Expert Witness Profiler

Tag: Unreliable

  • Court rejects the damages calculation of Economic Damages Expert Witness but allows him to opine on available employment opportunities for the Plaintiff in Employment Discrimination Suit

    Court rejects the damages calculation of Economic Damages Expert Witness but allows him to opine on available employment opportunities for the Plaintiff in Employment Discrimination Suit

    Plaintiff Rose Kochka had brought claims against West Penn Allegheny Health System Inc. (“WPAHS”) under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq., Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951, et seq., and the Pittsburgh City Code, Article 5 §§ 651.01 et seq. These claims arose from Kochka’s past employment with WPAHS. In summary, Kochka contended that WPAHS had discriminated against her based on her age and had retaliated against her by terminating her for reporting alleged discrimination. The Court addressed seven motions in limine (six filed by Kochka and one filed by WPAHS), including Kochka’s Daubert motion to Preclude and/or Limit the testimony of WPAHS’ damages and mitigation expert Chad Staller.

    Economic Damages Expert Witness

    Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

    Discussion by the Court

    Kochka attempted to limit Andrea Campbell and Morgan Henderson’s testimony about their interactions with her and Beverly Feragotti, Kochka’s direct supervisor, claiming their involvement wasn’t relevant to her termination. However, the Court deemed their testimony crucial in understanding the reasons behind Kochka’s dismissal.

    Kochka also tried to prevent Michael Weber, a Workforce Relations Consultant, from testifying, citing his testimony as hearsay based on a complaint from Campbell. The Court agreed, barring Weber’s testimony due to its hearsay nature.

    Regarding Beverly Feragotti’s termination, Kochka argued against comparing her case to Feragotti’s, stating they were terminated by different decision-makers. WPAHS disagreed, asserting that despite differing roles, both faced similar performance standards and improvement plans. The Court confirmed their distinct positions and noted differences in their terminations, emphasizing separate decision-making groups involved in each case.

    Ultimately, the Court highlighted the dissimilarities in roles, termination circumstances, and decision-makers, ruling Feragotti an unsuitable comparison for Kochka’s case.

    Kochka filed a motion to preclude Chad Staller’s opinions, citing Rule 702 and the Daubert standard, alleging Staller’s methodology and data were unreliable. Specifically, Kochka objected to Staller’s use of Department of Labor statistics for calculating economic damages, his omission of adverse tax consequences, his qualifications and method for identifying employment opportunities for Kochka, and his reliance on the Pennsylvania Office of Unemployment Compensation to assess Kochka’s mitigation of damages. WPAHS defended Staller’s opinions, asserting their appropriateness in each aspect contested by Kochka.

    The Court had agreed with Kochka regarding the unreliability of Chad Staller’s reliance on Bureau of Labor statistics to determine the duration of loss, thus rendering his calculation of economic damages based solely on these statistics unreliable as well. Staller’s reliance on the “Worker Displacement: 2019-2021” survey from the U.S. Census Bureau, which defined “Displaced Workers” as those affected by specific job loss scenarios, was found problematic.

    Although Staller acknowledged the dissimilarity between Kochka’s employment separation and the survey’s definition of “Displaced Worker,” he justified the use of this data as a proxy due to the lack of a specific dataset for terminated employees like Kochka. The Court concurred with Kochka’s argument that as Kochka was terminated and did not align with the definition of a “Displaced Worker,” Staller’s reliance on data regarding non-terminated workers was inappropriate for determining the duration of loss for a terminated employee. Staller failed to provide a basis for using data applicable to non-terminated workers to assess a worker terminated for cause.

    WPAHS attempted to argue for Staller’s opinion by asserting a seven-year mitigation period for Kochka from her separation in November 2019, suggesting that Staller’s analysis applied a three-year period from the time of his report. However, the Court rejected WPAHS’s argument, noting the misinterpretation of Kochka’s position and the lack of support for WPAHS’s claim in Staller’s report.

    Staller’s reliance on Bureau of Labor statistics projecting a three-year period for displaced workers to achieve prior earnings parity contradicted WPAHS’s claim of a seven-year mitigation period. Staller’s report explicitly calculated the three-year period not from the May 2023 report date, as WPAHS asserted, but from January 1, 2024, the presumed date when Kochka would secure mitigation employment.

    Consequently, the Court excluded Staller’s opinion on the duration of loss based on the “Worker Displacement: 2019-2021” survey and a three-year period. Staller’s economic damages calculation relying solely on Bureau of Labor statistics was also deemed unreliable. However, if Staller’s opinion on the duration of loss was supported by the human capital model (uncontested by Kochka), he could testify regarding his damages calculation during the trial.

    The Court disagreed with Kochka’s contention that Chad Staller’s decision not to calculate potential adverse tax implications affected the clarity of his damages opinion or prejudiced Kochka. The Court clarified that it’s the responsibility of the district court, not the jury, to determine any additional compensation to offset the increased tax burden resulting from a back-pay award.

    Given that the jury wouldn’t deliberate on this issue, the Court ruled that Staller’s omission of adverse tax calculations wouldn’t confuse the jury or cause prejudice to Kochka. As a result, this aspect of Kochka’s motion was denied by the Court.

    The Court dismissed Kochka’s objection regarding Chad Staller’s qualifications and methodology for assessing available employment opportunities for Kochka. Despite Kochka’s challenge to Staller’s qualifications by highlighting his lack of vocational expertise and certification, a review of Staller’s curriculum vitae affirmed his qualification to provide an opinion in this regard.

    Moreover, the Court found Staller’s methodology, utilizing employment listings from Forensic JobStats, to be reliable. Staller’s methodology was outlined in detail in his report, involving specific criteria such as keyword searches for relevant job titles and locations, along with subsequent exclusions based on these results after his deposition. The Court determined that Kochka’s objections were more related to the results of the methodology and Staller’s analysis rather than the methodology itself.

    As WPAHS argued, the Court believed that Kochka’s concerns could be appropriately addressed through cross-examination and did not serve as grounds to exclude Staller’s opinions.

    The Court agreed with Kochka’s objection concerning Chad Staller’s reliance on Pennsylvania’s unemployment compensation standards to assess Kochka’s mitigation efforts, deeming it confusing and inapplicable to this case. Staller’s reference to the Pennsylvania Office of Unemployment Compensation’s criteria for assessing job search diligence was found irrelevant as Kochka wasn’t seeking unemployment compensation in this lawsuit.

    Despite WPAHS attempting to minimize Staller’s reliance on these standards, the Court found that Staller explicitly referenced and applied these standards to Kochka in his assessment. Staller’s report indicated that Kochka had not met the standard outlined by the Pennsylvania Office of Unemployment Compensation, forming the basis of Staller’s opinion that Kochka failed to conduct a reasonable job search and mitigate her damages.

    As a result, the Court excluded aspects of Staller’s opinion that linked Kochka’s job search and mitigation efforts to the requirements of the Pennsylvania Office of Unemployment Compensation. However, Staller was permitted to testify about Kochka’s job search endeavors and the available employment opportunities.

    In Kochka’s motion to exclude evidence of her failure to mitigate damages, her main contention was the exclusion of Chad Staller’s opinion testimony, the sole evidence, according to Kochka, that WPAHS possessed regarding mitigation. Kochka argued that since Staller’s testimony should be excluded, WPAHS lacked sufficient evidence to meet its burden, thus should be barred from arguing that Kochka failed to mitigate damages.

    However, the Court denied Kochka’s motion, finding her reasoning insufficient. The Court concluded that Kochka hadn’t provided compelling reasons to prevent WPAHS from presenting evidence concerning her efforts to mitigate damages. Consequently, WPAHS was not precluded from introducing such evidence or making arguments regarding Kochka’s mitigation efforts.

    Kochka moved to preclude deposition testimony that had been designated by WPAHS, specifically related to Andrea Campbell, who was listed as witness to be called on both Kochka’s and WPAHS’ witness lists. Since Campbell was set to provide live testimony, the Court granted Kochka’s motion to preclude the deposition testimony without prejudice.

    WPAHS moved to exclude evidence and testimony involving Julie Stuck, a Labor Relations Consultant, and drafts of Kochka’s termination letter. Stuck was consulted for an HR perspective on the termination. WPAHS argued that these pieces of evidence held limited probative value since Stuck wasn’t a decision-maker and the initial and final termination letters aligned. Additionally, WPAHS expressed concern about potential unfair prejudice due to a statement by Stuck mentioning an EEOC claim.

    However, the Court disagreed with WPAHS, affirming the significant probative value of the draft termination letters and communications involving Stuck. The Court ruled that the EEOC reference by Stuck, while potentially prejudicial, didn’t substantially outweigh its probative value concerning the termination process. Therefore, the Court allowed the inclusion of this evidence and testimony.

    WPAHS requested permission to amend the Joint Exhibit List, adding Exhibits 2, 4, 5, 6, and 7, previously attached to its Motion in Limine. WPAHS sought admission of all communications related to the topic, not initially included in the parties’ Joint Exhibit List. Kochka didn’t oppose the inclusion of Exhibits 2, 5, 6, and 7 but objected to Exhibit 4.

    Kochka argued against Exhibit 4’s relevance, stating that the email text was duplicated in other emails, and the 27 pages of attachments lacked independent relevance. Kochka also pointed out the absence of evidence showing Stuck’s review or reliance on the attachment contents.

    The Court approved the motion partially, allowing admission of Exhibits 2, 5, 6, and 7, unopposed by Kochka. However, the Court deferred its ruling on Exhibit 4, which was opposed, pending further consideration.

    To sum it up, the Court granted in part and denied in part WPAS’ motion to exclude evidence and testimony involving Julie Stuck.

    Held

    • Plaintiff’s Motion in Limine #1 – To Limit the Testimony of Andrea Campbell and Morgan Henderson was denied by the Court.
    • Plaintiff’s Motion in Limine #2 – To Preclude the Testimony of Michael Weber was granted by the Court.
    •  Plaintiff’s Motion in Limine #3 – To Preclude Evidence or Argument Regarding Beverly Feragotti’s Termination was granted by the Court.
    • The Plaintiff’s Daubert Motion aimed at limiting or precluding Chad Staller’s testimony has been partially granted and partially denied. Firstly, Staller is barred from testifying regarding his opinion on the duration of loss if it relies on the “Worker Displacement: 2019-2021” survey. Additionally, if Staller’s calculation of economic damages is solely based on Bureau of Labor statistics, it is deemed unreliable and excluded. However, if his opinion on the duration of loss aligns with support from the human capital model (not challenged by Kochka), Staller is permitted to testify about his damages calculation during the trial. Secondly, Staller is not allowed to testify that the job search requirements set by the Pennsylvania Office of Unemployment Compensation represent the standard for Kochka’s reasonable and diligent job search or mitigation of damages. Nor can he testify that Kochka lacked reasonable diligence by failing to meet these requirements. Nonetheless, Staller retains the ability to testify regarding Ms. Kochka’s job search efforts and the available employment opportunities.
    • Plaintiff’s Motion in Limine #4 – To Preclude Evidence or Argument that Plaintiff Failed to Mitigate Her Damages was denied by the Court.
    •  Plaintiffs’ Motion in Limine #5 – To Preclude Defendant’s Discovery Designations was granted without prejudice by the Court.
    •  Defendant’s Motion in Limine #1 – To Exclude Evidence and Testimony Relating to Julie Stuck and Drafts of Plaintiff’s Termination Letter was granted in part and denied in part by the Court.

    Key Takeaways

    The Court excluded testimony from the Defendant’s expert witness Chad Staller regarding the duration of the Plaintiff’s loss of earnings, to the extent it relied solely on Bureau of Labor statistics about displaced workers. The Court found that since the Plaintiff was terminated for cause, rather than displaced, the statistics were not sufficiently reliable. The Court also excluded Staller’s opinions applying the standard for unemployment compensation in Pennsylvania to determine if the Plaintiff failed to mitigate damages. The Court found this would confuse the jury since the Plaintiff was not actually seeking unemployment compensation. However, the Court allowed Staller to testify about the Plaintiff’s job search efforts and employment opportunities available to her. Additionally, the Court rejected a challenge to Staller’s failure to provide calculations for adverse tax consequences, finding this issue was not for the jury. Overall, the Court demonstrated a willingness to closely scrutinize the reliability of the Defendant’s expert’s methodology and data underpinning his opinions about mitigation and damages, while still allowing him to testify on certain relevant issues like job search efforts. The Court applied the Daubert principles to ensure the expert’s testimony would assist rather than confuse or mislead the jury.

  • Occupational Medicine Expert Witness’ projection of Plaintiff’s future medical care costs rejected by the Court for lacking sufficient basis in the medical evidence

    Occupational Medicine Expert Witness’ projection of Plaintiff’s future medical care costs rejected by the Court for lacking sufficient basis in the medical evidence

    Plaintiff Autumn Brown, who was twenty-two years old at the time, sustained injuries on June 24, 2020 after a vehicle driven by an employee of Defendant BellSouth Telecommunications, LLC struck her vehicle at an intersection in Pascagoula, Mississippi. She was taken to the emergency department at Singing River Hospital where they found she had suffered a broken right wrist, broken bones in her pelvic area, a fractured lumbar vertebra, and a liver laceration. She was transferred to USA Medical Center in Mobile, Alabama for further treatment, where testing revealed she also had a ruptured bladder.

    Brown reported having issues controlling her bowel and bladder, back and pelvic spasms, stiffness, decreased range of motion, incontinence, and mental health problems – all of which she attributed to the accident.

    Defendant BellSouth filed a motion in limine to limit the testimony of Plaintiff’s retained expert, Dr. Gregory L. Smith, regarding Smith’s life care plan which projected $345,337 in future medical damages for Brown. BellSouth argued the life care plan lacked sufficient factual basis.

    Occupational Medicine Expert Witness

    Gregory L. Smith, M.D., M.P.H. graduated from Rush Medical College in Chicago and served in the U.S. Army Medical Corp for six years, achieving the rank of Major and completing his residency in Occupational and Preventive Medicine at Walter Reed Army Medical Center. Following his military service, he earned a Master’s of Public Health (MPH) from Harvard University and published numerous research articles in peer-reviewed medical journals.

    In 1988, Smith entered private practice, specializing in Occupational Medicine in various states, including California, Georgia, Florida, and Texas. He was recognized as a Fellow of the American Board of Occupational and Preventive Medicine and appointed as an Agreed Medical Examiner (AME) by worker’s compensation judges in two California counties. Additionally, he obtained certification from FIG® in Medical Cost Analysis.

    Smith’s extensive experience includes providing expert medical opinions and testimony on numerous cases related to causation, medical necessity, and future medical care. He has authored hundreds of Life Care Plans and Medical Cost Projections for personal injury cases, demonstrating a comprehensive understanding of medical assessments and cost analysis in the legal context.

    Discussions by the Court

    Smith reviewed Brown’s medical records and conducted an interview, leading to the following conclusions:

    Brown had the following diagnoses and associated impairments linked to the injury:

    • She experienced pelvis pain resulting from bilateral superior pubic rami comminuted displaced fractures, a right inferior pubic ramus fracture, and a left sacral ala intra-articular fracture. She underwent open reduction internal fixation (ORIF) for bilateral superior ramus fractures and closed reduction percutaneous screw fixation for bilateral sacral fractures on June 25, 2020.
    • Brown faced bowel incontinence.
    • She reported right wrist pain attributed to a healed impacted fracture of the distal radius and an ulnar styloid process nondisplaced fracture.
    • A bladder repair was performed on June 25, 2020, resulting in residual bladder urgency and incontinence.
    • Brown struggled with anxiety and depression

    Smith, in his future care projections, organized the anticipated needs into four categories: (1) medication; (2) future diagnostic studies and surgeries for the “late sequelae” of Brown’s broken bones and bladder rupture; (3) durable medical equipment (“DME”); and (4) a Functional Restoration Program for pain management.

    Regarding medication, Smith opined that Brown had an “ongoing need for prescription medications,” including daily use of cyclobenzaprine, which proved effective for residual symptoms. He projected that Brown would require Cyclobenzaprine (Flexeril) at 10mg per day for 63.9 years, with a total cost of $7,668.

    The most substantial projected future care costs were allocated to the “late sequelae” of Brown’s ongoing wrist and pelvic pain from broken bones, as well as for “neurogenic bowel and bladder” problems presumably related to her rupture. Smith predicted that these “late sequelae” would necessitate a comprehensive diagnostic evaluation, along with potential interventional pain injections and/or surgery. The projected future care costs also factored in pre- and post-operative diagnostic studies, perioperative medical and facility costs, and required post-operative therapy.

    In terms of durable medical equipment (DME), Smith foresaw Brown’s need for six Neuromuscular Stimulator units throughout her life, each costing $600, along with two sets of supplies per year for these units. The total projected cost for DME amounted to $11,268.

    The remaining costs in the life care plan covered a Functional Restoration Program, incorporating a three-day evaluation and 160 hours of programming, with a total cost of $27,000.

    In summary, Smith projected Brown’s future medical damages at $345,337.

    The Court found that Smith’s testimony failed the Daubert test because his report lacked specificity in linking Brown’s medical records to the projected future care needs and establishing a reasonable degree of medical probability in the causal relationship to the accident.

    In the context of future diagnostic studies and procedures for the “late sequelae” of Brown’s injuries, Smith did not identify or describe these sequelae beyond residual pain. The report failed to connect specific instances of projected future medical care to recommendations by any of Brown’s treating physicians. Additionally, the Court noted that Plaintiff’s counsel acknowledged during the hearing on September 21, 2023, that none of the treating physicians would opine on the need for future treatment, leaving the court unconvinced by Smith’s projections.

    Furthermore, the Court observed that some of the medical records cited by Smith contradicted his projections. Brown mentioned in her interview with Smith that her orthopedist and urologist had released her, and the report indicated that she was no longer seeing a physical therapist. Despite listing a home exercise program under current treatments, Smith did not mention physical therapy, and no surgeries were scheduled.

    Smith projected twelve future neurologist visits, although he provided no records of Brown receiving neurology care after the accident. Moreover, Brown denied a head injury immediately after the accident, and her hospital CT scan revealed “no significant abnormality.”

    In essence, the Court concluded that Smith’s assertions were insufficient, emphasizing the need for a more concrete connection between Brown’s medical records, the projected future care needs, and a demonstrated causal relationship to the accident. The Court could not rely solely on Smith’s assertions without a more substantial basis.

    Smith’s projections of Brown’s future care needs were deemed insufficient by the Court. In the case of future drug costs, Smith’s assertion that Brown had an “ongoing need” for Flexeril was criticized. The Court noted that simply because she was currently taking the drug and it had been effective did not necessarily mean she would require it for the rest of her life. Smith did not provide detailed explanations for why she would need Flexeril continuously, relying on a broad statement about her “ongoing need.”

    Similarly, Smith’s opinion about the Neuromuscular Stimulator unit lacked sufficient justification. While he asserted that Brown would benefit from prolonged use due to chronic pain, he did not explain why she would experience a lifetime of problems with pain and spasms or how the stimulator would address these symptoms adequately.

    The last medical care projection, the Functional Restoration Program, was also challenged. Smith referenced “current treatment guidelines (ODG)” to support the prescription, stating that Brown was expected to have long-term issues with bowel and bladder incontinence, anxiety, depression, and significant functional losses. However, the Court noted that no treating physician had recommended this program for Brown, and Smith’s conclusory statements lacked a clear basis in the medical evidence.

    The Court emphasized the difference between weak and insufficient bases for expert testimony, asserting that Smith’s life care plan did not demonstrate a sufficient reliance on medical evidence to predict Brown’s future care needs accurately. Despite Smith’s status as a medical doctor, the Court found that he provided projections without an adequate foundation in the available medical evidence, specifically regarding the medical necessity of the predicted future care.

    While Brown was undoubtedly injured, the medical records discussed in Smith’s report did not demonstrate an ongoing, specific, permanent injury. These records also lacked any doctor’s recommendations for future care. Smith’s report acknowledged the possibility of future pain, including the “chronic pain syndrome” he attributed to Brown, but he noted that it had not been diagnostically evaluated or treated.

    The Court determined that there was a significant analytical gap between the data presented and the opinions Smith proffered. The absence of conclusive evidence supporting ongoing, specific injuries and the lack of doctor-recommended future care contributed to this analytical gap.

    Additionally, the Court concluded that the opinions expressed in Smith’s life care plan were inadmissible under Federal Rule of Evidence 403. Based on the reasons discussed earlier, the Court found that the “probative value” of Smith’s life care plan was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and potential to mislead the jury regarding the extent of Brown’s future medical needs and their associated costs.

    Held

    The Court granted Defendant BellSouth Telecommunications, LLC’s Motion in Limine to Limit Testimony of Plaintiff’s Retained Expert, Gregory L. Smith, M.D., M.P.H., as a result of which he was precluded from testifying at trial to the opinions in his life care plan.

    The case was dismissed with prejudice on October 23, 2023 after the parties announced to the Court a settlement of this case.

    Key Takeaways:

    • An expert’s testimony must be based on sufficient facts and data to be admissible under Rule 702. The Court found Smith’s life care plan lacked a sufficient basis in the medical records.
    • An expert cannot simply state conclusions without explaining the underlying facts and analysis. The Court found there was too great an analytical gap between the data and Smith’s opinions.
    • An expert should clearly connect their opinions to specific recommendations by treating physicians when possible. Smith did not link his projections to any treating doctor’s recommendations.
    • A life care plan should identify ongoing, specific, and permanent injuries as a basis for projections. The Court found Smith did not show Plaintiff had such identifiable permanent injuries.
    • Expert opinions can be excluded under both Rule 702 and 403 if unreliable or prejudicial. The Court found admission would be unfairly prejudicial and misleading here.
  • Racially Polarized Voting Analysis of Voting Expert Witness found to satisfy the Daubert requirements in light of anticipated changes

    Racially Polarized Voting Analysis of Voting Expert Witness found to satisfy the Daubert requirements in light of anticipated changes

    Plaintiff, Black Louisiana voters, alongside nonprofit organizations advocating for civic engagement and social equality, filed this lawsuit formally accusing the Defendants, specifically Secretary of State R. Kyle Ardoin, and Intervenor-Defendant, the State of Louisiana, through Louisiana Attorney General Jeff Landry (collectively, “Movants”) of having violated Section 2 of the Voting Rights Act of 1965. Section 2 requires the redistricting body to ensure that voters of color have an equal opportunity “to participate in the political process and to elect candidates of their choice.” The core contention revolved around the assertion that the implemented maps resulted in an unjust denial of a meaningful opportunity for Black voters in Louisiana to elect candidates of their choice to both the State Senate and House of Representatives.

    The argument was underpinned by the application of the Gingles test, a legal framework established by the Supreme Court. According to this test, the State Legislative Maps were deemed dilutive based on three critical factors:

    Firstly, it was argued that the Black population in Louisiana was sufficiently large and geographically compact to potentially constitute a majority in six to nine additional single-majority House districts and three more single-member Senate districts. Secondly, the lawsuit contended that voting patterns in Louisiana were characterized by high racial polarization, indicating that voters tended to align along racial lines. Lastly, the Plaintiffs argued that, under the State Legislative Maps, racially polarized voting would typically lead to the defeat of Black Louisianans’ preferred candidates in majority-white districts. The lawsuit stressed upon the cohesive political alignment of Black voters in Louisiana, which faced a serious setback with the white majority’s consistent bloc voting, which routinely worked against the candidates preferred by Black voters.

    Movants demanded the exclusion of the testimony one of Plaintiff’s experts, Dr. Lisa R. Handley, under Federal Rules of Evidence 702 and 703, as well as Daubert and its progeny. The Movants did not contest Handley’s credentials as an expert in racially polarized voting. Instead, their challenge focused on the assertion that the methodologies employed by Handley were both unreliable and not entirely relevant to the case.

    Voting Expert Witness

    With over twenty-five years of experience in redistricting and voting rights, Lisa R. Handley is recognized nationally and internationally as an expert in these fields. She has served as a practitioner and academician, advising numerous jurisdictions, including the U.S. Department of Justice, and clients on redistricting. Handley’s expertise extends to her role as an expert in dozens of redistricting and voting rights court cases, working with state and local jurisdictions, redistricting commissions, and civil rights organizations.

    Discussions by the Court

    The Court was required to apply the familiar FRE 702 and Daubert analysis. It’s worth noting that a revision to Federal Rules of Evidence 702 was slated to become effective on December 1, 2023. The anticipated change clarified that expert testimony might not be admitted “unless the proponent demonstrated to the court that it was more likely than not that the proffered testimony met the admissibility requirements set forth in the rule.” Section 702(d) was amended to include language stating that the “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” The intent of the proposed rule change was to focus and direct district courts to conduct the gate-keeping inquiry enunciated in Daubert and refrain from bypassing the admissibility determination in favor of a question of weight to be decided by a fact finder.

    Handley had been engaged by the Plaintiffs with the specific task of analyzing “voting patterns by race” to establish the foundation for two of the three elements of the ‘results test’ outlined in Thornburg v. Gingles. These elements included conducting a racial bloc voting analysis to ascertain the political cohesion of the minority group and determining if whites were consistently voting as a bloc to typically thwart the candidates preferred by minority voters.

    Handley relied primarily on the ecological inference RxC statistical technique to analyze voting patterns by race, using voter data at the precinct level to estimate such patterns. To accomplish this, she aggregated a substantial amount of election precinct data to form a comprehensive database for her statistical analyses. Movants contested Handley’s methodology, asserting that she utilized undisclosed sources for compiling her database, specifically the Voting and Elections Science Team for shapefiles and the ACLU for data aggregation.

    Movants conceded that experts might seek assistance in gathering underlying data, acknowledging that such reliance is not inherently flawed. However, they argued that relying on “undisclosed persons with unknown credentials to process data is unreliable.”

    The Court, in its findings, determined that the compilation of data by others, as relied upon by Handley, was simply that—a compilation of data. While others may have participated in gathering the data, the Court emphasized that this did not render the data insufficient. Handley testified that she directed the data gathering and its compilation, with no evidence indicating that others conducted the analysis. There was no evidence that Handley relied on the opinions or expertise of undisclosed experts beyond her own scope of expertise.

    Upon reviewing Handley’s reports, the Court found that she performed the data analysis to arrive at her conclusions, and there was no challenge to her expertise in analyzing voting patterns by race. Additionally, the Court clarified that the Plaintiffs were not obligated to disclose the underlying data sources and gatherers under Rule 26(a)(B)(2) of the Federal Rules of Civil Procedure or the Court’s scheduling order.

    In Louisiana, around 30% of voters consistently participated in early and absentee voting in statewide elections from 2012 onwards. Notably, during the November 2020 elections, 45.6% of the total votes cast were early or absentee. Similar trends were observed in the November 2019 and November 2022 elections, with 33.7% and 26.9% of overall votes cast being early and absentee, respectively. However, the Louisiana Secretary of State website only reported candidate-specific early and absentee votes at the parish-wide level, prompting Handley to disaggregate the data down to the precinct level for her racially polarized voting (RPV) analysis.

    To achieve this, Handley employed a non-peer-reviewed allocation method, distributing early and absentee votes to specific precincts within a parish proportionally based on the votes received by each candidate on Election Day in the studied areas. The Defendant contested Handley’s allocation method, asserting that it failed to cap the number of early or absentee votes assigned to each precinct based on the actual voter turnout, leading to unreliable results. The Defendant argued that this lack of capping resulted in overestimation in some precincts and underestimation in others.

    Handley justified her allocation method by emphasizing the statistically significant percentage of the total vote represented by early voting in Louisiana. She explained that, lacking specific early voting data by precinct, she assumed the same allocation of election day votes per candidate per precinct to distribute early votes. Movants and the Defendant’s expert, Dr. Tumulesh Solanky, argued that Handley’s allocation method introduced bias, resulting in over and underestimation of votes in some precincts. Movants did not argue that ecological inference (EI) was an inappropriate analysis for evaluating racially polarized voting (RPV). They acknowledged the necessity of precinct-level data for conducting the EI analysis. The crux of the dispute centered on the optimal method for de-aggregating or allocating parish-wide data to obtain usable precinct-level data.The Court recognized that certain challenges to expert testimony might pertain more to the weight of the evidence than to its admissibility. The Court, henceforth, disagreed, deeming the slight over and underestimate resulting from the subject allocation method statistically insignificant and not rendering Handley’s conclusions unreliable. The Court found that Handley’s data sets remained consistent, debunking the argument that she assumed homogeneity in voting across precincts. Contrary to this claim, day-of-voting data was accessible at the precinct level, providing a direct measure of votes cast and reflecting diverse voting patterns among precincts. Handley justified the logical proportionate allocation of early votes among precincts, emphasizing that she tested for the confidence of the data.In addressing Solanky’s criticism of the allocation method, Handley conducted tests for bias and found none, further reinforcing the reliability of her approach.

    Movants further challenged the early vote allocation method, contending that it lacked peer review. Handley countered by testifying that other experts utilized the same methodology, and Solanky, despite disagreeing with Handley’s approach, used her database for his EI analysis. Handley also submitted a rebuttal report, conducting additional analyses consistent with and supporting her RPV conclusions. The Court concluded that Handley’s allocation method wasn’t biased, cited a lack of evidence to render the analysis infirm, and deemed the allocation assumptions challengeable through cross-examination.

    Movants contended that Handley’s opinions lacked relevance and failed to aid the trier of fact because she did not conduct a district-specific racially polarized voting (RPV) analysis but focused only on seven “areas of interest.” The argument asserted that the ecological inference (EI) analysis should have been performed statewide. Movants specifically claimed that Handley’s classification of districts as “effective” or not lacked specificity regarding the required Black Voting Age Population (BVAP) threshold for effectiveness.

    The contention further emphasized that Handley’s opinion was irrelevant as it did not express the “threshold level of BVAP” necessary to afford black voters a realistic opportunity to elect their preferred candidate. Plaintiffs asserted that the State Legislative Maps were dilutive, claiming that the Black Population in Louisiana was “sufficiently large and geographically compact to constitute a majority” in six to nine additional single-majority House districts and three additional single-member Senate districts. The contention highlighted that vote dilution claims were district-specific.

    Vote dilution claims, according to Movants, required a RPV analysis specific to the areas of the state where the vote dilution is alleged to occur, as relying on statewide voting statistics to establish legally significant white bloc voting was deemed erroneous by the Fifth Circuit. Handley’s methodology involved using election results from 16 different statewide elections but confined her EI analysis to the specific election data for the voters who live within each of the seven areas of interest.

    The Court, in its findings, determined that Handley conducted a sufficiently localized analysis of the challenged districts. It concluded that Plaintiffs had demonstrated by a preponderance that Handley’s opinion testimony would assist the Court as the trier of fact. The Court found that her opinions were based on sufficient facts and data, derived from reliable principles and methods, and that she reliably applied these principles and methods to the facts of the case.

    Held

    The Court denied the motion to exclude the testimony of Plaintiff’s expert Lisa Handley. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. 

    Key Takeaways

    The Court applied the familiar Rule 702 and Daubert analysis for determining admissibility of expert testimony. The Court noted that proposed amendments to Rule 702 clarify that the proponent of the testimony must demonstrate its admissibility. The Court found that the voting expert witness’ methodology and data sources were sufficiently reliable. The fact that assistants helped compile data did not render the data or analysis unreliable. The Court found the expert’s method of allocating the parish-wide early voter data proportionally to the precincts was reasonable and did not induce bias. The Court found that Handley performed a sufficiently local analysis of the challenged districts. The Court ruled that the slight imprecision resulting from the allocation methodology was insignificant and could be addressed on cross-examination. The Court found the expert’s opinions would assist the trier of fact.