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By D. Jan Duffy, J.D. and Carla V. Minnard, J.D.

The Supreme Court has spoken – again. In the third of a trilogy of cases addressing the admissibility of expert testimony, the Supreme Court in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), resolved the split amongst the circuits as to whether the trial judge’s gate keeping function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) applies only to scientific evidence, or extends to proffers of expert testimony based upon technical or other specialized knowledge. Although the Kumho decision answered the question of whether a Daubert-type inquiry is appropriate when evaluating admissibility of experienced-based experts, it did little to assist trial judges in framing an appropriate inquiry.

After a brief survey of applicable statutory law as well as interpretive authorities, this paper considers a number of recurring issues that trial judges must face when ruling on admissibility of expert testimony in the employment litigation context. Developing further the technique used in Daubert of pointing to specific factors or indicia of reliability, this paper picks up where Kumho left off, suggesting a number of factors that may assist trial courts when evaluating a proffered employment practices expert.

Statutory Law

The admission of expert testimony is governed by Federal Rule of Evidence 702 and the principles announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 provides:

“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 thereto in the form of an opinion or otherwise.”

The Daubert court interpreted this rule to require that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court confirmed that the Daubert inquiry is not limited to scientific experts, but should be applied to all expert testimony. The Supreme Court in Kumho did not contradict what it said in Daubert. Rather, Justice Breyer writing for the Court described the “Rule 702 inquiry as “a flexible one” and made “clear that the factors it mentions do not constitute a ‘definitive checklist or test.’” Id. at 141. The Kumho court noted both the difficulty and undesirability of maintaining a bright-line rule for or against expert testimony in a given case. Rather, the Kumho decision directs trial judges to evaluate the quality of the expert testimony, instead of drawing rigid, formulaic distinctions between science and experienced-based expertise. The Court unanimously affirmed the application of the abuse-of-discretion standard to questions of admission or exclusion of expert testimony.

Statutory Law

Butler v. Home Depot, Inc. 984 F. Supp. 1257 (9th Cir. 1997)

Butler was a Title VII class action gender discrimination action venued in the U.S. District Court for the Northern District of California. Defendant Home Depot filed a motion to exclude the testimony of four of plaintiffs’ expert witnesses at trial: (1) Dr. Mary Gentile, plaintiffs’ designated expert in the fields of organizational diversity program design and implementation; (2) Professor Susan Fiske, plaintiffs’ designated expert in the fields of social psychology, social relations and gender stereotyping; (3) Dr. William Bielby, plaintiffs’ designated expert in sociology, social psychology, and organizational behavior; and (4) Dr. Carl Hoffman, plaintiffs’ designated expert in statistics, survey research and job interests. Home Depot argued that the testimony of each of the proffered experts should be excluded as unreliable and irrelevant. The Court denied the motion.

The expert testimony of Drs. Gentile and Bielby as well as Professor Fiske relates to the discipline characterized alternately as management, organizational, or employment practices. “Management or employment practices” is the discipline that concerns the theory, strategy, policies, procedures, and practices that employers use to manage employees successfully. It includes such matters as effective discrimination and harassment prevention, complaint handling, effective workplace investigations, managerial or official decision making, and disciplinary action in situations involving, among other things, discrimination, harassment, retaliation, and other workplace misconduct.

The Court rejected defendant’s argument that Dr. Gentile’s testimony concerning Home Depot’s diversity initiative was irrelevant to the issues in the case. Among other things, Dr. Gentile was offered to testify that Home Depot’s diversity initiative lacked six essential features necessary to impact gender diversity and that Home Depot failed to accomplish its own stated goals as regards diversity. The Court held that “a defendant’s non-compliance with its affirmative action plan may evidence awareness on its part of gender or racial disparities in the workforce or a hostile attitude toward the intended beneficiaries of its program.” The Court noted that defendant’s arguments “are more appropriately directed at the weight rather than the admissibility of this expert.” The Court also rejected the argument that the testimony of such an expert would not be helpful to the trier of fact, holding that “testimony concerning diversity management qualifies as specialized knowledge under Rule 702.”

Among other things, Professor Fiske was offered to testify that organizations can control the effects of gender stereotyping using certain tools, and that Home Depot has not taken adequate steps to contradict such biased individual practices. Defendants argued that Professor Fiske’s opinion was not based on reliable methodology, was unsupported by a body of scientific research, and was irrelevant. Noting Professor Fiske’s substantial professional and academic affiliations, as well as her frequent publications in her field, the court stated that she was “clearly qualified as an expert.” The Court found it notable that the majority of Professor Fiske’s work was performed within the academic context, as opposed to the courtroom. Finding that Professor Fiske’s testimony survived a Daubert challenge, the court noted that the underlying theories upon which she bases her opinions have been subjected to peer review, published in reputable journals, generally accepted by experts in the field. The court, rejecting defendant’s relevance argument, held that “to the extent Professor Fiske testifies as to the causes, manifestations, and consequences of gender stereotyping as well as the organizational circumstances which allow such stereotypes to flourish, her testimony would appear to be relevant and of assistance to the jury.” Again, the court characterized defendant’s objections as issues of weight rather than admissibility, suggesting that the questions raised by Home Depot were appropriate for exploration on cross-examination.

Home Depot sought to exclude the testimony of Dr. Bielby on the basis that his opinions were not based upon a reliable methodology, were not grounded in any scientific basis, and were irrelevant. Addressing and rejecting defendant’s relevance argument, the court held: “Expert testimony regarding the interplay of gender stereotyping and subjective employment practices, in addition to the effect of such stereotyping on the gender composition of the workforce, would appear to be relevant to plaintiffs’ [claims]. In addition, . . . testimony regarding specific steps Home Depot might have taken is an issue to be considered with the other evidence in context.”

Blakey v. Continental Airlines, Inc. (D.N.J. 1997) 1997 U.S. Dist. LEXIS 22074

Blakey was a Title VII hostile work environment sexual harassment venued in New Jersey. Defendant sought to bar the testimony of plaintiff’s expert on “organizational practices regarding the prevention and resolution of sexual harassment in the workplace.” The Court permitted the testimony, holding that “expert testimony on the issues of what an employer can do to prevent and address complaints of sexual harassment in the workplace could assist the jury in determining whether Continental had an effective program to prevent and remedy sexual harassment. [Our] Supreme Court recognized that jurors of common knowledge and experience are not familiar with the complex issues involved in determining the efficacy of an employer’s policies and procedures to prevent sexual harassment and acknowledged the value of expert testimony in these cases . . .” The court held that the expert could not testify as to legal conclusions, but could testify as to the general policies and practices a company may undertake in an effort to be effective in preventing and addressing allegations of sexual harassment.

Hurst v. F.W. Woolworth (D.N.Y. 1997) 1997 U.S. Dist. LEXIS 17233

Defendant moved in limine to exclude the testimony of plaintiff’s designated expert in an age discrimination case based on relevance and potential for prejudice. The expert was offered to testify “regarding stereotypes in general, age stereotypes in particular, and the presence and effect of age stereotypes in the workplace.” The court denied defendant’s challenge and rejected the argument that the jury was capable of “identifying age discrimination without expert opinion.” The court affirmed the trial court’s holding that “in a pattern or practice discrimination case, evidence of discriminatory conduct is often widely-dispersed and difficult to evaluate; expert testimony as to age stereotyping may aid jurors in assessing liability.” The court found that the trial judge properly performed his gate keeping role, and that the jury instruction on weighing expert testimony and the opportunity for cross-examination would be sufficient to resolve defendant’s concerns.

A Guide for Gatekeepers: Evaluating Management Practices Expert Testimony in Employment Litigation

The purpose of providing management practices expertise in employment litigation is to offer the trier of fact information and, ideally, helpful insight into the known, effective, relevant, usual, and customary, that is, “reasonable and appropriate” practice of similarly situated employers at the time of the events involved in the litigation. Few jurors have academic qualifications in management, human resources, or even significant experience in managing people. Providing such information through expert testimony offers the jury information or even knowledge and understanding of the usual or reasonable standards of practice generally observed by managers in relatively comparable situations. It allows jurors to know, evaluate, compare, or otherwise use for purposes of evaluating the conduct of the plaintiff or defendant, supervisors, managers, coworkers or others in the workplace, that which is generally known and understood by other managers and ordinarily utilized by them to effect an organization’s objectives in attracting and retaining employees, and achieving a productive and economically competitive workplace, that is, successfully managing people.

In the sexual harassment context, for example, a practices expert can assist the jury by educating them about the known and necessary elements of an effective harassment prevention program, the mechanisms for reporting harassment that are understood to be likely to encourage employees to come forward, effective procedures for accurate, fair, and reliable investigation of workplace complaints, and the reasonableness of remedies or other procedures instituted by the employer to prevent and correct further harassment and/or retaliation. Jurors would be better able to evaluate, for example, the reasonableness of the assertions of an employer who insists that it was not “really necessary” to provide an assurance of non-retaliation in its harassment reporting procedure or that there was “nothing” it could do about retaliatory actions by unknown persons. Similarly, it gives jurors a basis beyond their own limited experience to enable them to assess the reasonableness of the claim by the plaintiff that altering a time card by “a couple” of minutes, or “just giving a supervisor a little verbal grief” on the assembly line could not have been viewed as a serious infraction and thus, could not have been the real basis for his discharge, or by a defendant that employees are nearly always disciplined for insulting a client.

Following the Supreme Court’s decisions in Faragher and Ellerth, the need for and value of employment practices expert testimony is even greater. In order for an employer defendant to establish the affirmative defense articulated in those cases, it must show that it undertook reasonable measures to prevent and correct promptly harassing behavior. To expect jurors, who even collectively are bound to have limited experience, to know, remember, and thus adequately assess, what reasonable measures are, or were at the time of the events in question, without providing them further knowledge or assistance in addition to argument, is to expect a great deal. To expect them to determine, without information beyond argument, the presence of timeliness, thoroughness, accuracy, open-mindedness, competence, consistency, and other characteristics that comprise an effective workplace fact-finding inquiry would seem to ask the impossible.

Management practices expertise can also educate the jury about the legitimacy of an asserted business justification defense. Expert testimony would, for example, provide jurors with an understanding of meaningful and important differences between work environments such as a services industry environment and a mining facility.

So, how does a trial judge perform his or her gate keeping function in a manner that maximizes the helpfulness of expert testimony to the jury?

Is the Expert Expert?

The threshold inquiry under FRE 702 is whether the proffered witness is an “expert.” With experiential experts, academic qualifications are perhaps of lesser importance than professional or occupational experience but may, where relevant, give insight into the expert’s ability to analyze information, think critically, or distinguish reliable, sufficient and appropriate evaluation methodology from inappropriate. With respect to professional, occupational, or other “experiential” qualifications, judges would do well to obtain sufficient information to be able to evaluate the real nature, scope, quality, and opportunity to observe that forms the basis of the asserted expertise. In human resources or management practices expertise, for example, it is not uncommon for the proffered expert to have a qualification such as “25 years of experience in human resources management.” Since human resources is a broad field and covers positions or experience such as, for example, recruiting, that bear little relationship to conducting workplace harassment investigations, the level of expertise achieved by the proffered expert in a harassment correction case should be further explored. Similarly, serving as the Human Resources Vice-President of a 200 employee services firm may not afford the breadth of relevant experience necessary in a hostile environment case in a manufacturing facility that serving as a manager in a 2,000 employee manufacturing facility may have afforded.

In addition, the trial judge should look to whether the witness has researched and/or authored papers, studies, reports, books or articles in the relevant field and, importantly, whether those articles have been exposed to peer or public opportunity to accept, reject, evaluate, or criticize them. The shorthand proof for the latter issue would seem to be: accepted for publication in an information source upon which reasonable persons in the field customarily rely. Although the old debate about whether such publication has been “blind-refereed,” peer reviewed, or published in the top academic journal in the field, has little if any relevance to experiential, as opposed to scientific expertise, it is clear that publication efforts limited to self-printed newsletters, internet materials, or even newspapers, or certain trade journals do not afford the opportunity for critical public evaluation and will ordinarily not confer proof of expertise.

Another basis for analysis that is particularly apt for management practices expertise is: has the so-called expert been consulted, that is, called upon and actually paid for his or expertise, and, if so, by whom, for what, and how often? Specifically, the issue is whether the expert has been relied upon by employers in the normal course of their business for his or her expertise. The trial judge may also want to know whether the witness has been previously qualified to give the same sort of testimony in other matters.

Finally, whether the witness has widely lectured or served as an educator in the field, to whom, and how often is a productive area of inquiry. If the witness is frequently called upon to share his or her knowledge, experience, and analysis with his or her peers, for example, that is ordinarily an excellent indicator that the witness has expertise of value. If the witness conducts comprehensive seminars or workshops, as opposed to a ten-minute participation in a Rotary Club luncheon, this may also suggest a greater breadth of understanding, regard, and competence.

Hired Gun or Straight Shooter?

When polled about the frequency and nature of problems they experienced with expert testimony in civil cases, the most frequent problem cited by judges was “experts who abandon objectivity and become advocates for the side that hired them.”[i] In evaluating a proffered expert, the trial judge may want to consider whether the majority of the witnesses’ work consists of expert testimony, or is more balanced between research, writing, consulting, educating, and litigation. Also, although the facts revealed may raise weight as opposed to admissibility issues, an exploration of the expert’s inherent bias may be helpful. Although this area is routinely superficially explored during the expert’s deposition, the questions posed rarely reveal the true nature of any potential bias. Nor does the Rule 26 disclosure give an accurate view of the expert’s overall case load. Questions directed to cases the expert has taken or rejected, and in the latter case, the reasons for that rejection will achieve a more accurate understanding of the true nature of the expert’s practice. Evaluating the quality of the proffered expert and understanding the possibility for bias prior to trial will, as it should, raise the judicial antennae so that the expert’s testimony does not slip into advocacy.

Familiarity With The Case

For many reasons, including a desire to reduce litigation costs, counsel often fail to designate experts until the last possible moment. In addition, and for many of the same reasons, expert depositions are increasingly not taken at all, with counsel relying on the expert’s report for a preview of what is likely to come at trial. To make the trial judge’s job even more difficult, over-zealous advocates (for both sides) often file motion papers consisting of selected snapshots of the expert’s deposition testimony designed not to educate the court about the expert’s true knowledge of the case, but to support their request for exclusion/admittance.

To address this, trial judges may want to require that the moving papers include a copy of the condensed deposition transcript in its entirety. Alternatively, and certainly less time-consuming, asking counsel to bring the challenged expert to the hearing on the motion will enable the trial judge to directly question the expert about areas of concern. If uncertainty remains about the scope and significance of the expert testimony, the court may consider directing the parties and their experts to prepare a joint statement of disputed matters to distill the areas of disagreement.

Conclusion

With Kumho, the Supreme Court has sent a clear message to its courts that the evaluative process relating to admissibility and expert testimony should be a “flexible one,” focusing on “the particular circumstances of the particular case at issue.” Although the process of evaluation cannot be short-circuited by rigid application of a checklist, the trial judge can nonetheless employ various pre-trial screening tools. In this way, the court ensures that the jury is assisted by relevant, reliable testimony.

[i] Based upon results from two Federal Judicial Center Surveys of federal judges conducted in 1998 and 1991.

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Evaluating Expert Testimony in Federal Employment Litigation