Connecticut Fair Housing Ctr et al v. CoreLogic Rental Property Solutions, LLC
Filing
209
OMNIBUS DECISION AND ORDER granting in part and denying in part 157 Motion in Limine; denying 173 Motion in Limine; denying 174 Motion in Limine; denying 175 Motion in Limine; granting 176 Motion in Limine; denying 177 Motion in Limine; granting 179 Motion in Limine; denying 180 Motion in Limine; denying 181 Motion in Limine. Signed by Judge Vanessa L. Bryant on 3/30/2021. (Burlingham, Corinne)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Connecticut Fair Housing Ctr, et al. :
:
Plaintiffs,
: No. 18-cv-705
:
v.
:
: March 30, 2021
CoreLogic
Rental
Property :
:
Solutions, LLC],
:
Defendant.
:
MEMORANDUM OF DECISION ON MOTIONS IN LIMINE
Plaintiffs Connecticut Fair Housing Center (“CFHC”) and Carmen Arroyo (“Ms.
Arroyo”), individually and as next friend for Mikhail Arroyo (“Mr. Arroyo”) (collectively,
“Plaintiffs”) bring the instant litigation against Defendant CoreLogic Rental Property
Solutions, LLC (“Defendant” or “RPS”) alleging that RPS violated the Fair Housing Act,
42 U.S.C. §§ 3601 et seq. (“FHA”), the Connecticut Unfair Trade Practice Act, Conn.
Gen. Stat. §§ 42-110a et seq. (“CUTPA”) and the Fair Credit Reporting Act, 15 U.S.C. §§
1681 et seq. (“FCRA”).
In April of 2016, Carmen Arroyo attempted to move her disabled son, Mikhail
Arroyo, for whom she was conservator, into her apartment complex ArtSpace
Windham, but his application was rejected. Two separate actions by Defendant
regarding that incident motivate the instant lawsuit: first, Defendant, through its
CrimSAFE product, notified apartment manager WinnResidential that “disqualifying
records” were found for Mr. Arroyo; second, RPS did not disclose Mr. Arroyo’s
criminal records to Ms. Arroyo on behalf of Mr. Arroyo until the start of this litigation,
despite her numerous requests and production of many documents.
1
Before the Court are the following motions in limine: (1) the Plaintiffs’ Motion
to Exclude Testimony of Jay Kacirk, Dkt. 157; (2) the Defendant’s motion to exclude
the expert witness report of Lila Kazemian, Dkt. 177; (3) the Defendant’s motion to
exclude Plaintiffs’ statistical experts, Dkt. 175; (4) the Plaintiffs’ motion to limit
testimony of Dr. William Huber, Dkt. 179; (5) the Defendant’s motion to exclude the
expert witness report of Nancy B. Alisberg, Dkt. 176; (6) the Defendant’s motion to
exclude certain medical/injury evidence, Dkt. 173; (7) the Defendant’s motion to
exclude certain marketing evidence, Dkt. 174; (8) the Plaintiffs’ motion to exclude
exhibits as improper hearsay, Dkt. 180; and (9) the Plaintiffs’ motion to exclude
report of the Bureau of Justice, Dkt. 181. Oppositions have been filed with respect
to each motion. Dkts. 163, 187, 184, 185, 186, 182, 183, 189, 188 (respectively).
I.
BACKGROUND
On August 7, 2020, the Court entered an extensive decision on the parties’
motions for summary judgment.
Dkt. 194 (Dec. on Summ. J.). That decision
contains a thorough recitation of the material facts relevant to this case. Id. at 2–
22. Those findings are adopted and incorporated herein by reference. The Court
provides only those facts relevant to each respective motion as discussed below.
As outlined in the decision on summary judgment, the following claims are
proceeding to trial: (1) a FHA claim for disparate impact on the basis of race or
ethnicity, (2) a FHA claim for disparate treatment on the basis of race or ethnicity,
(3) a claim under CUTPA, and (4) a FCRA claim for the period from June 30, 2016
to November 18, 2016. Dec. on Summ. J. There has been no jury demand in this
case and the parties have elected for the Court to sit as fact finder in a bench trial.
2
II. LEGAL STANDARD
“The purpose of an in limine motion is to aid the trial process by enabling
the Court to rule in advance of trial on the relevance of certain forecasted evidence,
as to issues that are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal
quotation marks omitted). “A court's determination of a motion in limine is
preliminary and may be subject to change as the case unfolds.” State v. Deutsche
Telekom AG, 419 F. Supp. 3d 783, 787 (S.D.N.Y. 2019).
“Evidence should be excluded on a motion in limine only when the evidence
is clearly inadmissible on all potential grounds.” Walker v. Schult, 365 F. Supp. 3d
266, 275 (N.D.N.Y. 2019).
“The movant has the burden of establishing that the
evidence is not admissible for any purpose.” Id. (citing to United States v. Goodale,
831 F.Supp.2d 804, 808 (D. Vt. 2011)). “The trial judge may reserve judgment on a
motion in limine until trial to ensure the motion is considered in the proper factual
context.” Id.
“When the judge sits as the trier of fact, it is presumed that the judge will
understand the limited reason for the disclosure of the underlying inadmissible
information and will not rely on that information for any improper purpose.”
Williams v. Illinois, 567 U.S. 50, 69 (2012).
“There is a “well-established
presumption” that “the judge [has] adhered to basic rules of procedure,” when the
judge is acting as a factfinder.” Id. at 69–70 (emphasis in original). See also United
States v. Duran-Colon, 252 Fed. App'x 420, 423 (2d Cir. 2007) (“In the context of a
bench trial such as that conducted in this case, however, the factfinder knows the
3
purpose for which evidence is admitted and is presumed to rest his verdict on the
proper inferences to be drawn from such evidence.”); LiButti v. United States, 107
F.3d 110, 124 (2d Cir. 1997) (finding that “many of the management problems which
a trial court invariably has to wrestle with in order to guard against unfair prejudice
when one takes the proverbial Fifth simply do not exist in the context of a bench
trial.”).
Generally relevant evidence is admissible unless the United States
Constitution, a federal statue, the Federal Rules of Evidence or Supreme Court
rules say otherwise. Fed. R. Evid. 402. “Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” Fed. R.
Evid. 401.
Relevant evidence can be excluded “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Rule 401’s “basic
standard of relevance . . . is a liberal one.” Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 587 (1993).; see also Hart v. RCI Hosp. Holdings, Inc., 90 F. Supp. 3d 250,
257 (S.D.N.Y. 2015) (The “standard of relevance established by the Federal Rules
of Evidence is not high.”) (citing to United States v. Southland Corp., 760 F.2d 1366,
1375 (2d Cir. 1985)).
“Evidence need not be conclusive in order to be relevant.”
Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 927 (2d Cir. 1977).
Rule 702 governs admissibility of trial expert testimony and provides that:
4
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.
“[T]he trial judge must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.”
Daubert, 509 U.S. at 589
(1993). “Expert testimony which does not relate to any issue in the case is not
relevant and, ergo, non-helpful.” Id. at 591. In assessing relevancy and reliability,
the court is “to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant
field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). An opinion that
does little more than “rehash[es] otherwise admissible evidence about which [an
expert] has no personal knowledge” are inadmissible.
Bobcar Media, LLC v.
Aardvark Event Logistics, Inc., No. 16-CV-885 (JPO), 2020 WL 1673687, at *3
(S.D.N.Y. Apr. 6, 2020). “Regarding relevance, Rule 401 shapes the question facing
the court: whether the proffered expert testimony has ‘any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.’” Vicuna v. O.P.
Schuman & Sons, Inc., 298 F. Supp. 3d 419, 443 (E.D.N.Y. 2017) (citing to Campbell
v. Metropolitan Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir. 2001)).
5
The Court plays a gatekeeping function to all expert testimony, not just
scientific testimony. Kumho Tire Co., 526 U.S. at 147.
Reliability, particularly in
cases where the expert opinion is not scientific in nature, is tied to the facts of the
particular case. Id. at 150. “[N]othing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert. A court may conclude that there
is simply too great an analytical gap between the data and the opinion proffered.”
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
“As a general rule an expert's testimony on issues of law is inadmissible.”
SLSJ, LLC v. Kleban, 277 F. Supp. 3d 258, 268 (D. Conn. 2017) (citing to United
States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)). “‘Generally, the use of expert
testimony is not permitted if it will ‘usurp either the role of the trial judge in
instructing the jury as to the applicable law or the role of the jury in applying that
law to the facts before it.’ . . . Clearly, an opinion that purports to explain the law
to the jury trespasses on the trial judge's exclusive territory.” United States v.
Stewart, 433 F.3d 273, 311 (2d Cir. 2006) (internal citations omitted). “An opinion
is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704.
“However, Rule 704 was not intended to allow experts to offer opinions embodying
legal conclusions.” United States v. Scop, 846 F.2d 135, 139 (2d Cir.), on reh'g, 856
F.2d 5 (2d Cir. 1988).
“It is a well-established rule in this Circuit that experts are not permitted to
present testimony in the form of legal conclusions.” United States v. Articles of
Banned Hazardous Substances Consisting of an Undetermined No. of Cans of
6
Rainbow Foam Paint, 34 F.3d 91, 96 (2d Cir. 1994). An expert may not “supplant
the role of counsel in making argument at trial, and the role of the jury [in]
interpreting the evidence.” Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 48
(S.D.N.Y. 2016). “[W]here expert reports read like legal briefs and threaten to usurp
judges' duty to determine the relevant law, courts may reasonably exclude such
evidence at trial.” State v. Deutsche Telekom AG, 419 F. Supp. 3d 783, 790 (S.D.N.Y.
2019).
“The proponent of the expert testimony bears the burden of establishing the
admissibility of such testimony under the Daubert framework by a preponderance
of the evidence standard.” Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223,
243 (E.D.N.Y. 2014).
III.
DISCUSSION
A. First Motion
The Plaintiffs requests that the Court exclude the testimony of the
Defendant’s expert witness Jay Kacirk. Dkt. 157.
1. Background
Mr. Kacirk is a purported “Property Management Expert Witness For: Single
Family Homes / Condominium Units, Multi Family Apartments, Community
Interests Developments, Ethics Matters, Fair Housing Issues, and Landlord
Standard of Care.”
Dkt. 157-1 at 16. Mr. Kacirk has a Bachelor of Business
Administration degree and was awarded the Certified Property Manager
designation by the Institute of Real Estate Management (“IREM”). Id. at 17. He is
an executive vice president for a property management company in California. Id.
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at 3, 16. Mr. Kacirk is also an instructor for IREM, where he teaches courses that
include residential apartment management and apartment leasing that implicate
compliance with federal housing laws in the operation of rental housing. Id. at 3.
He indicates he has “substantial experience working with criminal background
screening providers, including providers that apply a housing provider’s set
criteria to criminal records matched to applicants to ensure compliance with the
housing provider’s criminal record policies, much like the CrimSAFE product at
issue in this case.” Id. at 4.
Mr. Kacirk states he reviewed certain pleadings in this case, discovery, and
conducted interviews with the Defendant’s personnel “to obtain additional
knowledge regarding the operation and purpose of the CrimSAFE product.” Id. at
4. Mr. Kacirk’s report and the Defendant’s opposition indicate that Mr. Kacirk was
hired to present evidence relating to the Defendant’s defense to the FHA disparate
impact claim and the CUTPA claim.
Relevant to this analysis is the law on these claims. As stated in greater
detail in the Court’s decision on summary judgment, a disparate impact claim
cognizable under the FHA generally requires the following:
First, a plaintiff . . . must come forward with a prima facie case; and
second, the defendant. . . . may rebut the prima facie case by proving
that the ‘challenged practice is necessary to achieve one or more
substantial, legitimate, nondiscriminatory interests of the respondent
or defendant.’ [Third], the burden of proof shifts back to the plaintiff
to show that the ‘substantial, legitimate, nondiscriminatory interests
supporting the challenged practice could be served by another
practice that has a less discriminatory effect.’
See Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 617 (2d Cir. 2016) (appeal
following a bench trial) (quoting 24 C.F.R. § 100.500(c)(3)); see Texas Dept. of
8
Housing and Community Affairs v. Inclusive Communities Project, 576 U.S. 519,
527, 541 (2015).
CUTPA prohibits “unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce.” See Conn. Gen. Stat. §
42-110b. When analyzing the first element, whether plaintiffs alleged an unfair act,
the Court must apply the “cigarette rule” which considers whether the act: (1)
“offends public policy as it has been established by statutes, the common law, or
otherwise”; (2) is “immoral, unethical, oppressive, or unscrupulous”; or (3)
“causes substantial injury to consumers.” See Harris v. Bradley Memorial Hosp.
and Health Ctr., Inc., 296 Conn. 315, 351 (2010).
2. Discussion
The Plaintiffs argue that Mr. Kacirk should not be permitted to offer expert
testimony on ultimate legal issues to be decided in this litigation. Dkt. 157. Further,
the Plaintiffs argue that Mr. Kacirk’s proffered testimony on supposed justifications
for CrimSAFE does not meet the standards for reliability and relevance. Lastly, the
Plaintiffs argue that Mr. Kacirk’s opinion that CrimSAFE users nonetheless
conduct individualized assessments of rental applicants before denying admission
due to criminal history is unfounded.
The Defendant opposes the motion to exclude the testimony of Mr. Kacirk,
arguing that Mr. Kacirk does not opine on any ultimate legal conclusion. Dkt. 163.
They also argue that Mr. Kacirk’s testimony regarding the categorization and
filtering benefits of CrimSAFE is relevant and does not hinger on technical
knowledge regarding how CrimSAFE filters records. The Defendant argues that
9
the Plaintiffs’ argument relating to Mr. Kacirk’s experience with CrimSAFE and the
“state of the record” provide no basis to exclude his testimony.
Lastly, the
Defendant argues that Mr. Kacirk provides expert testimony regarding why
products like CrimSAFE are used by the industry and the non-discriminatory intent
behind the offering and use of such products.
Here, Mr. Kacirk’s expert opinion may be found relevant in determining
whether the Defendant has a substantial, legitimate, and nondiscriminatory
interest, as required for a defense under an FHA claim. Specifically, by virtue of
his experience he may have personal knowledge which enables him to offer
credible evidence on the necessity of using background checks in general and
CrimSAFE background checks in particular to achieve one or more substantial,
legitimate, nondiscriminatory interests of the defendant. His expert opinion may
also be relevant in imparting knowledge about whether the Defendant’s conduct
is not immoral, unethical, oppressive, or unscrupulous as required under a CUTPA
claim. This is because Mr. Kacirk’s, as a property management expert who has
used background checking services, can testify about the background check
industry, including the existence and features of the various products available,
the prevalence of the use of such products, the manner in which they are used in
the industry and the availability or lack of alternate means of fulfilling their purpose.
With that said, the Plaintiffs are correct in their argument that Mr. Kacirck’s
report contains opinions that he has not shown he is qualified to make.
Mr.
Kacirk’s report states he “was retained as an expert witness for RPS to render a
professional opinion on whether or not the challenged practices and services that
10
RPS provides to its clients promote legitimate public and/or business interests,
and whether those practices and services are necessary to achieve those
interests.” Dkt. 157-1 at 2. While his testimony may address industry interests and
how they can and are achieved, their legitimacy and necessity are findings within
the exclusive province of the fact finder and the Court.
i.
Improper Legal Opinions
The Plaintiff’s point to two statements within Mr. Kacirk’s report that they
argue contain improper legal opinions to which he should not be permitted to
testify. First, the Plaintiffs’ mis-cite Mr. Kacirk’s report where he says: “Attempting
to impose legal liability on an important screening service provider, such as RPS’s
CrimSAFE product, will not further the legitimate and valid interests of tenant
safety and non-discrimination.”
Id. at 14. The Plaintiffs distorted this sentence
asserting that Mr. Kacirk was asserting that such liability is unlawful in his opinion.
The Court rejects the Plaintiffs’ assertion and interpretation of this sentence.
However, this sentence does contain an improper opinion that the interests his
report discusses are both legitimate and valid. This is not for Mr. Kacirk to decide
rather it is for the factfinder to decide. Further, this statement is essentially legal
argument, which is for counsel to argue not an expert witness; particularly when
that witness is not a lawyer or trained in the law. Therefore, Mr. Kacirk is prohibited
from testifying in a manner consistent with this statement—i.e., he is prohibited
from testifying that the interests he sets forth in his report meet the second step of
the FHA disparate impact analysis.
11
The Plaintiffs’ also cite to Mr. Kacirk’s report where he says “Given the above
considerations, RPS cannot be said to have created any disparate ‘impact’ because
any result the CrimSAFE product provides is not a final decision since the housing
provider is still obligated to conduct an individualized review and make the final
decision on the application.” Dkt. 157-1 at 11. The Plaintiffs’ originally argued that
this opinion improperly usurps the role of the factfinder as an ultimate issue.
However, the Plaintiffs have narrowed the issue in this case in a way that makes
this portion of Mr. Kacirk’s report irrelevant now that the Plaintiffs argue that
disparate impact comes solely from the automated decision process and not when
final reports are provided to housing providers. Dkt. 157 at 9 (“Here, the pertinent
inquiry relates to what legitimate purposes the automated CrimSAFE decisions
serve.”). Because this conclusion reached by Mr. Kacirk is no longer relevant, it
will not help the trier of fact and is inadmissible.
Therefore, Mr. Kacirk is prohibited from testifying that, in his expert opinion,
the Defendants have not created a disparate ‘impact’ because of an individualized
review by the housing provider.
ii.
Tort and Insurance Liability Opinion
In Mr. Kacirk’s report, he states that “[t]he failure to conduct [criminal
background] screenings can lead to substantial liability that can threaten financial
viability of properties.” Dkt. 157-1 at 7. This statement is outside of Mr. Kacirk’s
expertise because he has based this conclusion on legal research and financial
assumptions. Id. Mr. Kacirk has no legal training or expertise in the law. This
statement may reflect his anecdotal experience as a property manager and reflect
12
an opinion he gives as an instructor, but it lacks the methodological basis for
testimony of an expert in a court of law, unless supported by sound statistical data
offered by a statistician or other data compilation and analysis expert. Mr. Kacirk
is prohibited from testifying about knowledge outside of his experience and
personal observations, including the intent of others who conduct, the necessity
of conducting, the legitimacy of conducting and potential tort liability for not
conducting criminal background screenings. He must limit his testimony to the
existence, nature and features of criminal background checking products and his
usage of these products.
Mr. Kacirk’s report discusses how increased liability can affect a property
management companies ability to obtain insurance at reasonable rates. Dkt. 1571 at 7. Mr. Kacirk’s expertise as an experienced property manager qualifies him to
testify to his experience in obtaining insurance, he is not qualified to hypothesiz e
on insurance underwriting standards and valuations. His personal knowledge or
experience, that a particular property manager(s), subject to tort liability for failing
to conduct background checks, paid higher insurance rates, standing alone, is
anecdotal.
Insurance underwriting is technical and complex and therefore an
opinion based on anecdotal information, and not on a reliable statistical
methodology, is not reliable expert testimony. For these reasons, Mr. Kacirk is not
permitted to testify about how insurance rates are affected by litigation.
iii.
Opinions Based on Categorization, Sorting, and Filtering
Mr. Kacirck’s report contains a section relating to the legitimate interests
served by “categorization” products like CrimSAFE, which focuses on the sorting
13
and filtering functions offered by CrimSAFE. Dkt. 157-1 at 7–10. In this section he
discusses the relationship between housing providers and criminal screening
companies, such as the Defendant. Id. at 7. His report is premised on the belief
that criminal screening companies routinely return a “list of criminal records that
are associated with an applicant.” Id. That is not the issue here. The issue here
is whether a report classifying an applicant as unqualified without accompanying
records violates the FHA. Again, Mr. Kacirk may testify fully and fairly about the
processes generally employed by various screening companies, representative of
the industry as a whole if such testimony explains relevant industrywide customs
or the various categories of background checking services.
The Court will
preclude or disregard testimony which is irrelevant or unreliable because it is
anecdotal or is not founded on a reliable factual and analytical basis. See State v.
Deutsche Telekom AG, 419 F. Supp. 3d 783, 791 (S.D.N.Y. 2019).
By way of example, Mr. Kacirck’s report opines that “[p]roducts such as
CrimSAFE are necessary
to ensure the timely, objective,
and accurate
categorization of criminal records in today’s environment of mobility where there
are large volume of electronic applications and large number of unique crimes
across federal, state and local ordinances.” Dkt. 157-1 at 14. These opinions are
beyond the scope of his expertise, are not founded on any reliable analytical
methodology, and thus beyond the scope of his permissible expert testimony.
Mr. Kacirk’s expertise includes requesting, receiving, and reviewing criminal
screening reports.
He also indicates an expertise in working with criminal
screening companies as vendors. Meaning, he does have some expertise and
14
would logically have some knowledge of the workings of such programs as
someone who hires and utilizes these services. He could also testify about his
experience in their accuracy to the extent he has confirmed criminal records after
receiving reports. However, he presents no factual or analytical basis to opine
about such reports categorically. He cannot testify that such reports are objective.
iv.
Ultimate Conclusion Opinions
Mr. Kacirck also opines that tenant screening is necessary to protect
property and the assets of property management companies, and “is also an
important component of a housing provider’s duties to ensure a safe environment
for tenants.” Dkt. 157-1 at 7. Mr. Kacirck’s report nor his CV explain how he is
qualified to make or how he arrived at that conclusion. Whether the criminal
screenings at issue in this case are necessary is a factual and legal determination
for the court to make. Whether the criminal screenings at issue actually protect
property and tenants, is an opinion Mr. Kacirk is not qualified to make.
Mr. Kacirk’s report also states that a criminal screening report was provided
in this case and bases this on his review of the records provided to him. Dkt. 1571 at 13. The Court, sitting as factfinder, will not find helpful such testimony because
this testimony is based on Mr. Kacirk’s ability to review documents that can be
admitted into the record, which is something the Court is capable of doing on its
own.
For the above reasons, the Plaintiffs’ motion to exclude testimony of Mr.
Kacirk; Dkt. 157; is granted in part and denied in part. Mr. Kacirk may testify at
15
trial, but his testimony is to be limited to only testimony that is relevant, reliable,
and based on his personal knowledge or expertise, as detailed above.
B. Second Motion
The Defendant has filed a motion in limine seeking to exclude expert witness
report of the Plaintiff’s expert witness Dr. Lila Kazemian. Dkt. 177.
1. Background
Dr. Kazemian has a PhD in criminology and is an associate professor in the
sociology department at the City University of New York. Dkt. 177-1 at 15. Dr.
Kazemian authored an expert report in this case that “presents evidence from
social science research to assess the public safety risk posed by individuals with
criminal histories.”
Id. at 5.
Her report goes on to state that it specifically
“examines whether the existing empirical evidence and official statistics provide
support for the methods and criteria used by CrimSAFE, a criminal record
screening tool that assesses whether housing applications should be accepted or
denied on the basis of an individual’s criminal record.” Id.
As discussed above, if the Plaintiffs set forth a prima facie case of FHA
disparate impact, the Defendant can rebut that by proving that the “challenged
practice
is necessary
to achieve
one
or
more
substantial,
legitimate,
nondiscriminatory interests.” See Mhany Mgmt., Inc., 819 F.3d at 617.
Dr.
Kazemian’s report is evidence that could rebut a claim by the Defendant that the
challenged practice is necessary to achieve one or more substantial, legitimate,
non-discriminatory interest.
2. Discussion
16
The Defendant argues that (1) disclosure of Dr. Kazemian was untimely, (2)
Dr. Kazemian’s opinions are not relevant, and (3). Dr. Kazemian’s opinions are not
reliable.
Dkt. 187.
The Plaintiff objects arguing that (1) disclosure of Dr.
Kazemian’s report was timely, (2) Dr. Kazemian’s opinions clearly fit the Plaintiffs’
case, demonstrating no business necessity justifies CrimSAFE, and (3) Dr.
Kazemian’s opinions are reliable. The Court addresses each issue below.
i.
Timeliness
The Defendant first argues that Dr. Kazemian’s report was untimely. Dkt. 177
at 1, 2–4. The Plaintiffs object, arguing that the report was transmitted within the
deadline that the parties agreed to via email. Dkt. 187 at 2–3.
On September 6, 2018, the parties filed a Rule 26(f) report in which the parties
agreed that they will designate trial experts and provide opposing counsel with
reports from said expert on any issues on which they bear the burden of proof by
January 15, 2019, on any issues on which they do not bear the burden of proof by
March 15, 2019, and rebuttal experts on June 23, 2019. Rule 26(f) Report at 9, Dkt.
22. On September 10, 2018, the Court entered a scheduling order approving the
deadlines set within the Rule 26(f) report except for some deadlines not relevant
here. Dkt. 27.
On January 18, 2019, the parties agreed over email that the deadline to
disclose experts on issues on which they do not bear the burden of proof would
be extended to May 15, 2019. Dkt. 187-1. On May 8, 2019, the parties agreed to
extend this deadline again to June 10, 2019. Id. On June 10, 2019, Dr. Kazemian’s
report was disclosed to the Defendant’s counsel. Dkt. 187-2.
17
Rule 29 of the Federal Rules of Civil Procedure provides that: “Unless the
court orders otherwise, the parties may stipulate that: . . . (b) other procedures
governing or limiting discovery be modified—but a stipulation extending the time
for any form of discovery must have court approval if it would interfere with the
time set for completing discovery, for hearing a motion, or for trial.” The Court did
not preclude the parties from stipulating to modifying their expert witness
disclosure deadlines.
The Court finds that Dr. Kazemian’s report is not untimely because it was
disclosed within the time that the Defendant’s counsel agreed to accept such
report. The parties were not precluded from stipulating to extend the deadline as
permitted under Rule 29. Therefore, the Court rejects the Defendant’s argument
that Dr. Kazemian’s report was untimely.
ii.
Relevancy
Dr. Kazemian’s report sets forth five general opinions, each of which the
Defendant argues is irrelevant.
a. Dr. Kazemian’s First Opinion
Dr. Kazemian’s first opinion is that “Given American criminal justice trends
over the course of the past decades, it cannot be assumed that individuals with a
criminal record pose a significant threat to the community.” Dkt. 177-1 at 5. She
further opines that “a criminal record does not necessarily imply persistent or
violent offending.” Id. at 6.
The Defendant argues that this opinion is irrelevant because it is not linked
to any aspect of CrimSAFE’s record found reporting, metrics, structure, or use;
18
and is improperly narrowed to violent offenses.
The Plaintiffs argue that the
Defendant failed to provide the reporting metrics and misinterpret Dr. Kazemian’s
report.
The Court rejects the Defendant’s argument that Dr. Kazemian’s opinion
must be directly linked to CrimSAFE in order to be relevant. First, the utility of
background checks is relevant. Defendant sought to offer expert testimony that
they were necessary and without which the financial viability of housing
developments was perilous. While these conclusions are beyond the ken and
expertise of the Defendant’s expert, the pros and cons of background checks is
relevant to the exercise of weighing the substantial, legitimate, nondiscriminatory
interests served by the CrimSAFE background check at issue and whether the
interests served by using it could be served by another practice that has a less
discriminatory effect.
There is no reason why having CrimSAFE metrics would have any affect on
her opinion. The Court also rejects the Defendant’s argument that Dr. Kazemian’s
opinion is not relevant because it is improperly narrowed to violent offenses
because her opinion expressly includes both persistent and violent offenses. Dkt.
177-1 at 5–6.
b. Dr. Kazemian’s Second Opinion
Dr. Kazemian’s second opinion is that criminal background checks have
several shortcomings. Dkt. 177-1 at 6–7. The Defendant argues that Dr. Kazemian
does not have the experience to opine on the accuracy of criminal background
checks. The Plaintiff did not address this argument in its opposition.
19
The Court
is unable to determine based on Dr. Kazemian’s CV and report whether she has
experience in or has studied the accuracy of criminal background checks.
The
Court agrees with the Defendant and finds that Plaintiffs have not established Dr.
Kazemian is qualified to opine on the accuracy of criminal background checks
authoritatively.
c. Dr. Kazemian’s Third Opinion
Dr. Kazemian’s third opinion is that “[t]he criminal justice system is heavily
skewed towards ethnic and racial minorities.” Dkt. 177-1 at 7–8.
The Defendant
argues that this opinion is untimely because it supports issues on which the
Plaintiffs bear the burden of proof. The Plaintiffs contend Dr. Kazemian’s report
goes to an issue on which Defendants have the burden of proof.
Dr. Kazemian reaches her third opinion after relying on reports and statistics
of racial disparities in the criminal justice system. These disparities result in the
underrepresentation of certain segments of the population and overrepresentation
of others. She contends her opinion goes to whether the CrimSAFE background
check used to exclude the named Plaintiff is predictive of risk and therefore
necessary to achieve one or more substantial, legitimate, nondiscriminatory
interests of the respondent or defendant. Her opinion challenges the theory that
CrimSAFE is predictive of an applicant’s future risk.
In other words, she
hypothesizes that the background check at issue does not accurately measure risk,
making it not necessary. Put another way, the overrepresentation of minorities
among arrestees misrepresents their relative risk and fails to predict the risk of
underrepresented segments of the population. In other words, her opinion goes to
20
whether background checks which categorically underrepresent populations
which pose a risk achieves the substantial, legitimate, nondiscriminatory interests
of a property owner.
The Court further finds Dr. Kazemian reaches her third opinion after relying
on reports and statistics of racial disparities in the criminal justice system and is
has a sound factual and analytical basis. Dr. Kazemian’s disparate treatment third
opinion is timely.
d. Dr. Kazemian’s Fourth Opinion
Dr. Kazemian’s fourth opinion is that “[c]riminal histories have a diminished
ability to accurately predict offending behavior over time.” Dkt. 177-1 at 8–9. Dr.
Kazemian summarized her fourth opinion as follows:
the extent empirical research has demonstrated that screening
procedures that indiscriminately disqualify all individuals with a
criminal record cannot be justified on the basis of public safety
concerns. The past offending rate and the time since the last offense
are variables that must be jointly considered in order to determine
whether a criminal record is predictive of future offending and whether
the individual is likely to pose a threat to the community.
Dkt. 177-1 at 9.
The Defendant argues that this opinion is foreclosed by Congressional
policy and law. The Defendant cites to federal regulations, the FCRA, and rejected
state legislative proposals to support its conclusion that “[c]riminal screening has
been expressly endorsed by Congress in numerous ways.” Id. at 8. The Plaintiff
argues that Congress has not adopted any law inconsistent with Dr. Kazemian’s
conclusion that criminal histories’ predictive value diminishes over time.” Dkt. 187
at 7–9.
21
The Defendant is mistaken because there is federal policy that having a
criminal conviction alone, irrespective of timing, is not evidence of risk of
recidivism. In other words, federal policy recognizes that recency of a conviction
is predictive of recidivism.
“Commission”)
The United States Sentencing Commission (the
has studied the factors which predict
recidivism.
The
Commissions’ guidelines sentencing table provides sentencing ranges based on
an offender’s offense level and criminal history category. See U.S.S.G., Ch.5 Pt.A.
The offense level is calculated using offense specific aggravating and mitigating
factors prescribed by the guidelines. See U.S.S.G. § 1B1.1(a)(1)-(5). The criminal
history category is based on the recency and severity of an offender’s prior
sentences and supervision status. See U.S.S.G. § 4A1.1. Generally, offenses are
not counted in computing an offender’s criminal history fifteen or ten years,
depending on the prior sentence imposed, after the sentence imposed is served.
U.S.S.G. § 4A1.2(e)(2). The sentencing range is determined by “[t]he intersection
of the Offense Level and Criminal History Category” on the sentencing table. USSG
§ 5A, Application Note 1.
The Commission’s 2004 report, Measuring Recidivism, served as a
“performance review” of the predictive ability of these provisions, i.e.,
the predictive statistical power of the criminal history measure to
reflect subsequent recidivism among federal offenders. That report
concluded that these provisions largely succeeded in predicting
subsequent risk of reoffending.
Hunt, Kim Steven and Dumville, Robert, Recidivism Among Federal Offenders: A
Comprehensive Overview, United States Sentencing Commission, at p.3 (Mar.
2016). Thus, the length of time between a conviction and consideration of the risk
of a person reoffending is a predictive factor recognized by federal policy.
22
Even if the Court accepted the Defendant’s contention that Congressional
policy and law endorse criminal background screenings, that challenge goes to the
persuasiveness not the admissibility of the opinion. Further, Dr. Kazemian’s
opinions are not directly contrary to that contention.
Dr. Kazemian’s opinions
relate to how certain types of criminal background checks may be overinclusive,
and by negative implication underinclusive, and thus fail to satisfy their purported
purpose. If Dr. Kazemian’s opinion is different than Congressional policy, that is a
legal and factual issue for the Court to decide and is not a basis for excluding her
testimony. Therefore, the Court rejects the Defendant’s argument relating to Dr.
Kazemian’s fourth opinion.
e. Dr. Kazemian’s Fifth Opinion
Dr. Kazemian’s fifth opinion is that “[t]he ability to secure safe and affordable
housing constitutes a major barrier to prisoner reentry and increases the risk of
reoffending.” Dkt. 177-1 at 9–10.
The Defendant argues this opinion is not relevant to the issues in this case,
which relate to whether there is a legitimate, nondiscriminatory justification for the
criminal background screenings at issue. The Plaintiffs argue that the Defendant
misconstrues Dr. Kazemian’s opinion. The Plaintiffs state that Dr. Kazemian’s fifth
opinion is that the Defendant’s policies reduce safety, which is directly in conflict
with their argument that CrimSAFE is necessary to achieve substantial, legitimate,
nondiscriminatory interests.
The Court finds that the Defendants are correct that this opinion does not
directly relate to the Defendant’s background screening products, rather it appears
23
to be a rebuke to any criminal background screening that results in the rejection of
someone with a criminal history. However, the Plaintiffs are also right that this
opinion is relevant to show that the interests the Defendant will likely set forth in
justifying its product—safety and security—is to be balanced by crime that could
be the result of the Defendant’s product. At this stage, this opinion is minimally
relevant. Any prejudice that may result from the introduction of this opinion would
be minimal because the Court is sitting as the factfinder and is capable of
disregarding this opinion if, after hearing the other evidence in this case, that
opinion is not relevant. Therefore, the Court rejects the Defendant’s argument
relating to Dr. Kazemian’s fifth opinion.
iii.
Reliability
The Defendant argues that Dr. Kazemian’s expert report should be precluded
because her conclusions about recidivism are unreliable for three reasons. Dkt.
177 at 10–15.
a. “Control Group”
First, the Defendant argues that Dr. Kazemian’s studies are not reliable
because they are not benchmarked against the general population. Dkt. 177 at 11.
In other words, the Defendant is claiming that Dr. Kazemian’s methodology, which
did not include determining recidivism rates by members of the applicant pool who
do not have a criminal history, is so flawed it must be excluded. The Plaintiffs
argue that the “control group” standard purported by the Defendant is baseless.
The Defendant did not provide any proof that inclusion of members without
criminal histories is methodology required for this field of expertise. Whether Dr.
24
Kazemian’s opinions should have included a “control group” would go to the
weight of the evidence, not the admissibility. The Defendant will have the ability to
cross-examine Dr. Kazemian to explain why this failure renders her opinions
incorrect.
b. Location and BJS Studies
Second, the Defendant argues that Dr. Kazemian did not account for the
location of crimes. Dkt. 177 at 12–13. The Court cannot square this argument with
the Defendant’s motion, which immediately thereafter argues that Dr. Kazemian
should have relied on a Bureau of Justice Statistics (“BJS”) national statistics
report in forming her opinion. The Plaintiff’s argue that the recent BJS report
validates Dr. Kazemian’s opinions.
The Court finds that the Defendant’s challenges based on location of crime
and the BJS study do not go to the admissibility of the evidence, rather the weight.
The Defendant could attempt to present the BJS report through its own expert and
can cross-examine Dr. Kazemian about how those reported statistics compare to
her opinions.
c. Lookback Period
Third, the Defendant argues that Dr. Kazemian’s refusal to set forth any
specific lookback period that she believes the Defendant should have adopted
renders her opinion unreliable because it is too theoretical. Dkt. 177 at 14–15. The
Plaintiffs’ object to the claim that Dr. Kazemian did not provide a lookback period,
citing to Dr. Kazemian’s report and her deposition where she explained that a
25
“lookback period” by itself is not a metric that should guide the Defendant’s policy.
Dkt. 187 at 17–18.
During Dr. Kazemian’s deposition she explains that
you need to have a grid of several factors. Not just the time since the
last offense. . . . we need to consider a wide range of different variables
together. This [CrimSAFE] configuration form does not allow for that.
But only allows at one factor at a time and that’s a problem.
Dkt. 187-6 at 9. Her opinions as expressed in her report and her deposition is not
so theoretical to be irrelevant as the Defendant argues. Though the Defendant may
wish for a specific lookback period, it may be inappropriate here, which is
something the Plaintiffs can try to prove through Dr. Kazemian.
Therefore, the Court rejects the Defendant’s arguments that Dr. Kazemian
should be excluded because her opinions are unreliable.
In conclusion, the Court denies the Defendant’s motion in limine to exclude
Dr. Kazemian, however, as outlined above, her testimony is to be limited to what is
relevant, reliable and based on personal experience and/or her expertise.
C. Third Motion
The Defendant has filed a motion in limine to exclude the testimony of
Plaintiffs’ statistical experts, Dr. Christopher Wildeman and Dr. Allan Parnell. Dkt.
175.
1. Background
Dr. Wildeman is a Professor of Policy Analysis and Management and
Sociology (by courtesy) at Cornell University with a PhD in sociology and
demography. Dkt. 175-1 at 2. He has become an expert on using methods to
estimate cumulative risk of, among other things, being arrested, being convicted
26
of a crime, and being incarcerated. Id. Dr. Wildeman was hired by the Plaintiff to
(1) “consider arrests, convictions, sentences to prison and jail incarceration, (2) to
look at the risk of ever experiencing each of those events, as well as the risk of
experiencing each of those events in the last four years and the last seven years,
and (3) to perform these analyses for all individuals, as well as those who fall below
certain income thresholds.” Id. at 1. Dr. Wildeman relied on several national-level
studies including the National Longitudinal Survey of Youth 1979 (NSLY79) and
prison incarceration data from the Survey of Inmates in State and Federal
Corrections Facilities. (SISFCF). Id. Dr. Wildeman then compared the national
study results with incarceration and racial disparities in Connecticut. Id.
Dr. Parnell is the Vice President and Research Director of the Cedar Grove
Institute for Sustainable Communities, a Senior Fellow at the Frank Hawkins Kenan
Institute on Private Enterprise at the University of North Carolina at Chapel Hill, and
President of McMillan and Moss Research, Inc. Dkt. 175-3 at 2–3. He has a PhD in
sociology with a specialization in demography. Id. at 3. Dr. Parnell was hired by
the Plaintiff to assess whether CrimSAFE disproportionately disqualifies African
Americans and Latinos from securing rental housing in the Connecticut markets
where the Defendant sells this service. Id. at 1. Dr. Parnell relied on Dr. Wildeman’s
calculations of cumulative risk of incarceration for Whites, African Americans, and
Latinos and compared the risk with White to African American households that rent
and White to Latino households that rent in the housing markets identified by the
Defendant. Id. at 2, 8–10.
27
Though this motion seeks to exclude the testimony of Dr. Wildeman and Dr.
Parnell only, the Defendant’s expert, Dr. Huber, is relevant to this discussion. Dr.
Huber is a Senior Statistician with Analysis & Inference, Inc. and has a PhD in
mathematics. Dkt. 175-5 (Huber Report) at 3. Dr. Huber raises several challenges
to Dr. Wildeman and Dr. Parnell’s reports. Though Dr. Huber indicates that Dr.
Wildeman did not report statistical errors, he does not say this is contrary to
established methodology of experts in this field, he simply says it is contrary to
some of Dr. Wildeman’s prior publications. Id. at 14. Dr. Huber does not challenge
the “well-established fact that, nationally, African Americans and Hispanics have
been jailed and incarcerated at higher rates than Whites” but challenges the
broken-down age/income brackets reported by Dr. Wildeman. Dr. Huber takes
specific aim at the determination of statistical significance of Hispanics with a look
back period of 4 years, finding the standard of error for this group so significant
that the data is not usable. Id. at 15. Dr. Huber challenges several “assumptions”
that he claimed Dr. Parnell made that are incorrect and make his opinions invalid
and misleading.
Some of the assumptions he challenges are Dr. Parnell’s
assumption that Dr. Wildeman’s numbers are correct, that the experiences from
the 1979 survey have not varied, and that the county-level estimates constitute a
random sample for the purposes of statistical testing. Id. at 6–10.
Dr. Wildeman issued a rebuttal declaration to Dr. Huber’s report, where he
addresses the claim that Dr. Wildeman failed to use statistical error. Dkt. 175-2.
Dr. Wildeman explained that:
I did not do so because I evaluated all of the evidence referenced in
my report as a body of evidence rather than individual pieces, and
28
concluded that the pattern of differences reflected in my Tables 1-3
was consistent with the literature, with which I am familiar, and was
internally consistent. Individual breakouts (e.g., Hispanics with fouryear lookback period) should not be evaluated in isolation from the
rest of the data. Overall, the pattern of disparities are substantial, as I
concluded in my expert report, and the report did not need to cite to
the specific levels of statistical significance to reach that conclusion
to a degree of expert certainty.
Id. at 1. Dr. Wildeman also responded to Dr. Huber’s challenge specific to the
breakout sample of Hispanics, by explaining that when Hispanics and African
Americans are pooled there is a statistical significance of disparity. Id. at 2.
The Court’s summary judgment decision; Dkt. 194; which was entered after
the parties filed their motions in limine, reached several conclusions that are
relevant in determining whether the testimony of the Plaintiffs’ statistical experts
should be excluded.
The summary judgment decision addressed the dispute
between the parties on whether statistical evidence had been shown establishing
a disparate impact. Id. at 40. The Court found that the Plaintiffs . . . presented
sufficient statistical evidence to put in dispute whether RPS’s practice of reporting
housing applicants’ criminal records to housing providers as potentially
disqualifying records has a disparate impact on African Americans and Latinos.
Id.
In reaching that decision, the Court outlined the legal requirements for
satisfying the causal connection requirement for a prima facie FHA disparate
impact claim. Id. at 40–43.
Of relevance for this decision is the Court’s discussion on when national or
state general population statistics may be used as the appropriate comparison
group. Id. at 41. The first occurs when there is no reason to suppose that the local
characteristics would differ from the national statistics. Id. (citing to Dothard v.
29
Rawlinson, 433 U.S. 321, 330 (1997)).
The second occurs when “the actual
applicant pool might not reflect the potential applicant pool due to a selfrecognized inability on the part of the potential applicants to meet the very
standards challenged as discriminatory.”
Id. at 42 (citing to E.E.O.C. v. Joint
Apprenticeship Comm. of Joint Indus. Bd. of Elec. Indus., 186 F.3d 110, 119 (2d Cir.
1999)). The third occurs when actual applicant data is not available. Id.
The Court found that national or state general statistics may be used in this
case because the actual applicant data is unavailable. Id. at 43. In addition, the
Court found that there was a disputed question as to whether the Plaintiffs have
presented sufficient evidence that Connecticut is the market area of the
Defendant’s Connecticut clients so that there is no gap between the people
reflected in the statistics offered by the Plaintiffs and the eligible rental pool for
RPS’s clients. Id. at 45. The Court rejected the Defendant’s claim that the applicant
pool must be narrowed to applicants for only affordable/subsidized rental housing
in Connecticut because the Plaintiffs set forth evidence demonstrating that African
Americans and Latinos face higher rates of arrest and incarceration regardless of
their income and state geography. Id. at 47. For those reasons and more, the Court
found that the Plaintiff provided sufficient evidence to put into question whether
there is a disparate impact. Id. at 50.
Fortune Soc’y v. Sandcastle Towers Housing Development Fund Corp., 388
F. Supp. 3d 145 (E.D.N.Y. 2019) (hereinafter “Fortune”) is a substantially similar
case to the present case. In Fortune, the plaintiff (a non-profit organization in New
York that provides re-entry and re-integration services for formerly incarcerated
30
individuals) filed a complaint against the defendant (the owner of an apartment
complex in New York) alleging that the defendant’s housing policy of automatically
excluding applicants with a criminal conviction record violated the FHA and New
York State and City law. Id. at 152, 159. Of relevance at this stage of the pleadings
is the Fortune court’s decision on the defendant’s motion to exclude expert
testimony of Dr. Parnell—who is one of the two experts the Defendant here wishes
to exclude. Id. at 167. In Fortune, the court found that Dr. Parnell’s analysis was
“sufficiently relevant, reliable and reasoned to be admissible as evidence of a
possible disparate impact” over the defendants’ arguments that Dr. Parnell failed
to address data specific to the defendants’ actual applicants, that Dr. Parnell’s data
pool included persons who would not be entitled to housing at the defendants’
complex, and that Dr. Parnell relied on inadequate and unreliable data. Id. at 170.
The court explained that the defendants’ challenges went to the weight of the
evidence, not its admissibility. Id. In Fortune, like here, the defendants claimed
that Dr. Parnell wrongfully relied on Dr. Wildeman’s data. Id. at 170–71. The court
rejected this argument finding that Dr. Parnell’s reliance on Dr. Wildeman’s data
was “entirely appropriate” because an expert can base its assumptions on the
facts of other experts. Id. at 171 (citing to Verizon Directories Corp. v. Yellow Book
USA, Inc., 331 F. Supp. 2d 134, 136 (E.D.N.Y. 2004)). Whether the relied upon data
is flawed would go to the weight, not the admissibility. Id. at 171–72.
2. Discussion
The Defendant argues that the Court should exclude testimony of Dr.
Wildeman because his opinions are both irrelevant and unreliable. Dkt. 175.
31
i.
Dr. Wildeman: Relevance
The Defendant argues that Dr. Wildeman’s opinion is not relevant because it
is based on national statistics and this case requires statistics on “the Connecticut
applicant pools.” Dkt. 175 at 1–2, 7–14. The Defendant argues that the applicant
pool should be limited to African American, Hispanic, and White applicants for
housing at the Connecticut complexes that use CrimSAFE. Id. at 8. Further, the
Defendant argues that the circumstances that justify national statistics do not
apply here because the Plaintiff has not established the unavailability or
discouragement excuse. Id. at 11. The Defendant also argues that Dr. Wildeman’s
expert opinion is not relevant because he relies on the NLSY79 study in forming
his opinion, which studied the lives of a sample of people born between 1957-64;
i.e., people between the ages 56 and 63 as of 2021. Dkt. 175 at 14–19. In addition,
the Defendants argue that Dr. Wildeman’s reliance on the NLSY79 study is flawed
because that study did not provide results specific to Connecticut. Id. at 15.
The Plaintiff argues that cases support use of national statistics and that Dr.
Wildeman did present Connecticut-specific opinions that compare Connecticut to
the national data. Dkt. 184. The Plaintiff also argues that the data from the NLSY79
study is consistent with more recent studies that Dr. Wildeman provided in his
report.
The Court agrees with the Plaintiffs. In the summary judgment decision, the
Court concluded that the Plaintiffs can rely on national statistics because the
actual applicant pool data is unavailable. See Dkt. 194 at 43–44. Regardless, Dr.
Wildeman’s report includes an analysis of the national statistics as they compare
32
to Connecticut specific data. Dkt. 175-1 at 8. The Defendant’s challenge to Dr.
Wildeman’s reliance on the NLSY79 study misinterprets Dr. Wildeman’s report,
where he states plainly that he did not solely rely on the NLSY79 study; he relied
on data from the SISFCF, the National Corrections Reporting Program, from year
end reports of prisons, CDC Wonder, and the Bureau of Justice. Dkt. 175-1 at 3–5.
Whether Dr. Wildeman relied too heavily on outdated reports that are not a proper
representation of the potential applicant pool is an issue on the weight of his
opinion, not the admissibility. Therefore, the Court rejects the Defendant’s
arguments that Dr. Wildeman’s testimony should be excluded on relevance
grounds because the Defendant’s arguments go to the weight of Dr. Wildeman’s
testimony not the admissibility.
ii.
Dr. Wildeman: Reliability
a. Standard of Error
The Defendant argues that Dr. Wildeman’s opinion is unreliable because he
fails to provide a meaningful analysis of standard of error in his survey numbers.
Dkt. 175 at 2–3, 19–24. The Defendant argues that by not including a standard of
error, Dr. Wildeman deviated from an essential and fundamental statistical
technique. Dkt. 175 at 21. In other words, the Defendant argues that Dr. Wildeman
has not used the same intellectual rigor in this case that is used in the field. Id.
The Defendant cites to two sources as proof that providing a standard of error is a
basic norm of statistical expertise: the American Statistical Association (ASA)
(2018), Ethical Guidelines for Statistical Practice. April 14, 2018 at p. 2, available at
https://www.amstat.org/asa/files/pdfs/EthicalGuidelines.pdf (last visited June 11,
33
2020) (hereinafter “ASA Guidelines”) and the Federal Judicial Center, Reference
Manual on Scientific
Evidence
(3rd ed.
2011)
at
p. 240,
available
at
https://www.fjc.gov/sites/default/files/2015/SciMan3D01.pdf (last visited June 11,
2020). 1 The Defendant argues that the failure to provide statistical error violated
Daubert and cites to Lava Trading, Inc. v. Hartford Fire Ins. Co., No. 03-civ-7037,
2005 WL 4684238, at *18 (S.D.N.Y. Apr. 11, 2005) and Pinello v. Andreas Stihl Ag &
Co. KG, No. 8:08-cv-452(LEK/RFT), 2011 WL 1302223, at *9 (N.D.N.Y. Mar. 31, 2011)
for support.
The Plaintiff argues that Dr. Wildeman is not required to spell out
significance measures in his report in order for the results to be deemed
significant. Dkt. 184. Specifically, the Plaintiff’s argue that the Defendant has not
presented evidence to suggest that a standard of error is required in this field.
Defendant’s reliance on the ASA Guidelines is unsupported by evidence that
the Guidelines represent an established methodology for conducting statistical
analysis. There is no way for the Court to determine from simply looking at the
ASA Guidelines that providing a statistical error, particularly when reaching
conclusions such as Dr. Wildeman’s that relied on overall patterns, is an
established methodology for expert statisticians. The citation to the FJC Manual
also does not establish that the failure to include a standard of error breaks from
established methodologies, it simply identifies that “a statistician can assess the
The Defendant also cites to Dr. Wildeman’s published academic articles, but the
citation given was not to Dr. Wildeman’s published academic articles. Therefore,
the Court could not address whether such evidence supports the Defendant’s
argument.
1
34
likelihood that random error will create spurious patterns of certain kinds.” FJC
Manual at 240.
This does not discuss the established methodologies for
statisticians rendering a similar report as Dr. Wildeman. Meaning, Defendant has
not shown that Dr. Wildeman deviated from established methodologies based on
the argument raised.
The two cases cited by the Defendant in support of its argument that the
failure to produce a standard of error violates Daubert are distinguishable and do
not stand for the proposition the Defendant claims. The first citation is to Lava
Trading, Inc., 2005 WL 4684238
at *18, where an adopted report and
recommendation stated that the expert—who was the subject of the motion to
exclude—conceded that he did not attempt to measure or estimate error rate. This
error was by no means the sole reason justifying the exclusion of the expert from
trial; rather this expert was excluded for a substantial amount of other errors
including relying on unsupported data provided by his client, failing to provide
methodologies used, failing to explain his actual calculations, failing to explain the
basis for alterations between reports, and much more. In the twenty-two page
decision, filled with explanations for why the expert should be excluded, only one
sentence was devoted to the conceded failure to measure an error rate. The
second citation is to Pinello, 2011 WL 1302223 at *9, where the court noted that the
expert did not meet any of the Daubert factors, including the failure to make
reference to the known or potential error rate. These cases do not prove that the
failure to provide statistical error is a violation of Daubert in and of itself justifying
35
exclusion.
Such rule would be contrary to the precedent that finds Daubert’s
reliability test is flexible. Daubert, 509 U.S. at 595; Kumho Tire, 526 U.S. at 141–42.
b. Ipse Dixit
The Defendant also argues that Dr. Wildeman’s rebuttal report is ipse dixit
and wholly inadequate because Dr. Wildeman states that the pattern of disparities
is based on a “body of evidence” and comes after an evaluation of “all the evidence
referenced in his report.” Dkt. 175 at 23. The Defendant cites to Wills v. Amerada
Hess Corp., 379 F.3d 32, 50 (2d Cir. 2004) to support this argument.
The Plaintiffs did not directly address this argument. Dkt. 184.
The Court cannot find that the Defendant’s argument is correct. This is
because Dr. Wildeman’s rebuttal report does not stand on its own, it incorporates
by reference his actual report that outlines the data relied upon, the methodologies
used, and the conclusions drawn therefrom. His rebuttal report does not assert
any new claims or propose new conclusions. The rebuttal simply responds to
critiques and explains why the critiques are misplaced; something he would have
otherwise done on cross-examination. The Defendant’s reliance on Wills, 379 F.3d
32 is misplaced. In Wills, the expert admitted that his opinion was a product of his
own “background experience and reading, rather than scientific testing and peer
review.” Id. at 49. The district court in Wills also found that the expert failed to
satisfy any of the relevant Daubert factors. Id. That fact pattern is not here, Dr.
Wildeman’s rebuttal report clearly indicates an incorporation of the data and
studies relied upon in his original report. Contrary to the Defendant’s argument
that Dr. Wildeman is saying “trust me”; Dkt. 175 at 23; Dr. Wildeman is directing
36
the reader of his rebuttal report to look at the body of research he relied upon to
form his original and only conclusions.
The Court rejects the Defendant’s
argument that the rebuttal report is ipse dixit and justifies the exclusion of Dr.
Wildeman’s testimony.
iii.
Dr. Parnell
The Defendant argues that Dr. Parnell’s “statistical significance” analysis
was wrong in concept and wrong in execution making his conclusions unreliable.
Dkt. 175. The Defendant makes four arguments to support this basis for exclusion.
First, the Defendant argues that, because Dr. Wildeman’s numbers should be
excluded, so should Dr. Parnell’s. Second, the Defendant argues that Dr. Parnell’s
acceptance of Dr. Wildeman’s numbers as the exact truth wrongfully ignores that
Dr. Wildeman’s rebuttal concedes that the national numbers he used lack
“independent significance.”
Third, the Defendant argues that Dr. Parnell
compounded errors with basic errors in statistical execution.
Fourth, the
Defendant argues that Dr. Parnell has no factual basis to render an opinion on
disparate impact.
The Plaintiff argues that Dr. Parnell’s reliance on Dr. Wildeman’s numbers is
appropriate and his analysis is appropriate and accepted elsewhere. Dkt. 184. The
Plaintiff also argues that Dr. Parnell did not assess how CrimSAFE was used
because that is the role of the fact finder, not an expert statistician such as Dr.
Parnell.
The Defendant’s first argument is moot because Dr. Wildeman’s numbers
have not been excluded as discussed above.
37
The Defendant’s second argument is based on a misinterpretation of Dr.
Wildeman’s report and rebuttal. Dr. Wildeman did not say his individual breakout
numbers were inaccurate and should not be relied on, he said that some of the
breakouts do not have sufficient statistical significance alone but do when pooled.
Wildeman Rebuttal at 2.
The Defendant’s third argument is unsupported. No evidence other than the
Defendant’s own expert’s, Dr. Huber, opinion has been presented showing that Dr.
Parnell failed to use certain methodologies that Dr. Huber would have used. A
motion in limine is not the proper vehicle for a battle of the experts on who’s
methodology is best where there is a lack of evidence that either is wholly
unreliable. The Court cannot determine based on the competing reports which
expert is right.
The Defendant’s fourth argument misinterprets the role of an expert
statistician. Dr. Parnell’s role is not to determine how CrimSAFE works; his role is
to aid the Court with his expertise as a statistician in determining whether the
alleged discriminatory policy actually or predictably results in a disparate impact
on a protected group. Dr. Parnell does not have a special expertise in determining
how tenant criminal screening procedures work and his opinion on that would not
have been accepted by the Court regardless.
For the aforementioned reasons, the Defendant’s motion to exclude the
Plaintiffs’ statistical experts; Dkt. 175; is denied.
38
D. Fourth Motion
The Plaintiff has filed a motion in limine seeking to limit the testimony of
Defendant’s rebuttal expert Dr. William Huber. Dkt. 179.
1. Background
Dr. Huber is a statistical consultant at a research firm in Springfield
Pennsylvania with a PhD in mathematics. Dkt. 179-3 at 2, 4. Dr. Huber states in his
report that he was hired by the Defendant to review the expert opinions of Drs.
Wildeman and Parnell, focusing on statistical assumptions that are the foundation
of those opinions and “to assess the validity of the data analysis and statistical
testing used to arrive at those opinions.” Dkt. 179-2 at 3.
2. Discussion
The Plaintiff’s motion does not seek to limit Dr. Huber’s statistical opinions,
rather it seeks to limit opinions that Dr. Huber makes that are not based on his
expertise as a statistician. Dkt. 179 at 5 n.1.
The Plaintiffs’ motion groups the
opinions it believes are entitled to exclusion into four groups: opinions on (1)
housing markets, (2) rental property management, (3) criminal history and spatial
variability, and (4) legal conclusions. Dkt. 179.
The Defendant filed an opposition, which is a regurgitation of the arguments
it made in its motion to exclude Dr. Wildeman and Dr. Parnell. Dkt. 185. The
Defendant argues that the record supports Dr. Huber’s critiques of Dr. Wildeman
and Dr. Parnell’s reports.
There is a common theme in each of the Plaintiffs’ groups of opinions it
seeks to exclude, which is that some of Dr. Huber’s challenges to Dr. Wildeman
39
and Dr. Parnell’s reports are based solely on common sense and ones ability to
review the record. The Court, as the fact finder, has both common sense and an
ability to review the record, and will not find helpful testimony based merely on
that.
For example, Dr. Huber critiques Dr. Parnell’s opinion for assuming the
individual counties in Connecticut constitute local housing markets. Dkt. 179-2 at
9. He presents no statistical evidence showing that the individual counties in
Connecticut are statistically different than the “local housing markets” he claims
Dr. Parnell should have based his opinions on. He is merely pointing out that such
assumption is wrong. This is not helpful. At best it is an attempt to impeach Dr.
Parnell’s opinions using common sense. That is something counsel can do in
cross-examining Dr. Parnell. Dr. Huber’s “opinion” is an attempt to supplant the
role of counsel and adds nothing to what will otherwise be elicited during crossexamination and argued in post-trial briefs. Dr. Huber is not legal counsel and is
not permitted to supplant that role under the auspice of “expert.”
This conclusion is consistent with all the other opinions the Plaintiffs
challenge; including Dr. Huber’s critique of Dr. Parnell’s failure to consider factors
other than criminal history alone, the use and reliance on national statistics, and
bottom line conclusions. The Court is not saying that the critiques and challenges
are not admissible, rather, they are not admissible through Dr. Huber.
The
Defendant will have the opportunity to elicit testimony on and argue that Dr.
Wildeman and Dr. Parnell’s opinions are not sound for all the reasons included in
Dr. Huber’s report.
40
Therefore, the Plaintiff’s motion to limit testimony of Dr. Huber; Dkt. 179; is
granted.
E. Fifth Motion
The Defendant seeks to exclude expert report of Plaintiff’s expert witness
Nancy Alisberg, arguing that Ms. Alisberg’s testimony is not relevant. Dkt. 176.
The Plaintiffs state that Ms. Alisberg’s opinions advance the Plaintiffs’ disability
disparate impact claims. Dkt. 186.
As stated above, the motions in limine and their respective objections were
all filed prior to the Court’s ruling on the summary judgment motions. The Court
granted summary judgment in favor of the Defendant on the disability disparate
impact claims. Summ. J. Dec. at 834. Meaning, Ms. Alisberg’s testimony is no
longer necessary because the claims that her testimony and report intended to
advance have since been decided.
Therefore, the Defendant’s motion to exclude the expert report of Nancy
Alisberg; Dkt. 176; is granted.
F. Sixth Motion
The Defendant filed a motion to exclude anticipated evidence from the
Plaintiffs relating to injuries Mr. Arroyo suffered from while under the care of a
nursing home. Dkt. 173. The Defendant argues that such evidence is not relevant
because the alleged denial of housing is not a proximate cause for said injuries,
or, in the alternative, is unduly prejudicial under Federal Rules of Evidence 403. Id.
41
The Plaintiffs’ object arguing that Arroyo Plaintiffs’ injuries are well within
the chain of harm that can be redressed under the FHA and the evidence is not
unfairly prejudicial. Dkt. 182.
1. Background
The Defendant states that based on the Plaintiffs’ amended damages
analysis and deposition testimony from Ms. Arroyo, the Plaintiffs’ intent to
introduce evidence that Mr. Arroyo suffered certain injuries—including a fall during
the winter of 2016 and a hospitalization for pneumonia and other medical
conditions—that the Plaintiffs intent to attribute to the Defendant’s alleged
misconduct. Dkt. 173 at 6. The Defendant attached a single page of the Plaintiffs’
purported damages analysis, which sets forth the Mikhail Arroyo is seeking
compensatory damages in the form of both economic and emotional distress
damages. Dkt. 173-1. The page provided by the Defendant includes a section that
states as follows:
Economic Damages: As a consequence of Defendant’s discriminatory
policies and practices, Mikhail Arroyo incurred increased medical
expenses resulting from his prolonged stay in the nursing home from
approximately May 2016 until June 2017. The nursing home expenses
were at least $2,460; Plaintiffs are awaiting additional billing records
and reserve the right to amend this estimate.
Emotional Distress: As a consequence of Defendant’s discriminatory
policies and practices, Mikhail Arroyo suffered significant emotional
distress. For 13 months, Mr. Arroyo was stuck in a nursing home,
unable to move into his mother’s apartment. During that time, he
suffered anxiety and sadness that was proximately caused by
Defendant’s discriminatory role in the denial of his housing
application and compounded by Defendant’s discriminatory refusal to
produce his consumer file to his conservator and mother. Mr. Arroyo
also suffered a fall in the nursing home that resulted in a week-long
hospitalization and significant additional pain and suffering.
42
Id.
The Defendant also provided an excerpt of Ms. Arroyo’s deposition. Dkt.
173-2. The Defendant has redacted and failed to provide the context needed to
fully understand the deposition testimony. Id. For example, while the testimony
discusses someone being transported to the hospital and suffering from medical
conditions, at no point in the text provided does Ms. Arroyo state that the person
she is speaking of is her son.
Id. The Defendant claims in its motion that this
testimony relates to Mr. Arroyo but the Court cannot find this is accurate based
on the evidence presented. Id. In addition, on a single page of the deposition
transcript, surrounded by redactions is a single statement that says “[h]e was
sitting in the bathroom and I guess the CNA left the scene and he fell.” Id. at 3.
The underlying complaint does not allege any claims relating to a fall or
other medical injury incurred by Mr. Arroyo during the time between when his
application to WinnResidential was denied and when he was ultimately accepted.
Compl., Dkt. 1.
Rather it simply states that Mr. Arroyo attributed “increased
medical costs as a result of his prolonged stay in a nursing home.” Id. at ¶¶ 216,
222, 231.
2. Discussion
The Court is unable to make a determination of whether this evidence should
be excluded because the Defendant has not provided a full factual record. The
Defendant has provided segmented pieces of a deposition transcript that is almost
entirely redacted. The Defendant did not seek permission to file a sealed version
of the deposition transcript as required under Local Rule 5 of the Local Rules of
43
Civil Procedure. Any decision based on what has been provided would not be
based on the full and complete record. Therefore, the Court denies the motion to
exclude the medical and injury evidence.
The denial of the motion is without prejudice to re-filing, where the Defendant
is expected to set forth the complete record. Though the motion in limine deadline
has passed, additional time to address this matter is warranted because it is likely
that this evidence would be irrelevant and needlessly time consuming at trial. Fed.
R. Civ. Pro. 1. This is because, based on the conclusory allegations and evidence
currently before the Court, the Plaintiff’s did not raise these injuries in its complaint
and the Defendant was not properly on notice.
Further, there is sufficient time
before trial to address this issue in writing because the trial is scheduled for
approximately 4 months from the date of this decision.
Therefore, the Court denies the motion to exclude certain medical and injury
evidence but authorizes the Defendant to re-file this motion setting forth the full
factual record that supports its motion.
G. Seventh Motion
The Defendant filed a motion to exclude certain marketing evidence arguing
that the (1) the marketing materials are not relevant because they do not show
actual conduct of the parties and there is no evidence of customer use, (2) the
marketing materials should be excluded because they are significantly outdated,
and (3) even if deemed marginally relevant, evidence of the marketing materials
should be precluded under Rule 403. Dkt. 174. The Plaintiff’s filed a response
44
arguing that the marketing materials are relevant and do not pose a risk of unfair
prejudice to the Defendant. Dkt. 183.
1. Background
The “marketing evidence” that the Defendant seeks to exclude includes
product brochures, website materials, opinion columns, specific marketing to
WinnResidential, FHA compliance certificates, and user training materials. Dkt.
174 at 2 n.1 (Plaintiffs’ Ex. Nos. 7, 9-12, 44, 46, 50-62). These materials contain
information about CrimSAFE and other screening products the Defendant offers,
such as basic functions, manner of use, features, and benefits.
As outlined in greater detail in the summary judgment decision, one of the
issues remaining for trial is the decision on whether the Defendant is the proximate
cause of the alleged injuries in this case. Summ. J. Dec. at 34. Part of this dispute
relates to the conflicting evidence on whether the Defendant always returns a copy
of a report that displays the full public data of an applicant’s criminal record to
someone at the client housing provider and, more specifically to Mr. Arroyo,
whether any decision makers at WinnResidential received Mr. Arroyo’s criminal
record. Id. at 7, 15.
Relevant for this discussion are the events that took place in April 2016. As
outlined in greater detail in the summary judgment decision, on April 4, 2016 HUD’s
Office of General Counsel published a document titled “Application of Fair Housing
Act Standards to the Use of Criminal records by Providers of Housing and Real
Estate-Related Transactions.” Id. at 13. The document states that: “Nationally,
racial and ethnic minorities face disproportionately high rates of arrest and
45
incarceration,” and that, “the fact of an arrest is not a reliable basis upon which to
assess the potential risk to resident safety or property posed by a particular
individual.” Id. On April 15, 2016, the Defendant sent an email to some of its clients
discussing this guidance and recommended clients contact their own legal
counsel to review eligibility requirements. Id. at 13–14. The email indicated that
the Defendant is reviewing its products to determine if any changes need to be
made in light of the new HUD guidance. Id. at 14. Approximately a week later, Ms.
Arroyo applied for housing at WinnResidential on behalf of Mr. Arroyo.
Id.
WinnResidential requested a screening report for the Defendant and a decision
came back stating that disqualifying record(s) were found. Id. at 15.
2. Discussion
Here, the marketing evidence that the Defendant seeks to exclude is relevant.
These materials provide unbiased snapshots of what the Defendant was telling its
clients and the public on how its products work. Though this evidence does not
prove how CrimSAFE actually worked, it tends to prove what the Defendant wanted
its clients and the public to know about how it worked. It is not unreasonable or
arbitrary for a factfinder to make a logical inference that the way a product is
advertised is the way the product is unless there is evidence to the contrary. How
CrimSAFE worked is of consequence in this case, particularly in resolving the
disputes as to whether the Defendant always returns copies of underlying reports
and whether the Defendant did so with respect to Mr. Arroyo.
Though the
advertising materials are not conclusive on these issues, they do not need to be
conclusive to satisfy the low standard of relevance.
46
i.
Conduct Evidence
The Defendant argues that this evidence does not prove actual conduct of
the parties and there is no evidence that any customers used these materials. Dkt.
2–4.
It is the Defendant’s position that, for this evidence to be relevant and
admissible, the Plaintiff must prove that the Defendant’s customers viewed the
material and such material affected conduct. Id. at 3. The Defendant relies on
products liability cases to establish the existence of such a rule. Id. (citing to In
re Wright Med. Techs., Inc., No.: 1:13-cv-297-WSD, 2015 WL 6690046, at *12 (N.D.
Ga. Oct. 30, 2015) and Z.H. v. Abbott Labs., Inc., No. 1:14cv746, 2017 WL 104168, at
*2 (N.D. Ohio Jan. 10, 2017).
The Plaintiffs argue that admissibility of marketing material does not
categorically require proof of actual reliance by specific housing providers. Dkt.
183. The Plaintiffs state that the cases cited by the Defendant are distinguishable.
The Plaintiffs also cite to excerpts of the Defendant’s designees’ deposition
transcript stating that these training and marketing material were given to clients.
Dkt. 183 at 8 n.12 (training slides and compliance certificates were provided to
some of the Defendant’s customers).
The Court agrees with the Plaintiff. The Defendant has not established that
proof of use is required for the admission of marketing material. In In re Wright
Med. Techs., Inc., 2015 WL 6690046 at *12 the court held that marketing material
“not actually reviewed by [the defendant-physician or the plaintiff] cannot be used
to establish reliance by [the defendant-physician or the plaintiff].” In re Wright Med.
Techs. is distinguishable because the Plaintiff here is not trying to prove that
47
WinnResidential or the Defendant relied on these material. The issue is whether
these material tend to prove how CrimSAFE worked and how it worked with respect
to Mr. Arroyo. In Z.H. v. Abbott Labs., Inc., No. 1:14cv746, 2017 WL 104168, at *2
(N.D. Ohio Jan. 10, 2017), the court held that marketing material related to the offlabel use of a prescription drug at issue in the litigation is not relevant because the
plaintiff was not prescribed the drug for off-label use. The court in Z.H., allowed the
evidence of the marketing material for other use. Id. Z.H. is also distinguishable
because the marketing material here are not being introduced for purposes
unrelated to this litigation. As explained above, this evidence is relevant to proving
facts that are still at issue in this case.
ii.
Outdated Evidence
The Defendant next argues that the marketing material should be excluded
because it is significantly outdated. Dkt. 174 at 4–6. Specifically, the Defendants
argue that any marketing material issued before April 2016 are outdated because
the intervening events that occurred within that month made such material
ineffective. 2
Id. The Plaintiffs argue that the Defendant did not make changes
following the April 2016 HUD Guidance and even if it did, Mr. Arroyo’s application
was submitted before any such changes were implemented. Dkt. 183 at 6–7.
The Defendant also argues that the material that predates Mr. Arroyo’s application
cannot fit with the “presumption of backward relation” because the Plaintiff did not
present evidence that housing providers relied on those materials. Dkt. 174 at 4.
This is simply repeating the argument already raised about the relevancy of the
evidence. As previously found, this evidence is relevant in tending to prove or
disprove the Defendant’s conduct.
2
48
Whether the Defendant still utilizes the services at issue in this case is a
decision best made after the Court has had the opportunity to hear the evidence
directly from the witnesses, not from their deposition testimony.
Even if the
intervening events nullified prior marketing, it does not entirely remove the
relevancy of the pre-intervention conduct. This is particularly so because it is quite
possible that any intervening event took place after Mr. Arroyo’s application was
denied; he applied within the same month of the HUD Guidance and only a week
after the Defendant indicated in an email to clients that it will determine if it needs
to make changes to its services. If the Defendant proves at trial that the intervening
events nullified prior marketing materials, the Court as the fact finder may
disregard the invalidated marketing materials. At this stage, there is simply not
enough conclusive evidence that such material are irrelevant.
iii.
Prejudice
The Defendant argues that even if this evidence is relevant it should be
precluded under Rule 403 because it will shift the Court’s attention away from the
actual issues in this case. Dkt. 174 at 6. The Defendant’s argument here is largely
dependent on its prior arguments that the material do not show actual conduct or
are outdated. The Plaintiffs argue that the marketing material at issue do not
present any risk of unfair prejudice to CoreLogic.
As already found, this evidence is relevant regardless of whether it is
conclusive evidence of the parties’ actual conduct or its date in comparison to
intervening events.
The Defendant has not explained how this evidence is
otherwise unfairly prejudicial, will confuse the issues, cause undue delay, waste
49
time, or is needlessly cumulative. Therefore, the Court rejects the Defendant’s Rule
403 argument.
For the aforementioned reasons, the Defendant’s motion to exclude certain
marketing material; Dkt. 174; is denied.
H. Eighth Motion
The Plaintiff filed a motion in limine seeking to exclude six of the Defendant’s
proposed exhibits as improper
Dkt. 180.
These exhibits include email
correspondence between the Defendant and WinnResidential, CrimSAFE Terms &
Conditions, the screening service agreement between the Defendant and
WinnResidential, and a spreadsheet purporting to include WinnResidential’s
CrimSAFE settings. Def.’s Exs. D, G, H, I, J. The Plaintiff argues that these exhibits
are not admissible under the business records exception to the hearsay rule. Id.
The Defendant argues, inter alia, that the Plaintiffs’ motion is premature because
trial witnesses could lay a proper foundation to authenticate the documents for
admission as business records. Dkt. 189.
1. Legal Standard
Hearsay is an out of court statement offered for the truth of the matter
asserted and is generally inadmissible.
Fed. R. Evid. 801.
There are many
exclusions and exceptions to the hearsay rule. One of those exceptions include
the business record rule. The business record rule is satisfied upon a showing
that the purported statement or evidence is:
A record of an act, event, condition, opinion, or diagnosis if: (A) the
record was made at or near the time by--or from information
transmitted by--someone with knowledge; (B) the record was kept in
the course of a regularly conducted activity of a business,
50
organization, occupation, or calling, whether or not for profit; (C)
making the record was a regular practice of that activity; (D) all these
conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11)
or (12) or with a statute permitting certification; and (E) the opponent
does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.
Rule 803(b)(6).
2. Discussion
The Defendant has not had an opportunity to meet the requirements under
the business record rule because the satisfaction of the requirements can be
“shown by testimony.” Rule 803(b)(6)(D). There has been no testimony in this
case. Exclusion for this reason is inappropriate at this stage of litigation. Further,
even if at trial the Defendant is unable to lay a proper foundation for the admission
of this evidence under the business record rule, there are other non-hearsay bases
in which they could admit this evidence. A decision as to whether this evidence is
admissible, at this stage of the litigation, is premature.
Therefore, the Plaintiff’s motion in limine to exclude exhibits as improper
hearsay; Dkt. 180; is denied.
I. Ninth Motion
The Plaintiffs have filed a motion in limine to exclude a 2008 Bureau of
Justice Statistics (“BJS”) report; Def.’s Ex. AD; as irrelevant and more prejudicial
than probative. Dkt. 181. The Plaintiffs’ argue that the report—which states that 1
in 3 victims experience violent crime in or near their homes—is not relevant to the
issue of whether perpetrators of crime commit violent crime near their own homes.
Id. The Plaintiffs also argues that the report is more prejudicial than probative
51
because it will tend to elicit an emotional response by associating the thought of
violent crime with one’s home. Id.
The Defendant objects, arguing that the 2008 BJS report is relevant because
it shows, inter alia, that people are most vulnerable in their homes, regardless of
where the perpetrators lives and tends to support the Defendant’s argument of
non-discriminatory interests for its criminal screening policies. Dkt. 188.
Here, the 2008 BJS report may be relevant to the Defendant’s claim of nondiscriminatory interests because it shows that housing providers are rightfully
concerned with the safety of their tenants while the tenant is on the provider’s
property. The argument that this evidence does not tend to prove that criminal
background screenings reduce the risk of being a victim goes to the weight of the
evidence not the admissibility. The Court in this case is sitting as the fact finder
and can disregard this evidence if it is offered to prove something that it does not
stand for. Further, the admission of this evidence would not be unduly prejudicial
because, again, the Court is sitting as the fact finder and will not be emotionally
affected by the introduction of this evidence in the way that the Plaintiffs fear.
The Plaintiff’s motion in limine to exclude the 2008 BJS report is denied.
IV.
CONCLUSION
For the aforementioned reasons:
•
The Plaintiffs’ motion in limine to exclude testimony of Mr. Kacirk; Dkt. 157;
is granted in part and denied in part.
•
The Defendant’s motion in limine to exclude expert witness report of Dr.
Kazemian; Dkt. 177; is denied.
52
•
The Defendant’s motion in limine to exclude testimony of Plaintiffs’
statistical experts; Dkt. 175; is denied.
•
The Plaintiffs’ motion in limine to limit the testimony of Dr. Huber; Dkt. 179;
is granted.
•
The Defendant’s motion in limine to exclude the expert report of Ms.
Alisberg; Dkt. 176; is granted.
•
The Defendant’s motion to exclude certain medical/injury evidence; Dkt. 173;
is denied without prejudice.
•
The Defendant’s motion to exclude certain marketing evidence; Dkt. 174; is
denied.
•
The Plaintiffs’ motion in limine to exclude exhibits as improper hearsay; Dkt.
180; is denied.
•
The Plaintiffs’ motion in limine to exclude report from the 2008 BJS report;
Dkt. 181; is denied.
IT IS SO ORDERED.
_____/s/_____________
Hon. Vanessa L. Bryant
United States District Judge
Dated this day in Hartford, Connecticut: March 30, 2021
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