Presenting a live 90-minute webinar with interactive Q&A

Expert Testimony in Employment Discrimination and Harassment Cases Effectively Using or Challenging Economic, Statistical and Psychological Experts During Discovery and Trial TUESDAY, SEPTEMBER 18, 2012

1pm Eastern

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12pm Central | 11am Mountain

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10am Pacific

Today’s faculty features: James A. A. Pabarue, Shareholder, Christie Pabarue Mortensen and Young, Philadelphia Lawrence J. McNamara, Shareholder, Spencer Crain Cubbage Healy & McNamara, Dallas Trang Q. Tran, Managing Partner, Tran Law Firm, Houston

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COMMON AREAS OF EXPERT TESTIMONY LIABILITY DAMAGES James A. A. Pabarue, Shareholder Christie, Pabarue, Mortensen and Young Tel: 215-587-1638 Email: [email protected]

TWO PRIMARY types of harm:

ECONOMIC/VOCATIONAL EMOTIONAL (Psychological/psychiatric) 6

Statisticians Social Scientists Human Resources Experts Psychologists

7

Generally economists and accountants allowed to testify as to -Front pay, -Back pay, -Present value of future earnings and benefits -tax effects of lump sum receipt The remedial purposes of Title VII mandate back pay relief in all but "special" circumstances. Carpenter v. Stephen F. Austin State University, 706 F.2d 608 (5th Cir. 1983).

8

The remedial nature of Title VII and its retroactive relief places the victim in the position that s/he would have occupied but for the discrimination, back pay includes not only salary loss, but also compensation for lost overtime, shift differential, and fringe benefits (e.g., sick pay, annual leave, and vacation pay). Willett v. Emory & Henry College, 569 F.2d 212 (4th Cir. 1978).

9

Plaintiff generally permitted to present statistical evidence of disparate treatment or impact. Defendants use to challenge plaintiff’s expert’s conclusions or methods. Statisticians often critique alleged “correlations” between protected category and adverse treatment, and to explain alternative approaches to and conclusions from the same basic data, and may be able to critique the analysis of other experts who rely on simple statistical analyses. 10

STATISTICS ARE YOUR FRIENDS!

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GENERALLY USED TO PROVE OR REBUT EMOTIONAL DISTRESS DAMAGES UNDERSTAND THE DIFFERENCE BETWEEN AND AMONG Psychologists Psychiatrists Neuropsychologists

ALERT : IMPROPER TESTING ISSUES 12

Suggested possible uses of psych experts re: -operation of stereotypes in the workplace; -corporate culture particular biases; and -employment practices to mitigate stereotypes. Query whether courts should allow without specific showing of relevant training or experience. 13

Denial of partnership to a female employee based on her “abrasive” personality was sexual stereotyping in violation of Title VII where evaluations discussed gender. Social psychologist testified that evaluations reflected sex stereotyping even though she “could not say with certainty whether any particular comment was the result of stereotyping.”

14

Increasing use of psychological and psychiatric experts re: stereotyping biases in the work place. Industrial psychologists and social scientists used as stereotyping experts to opine on employment practices EEOC, et al. v. Schott North America, Inc., allowed industrial psychologist to testify as an expert on the discriminatory nature of the design and implementation of an employer’s matrix for selecting employees. 15

Plaintiff can be required to submit if: (1) asserted a specific cause of action for IIED/NIED (2) alleged a specific mental or psychiatric injury or disorder: (3) claimed unusual or severe emotional distress; (4) Plaintiff offers expert testimony; or (5) Plaintiff has placed her psychiatric condition “in controversy” within the meaning of F.R.C.P. 35(a).

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HUMAN RESOURCES VOCATIONAL EXPERTS -MANY TYPES OF PECUNIARY DAMAGES ARE RECOVERABLE: MOVING EXPENSES, JOB SEARCH EXPENSES, OUT-OF-POCKET COSTS FOR MEDICAL, PSYCHOLOGICAL, AND/OR PSYCHIATRIC TREATMENT, PHYSICAL THERAPY EXPENSES, AND OTHER QUANTIFIABLE OUT-OF-POCKET EXPENSES. Progeny of the Faragher-Ellerth decisions Dukes v. Wal-Mart (statistician and labor economist)

***Recent Supreme Court Decision***

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Two-part affirmative defense test for supervisor harassment: (1) employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

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AFFIRMATIVE DEFENSES OPEN THE DOOR TO EXPERT OPINIONS : ADEQUACY OF POLICIES, IMPLEMENTATION OR TRAINING reasonably prevent or respond to a harassment allegation ADEQUACY OF INVESITGATION AND RESPONSE 19

Testify regarding loss of earning capacity, vocational loss, workforce limitations and vocational disability. Quantify availability of employment alternatives and sufficiency of mitigation efforts. Assess availability of alternative occupations where appropriate 20

Define and assess alleged “essential elements” of job. Testify on potential “reasonable accommodations” for plaintiff’s disability. May create “job analysis” in conjunction with other experts such as physical therapists, physiatrists, and ergonomic experts. 21

At the Outset of Retention, Determine Whether the Expert’s Qualifications Expand His/Her Ability to Testify on Other Issues Recent Case – Title IX Expert Also Spoke on: EEOC Policies, Procedures Discrimination in Athletics Loss of Plaintiff’s Earning Capacity Trial of Issues by Consent/Proper Designations 22

Daubert and Other Challenges to Expert Witnesses Lawrence J. McNamara September 18, 2012

Spencer Crain Cubbage Healy & McNamara pllc 214.290.0011 [email protected] WWW.SPENCERCRAIN.COM

Dallas SpencerCrain >

Houston Unprecedented.

F.R.E. 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify …, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

SpencerCrain >

24

Unprecedented.

Daubert v. Merrell Dow Pharmaceuticals, lnc. 509 U.S. 579 (1993) Under Daubert, the two primary requirements for the admissibility of expert testimony are reliability and relevance. Daubert 509 U.S. at 592-93. The trial judge, acting as the “gatekeeper” of expert testimony, must make the initial determination of whether the reasoning or methodology underlying the proposed expert testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts of the case.

SpencerCrain >

25

Unprecedented.

Daubert v. Merrell Dow Pharmaceuticals, lnc. 509 U.S. 579 (1993) Among the many factors that a judge should consider: (1) whether the technique or theory used by the expert can be and has been tested; (2) whether the theory or technique used has been subject to peer review and publication; (3) the known or potential rate of error in the expert’s methodology; and (4) whether the expert’s methodology is generally accepted in the scientific community.

SpencerCrain >

26

Unprecedented.

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) • In 1999, the Supreme Court in Kumho concluded that the Daubert factors may apply to the expert testimony of engineers and other non-scientists. • The Court emphasized the importance of the trial court’s gatekeeping function and the need to maintain a flexible standard under which trial courts can properly exercise their discretion in accordance with the facts of each case. • Kumho decision is important to employment lawyers who are more likely to be confronted with issues related to non-scientific experts than scientific ones.

SpencerCrain >

27

Unprecedented.

Common Admissibility Factors Since Kumho a) Whether the expert’s field is a “well accepted body of learning” with reasonably well defined standards; b) Whether the expert’s theory or technique can be or has been tested; c) Whether the theory or technique has been subjected to peer review and publication; d) The known or potential error rate of the theory or technique; e) General acceptance of the theory or technique within the relative scientific community; f) The nonjudicial uses made of the theory or technique; g) The extent to which the technique relies upon the subjective interpretation of the expert; and h) The expert’s credibility to the extent it affects reliability.

SpencerCrain >

28

Unprecedented.

Determining The Reliability of the Expert’s Analysis • Nova Consulting Grp., Inc. v. Eng’g Consulting Svcs., Ltd., F. Appx. 727 (5th Cir. 2008); Amorgianos v. Nat’l Railroad, 303 F.3d 256 (2d Cir. 2002)-To determine reliability of the expert’s testimony, courts must focus on principles/methodology employed by the expert without regard to the court’s belief as to the correctness of the conclusions • Expert’s analysis must be reliable at every step; any step that renders the analysis unreliable makes the testimony inadmissible; minor flaw will not cause testimony to be inadmissible • EEOC v. Beauty Enterprises, 361 F.Supp.2d 11 (D. Conn. 2005)-court must examine data, method by which opinion is drawn from studies/data and application of data and methods to the case at hand

SpencerCrain >

29

Unprecedented.

Common Employment Law Experts 1) Statisticians and Economists; 2) Medical and Mental Health Experts; 3) Mitigation Experts; 4) Employer Practices and Policies Experts; 5) Forensic Vocational Experts; and 6) Harassment and Cultural Experts

SpencerCrain >

30

Unprecedented.

Statisticians In Coleman v. Exxon Chemical Corporation, 162 F.Supp.2d 593 (S.D. Tex. 2001), plaintiffs offered expert testimony to show statistical evidence of racial discrimination resulting from gross disparities in pay. Court excluded the statistical expert’s testimony because the evidence suffered from “serious methodological flaws.”

SpencerCrain >

31

Unprecedented.

Statisticians The Court noted that: (1) it was improper for Plaintiffs to compare the salaries of black males to those of “other minorities” which included Hispanics and white females; (2) it was inappropriate for Plaintiffs to assume that a first line supervisor’s seniority for salary purposes included all years worked at Exxon rather than merely all years worked as a first line supervisor; (3) while not too small as a matter of law, the sample size used by plaintiffs’ experts was extremely small and at least one individual included in the sample was absent from work for 385 out of the prior 572 working days due to a medical condition; and (4) plaintiffs’ expert conceded that the disparity in salary for African-Americans was “never quite statistically significant” for the relevant years. SpencerCrain >

32

Unprecedented.

Anderson v. Lott, 406 F.3d 248 (4th Cir. 2005) •

A black, female employee brought Title VII suit alleging that her employer’s use of a ranked performance pay process (RP3) had a disparate impact on black employees.

•

The employee offered the expert testimony of a statistician, regarding the difference in the RP3 ratings given to blacks as compared to those given to whites.

•

District court excluded expert’s testimony on the grounds that the comparisons were not relevant to the employee’s claims.

SpencerCrain >

33

Unprecedented.

Anderson v. Lott, 406 F.3d 248 (4th Cir. 2005) 1) Expert’s analysis compared black and white employees under the RP3 system without taking into account any differences in their job titles or positions. 2) Expert used EEO job groupings, which he admitted could contain up to 147 different job titles and up to seven separate pay grades. 3) Accordingly, the district court held that expert’s studies improperly failed to compare similarly situated employees.

SpencerCrain >

34

Unprecedented.

Statisticians • See also Munoz v. Orr, 200 F.3d 291 (5th Cir. 2000), cert. denied, 121 S. Ct. 45 (2000) (affirming exclusion of statistician, due to miscalculations, failure to use methods utilized by other experts, failure to consider other variables, run regression analysis or verify numbers plaintiffs supplied to him); Gerlib v. R.R. Donnelly & Sons Co., 2001 WL 1313794 (N.D. Ill., Oct. 26, 2001) (approving admission of statistician testimony in ADEA cases, holding flaws and failure to consider certain factors in analysis goes to probativeness of evidence, not admissibility), citing Adams v. Ameritech Services, Inc., 231 F.3d 414, 423 (7th Cir. 2001) (“it will be up to the trier of fact to assess, in light of the flaws pointed out, what significance to place on the [plaintiff’s] statistics”). SpencerCrain >

35

Unprecedented.

Statisticians •

•

Hnot v. Willis Group Holdings, Inc., 228 FRD 476 (S.D. N.Y. 2005) Court used plaintiffs’ statistician’s report to find commonality under Rule 23 due to gender disparity in promotions and pay. See also, Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2nd Cir. 1999)(use of regression analysis to show commonality)

SpencerCrain >

36

Unprecedented.

Medical Testimony • Moore v. Ashland Chemical, Inc., 126 F.3d 679 (5th Cir. 1997) - Unlike Daubert, used for hard scientific method analysis, clinical medical testimony should be evaluated based on whether the physician’s proposed testimony is firmly tied to principles & methodology used in the particular field of clinical medicine • Some common factors analyzed include whether medical literature was used and supports approach; review of plaintiff’s records and/or exam of plaintiff; experience and training of the physician witness

SpencerCrain >

37

Unprecedented.

Medical and Mental Health Experts In Skidmore v. Precision Printing, 188 F.3d 606 (5th Cir. 1999), Fifth Circuit found no abuse of discretion in court’s decision to allow a psychiatrist to testify that plaintiff suffered from PTSD and depression related to sexual harassment. Since the expert testified to his experience, set forth the criteria by which he diagnosed the plaintiff, and used standard methods for diagnosis in his field, his testimony was admissible.

SpencerCrain >

38

Unprecedented.

Medical and Mental Health Experts In Franklin v. Consolidated Edison Co., 2002 WL 530577 (2nd Cir. April 9, 2002), the Second Circuit held that district court did not abuse its discretion in excluding expert’s testimony that work-related stress caused plaintiff’s stroke. Court found that such testimony was unreliable: (1) the expert was not an expert on strokes; (2) there were no peer-review articles establishing a link between stress and strokes; (3) expert’s methodology was questionable in light of the fact that expert did not examine plaintiff; (4) expert’s theory was not generally accepted in medical community; and (5) expert could not isolate work related stress from other sources of stress. SpencerCrain >

39

Unprecedented.

Medical and Mental Health Experts • See also McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004) (affirming admission of psychologist testimony in ADA case involving police officer suffering from PTSD, who concluded, based on plaintiff’s actions and past, that she was a “direct threat” to herself or others); Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997) (reversing exclusion of plaintiff’s expert psychiatrist testimony on causation of emotional distress in harassment case, holding jury could determine weight to give evidence) • Wilson v. Muckala, 303 F.3d 1207 (10th Cir. 2002)(expert could testify as to nurses psychological condition, and his treatment thereof, but could not give opinion on her credibility) SpencerCrain >

40

Unprecedented.

Employer Policies and Practices Experts •

•

•

In EEOC v. Dial Corp., 2002 WL 31061088, the court excluded a large portion of the EEOC’s expert’s opinions, which were based on a Sexual Experiences Questionnaire (“SEQ”) - measured the responding employee’s sexual experiences at work Court found that the SEQ had validity problems because it measured “offensive” sex-related experiences at work (i.e., the non-legal meaning), but not necessarily “legal” sexual harassment Could cause jury confusion

SpencerCrain >

41

Unprecedented.

Employer Policies and Practices Experts • Also, “lead-in” instructions in the survey failed to limit responses to incidents that were, in fact, offensive • Example: An employee who, perhaps, enjoyed exchanging dirty jokes with her co-worker could erroneously be counted as having a sex-related experience at work, even though she did not find the joking to be offensive • Accordingly, expert’s opinions were so reliant upon flawed survey materials that court found the expert testimony to be not useful to the fact-finder

SpencerCrain >

42

Unprecedented.

Harassment and Culture Experts • In Tuli v. Brigham & Women’s Hospital, Inc., 592 F.Supp.2d 208 (D. Mass 2009), the Court excluded two medical industry experts but admitted the testimony of a social psychologist. • Defendant’s proferred expert, a surgeon, was struck under Rule 403 because his testimony that Plaintiff was not discriminated against based on his review of documents was more prejudicial than probative. • Likewise, Plaintiff’s physician expert who was to testify that the Plaintiff was subject to a “sham peer-review” was also struck under R. 403 and because the proposed testimony did not meet the standards of Kumho. SpencerCrain >

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Unprecedented.

Harassment and Culture Experts • In Tuli, the court did permit the testimony of a social psychologist professor because his testimony was based on social psychological testing of stereotyping and discrimination over 30 years. • The court noted that a strength of the testimony was that the expert did not opine on the specific facts of the case. Rather, the expert demonstrated the settings in which discrimination typically occurs and opined on whether the allegations were consistent with observed patterns.

SpencerCrain >

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Unprecedented.

Harassment and Culture Experts • Wal-Mart v. Dukes, 564 U.S. 131 S. Ct. 2541 (2011) - Ct disregarded testimony of sociological expert who testified that Wal-Mart had a “strong corporate culture” that made it “vulnerable” to “gender bias” • Expert relied on “social framework” analysis • Expert could not say whether .5% or 95% of Wal-Mart’s employment decisions were determined by stereotypical thinking • Expert's testimony did not rise to the level of “significant proof of a general policy of discrimination”

SpencerCrain >

45

Unprecedented.

Experts on Ultimate Issues In Mukhtar v. California State University, Hayward, 299 F.3d 1053 (9th Cir. 2002), the Ninth Circuit vacated and remanded a judgment where the district court failed to make a reliability determination in admitting testimony.

Plaintiff offered expert on racial discrimination who established 8 criteria for “decoding” discriminatory behavior. Expert testified that a) justification for denial of tenure lacked credence, b) tenure criteria applied inconsistently, c) inconsistent criteria favored whites, d) tenure criteria shifted when challenged, e) statistical evidence showed disparate treatment, f) procedural violations occurred in tenure process, g) defendant trivialized and dismissed plaintiff’s qualifications. SpencerCrain >

46

Unprecedented.

Forensic Vocational Expert In Huey v. United Parcel Service, Inc., 165 F.3d 1084 (7th Cir. 1999), Seventh Circuit affirmed the exclusion of testimony from a forensic vocational expert, concluding the expert did not have specialized knowledge or skills to analyze the plaintiff’s claims. Expert had a Ph.D in human resource development. He drafted a report based on a review of documents, a meeting with plaintiff, and research that concluded that Plaintiff was victim of retaliatory discharge. In refusing to admit the testimony, court stated, “an expert who supplies nothing but a bottom line, supplies nothing of value to the judicial process.” SpencerCrain >

47

Unprecedented.

EEOC Investigators as Experts • MacLeod v. American Synthetic Rubber Corp., 805 F.2d 1035 (6th Cir. 1986)-it is within the discretion of the district court to determine whether to accept an EEOC investigator as an expert witness • Dickerson v. Metropolitan Dade County, 659 F.2d 574 (5th Cir. 1981)-normal rules governing admission of expert testimony apply to EEOC investigators who are designated as experts; Ct. found that EEOC expert would not aid jury • EEOC v. U-Haul, 2005 WL 2860987-Ct. excluded testimony of EEOC investigator designated by U-Haul to show lack of discrimination because she offered no specialized knowledge

SpencerCrain >

48

Unprecedented.

Mitigation • Courts have generally allowed the use of expert testimony as to a plaintiff’s mitigation efforts, as it is viewed as helping the jury determine the issue of the plaintiff’s effort to find a new, suitable job • Often, experts used are: – Outplacement services – Vocational rehab professors and counselors – HR directors – Headhunters

SpencerCrain >

49

Unprecedented.

Mitigation • See Carey v. Mt. Desert Island Hosp., 156 F.3d 31 (1st Cir. 1998) (affirming use of expert testimony to show plaintiff failed to mitigate damages, justifying reduction in damages); Menning v, McGraw-Hill, Inc., 64 F. Supp. 2d 996, 1000 (D. Colo. 1998), rev’d on other grounds, 2000 WL 763767 (10th Cir. 2000) (expert may testify on issue of reasonableness of mitigation efforts)

SpencerCrain >

50

Unprecedented.

Rule 26 Challenges Several Discrete Duties to Disclose A.

B.

FRCP 26(a)(2)(A) requires (unless ordered otherwise) disclosure of any witness who will present evidence under F.R. Ev. 702, 703 or 705. 26(a)(2)(B) disclosure must be accompanied by written report, prepared and signed by expert, if expert retained or specially employed to provide expert testimony, or witness regularly appears as expert. • all opinions to be given • facts or data considered • any exhibits • qualifications • publications

SpencerCrain >

51

Unprecedented.

Rule 26 Challenges Several Discrete Duties to Disclose • list of other cases • compensation to be paid C. FRCP 26(a)(2)(C) – Witnesses Who Do Not Provide Written Report Must State: (i) subject matter of testimony under F.R. Ev. 702, 703 or 705 (ii) summary of facts and opinions to which witness will testify • may appear as both fact and expert witness • usually treating physicians and others who do not usually appear as experts • could be Human Resource Professional

SpencerCrain >

52

Unprecedented.

Rule 26 Challenges Several Discrete Duties to Disclose Analyze vs. R. 26(a)(2)B and determine category in which witness fits: • Allstate Insurance Co. vs. Nassiri, 2011 WL 2975461 (D. Nev., July 21, 2011) D. If Failure to Comply With All Disclosures Under Rule 26 – Move to Strike Witness/Report/Exhibits under FRCP 37(c)(1) • Hardin vs. Wal-Mart, 2010 WL 3341897 (E.D. Cal. Aug. 25, 2010)

SpencerCrain >

53

Unprecedented.

Due Diligence: 4 Key Steps 1.

Do Your Research

2. Get To Know Your Potential Expert 3. Identify Potential Weaknesses ***Experienced & Qualified Not Always Enough – Can Expert Relate?*** 4. Determine How Many Experts You Really Need 55

-qualification -expressiveness -methodology

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Consulting the Expert •

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Good Practices for Communicating with Potential Testifying Experts to Maintain Confidentiality Benefits of Retaining a Consulting Expert

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•

•

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Consider whether you really need an expert, and if so how many are needed (Less is always More) Select qualified, reliable and relatable experts Consider the data and facts provided – avoid selecting data only favorable to your position --Address potential “issues” up front

•

Get in and Get Out – Never Go Toe to Toe 58

The Dilemma: To Depose or Not To Depose?

1. Deposition Goals 2. Areas To Examine • Preparation of Report • Skycam, Inc. vs. Bennett, 2011 WL 2551188 (N.D. Okla. June 27, 2011) • Qualifications • Assignment from Counsel • Compensation • Experience as Expert (+ sides) • Information Received • Further Work Planned/Discussed • Drafts • Changes Made/Suggested/Discussed • Basis for Each Opinion

SpencerCrain >

• Facts Assumed/Effect 59

Unprecedented.

• Preparing Your Experts For Their Depositions - See Areas To Examine, supra

SpencerCrain >

60

Unprecedented.

Techniques for Cross Examining the Plaintiff’s Expert

•

Voir Dire

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Use The Record

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Exploit Plaintiff’s Expert’s Weaknesses

SpencerCrain >

61

Unprecedented.

•

Techniques for Cross Examining the Defense Expert •

Voir Dire

•

Work The Record

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Exploit Defense Expert’s Weaknesses

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Ask Why the Defense Needed an Expert

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Use the Defense Expert to Lend Credibility to the Subject Matter (i.e. damages)

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They are Not Liability Experts

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Did They Attack the Plaintiff Individually? (mistake in most cases)

SpencerCrain > 62

•

Should You Eschew Cross (Rarely)

•

Preparation of Report - Skycam

62

Unprecedented.

Techniques for the Defense Expert’s Direct Exam

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Effectively Qualify Your Expert

•

Establish Credibility

•

Undermine Plaintiff’s Expert’s Direct Testimony

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Undermine The Plaintiff’s Direct Testimony

SpencerCrain >

63

Unprecedented.

•

Techniques for the Plaintiff’s Expert’s Direct Exam •

Effectively Qualify Your Expert

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Establish Credibility

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Identify problem area(s)

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Describe the analysis

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Use tables & illustrate earning history & lost earnings etc.

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Undermine Defense Expert’s Direct Testimony

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Undermine The Defense Theory of the Case

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Understate Your Position

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Be Conservative in the Analysis (Regardless of Type of Expert)

SpencerCrain > 64

64

Unprecedented.

Consider whether you really need an expert, and if so how many are needed • Retained • Non-retained • Consultant • Hardin vs. Wal-Mart Stores, supra • Ensure Proper Disclosure Select qualified, reliable and relatable experts Consider the data and facts provided – avoid selecting data only favorable to your position

•

Address potential “issues” up front

Get in and Get Out – Never Go Toe to Toe (Less is always More) SpencerCrain >

65

Unprecedented.