Blakeslee v. Shaw Infrastructures, Inc.
Filing
137
ORDER denying 114 Motion in Limine. Signed by Judge John W. Sedwick on 12/1/11. (GMM, CHAMBERS STAFF)
1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF ALASKA
6
7
PAUL BLAKESLEE,
Plaintiff,
8
9
10
vs.
SHAW INFRASTRUCTURE, INC.,
Defendant.
11
)
)
)
)
)
)
)
)
)
)
3:09-cv-00214 JWS
ORDER AND OPINION
[Re: Motion at Docket 114]
12
I. MOTION PRESENTED
13
14
At docket 114, defendant Shaw Infrastructure, Inc. (“Shaw”) moves in limine to
15
exclude the testimony of plaintiff’s expert, Brian H. Kleiner (“Kleiner”). Plaintiff Paul
16
Blakeslee (“Blakeslee”) opposes the motion at docket 127. Shaw’s reply is at
17
docket 130. Oral argument was not requested and would not assist the court.
18
Detailed background is provided in the order at docket 129.
19
20
II. DISCUSSION
Under Federal Rule of Evidence 702, qualified experts may offer their opinion
21
provided that “(a) the expert’s scientific, technical, or other specialized knowledge will
22
help the trier of fact to understand the evidence or to determine a fact in issue; (b) the
23
testimony is based on sufficient facts or data; (c) the testimony is the product of reliable
24
principles and methods and (d) the expert has reliably applied the principles and
25
methods to the facts of the case.”1 The first requirement bears on the relevance of the
26
27
28
1
Fed. R. Evid. 702.
-1-
1
expert’s opinion and the remaining requirements go to its reliability.2 In Daubert, the
2
Supreme Court enumerated an unexhaustive list of factors for determining whether an
3
expert’s testimony is scientific. First, a court should consider whether the expert’s
4
methodology has been tested.3 Second, a court should consider whether it has been
5
“subjected to peer review and publication.”4 Third, a court should consider the theory’s
6
“known or potential rate of error.”5 Finally, a court should consider whether the expert’s
7
theory has achieved “general acceptance” in the relevant scientific community.6 In
8
Kumho Tire v. Carmichael,7 the Supreme Court held that Daubert’s general principles
9
apply to [all] expert matters described in Rule 702.” However, the Daubert factors “do
10
not all necessarily apply . . . in every instance in which the reliability of [expert]
11
testimony is challenged.”8
12
As a threshold matter, Kleiner’s qualifications in the human resources field are
13
extensive and not seriously challenged.9
14
A. Reliability
15
Shaw Argues first that Kleiner’s opinions are not reliable. Specifically, Shaw
16
argues that Kleiner’s “opinions are not based on exact scientific studies or precise
17
standards.”10 Kleiner’s field of expertise–human resources–is not scientific by nature. It
18
19
20
2
See Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 589–591 (1993).
3
Id. at 593.
21
4
22
Id.
5
23
Id. at 594.
6
24
25
Id.
7
526 U.S. 137, 149 (1999).
26
8
27
9
28
10
Id. at 151.
See doc. 114-3.
Doc. 114 at 8.
-2-
1
is instead within the “other specialized knowledge” category encompassed by Rule 702.
2
Therefore, Shaw’s argument that Kleiner’s field is not scientific has no bearing on the
3
admissibility of Kleiner’s opinion.
4
Shaw argues that the standards upon which Kleiner relies–in particular, a human
5
resources textbook outlining the “golden rules” of company downsizing11–are also
6
unreliable. Specifically, Shaw maintains that the standards discussed in that text are
7
not legal standards, only intended as guidance, and that failure to follow those
8
standards does not constitute discrimination or retaliation. Shaw confuses the purpose
9
of Kleiner’s opinion. As discussed below, Kleiner’s opinion is offered primarily to
10
support the proposition that Shaw’s justification for Blakeslee’s termination was
11
pretextual. The idea is that a failure to follow the guidance set out in the textbook–that
12
is, deviation from standard human resources practice–supports an inference that
13
Shaw’s reduction-in-force was pretextual. Consequently, it is immaterial that the
14
standards Kleiner relies on are not legally binding.12
15
Shaw argues that Kleiner’s methodology–whether it is labeled “content
16
analysis”13 is immaterial–is lacking because “it is no different than what happens in
17
closing arguments and again in the jury room.”14 Shaw argues that Kleiner is simply
18
applying the facts of Blakeslee’s termination against the standards in a human
19
resources textbook. Although that is accurate, Kleiner’s expertise is necessary to
20
establish that the standards in the textbook are representative of human resources
21
practice and that a failure to follow all or some of them can suggest that a termination
22
23
24
11
25
12
26
See doc. 114-6.
Shaw also argues that an EEOC guideline for dealing with employee harassment
complaints is unreliable because it is not a legal mandate.
27
13
28
14
See doc. 127 at 11; doc. 130 at 6–7.
Doc. 130 at 7.
-3-
1
was improperly motivated. The simplicity of a methodology does not render it
2
unreliable.
3
Kleiner’s lack of “practical” or “hands-on” experience in terminating employees
4
does not render his opinions unreliable. An expert may be qualified by “knowledge,
5
skill, experience, training, or education,”15 and Shaw concedes that Kleiner has taught
6
and published in the human resources field for many years.16 Kleiner’s qualification
7
stems from his knowledge, training, and education, and those are sufficient under
8
Rule 702.
9
Shaw argues that Kleiner has adjusted his opinion “on-the-fly” and that indicates
10
that his testimony is unreliable.17 Shaw cites an exchange at Kleiner’s deposition in
11
which Kleiner stated his experience “while organizations give lip service to wanting to be
12
told of possible fraudulent activity occurring in their organizations,” most organizations
13
do not want that information reported “because it creates embarrassment” and can
14
harm relations with the government.18 When confronted with evidence that Shaw had a
15
reporting hotline, Kleiner stated that he was “not saying this of Shaw.”19 Any opinion
16
that Kleiner expresses that has no bearing on Shaw is irrelevant and may be kept from
17
the jury via objection at trial. Wholesale exclusion of Kleiner’s testimony is
18
unnecessary.
19
20
21
22
23
15
24
25
Fed. R. Evid. 702.
16
Doc. 114 at 10.
26
17
27
18
28
19
Id.
Doc. 114-2 at 32.
Id.
-4-
1
2
B. Relevance
Shaw argues that Kleiner’s opinions are irrelevant. “Expert testimony which does
3
not relate to any issue in the case is not relevant.”20 Shaw maintains that whether it
4
followed standards outlined in a human resources text has no bearing on whether
5
Blakeslee’s termination was discriminatory or retaliatory. Blakeslee maintains that
6
Kleiner’s testimony is relevant to his claims because it supports an inference of pretext.
7
The court agrees. In Kleiner’s experience, the textbook’s guidelines constitute common
8
practice of companies performing layoffs. A failure to follow those guidelines could
9
support an inference that Shaw’s purported justifications are pretextual.
10
Shaw’s argument that Kleiner’s opinion regarding its investigation of Blakeslee’s
11
termination is similarly unpersuasive. Even though the EEOC guideline relied on by
12
Kleiner is not mandatory, Kleiner maintains that the guideline describes common
13
practice in the field of human resources, and Shaw’s decision not to follow it supports
14
an inference that the reduction-in-force was pretextual.
15
C. Assistance to the Jury
16
Another aspect of an expert opinion’s relevance is whether it will “help the trier of
17
fact to understand the evidence or to determine a fact in issue.”21 Shaw argues that
18
Kleiner’s opinion would not assist the jury because the case does not involve technical
19
or complex facts. However, as Blakeslee correctly points out, jurors are unlikely to be
20
familiar with human resources protocol. Moreover, there is terminology unique to the
21
field that a typical juror is unlikely to be familiar with. The court concludes that Kleiner’s
22
testimony would help the jury understand the evidence.22
23
24
25
26
20
Daubert, 509 U.S. at 591.
21
Fed. R. Evid. 702(a); see Daubert, 509 U.S. at 591.
27
22
28
For instance, as Blakeslee points out, Shaw’s own “Reduction in Force” policy uses
terms that will likely need to be explained to the jury.
-5-
1
2
D. Ultimate Issue
Shaw argues that Kleiner’s testimony should be excluded because it
3
impermissibly tells the jury how it should decide certain issues. Shaw is correct that
4
“[e]xpert testimony is not proper for issues of law.”23 However, Rule 704 provides
5
explicitly that “[a]n opinion is not objectionable just because it embraces an ultimate
6
issue.”24 Therefore, while Kleiner may not opine that “Blakeslee’s discharge was
7
discriminatory and retaliatory,” his statement, for instance, that “I don’t find [Shaw’s]
8
alleged business reason or reasons . . . to be adequately supported”25 is permissible
9
opinion. Although Kleiner will be not be permitted to offer the jury legal conclusions,
10
wholesale exclusion of his testimony is not proper on this basis.
11
E. Prejudice
12
Finally, Shaw argues that Kleiner’s opinions are unduly prejudicial. Shaw’s
13
characterization of Kleiner’s testimony is, however, inaccurate–Kleiner is not presenting
14
the so-called “golden rules” as legal standards, but rather as evidence of typical human
15
resources practice. He is opining that deviation from that practice supports an inference
16
that a company’s legitimate justifications for an employee’s termination are pretextual.
17
Moreover Kleiner’s opinions that do not reflect on Shaw are irrelevant and will not be
18
presented to the jury. Therefore, Shaw’s concern over presentation of “corporate
19
character” evidence is unfounded. The probative value of Kleiner’s testimony is not
20
outweighed by the danger of unfair prejudice.
21
22
23
24
25
26
23
27
24
28
25
Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1045 (9th Cir. 1996).
Fed. R. Evid. 704(a).
Doc. 130-1 at 26.
-6-
1
V. CONCLUSION
2
For the reasons above, Shaw’s motion in limine at docket 114 is DENIED.
3
DATED this 1st day of December 2011.
4
/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?