Crawford et al v. George & Lynch Inc. et al
MEMORANDUM ORDER- Granting 155 MOTION to Preclude. Signed by Judge Sherry R. Fallon on 12/9/2013. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GEORGE & LYNCH, INC.,
Civil Action No. 10-949-GMS-SRF
Presently before the court in this sexual harassment, gender discrimination, and retaliation
action brought under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title
VII"), is defendant George & Lynch's ("G&L" or "Defendant") motion to preclude the testimony
or report of Elizabeth Watson Gramigna ("Gramigna"), filed on July 31,2012 (D.I. 155). 1 For
the following reasons, the court will grant G&L's motion to preclude Gramigna's testimony and
The background relevant to this action has been set forth more fully by the court in the
Report and Recommendation addressing the parties' motions for summary judgment, which was
Also pending before the court are the following: (1) a motion for summary judgment filed
by G&L and Leonard J. Brooks, Jr. ("Brooks") (D.I. 156); (2) a motion for partial summary
judgment, filed by plaintiff Tammy L. Crawford ("Crawford" or "Plaintiff') (D.I. 157); (3) the
motion to strike of plaintiff Tammy L. Crawford ("Crawford" or "Plaintiff'), filed on August 17,
2012 (D.I. 167); and (4) G&L's motion to strike and for sanctions, filed on September 20,2012 (D.I.
185). The court addresses the motions for summary judgment in a Report and Recommendation
issued contemporaneously herewith. The court addresses the motions to strike in a separate
Memorandum Order issued on this same date.
filed on this same date. For purposes of the present motion, the relevant facts are as follows.
On March 15, 2012, Crawford disclosed Gramigna as her human resources expert to
provide an opinion on G&L's employment practices. (D.I. 169, Ex. 1) Grarnigna's report opined
that G&L failed to provide anti-harassment training to its employees, update its anti-harassment
policy, and investigate Crawford's allegations. (!d. at 2) Moreover, Gramigna indicated that
G&L deviated from standard employer practices to prevent and remedy harassment in the
workplace. (!d.) Gramigna's report and testimony were based on the information she reviewed
and her professional background and experience. (!d. at 1) G&L sought to preclude Crawford
from offering Gramigna as an expert witness in a discovery dispute letter jointly filed by the
parties on April 5, 2012. (D.I. 85) G&L renewed its motion following the completion of
Gramigna's deposition. (D.I. 142)
Motions to exclude evidence are committed to the court's discretion. See In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717,749 (3d Cir. 1994). The admissibility of expert testimony is a
question of law governed by Rule 702 of the Federal Rules of Evidence and the Supreme Court's
decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Pursuant to Federal
Rule of Evidence 702, "an expert's testimony must: (i) be based on specialized knowledge,
training, or experience that will assist the trier of fact; (ii) be based on sufficient facts or data;
(iii) be the product of reliable principles and methods; and (iv) reliably apply the principles and
methods to the facts ofthe case." See AVMTechs., LLC v. Intel Corp., C.A. No. 10-610-RGA,
2013 WL 126233, at* 1 (D. Del. Jan. 4, 2013) (citing Fed. R. Evid. 702 and Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 589-97 (1993)). "[A]ny step that renders the [expert's]
analysis unreliable under the Daubert factors renders the expert's testimony inadmissible." In re
Paoli, 35 F.3d at 745. Crawford bears the burden of establishing that Gramigna's testimony is
admissible by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171,
The Third Circuit has explained that Rule 702 restricts testimony based on qualification,
reliability, and fit. Schneider ex rei. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.
2003). The issues raised in the present matter primarily implicate the reliability and fit of
Gramigna's testimony. To prove reliability, the party must show that the expert's testimony is
"based on the 'methods and procedures of science' rather than on 'subjective belief or
unsupported speculation'; the expert must have 'good grounds' for his or her belief." Paoli, 35
F.3d at 742 (quoting Daubert, 509 U.S. at 590). The expert's testimony must also be relevant for
the purposes of the case and must assist the trier of fact. Schneider, 320 F.3d at 404. In Daubert,
the Supreme Court explained that "Rule 702's 'helpfulness' standard requires a valid scientific
connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 59192. Neither expert testimony on the legal standards applicable to the case, nor testimony on
factual matters involving common sense, assists the trier of fact. See Int'l Market Brands v.
Martin Int'l Corp., 2012 WL 621464, at *1 (W.D. Pa. 2012).
In support of its motion to preclude, G&L contends that Gramigna's testimony and report
contain inadmissible legal opinion. (D.I. 155 at 3-7) Specifically, G&L alleges that Gramigna's
report purports to answer whether G&L can successfully invoke the Ellerth-Faragher affirmative
defense and opines on the reasonableness ofG&L's actions. (!d. at 4, 6-7) According to G&L,
Gramigna's report does not cite the industry's standard practices, but rather relies on legal
standards and concludes that G&L violated the legal standards. (!d. at 6, 8) Moreover, G&L
argues that Gramigna's report contains inadmissible speculations about G&L's state of mind
without supporting evidence. (!d. at 7-8)
In response, Crawford contends that Gramigna's expert opinion would help the trier of
fact reach a determination on issues such as whether G&L's investigation of the complaint was
timely and effective, and whether the supervisors had a duty to act upon learning of Crawford's
complaint. (D.I. 169 at 8) Crawford alleges that Gramigna merely opined on whether G&L
followed standard practices and procedures for the prevention of harassment, and did not provide
a legal opinion as to the reasonableness ofG&L's actions. (!d.)
The court concludes that Gramigna's report and testimony are not admissible. Crawford
has failed to meet her burden of proving that Gramigna supported her conclusions with a
generally-accepted methodology as required under Daubert. See FedEx Ground Package Sys.,
Inc. v. Applications Int'l Corp., 695 F. Supp. 2d 216,224-25 (W.D. Pa. 2010) (excluding expert
testimony where expert "fail[ed] to support his conclusions with any technical principles,
methodology, or other sound reasoning"). Gramigna's report generally refers to "standard
practice" or "standards in the industry" that are "typically put in place by organizations," but
describes no scientific or tested methodology that governs the sufficiency of a company's
discrimination policies and procedures. (D.I. 155, Ex. 1 at 2-3) Moreover, at oral argument,
Crawford's counsel was unable to answer questions regarding which standard Gramigna applied
in offering her report and testimony. Instead, Crawford's counsel repeatedly discussed
Gramigna's qualifications and work experience. 2 Gramigna's extensive experience is relevant to
whether she may be qualified as an expert, but is not responsive to the reliability requirement.
See FedEx, 695 F. Supp. 2d at 223.
Gramigna's testimony and report also contain impermissible legal conclusions. 3 See
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195,217 (3d Cir. 2006) ("[T]he District Court
must ensure that an expert does not testify as to the governing law of the case."). Specifically,
Gramigna concludes that G&L "failed to take reasonable care in preventing sexual harassment,
discrimination and retaliation." (D.I. 155, Ex. 1 at 12) The "reasonable care" language invokes
the Ellerth-Faragher affirmative defense, which requires an employer to show that it "exercised
reasonable care to prevent and correct promptly any sexually harassing behavior." Cardenas v.
Massey, 269 F.3d 251, 266 (3d Cir. 2001) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998)); see also Wolfe v. McNeil-FPC, Inc., 881 F. Supp. 2d 650, 662 n.6 (E.D. Pa.
2012) (finding inadmissible conclusions in expert report regarding defendants' culpability and
characterization of warning label as "unreasonably dangerous"). Gramigna's reliance on the
ln response to the court's questions regarding which standard practices Gramigna relied
upon, Crawford's counsel answered, "Your Honor, preventing harassment and retaliation. It's a big
business. She is a trainer, what she does. This is an attorney. This is a woman certified as a senior
professional in human resources." (D.I. 197 at 115: 1-4) When asked again what policy or standard
Gramigna was applying to G&L's conduct, counsel for Crawford responded that Gramigna's
testimony "is based on her experience as an attorney but also as a senior professional in human
resources, a special certification, based on her experience, based on her education, of going in and
working with companies." (!d. at 117:2-6)
During the oral argument on the present motion, Crawford's counsel conceded that
Gramigna's testimony and report are legal in nature: "And part of it is legal. I can't get away from
that. Part of it is the case law and part of it is the EEOC guidelines. Part of it is her education as a
certified human resource expert. Part of it is just her experience of going in and doing this for
companies as her primary source of income. This is what she does." (D.I. 197 at 120:18-23)
EEOC's Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by
Supervisors further demonstrates the legal foundation for Gramigna's opinion. (D.I. 155, Ex. 3)
("provid[ing] guidance regarding employer liability for harassment by supervisors based on sex,
race, color, religion, national origin, age, disability, or protected activity"). Gramigna's
assessment that "the company's response to [Crawford's] complaint could reasonably be viewed
as retaliatory" constitutes an impermissible legal conclusion because retaliation is a legal
concept, and because Gramigna reaches a conclusion as to whether Crawford's subjective belief
about the legal concept was reasonable. (D.I. 155, Ex. 1 at 8)
Moreover, Gramigna's opinion would not assist the jury in deciding the issues before it.
The jury should be left to decide whether G&L's policy was adequate and whether its procedures
were properly enforced by reviewing the factual evidence on the record and applying the legal
standards as directed by the court. The reasonableness of an employer's response to harassment
does not require expert testimony. See Wilson v. Muckala, 303 F.3d 1207, 1218-19 (lOth Cir.
2002) (rejecting the admissibility of a human resources expert's testimony, observing that if the
normal experiences and qualifications of jurors are sufficient to allow them to properly reach a
decision based on the facts and circumstances in the record, an expert witness is not necessary).
In support of her arguments, Crawford relies heavily on the Middle District of
Pennsylvania's decision in Young v. Pleasant Valley School District, 267 F.R.D. 163, 167 (M.D.
Pa. 201 0), in which the court denied a motion to exclude an expert after concluding that the
expert based his opinion on evidence of the record, the defendant's personnel file, and the
deposition transcripts. However, the facts set forth in Young are distinguishable from the facts of
the present matter because Gramigna did not review any deposition transcripts, she conducted no
independent investigation, and she relied on only three documents from the record during the
preparation ofher report. (D.I. 155, Ex. 1; Ex. 2 at 19-21) In light ofthe weak factual basis for
Gramigna' s opinion, the absence of applicable standards or methodology governing her opinion,
and the numerous legal conclusions upon which her opinion is based, the court concludes that
Gramigna's expert report and testimony should be excluded from the record.
For the foregoing reasons, it is hereby ORDERED that G&L's motion to preclude the
expert testimony and report of Elizabeth Watson Gramigna (D.I. 155) is GRANTED.
Dated: December!_, 2013
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