegation because the agency was not confident that other charges would be sustained.

    However, Diamond conceded that she had not seen any evidence to support her theory regarding the supplemental report and was speculating regarding the inclusion of the conduct unbecoming charge. The Court ruled that her “unsubstantiated speculation and subjective beliefs” do not equate to the specialized knowledge required for admissibility under Rule 702.

    Legal Conclusions

    NOAA argued that Diamond’s opinions regarding retaliation go to the ultimate issue, which is the province of the trier of fact. Diamond’s report opined: “For most human resource professionals, the decision to discipline Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable EEO laws.”

    Stepien argued that those statements do not “offer opinions that state whether Defendant retaliated or discriminated against Stepien,” but they are opinions on that front. The Court excluded those opinions as improper legal conclusions.

    One issue remained: NOAA argued that Diamond cannot base her opinions on evidence that Stepien allegedly “misappropriated” from NOAA. Stepien sought to strike that argument and the corresponding declaration paragraphs that addressed it. The Court found that Diamond’s non-investigation-related opinions were inadmissible for other reasons and declared the issue moot for purposes of this motion but added that it may be renewed in an appropriate motion in limine.

    Held

    The Court granted in part and denied in part Stepien’s motion to exclude the testimony of Erick West, and granted NOAA’s motion to exclude certain testimony of Deborah Diamond.

    Key Takeaway:

    The Court ruled that West’s opinions regarding the “average duration of unemployment” for other workers and “what specific jobs are “commensurate with Stepien’s education and employment history” were inadmissible because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

    Diamond stated that the agency “did not follow some of its own policies and generally accepted standards when investigating and resolving Stepien’s EEO and 955 complaints, administering discipline in a constructive, progressive, consistent and timely manner, or following the rules for placing Stepien on extended administrative leave.” The Court held that NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

    Case Details:

    Case Caption: Stepien V. Raimondo Et Al
    Docket Number: 2:21cv1410
    Court: United States District Court, Washington Western
    Order Date: September 4, 2024

  • Human Resources Expert Witness Opinion on Retaliation Held to Lack Sound Methodological Basis

    Human Resources Expert Witness Opinion on Retaliation Held to Lack Sound Methodological Basis

    Plaintiff, Rohan Peters, an African-American Pilot sued his former employer, International Paper Company (“International Paper” or “Defendant”), alleging claims of wrongful termination and retaliation arising out of Defendant’s discrimination pursuant to Title VII of the Civil Rights Act of 1964. Defendant filed a Motion for Summary Judgement on May 31, 2023. The Court granted summary judgement in favor of Defendant on Plaintiff’s racial discrimination claims and on Plaintiff’s entitlement to certain categories of damages on December 28, 2023.

    International Paper filed a motion to exclude the testimony of Plaintiff’s proffered opinion witness, sociology professor Dr. Matthew Hughey, pursuant to Daubert and Federal Rule of Evidence Rule 702. International Paper also renewed its motion to preclude Peters from mentioning or introducing evidence related to the expert opinion, testimony, and report of Matthew Hughey at any point during the proceedings.

    Human Resources Expert Witness

    Matthew Hughey specializes in race and ethnicity, bias, discrimination, racism, culture, media, organizations, religion, and science. He hold a B.A. (Bachelor of Arts) in sociology from the University of North Carolina, Greensboro; a certificate of advanced graduate study in “women’s studies” from Ohio University; an M.Ed. (Master of Education) in cultural studies from Ohio University; a graduate certificate in “religions of the world” from Harvard University; an A.L.M. (Artibus Liberalibus Magistri | Master of Liberal Arts) in religion from Harvard University, and a Ph.D. (Doctor of Philosophy) in sociology (with a specialization in race and culture) from the University of Virginia. He has been on the faculty of the University of Connecticut since 2013. He is full Professor of Sociology (2020-present) and was previously Associate Professor of Sociology (2013-2020). Before then he was Assistant Professor of Sociology at Mississippi State University (2009-2013). He also serves as adjunct faculty at the University of Connecticut in (1) the Sustainable Global Cities Initiative program, (2) for the Graduate Certificate and Masters in Race, Ethnicity, & Politics (REP) program, (3) the Institute for Collaboration on Health, Intervention, & Policy (InCHIP), (4) the American Studies Program, and (5) the Africana Studies Institute.

    Discussion by the Court

    Defendant contended that Hughey’s testimony improperly substituted his own judgment in place of that of the jury, effectively instructing them on the legal conclusions they should draw. They argued that Hughey lacked adequate qualifications in workplace discrimination and retaliation, with minimal relevant experience. Additionally, Defendant claimed that Hughey’s opinions lacked a solid factual basis, relied on unreliable methodologies, and failed to apply his principles effectively to the specifics of the case. Defendant pointed out that Hughey’s CV lacked relevant sources relating to retaliation, and they criticized his analysis for typographical errors revealing copy-and-paste analysis from prior cases, suggesting a lack of meaningful application to the case’s facts. Furthermore, Defendant argued that Hughey’s references to the Ku Klux Klan and incidents of police brutality were unfairly prejudicial.

    Plaintiff refuted the Defendant’s claims and found fault with Defendant’s alleged mischaracterization of Hughey’s report, especially its conclusion that racial prejudice likely influenced the Plaintiff’s treatment by Defendant. They asserted that Hughey’s CV qualified him to offer opinions on race-related issues. Additionally, Plaintiff argued that the case’s complexity necessitated expert opinion witnesses, as laypeople might not grasp all the intricate details.

    The Court noted the underlying emphasis on Hughey’s proffered testimony about racial discrimination which provided historical context, analysis, and conclusions applicable to the racial discrimination claim in this case. Indeed, retaliation was only discussed as a basis for Hughey’s ultimate conclusion that Plaintiff experienced racial discrimination. The Court had previously granted Defendant’s summary judgment motion with respect to Plaintiff’s race discrimination claim. Henceforth, Plaintiff’s claims for racial discrimination were not before the jury, having been dismissed at the summary judgment stage. As a result, the sole remaining claim in this case was Plaintiff’s retaliation claim.

    Hughey’s fifty-nine (59) page report mentioned retaliation a total of four (4) times. Among these, two instances were merely recitations of the plaintiff’s claims, while the other two a section and a phrase, respectively, were used to support the conclusion regarding racial discrimination. The four-page section labeled “Racial Gaslighting and Retaliation” comprised one and a half pages of block quotes, one page summarizing the concept of gaslighting, one and a half pages providing a summary of alleged facts, and concluded with sentences stating:

    “A company wishing to avoid conflict of interest and to engage in fair, equitable, and transparent employment practices would not have a subject of the complaint oversee disciplinary measures over the complainant. The action likely sent a message of intimidation with the implicit meaning to drop past, and/or avoid future, complaints.”

    The Court citing Curtis v. Oklahoma City Public Schools Bd. of Educ., 147 F.3d 1200 (10th Cir. 1998), held that Hughey’s failure to address matters beyond common knowledge or experience of the average layperson was highlighted in his section on retaliation, which offered only a single, limited conclusion without supporting citations or analysis regarding the bases, methods, or principles applied to reach that conclusion.

    Held

    Matthew Hughey’s opinion on retaliation, to the extent it existed, did not involve analysis or application of any methodology which led the Court to exclude it. Defendant’s renewed motion to preclude Peters from mentioning or introducing evidence related to the expert opinion, testimony, and report of Hughey was deemed moot.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    Defendant disputed the qualifications and methodology of Hughey, alleging that his testimony improperly substituted his judgment for that of the jury and lacked a solid factual basis. In response, the Plaintiffs argued that Hughey was indeed qualified to offer opinions on race-related issues, asserting the relevance of his expertise to the case’s complexities. They emphasized the need for expert opinion witnesses to help comprehend intricate details beyond laypeople’s grasp. While Hughey’s testimony primarily focused on racial discrimination, it briefly addressed retaliation, albeit in a limited manner, which became a point of contention. The Court criticized Hughey’s report for lacking detailed analysis and support regarding retaliation, citing legal precedent to underscore the importance of thorough expert testimony, especially in complex matters like retaliation in employment discrimination cases.

    Case Details:

    Case Caption: Peters V. International Paper Company
    Docket Number: 2:22cv2132
    Court: United States District Court, Tennessee Western
    Citation: 2024 U.S. Dist. LEXIS 20731
    Date: February 6, 2024
  • 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.