Contreras v. UAL Corporation et al

Filing 79

ORDER RE DAUBERT MOTIONS AND VACATING HEARING by Judge Alsup re 66 Motion ; re 67 Motion (whalc1, COURT STAFF) (Filed on 9/22/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 10-05127 WHA

JULIO E. CONTRERAS,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
UAL CORPORATION; UNITED AIR LINES,
INC.; and DOES 1–10,

ORDER RE DAUBERT MOTIONS
AND VACATING HEARING

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Defendants.
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/

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In this employment action, defendant moves to preclude testimony from two experts.
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For the reasons stated herein, the Daubert motions are GRANTED IN PART AND DENIED IN PART.
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Given the imminent trial date and to give counsel time to adjust to these rulings, the October 2
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hearing is hereby VACATED and this order issues.
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1.

MOTION TO PRECLUDE TESTIMONY FROM DR. LYNN PONTON.

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Dr. Lynn Ponton, a psychiatrist, conducted a psychiatric evaluation of plaintiff Julio
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Contreras in July 2014. Dr. Ponton opined that “Julio Contreras is suffering a serious, chronic,
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Post-traumatic Stress Disorder (PTSD) and Major Depression [Disorder] (MDD) directly related
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to the prolonged harassment at United Airlines” (Ponton Report 12). United Air Lines argues that
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testimony from Dr. Ponton should be precluded under Rule 702, Daubert v. Merrell Dow Pharm.,
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Inc., 509 U.S. 579, 595–96 (1993), Rule 403, and judicial estoppel. United argues that Dr.
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Ponton’s testimony should be excluded because her opinions were primarily based on stale
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causes. That is, plaintiff’s psychiatric problems developed prior to the nervous breakdown he
experienced at work in March 2007 and before the February 2008 cherry-picker incident that

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allegedly resulted in his termination. Plaintiff began employment at United in 1987, but filed the

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relevant Department of Fair Employment and Housing complaint in May 2008. United also

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argues that there is no “harassment claim” in this action so Dr. Ponton’s findings do not “fit” the

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issues raised herein. Judicial estoppel should preclude Dr. Ponton’s testimony, United argues,

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because Mr. Contreras previously represented that he would proffer older incidents only to

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“bolster” existing claims.

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Plaintiff responds that Dr. Ponton’s testimony is at least probative of his psychiatric

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problems related to incidents at United. Dr. Ponton’s testimony is also probative of the claim

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under California Government Code Section 12940(k) that United failed to take “all reasonable

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For the Northern District of California

United States District Court

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steps necessary to prevent discrimination and harassment from occurring,” he argues.
This order requires Dr. Ponton to distinguish between opinions regarding events before

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and after May 2007 and their comparative causes and effects. Dr. Ponton has until

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SEPTEMBER 30, 2014 to serve an amended report. Dr. Ponton must also make herself available

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for a second deposition (not to exceed two hours) on or before OCTOBER 10, 2014. Plaintiff shall

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bear all reasonable expenses and costs attributable to the second deposition. Plaintiff shall also

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bear reasonable attorney’s fees for one United attorney taking the deposition. Accordingly,

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United’s motion regarding Dr. Ponton is GRANTED IN PART AND DENIED IN PART. This is

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without prejudice to other specific, timely-raised objections at trial, including items rendered

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inadmissible on other grounds.
MOTION TO PRECLUDE TESTIMONY FROM SUE ANN VAN DERMYDEN.

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2.

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Sue Ann Van Dermyden is a founding member and vice-president of the Association of

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Workplace Investigators and an attorney. Her report described her view of “standard

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investigative practices” for workplace investigations based on guidance from the Equal

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Employment Opportunity Commission, books and treatises, her experience, and so forth.

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Attorney Van Dermyden did not opine about United’s policies or whether her view of the

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appropriate “standard of care” was met in plaintiff’s case. Her report contained only “generalized

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observations about adequate human resources practices” (Van Dermyden Dep. 13, 16–17, 33–34).

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United thus argues that testimony from Attorney Van Dermyden should be precluded under Rule

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702, Daubert, and Rule 403.

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Plaintiff responds that Attorney Van Dermyden opined on the industry standard for

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investigative practices, not whether United failed to take reasonable steps to prevent the alleged

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discrimination from occurring — a jury question (Opp. 2). Attorney Van Dermyden’s testimony

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would aid the jury because “the average juror is unlikely to be familiar with human resources

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management policies and practices,” he argues. Humphreys v. Regents of Univ. of California, No.

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C 04-03808 SI, 2006 WL 1867713, at *2 (N.D. Cal. July 6, 2006) (Judge Susan Illston).

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This order trims the scope of permissible testimony by Attorney Van Dermyden, who may
only testify about “workplace investigation” customs and practices in California during the

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For the Northern District of California

United States District Court

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relevant time period based on her research and experience, subject to specific, timely-raised

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objections at trial. Attorney Van Dermyden cannot testify about what a reasonable company

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should do or would do or what the “standard of care” was. Accordingly, United’s motion

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regarding Attorney Van Dermyden is GRANTED IN PART AND DENIED IN PART. This is without

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prejudice to other specific, timely-raised objections at trial, including items rendered inadmissible

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on other grounds. The October 2 hearing is hereby VACATED. (United will be held to the same

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limitations for its experts.)

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The undersigned judge looks forward to the final pretrial conference on October 15 and

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the trial scheduled to begin on October 20. Please continue to prepare for trial. Please be aware,

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however, that a criminal trial is currently scheduled around the same time so it is possible that this

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trial may trail behind (or advance ahead). All existing deadlines remain in place.

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IT IS SO ORDERED.

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Dated: September 22, 2014.

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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