Kovaco v. Rockbestos-Surprenant Cable Corp
RULING granting in part and denying in part 93 Renewed Motion in Limine to Preclude Expert Testimony. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 2/20/2014. (Katz, Samantha)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIV. NO. 3:11CV377 (WWE)
RULING ON DEFENDANT‟S RENEWED MOTION IN LIMINE TO
PRECLUDE EXPERT TESTIMONY [Doc. #93]
Plaintiff Joseph Kovaco brings this action against
defendant Rockbestos-Surprenant Cable Corp. alleging, inter
alia, discrimination and retaliation in violation of the
Americans with Disabilities Act (“ADA”) 42 U.S.C. §12101, the
Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. §621634, Title VII of the Civil Rights Act of 1964 (“Title VII”) 42
U.S.C. §200e et seq., the Family Medical Leave Act (“FMLA”) 29
U.S.C. §2601 et seq., Connecticut General Statutes §46a-60(1)(1)
and (a)(4), and Connecticut common law. [Amend. Compl., Doc.
Plaintiff alleges discrimination on the basis of
disability, age, national origin, and use of medical leave.1
Defendant moves to preclude the proffered testimony of
plaintiff‟s expert John McNamara, on the basis that his proposed
expert testimony is not reliable, usurps the function of the
jury, and is prejudicial. [Doc. ## 49, 93].2
On September 25, 2013, Judge Eginton granted defendant‟s motion for summary
judgment on plaintiff‟s FMLA retaliation and intentional infliction of
emotional distress claims. [Doc. #106]. Plaintiff‟s remaining claims, in
pertinent part, include those for accommodation, and retaliation under Title
VII, the ADA, the ADEA, and Connecticut state law. [Id.].
On March 27, 2012, plaintiff on served defendant the expert disclosure and
report of John McNamara. On May 10, 2012, defendant filed a motion in limine
to preclude Mr. McNamara from testifying in accordance with his initial
expert report. [Doc. #49].
The day before the deadline for plaintiff‟s
inter alia, that Mr. McNamara‟s proposed testimony meets the
requirements of Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L. Ed. 2d 469 (1993), and that it would be a “significant
injustice” to preclude Mr. McNamara‟s testimony in light of the
“substantial investment” plaintiff has made in retaining Mr.
McNamara and complying with the Court‟s ruling on the motion to
strike. [Doc. ##47, 114; see footnote 2, supra].
reasons that follow, defendant‟s renewed motion in limine to
preclude expert testimony is GRANTED IN PART AND DENIED IN PART.3
Mr. McNamara is a senior human resources executive who
served as the Director of Human Resources for Philip Morris USA
for nearly eighteen years. [Doc. #47-1, Ex. C].
Philip Morris, Mr. McNamara has served as CEO of McNamara &
Associates, Inc., which provides “full-service Organization and
Management Development consulting (sic)” and offers expertise in
employee relations, sexual harassment, training, and policy and
program design, amongst others. [Id.].
response to the motion in limine, plaintiff served defendant with Mr.
McNamara‟s revised expert report. On October 31, 2012, defendant filed a
motion to strike the revised expert report. [Doc. #49]. The Court denied
defendant‟s motion in limine without prejudice to re-filing upon the Court‟s
determination of the motion to strike. [Doc. #65]. On April 15, 2013, the
Court denied defendant‟s motion to strike on the condition that plaintiff
reimburse defendant for the cost of preparing and filing the motion in
limine. [Doc. #83]. Plaintiff paid defendant such costs, thereby making the
revised expert report operative. [Doc. #93]. Defendant thereafter filed the
renewed motion in limine. [Id.].
The Court has considered the following documents in ruling on the renewed
motion in limine: defendant‟s motion in limine and supporting memorandum
[Doc. #26]; plaintiff‟s objection [Doc. #47]; defendant‟s reply in further
support of the motion in limine [Doc. #51]; plaintiff‟s reply to defendant‟s
motion in limine and motion to strike [Doc. #52]; transcript of hearing on
defendant‟s motion in limine and motion to strike [Doc. ##68; 103];
defendant‟s renewed motion in limine [Doc. #93]; notice of additional
authority in further support of defendant‟s renewed motion in limine [Doc.
#112]; and plaintiff‟s objection to renewed motion in limine [Doc. #114].
Defendant seeks to preclude Mr. McNamara‟s expert testimony
as proffered in his October 12, 2012 revised expert report.
Mr. McNamara‟s revised expert report consists of
ten (10) bullet points setting forth his expert opinions,
“[B]ased on the reasonable person Human Resource standard, the
company failed to take appropriate steps to investigate and
take necessary action to stop these Discriminatory actions.”
“Based on Mr. Borgia‟s and Ms. Beach‟s deposition testimonies,
the company had a „zero tolerance policy‟ against harassment
and discrimination. However, when any discriminatory comments,
drawings and behavior were validated through meetings with
witnesses, there were no actions taken against the
perpetrators as per a „zero tolerance policy.‟”
“[T]here appears there are no formal policies against
discrimination and intimidation.”
“Based on my review of the above captioned case file, there is
no evidence that the company took any action to stop the
discriminatory and intimidating acts of coworkers and
management against Mr. Kovaco.”
“Based on Dorothy Beach‟s deposition testimony, Human
Resources was consulted on discipline issues, prior to the
discipline being applied by management. However, in the case
of Mr. Kovaco‟s suspension, Ms. Beach states that Human
Resources was not consulted prior to his suspension. This is
one of many examples of the company‟s policies and procedures
being applied inconsistently.”
“Frequently, in the field of Human Resources, employees with
disabilities will request a reasonable accommodation. It is
standard practice that when such a request is within reason
and makes good business sense the request is granted. This was
not the case with Mr. Kovaco‟s request.”
Mr. McNamara came to such opinions “[a]fter careful review of
the  case file”, although he fails to list what exactly
comprises the case file. [Id.].
Mr. McNamara concludes his
revised expert report with a summary of his opinions and
observations, including that “it is [his] Expert Opinion that
the company did not insure a workplace free of discrimination
and intimidation.” [Doc. #47-1].
In determining whether to admit expert testimony, the
Court‟s discretion is principally governed by Federal Rule of
Evidence 702, which 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 of methods; and (d) the expert has
reliably applied the principles and methods to the facts of
Fed. R. Evid. 702; see also Nimely v. City of N.Y., 414 F.3d
381, 395 (2d Cir. 2005).
“The Supreme Court in Daubert, 509
U.S. at 597, 113 S. Ct. 2786, made clear that Rule 702 charges
district courts with „the task of ensuring that an expert‟s
testimony both rests on a reliable foundation and is relevant to
the task at hand.‟”
Rieger v. Orlor, Inc., 427 F. Supp. 2d 99,
102 (D. Conn. 2006) (citing See also Nimely, 414 F.3d at 396).
The Second Circuit has articulated four inquiries that a
district court must undertake when determining whether expert
testimony is admissible under Rule 702:
(1) whether the “witness is „qualified as an expert‟ to
testify as to a particular matter,” (2) whether “the
opinion is based upon reliable data and methodology,” (3)
whether the expert's testimony on the particular matter is
relevant because it will assist the trier of fact; and (4)
pursuant to Rule 403 whether the testimony's “probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
Glowczenski v. Taser Int'l, Inc., CV04-4052 WDW, 2012 WL 976050,
at *4 (E.D.N.Y. Mar. 22, 2012)(citing Nimely, 414 F.3d at 397;
see also Deutsch v. Novartis Pharm. Corp., 768 F. Supp. 2d 420
(E.D.N.Y. 2011)). “[T]he district court should not admit
testimony that is directed solely to lay matters which a jury is
capable of understanding and deciding without an expert‟s help.”
Rieger, 427 F. Supp. 2d at 103 (quoting United States v. Mulder,
273 F.3d 91, 101 (2d Cir. 2001)).
Indeed, “although an expert
may opine on an issue of fact within the jury‟s province, he may
not give testimony stating the ultimate legal conclusions based
on those facts.” Rieger, 427 F. Supp. 2d at 103 (quoting United
States v. Bilzeran, 926 F.2d 1285, 1294 (2d Cir. 1991)).
Defendant objects to Mr. McNamara‟s proffered expert
testimony on reliability and relevancy grounds.
argues that Mr. McNamara‟s proffered testimony is not reliable
because it is not based on any tested human resources theory or
Defendant also contends that Mr. McNamara‟s proposed
testimony is not helpful because he assumes the truth of
plaintiff‟s allegations, oversteps the bounds of expert
testimony by basing his opinions solely on plaintiff‟s
allegations, and offers legal conclusions, usurping the role of
Finally, defendant contends that Mr. McNamara‟s
proffered testimony is unduly prejudicial under Federal Rule of
Plaintiff responds that he seeks to utilize Mr.
McNamara to provide expert testimony as to accepted practices,
policies and procedures in the field of human resources, and
that plaintiff does not intend to offer expert testimony about
the ultimate issues in this case. [Doc. #47, at 2].
1. McNamara’s Qualifications
Although defendant questions whether Mr. McNamara is
qualified to testify as an expert witness, defendant does not
explicitly challenge Mr. McNamara‟s qualifications. Mr. McNamara
holds a Bachelors of Science in Psychology from Iona College.
He has an Advanced Certificate in Employee Relations Law from
the Institute for Applied Management & Law, Inc.
noted, he worked as the Director of Human Resources for Phillip
Morris USA for nearly eighteen years before becoming president
of his own consulting company in 1996.
Prior to becoming the
Director of Human Resources for Phillip Morris, Mr. McNamara
served as a Region Employee Relations Manager for four years,
where he was responsible for all human resource activities for a
sales force operating in ten states.
He also conducted
investigations into allegations of employee misconduct. Mr.
McNamara lists a significant number of his “accomplishments”
while working as Phillip Morris‟ Director of Human Resources,
including directing the development of human resource programs
and services, directing the handling of employee complaints and
EEO cases and charges, initiating and supervising revisions to
policy and procedure manuals and employee handbooks, and
interacting with senior legal counsel on issues such as policy
interpretation, organization practices, and legal settlements.
Mr. McNamara further represents that his experience includes
“expertise in policy interpretation, organizational practices
and legal settlements.” Mr. McNamara‟s company provides
organization and management development consulting, including
providing “expertise” in employee relations, management
development, and policy and program design. Mr. McNamara is a
member of various professional organizations, including the
Society for Human Resources Management.
He also represents that
he has experience testifying in wrongful termination suits.
Court finds that Mr. McNamara is qualified by experience to
offer opinions regarding prevailing standards and practices in
the human resources field.
2. Relevance and Reliability
As an initial matter, the Court finds that Mr. McNamara
should be limited to serving as a rebuttal witness. Plaintiff
repeatedly asserts that he “intends to offer McNamara‟s
testimony to counter that of Defendant‟s human resources
employees,” who Plaintiff speculates “will function as quasiexperts and testify that they satisfactorily accommodated
Plaintiff, followed a zero tolerance policy, and followed their
progressive discipline policy.”
(emphasis added) [Doc. #114, at
For example, “[p]laintiff anticipates that supervisors
for Defendant Company (sic) will testify on a number of subjects
within the field of human resources[…]” and therefore “plaintiff
requires an expert in order to provide opinion and testimony
from a qualified source as to the applicable policy practice or
procedure within the field of human resources under the
circumstances.” (emphasis added) [Doc. #47, at 5].
“[p]laintiff intends to have Mr. McNamara counter [defense]
witnesses and explain concepts like „reasonable accommodation,‟
„progressive discipline,‟ and „zero tolerance policy‟ and
testify whether, in his experience, the Defendant‟s action
comported with his understanding of those concepts.” (emphasis
added) [Doc. #114, at 2].
Plaintiff speculates as to the
testimony of defendant‟s witnesses, and admittedly seeks to
offer Mr. McNamara‟s testimony to “counter” these witnesses‟
Accordingly, whether any or all of Mr.
McNamara‟s opinions are relevant will depend on the testimony
presented during defendant‟s case-in-chief. Under these
circumstances, the Court finds that Mr. McNamara should be
limited to a rebuttal witness.
Nevertheless, the Court has carefully reviewed Mr.
McNamara‟s October 10, 2012 revised expert report in
anticipation that he may be called to testify on rebuttal.
During oral argument on the initial motion in limine, the Court
thoroughly vetted the revised expert report and requested
plaintiff‟s counsel to identify the portions of the revised
report that constituted impermissible legal conclusions.
#103, Feb. 7, 2013 Hrg. Tr., 29:18-33:21].
Defense counsel also
had an opportunity to identify the portions of the revised
expert report believed to be impermissible legal conclusion.
[Id. at 38:11-44:5].
After considering the arguments of the
parties, and their written submissions, the Court finds that the
majority of Mr. McNamara‟s revised expert report constitutes
impermissible legal conclusions and/or invades the province of
the jury, and therefore should be precluded to the extent these
conclusions constitute the substance of Mr. McNamara‟s proposed
The Court will not delineate line by line the
portions of Mr. McNamara‟s report that constitute improper legal
However, examples of his opinions that are
impermissible legal conclusions and/or invade the province of
the jury include:
“Based on the deposition testimonies of Phillip Borgia and
Dorothy Beach, the company failed to follow their employee
complaint investigation procedures, when Mr. Kovaco
complained numerous times about coworkers calling him
discriminatory names, drawing and posting discriminatory
pictures and making discriminatory comments. His
complaints were never investigated, as per company policy,
to determine the validity or severity. In fact, based on
the reasonable person Human Resource standard, the company
failed to take appropriate steps to investigate and take
necessary action to stop these Discriminatory (sic)
actions.” [Doc. #47-1, at 6].
“[W]hen any discriminatory comments, drawings and behavior
were validated through meetings and witnesses, there were
no actions taken against the perpetrators as per a „zero
tolerance policy‟.” [Id. at 7].
“Although Mr. Borgia and Ms. Beach state, in their
deposition testimonies, that the company has a „zero
tolerance‟ policy against discrimination, during my review
of the above captioned case file, there appears there are
no formal policies against discrimination and
“Based on the deposition testimonies of Mr. Borgia and Mr.
Kovaco, several members of management, during a meeting
with Mr. Kovaco on March 29, 2010 attempted to convince him
to resign his position. This attempt is in direct conflict
with the standards of a well managed Human Resources (sic)
function. Management should never need to resort to
attempting to convince an employee to resign v. (sic) being
terminated. If the employee warrants a termination, they
should be terminated, not convinced to resign.” [Id.].
“Based on my review of the above captioned case file, there
is no evidence that the company took any action to stop the
discriminatory and intimidating acts of coworkers and
management against Mr. Kovaco. There is no supporting
documentation of any action. There was no formal
discipline of any of the management or employees involved
in the discriminatory and intimidating behavior[…] When in
my professional opinion, no reasonable person should be
subjected to this type of ongoing egregious behavior based
on their age and ethnicity.” [Id.].
“Based on Dorothy Beach‟s deposition testimony, Human
Resources was consulted on discipline issues, prior to the
discipline being applied by management. However, in the
case of Mr. Kovaco‟s suspension, Ms. Beach states that
Human Resources was not consulted prior to the suspension.
This is one of many examples of the company‟s policies and
procedures being applied inconsistently.” [Id. at 8].
Based on Dorothy Beach‟s deposition testimony, she was
informed by Mr. Kovaco, that he witnessed Tom Polson
putting company steel in his personal car. Mr. Kovaco
requested that Ms. Beach immediately investigate the theft
and she refused. Further, there was never a formal
investigation of this complaint. Nor was there any
disciplinary action taken against Mr. Polson. This
incident further substantiates that the company has
different standards for different people.” [Id.].
“Based on the aforementioned observations, it is my Expert
Opinion (sic) that the company did not insure (sic) a
workplace free of discrimination and intimidation. In fact,
it is clear, based on the deposition testimonies provided,
that Mr. Kovaco was ridiculed, humiliated and intimidated,
based on national origin and disability. The company did
nothing to stop or prevent this egregious behavior. The
environment at Rockbestos-Surprenant Cable Corp. made it
difficult and at times impossible for Mr. Kovaco to perform
his job.” [Id.].
The above are just some examples of Mr. McNamara‟s opinions that
include legal conclusions based on his understanding of certain
facts, which impermissibly invade the jury‟s province to apply
the applicable law to the facts they find and reach ultimate
Bilzerian, 926 F. 2d at 1294. The Court will
preclude Mr. McNamara‟s testimony to the extent that it
substitutes his judgment for that of the jury.
On the other hand, there are certain opinions that may be
admissible on rebuttal so long as Mr. McNamara avoids usurping
the Court‟s role in instructing the jury.
Again, by way of
example, Mr. McNamara‟s experience in human resources qualifies
him to explain, inter alia, what “progressive discipline” is,
what a “zero tolerance policy” is, and how employers typically
engage in the process of accommodating disabled employees. “This
testimony could assist the trier of fact insofar as it would
help to make sense of certain concepts that would likely be
foreign to a jury.”
Hollen v. Chu, No. CV-11-5045-EFS, 2013 WL
5306594, at *5 (E.D. Wash. Sept. 19, 2013).
However, before any
such testimony will be permitted, plaintiff must provide
defendant by March 21, 2014, a final report that omits all
No new opinions may be included in the final
report that were not previously disclosed in Mr. McNamara‟s
Defendant also argues that Mr. McNamara‟s proposed
testimony is not reliable because his report does not reference
any “„tested‟ human resources „theory or technique,‟” nor does
it reference one that has been peer reviewed or measured by
scientific standards. [Doc. #26-1, at 8].
that Mr. McNamara‟s proposed testimony, i.e. describing
generally accepted human resources policies and practices, is
reliable and stresses that the Daubert test of reliability is
“flexible.” [Doc. #47, at 6].
The Court agrees that in his
revised expert report, Mr. McNamara does not adequately explain
or elaborate the standard human resources concepts he seeks to
Indeed, where his expert opinions primarily rely on
his experience, he should “explain „how that experience leads to
the conclusions reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably
applied to the facts.‟”
Arjangrad v. JP Morgan Chase Bank,
N.A., No. 3:10cv1157, 2012 WL 1890372, at *5 (D. Oregon May 23,
2012) (quoting Fed. R. Evid. 702, Advisory Comm. Notes, 2000
His report as it currently stands does not do so.
However, in light of the Court‟s order that Mr. McNamara submit
a final report omitting all impermissible opinions, he should
also further explain how his experience leads to his
conclusions, why his experience is a sufficient basis for his
opinions, and how that experience is reliably applied to the
facts of this case.
Furthermore, to the Court‟s knowledge,
defendant has yet to depose Mr. McNamara.
deposition will provide additional opportunity for defendant to
further probe the reliability of Mr. McNamara‟s opinions.
after a review of Mr. McNamara‟s final report and deposition
testimony, defendant is still not satisfied that Mr. McNamara‟s
opinions meet the test of reliability, defendant may seek to
preclude Mr. McNamara‟s testimony.
Finally, defendant argues that Mr. McNamara‟s proposed
testimony should be precluded under Rule of Evidence 403 because
its probative value is substantially outweighed by the
possibility of either misleading the jury, causing unfair
prejudice, or both. [Doc. #26-1, at 12].
prejudice or misleading of the jury caused by Mr. McNamara‟s
testimony has been addressed by the preclusion of his
impermissible opinions, and also by limiting Mr. McNamara to
serving as a rebuttal witness.
Moreover, any other concerns
regarding the credence a jury may give to Mr. McNamara‟s
testimony may be addressed by an appropriate limiting
instruction at the time of trial.
Therefore, the Court will not
preclude Mr. McNamara‟s proffered testimony, as limited by the
Court, on Rule 403 grounds.
Therefore, defendant‟s renewed motion in limine [Doc. #93]
is GRANTED in part and DENIED in part, as set forth above.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a); and D. Conn. L. Civ. R. 72.2.
As such, it is an order of the Court unless reversed or modified
by the district judge upon motion timely made.
ENTERED at Bridgeport, this 20th day of February 2014.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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?