Vaughn v. Safeway, Inc.
ORDER That the Defendants Motion To Exclude Testimony of Rita Laitres 93 filed March 31, 2015, is denied; and That the Plaintiffs Motion In Limine To Exclude Non-Disclosed Expert Testimony or Other Opinion Testimony 114 filed May 15, 2015, is denied, by Judge Robert E. Blackburn on 11/20/2015.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-01066-REB-NYW
ORDER CONCERNING MOTIONS TO EXCLUDE OPINION TESTIMONY
The matters before me are (1) Defendant’s Motion To Exclude Testimony of
Rita Laitres [#93]1 filed March 31, 2015; and (2) Plaintiff’s Motion In Limine To
Exclude Non-Disclosed Expert Testimony or Other Opinion Testimony [#114] filed
May 15, 2015. Responses [#99 & #121] to each motion were filed. A reply[#122] in
support of [#114] also was filed. I deny both motions.2
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
§ 1332 (supplemental).
“[#93]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
The issues raised by and inherent to both motions are briefed adequately, obviating the
necessity for a Daubert hearing. Thus, the motions are submitted on the papers.
II. STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of
expert witness testimony, provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of
an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
FED. R. EVID. 702. The Supreme Court of the United States has described the role of a
court in weighing expert opinions against these standards as that of a “gatekeeper.”
See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137,147(1999).
As interpreted by the Supreme Court, Rule 702 requires that the testimony of an
expert be both reliable, in that the witness is qualified to testify regarding the subject,
and relevant, in that it will assist the trier in determining a fact in issue. Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92 (1993); Truck Insurance
Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The Tenth Circuit
employs a two-step analysis when considering the admissibility of expert testimony
under Rule 702. See 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th
The trial court has broad discretion in determining whether expert testimony is
sufficiently relevant to be admissible. See Truck Insurance Exchange, 360 F.3d at
1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000). The
overarching purpose of the inquiry of the court is “to make certain that the expert . . .
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Goebel v. Denver and Rio Grand Western
Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire, 526 U.S. at
152). However, Rule 702 is properly construed as a rule of inclusion rather than one of
exclusion, and “the rejection of expert testimony is the exception rather than the rule.”
FED. R. EVID. 702, Advisory Committee Note. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 595.
The plaintiff, James Vaughn, is an employee of the defendant, Safeway, Inc. In
his complaint, Mr. Vaughn alleges that Safeway unlawfully discriminated against him
based on his disability, in violation of the Americans with Disabilities Act of 1990 (ADA),
42 U.S.C. §§ 12102 - 12213, and related Colorado state law. The unlawful
discrimination occurred, Mr. Vaughn alleges, when Safeway placed him on unpaid
medical leave for about 18 months.
A. Rita Laitres
Safeway challenges the admissibility of the testimony of Rita Laitres, an expert
designated by Mr. Vaughn. Ms. Laitres has been designated as an expert in the field of
human resources. Her opinions concern management of employees with disabilities
and whether Safeway complied with certain specific requirements of the ADA when
managing Mr. Vaughn. According to Safeway, the testimony of Ms. Laitres is not
admissible under Rule 702 because: (1) she is not qualified; (2) her testimony concerns
ultimate issues to be decided by the jury; (3) her testimony is not necessary for the jury
to understand the ADA; and (4) her opinions are not reliable because they are not
based on adequate facts and data.
1. Qualifications - Under Rule 702, an expert may be qualified by “knowledge,
skill, experience, training, or education.” Safeway contends Ms. Laitres in not qualified
because she never has authored any publication in the filed of human resources or the
ADA and because she never has been qualified by any court as an expert witness.
Further, Safeway contends, Ms. Laitres has no training in workplace safety or vocational
rehabilitation. The resume of Ms. Laitres shows substantial training and experience in
the field of human resources. [#93-1], CM/ECF pp. 17 - 21. In the context of this
knowledge and experience, the contentions of Safeway do not show that Ms. Laitres is
There is no legal requirement that an expert be an author of a publication in the
relevant field of expertise. Rather, published works are just one of many factors which
may be considered when assessing qualifications. There is no legal requirement that
an expert have previous experience testifying as an expert witness. Of course, such a
requirement would eliminate the possibility that a person otherwise qualified as an
expert ever could testify as an expert for the first time. Prior expert testimony is just one
of many factors which may be considered when assessing qualifications. To the extent
workplace safety and vocational rehabilitation might be relevant to the opinions of Ms.
Laitres, any lack of training and experience in these fields does not undermine fatally
her qualifications. If these topic are relevant to her opinions, then the lack of such
training and experience goes to the weight to be accorded to her opinions and not to
2. Ultimate Issues - Safeway objects to the opinions of Ms. Laitres that Safeway
did not comply with the ADA requirement to accommodate Mr. Vaughn, failed to engage
in a meaningful interactive process as required by the ADA, and engaged in
discriminatory practices with reckless indifference to the federally protected rights of Mr.
Vaughn. Safeway contends it does not help the jury for an expert to state a legal
standard and then draw a conclusion by applying the law to the facts. Safeway
contends these opinions are improper legal conclusions which directly track the relevant
statutory and regulatory language.
Under Rule 704(a), opinion testimony “is not objectionable just because it
embraces an ultimate issue.” Often, it is proper for an expert witness to refer “to the law
in expressing [their] opinion.” U.S. v. Schneider, 704 F.3d 1287, 1294 (10th Cir. 2013)
(internal quotation and citation omitted). Concern arises when an expert uses a
specialized legal term and usurps the function of the jury to determine the facts. Id.
However, if the jury remains free to exercise independent judgment in determining the
facts and applying the law as stated by the court, the function of the jury is not usurped
by the expert. See U.S. v. Bedford, 536 F.3d 1148, 1158 (10th Cir. 2008). An expert
witness may not simply tell the jury what result it should reach based on the say-so of
the expert. U.S. v. Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005). However, an expert
may express an opinion about the relationship between specific facts in the context of
specific rules if the expert also provides to the jury an explanation of the bases of the
opinion. See Id.; Schneider, 704 F.3d 1287, 1293 - 1294 (10th Cir. 2013).
In her report, Ms. Laitres provides a detailed factual context and explains how
those facts form the bases of her opinions concerning the ADA issues presented in this
case. If her trial testimony hews to her report, as it should, there is no indication that
she improperly will express an opinion on an ultimate issue or express an improper legal
3. Need for Testimony - Safeway contends no specialized knowledge or
experience is needed to determine whether the actions of Safeway violated the
requirements of the ADA. Generally, the requirements of the ADA which are at issue in
this case are not within the realm of common knowledge and experience. Given that
fact, I conclude that expert opinion testimony likely will assist the jury in understanding
the facts and issues in this case.
4. Reliability - Rule 702(c) requires that expert testimony be “the product of
reliable principles and methods.” Safeway contends the opinions of Mr. Laitres are not
reliable because she reviewed the pleadings and several other documents, but did not
gather additional information to inform her opinions. This contention implicates also the
requirement of Rule 702(b) that expert opinion testimony be “based on sufficient facts
and data.” Safeway notes Ms. Laitres did not interview any witnesses, did not review
payroll records, did not review documents showing a comparison of the results achieved
in the store managed by Mr. Vaughn against the salary targets for his store, and did not
review the testimony of the supervisor of Mr. Vaughn. These documents, Safeway
contends, show that the accommodation sought by Mr. Vaughn was unreasonable.
In her report, Ms. Laitres describes sufficient factual bases for her opinions. The
factual bases described satisfy the sufficient facts and data requirement of Rule 702(b).
Nothing else raised by Safeway tends to show that the opinions of Ms. Laitres are
unreliable in violation of the reliability requirement of Rule 702(c). If Ms. Laitres failed to
review relevant information, that flaw is a topic ripe for cross examination. However, in
the context of her report, any such flaw does not render her opinions inadmissible.
Rather, a failure to review additional relevant facts goes to the weight to be accorded
her opinions and not to their admissibility.
2. Kenny Smith
Safeway contends the accommodation sought by Mr. Vaughn would have
imposed an undue burden on Safeway because it would have imposed significant and
unreasonable expense on Safeway. Kenny Smith, a Safeway employee, was the
supervisor of Mr. Vaughn during a relevant period. The costs in question include the
cost of permitting Mr. Vaughn to charge off a portion of his salary, as calculated in the
budget of his store, and to delegate certain tasks that are part of the job of store
manager to other store employees. In deposition testimony, Mr. Smith discussed the
calculation of such costs. Mr. Smith has not been designated as an expert. Mr. Vaughn
contends Safeway is likely to attempt to use Mr. Smith to testify about these
calculations. Such calculations, Mr. Vaughn contends, constitute expert opinion
testimony under Rule 702.
The parameters of the testimony that will be presented by Mr. Smith are not
clearly stated in the record. Safeway says Mr. Smith will testify about facts known to
him as supervisor of Mr. Vaughn and the economic costs of the accommodations he
and Safeway provided to Mr. Vaughn for more than a year before placing Mr. Vaughn
on unpaid medical leave. Those costs will be calculated, Safeway contends, using
simple calculations based on the personal knowledge of Mr. Smith concerning Safeway,
its records, and its operations.
If the testimony of Mr. Smith is confined to facts known to him and relevant
elementary mathematical calculations, his testimony is unlikely to fall within the ambit of
Rule 702. James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th
Cir. 2011) (elementary mathematical calculations properly viewed as lay opinion under
Rule 701 rather than expert opinion under Rule 702). The fact that Mr. Smith described
himself as an expert in labor and retail in his deposition does not mandate that his trial
testimony be considered to be expert testimony. Rather, the nature of his actual
testimony controls. The nature of his testimony will not become clear until he actually
Mr. Vaughn contends also that the testimony of Mr. Smith on this topic must be
excluded under Rule 403. Rule 403 permits the exclusion of relevant evidence when
the relevance of the evidence is substantially outweighed by one or more of the six
dangers specified in Rule 403. This contention of Mr. Vaughn is based on his assertion
that the testimony of Mr. Smith is expert opinion testimony which cannot properly be
admitted in evidence. As discussed above, the current record does not show that Mr.
Smith will present expert opinion testimony. On the current record, there is no basis to
exclude the testimony of Mr. Smith under Rule 403.
IV. CONCLUSION & ORDERS
On the current record, the defendant has not shown that the proposed expert
opinion testimony of Rita Laitres is inadmissible under FED. R. EVID. 702. On the
current record, the plaintiff has not shown that the testimony of Kenny Smith will include
expert opinion testimony as opposed to fact testimony and, possibly, lay opinion
testimony under FED. R. EVID. 701. Further, the plaintiff has not shown that the
testimony of Mr. Smith must be excluded from evidence under FED. R. EVID. 403.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendant’s Motion To Exclude Testimony of Rita Laitres [#93]
filed March 31, 2015, is denied; and
2. That the Plaintiff’s Motion In Limine To Exclude Non-Disclosed Expert
Testimony or Other Opinion Testimony [#114] filed May 15, 2015, is denied.
Dated November 20, 2015, at Denver, Colorado.
BY THE COURT:
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