A federal judge in the Northern District of California has issued a mixed ruling on who can and cannot testify as experts in a trial involving a former assistant athletic director, who was laid off by the University of California, Berkeley and subsequently sued the school and several individual defendants for discrimination and retaliation.
There was no clear winner in the ruling as the judge scrutinized the qualifications of the experts and the admissibility of their testimony.
In the underlying suit, Karen Moe Humphreys alleged that the decision to lay her off was based on her “being a strong and assertive woman who had spoken out against gender inequities in the Athletic Department,” wrote the court in citing the complaint. “She also alleged that she had been laid off because she had spoken out in opposition to the athletic department’s non-compliance with NCAA rules.”
Leading up to the trial, both sides presented their slate of experts, only to be confronted by their respective motions to exclude.
In considering the motions, the court relied heavily on Federal Rule of Evidence 702, which provides that expert testimony is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Such testimony under Rule 702 must be both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
The court began with the five plaintiff’s experts that the defendants sought to exclude: Dr. Jay M. Finkelman; Anthony R. Pierno, Esq.; Donna de Varona; Donna A. Lopiano; and Dr. Robert R. Trout.
Finkelman, who is the Interim Systemwide Dean in charge of the California School of Business and Organizational Studies and Program Director and Full Professor of the Organizational Studies Division of CSBOS at Alliant International University, was presented as an expert on best human resources management practices. While the court agreed with the plaintiff that “Finkelman’s experience, training, and education render his conclusions sufficiently reliable to satisfy the Daubert standard,” it did limit the scope of the proposed testimony.
“The Court agrees with plaintiff that Finkelman’s proposed testimony about the University’s deviation from good human resources practices is proper expert testimony under Rule 702. The University’s failure to follow such practices is relevant to plaintiff’s contention that the layoff was a pretext for gender discrimination or retaliation, and Finkelman’s testimony will assist the jury because the average juror is unlikely to be familiar with human resources management policies and practices. The Court, however, agrees with defendants that Finkelman may not testify that the University’s failure to comply with good human resources practices is indicative of discrimination. While the jury may ultimately accept such an inference, Finkelman’s testimony to that effect is unlikely to assist the jury and runs the risk that the jury will pay unwarranted deference to Finkelman’s expertise.”
The plaintiff sought to have Pierno, an attorney, give his opinion about two areas: a discussion of the purported financial bases for plaintiff’s layoff, specifically including the University’s decision to execute “sweetheart” severance agreements with members of the Athletic Department’s Executive Team; and a discussion of improprieties surrounding the University’s use of Korn/Ferry, an executive search firm, to hire senior administrative members of the Athletic Department.
The court agreed mostly with the defendant on this expert, allowing “to a limited degree” only testimony regarding the “sweetheart deals” that the University allegedly signed with senior administrators in the Athletic Department both before and after Humphreys left. Pierno’s history as outside counsel to corporate clients, as a board member of educational institutions and as a senior corporate officer provide him with sufficient familiarity with executive severance agreements to testify reliably in this case. Further, his proposed testimony that the “sweetheart deals” are unusually generous is relevant to plaintiff’s contention that budgetary savings were a pretext for her layoff. Pierno’s testimony will also likely be helpful to the jury, which will likely be unfamiliar with the contents of severance agreements.
The court was much more clear-cut in its decision on de Varona, a television commentator, agreeing with the defendants that her testimony “is not proper expert testimony under Rule 702. The majority of de Varona’s report consists of repeated praise of plaintiff and her accomplishments. While likely well-deserved, such testimony does not reflect ‘specialized knowledge,’ nor is it likely to be helpful to the jury, given that plaintiff will be available to testify.”
Similarly, the court sided with the defendants on Lopiano, the Chief Executive Officer of the Women’s Sports Foundation, a national non-profit organization that seeks to educate the public about gender issues in athletics.
“Much of Lopiano’s expert report consists of little more than a recitation of plaintiff’s evidence, combined with her conclusion that the evidence demonstrates that plaintiff was discriminated against,” wrote the court.
However, the court did agree with the plaintiff that Lopiano would be valuable as a resource on Title IX and NCAA. “The Court believes this testimony may be helpful to the jury, as the average juror is unlikely to be familiar with the contours of Title IX or the intricate regulatory scheme created by the NCAA rules. Further, the Court finds that Lopiano’s extensive experience is more than sufficient to qualify her as an expert on these topics. Indeed, Lopiano has testified in front of congressional committees many times, and heads a non-profit organization dedicated to educating the public about gender issues in athletics. Her education and qualifications easily satisfy the threshold reliability requirement.”
The court also denied the defendants’ motion as it related to Dr. Robert R. Trout, finding that the “defendants’ argument goes to the weight of Trout’s conclusions, not their admissibility.”
The court then turned to the plaintiff’s motion to exclude the defendants’ experts: John G. Harlow; Craig Pratt; and George Fruehan.
First up with Harlow, who was offered to rebut the proposed testimony of Pierno. “As discussed above, Pierno’s expert report concludes that there were numerous improprieties in an executive search process employed by UC Berkeley to fill executive level positions in its Athletic Department shortly before Humphreys was terminated. Harlow’s rebuttal report describes the search process and concludes that no improprieties occurred. As discussed above, the Court believes that Pierno’s testimony should be excluded from trial to the extent it covered the Athletic Department’s executive search. The search is of extremely marginal relevance to this case, and expert testimony about the search raises a substantial risk of confusion of the issues and misleading the jury. As the Court has held that Pierno may not testify concerning the executive search process, the Court finds that Harlow’s rebuttal testimony is unnecessary.”
Next was Pratt, who was offered as a rebuttal witness to Finkelman. “Pratt’s report … is only 3 paragraphs long, and the entirety of his opinion reads as follows: ‘I read the report of Plaintiff’s expert, Dr. Jay Finkelman and, based on my understanding of the discovery record, I disagree with many of his conclusions. I believe Dr. Finkelman has made a faulty analysis and/or otherwise improperly applied principles in my field attendant to the prevention of discrimination and/or retaliation in the context of an organizational reduction-in-force.’ Pratt’s report fails to comply with the basic requirements of the Federal Rules of Civil Procedure, which require ‘a complete statement of all opinions to be expressed and the basis and reasons therefore.’ Fed. R. Civ. P. 26(a)(2)(B). Without more information, plaintiff is prevented from understanding the reasons behind Pratt’s opinion, and the Court certainly is unable to determine whether Pratt’s report meets the threshold ‘reliability’ requirement for expert testimony. Daubert. Further, it appears that Pratt reached his conclusion after reviewing only Finkelman’s report, which is the sole document that Pratt’s report specifically states that he reviewed. This further suggests that Pratt’s opinion is unreliable.
Finally, the court reviewed Fruehan, the defendants’ damages expert who was brought in to rebut the testimony of Trout, plaintiff’s expert on damages. Fruehan’s report concludes that Trout did not consider plaintiff’s duty to mitigate damages. The court denied the plaintiff’s motion to exclude, noting that Fruehan’s report “exposes a potential flaw in Trout’s method of determining the amount of damages. Accordingly, it is properly classified as rebuttal testimony. Plaintiff is also concerned that Fruehan will testify that plaintiff had a legal duty to accept a specific marketing position in the Athletic Department that the University offered her in lieu of being laid off. The Court agrees with plaintiff that, while plaintiff may have had a legal duty to mitigate, Fruehan may not testify that she had an obligation to accept the marketing position.”
Karen Moe Humphreys v. Regents of The University Of California, et al., N.D. Cal.;
No. C 04-03808 SI; 2006 U.S. Dist. LEXIS 47822; 7/6/06
Attorneys of Record: (for plaintiff) Andrew Thomas Sinclair, Sinclair Law Offices, Oakland, CA; Seung Yun Lee, Arne Wagner, Kathleen V. Fisher, Matthew Brooks Borden, Calvo & Clark, LLP, San Francisco, CA. (for defendants) Clariza Casenillo Garcia, G. Martin Velez, Gary T. Lafayette, Paul Yang, Susan T. Kumagai, Lafayette & Kumagai LLP, San Francisco, CA.
