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)

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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-

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