Russell v. City of Tampa, Florida
Filing
31
ORDER: Plaintiff's Motion to Strike Defendant's Expert Witness and Expert Report 18 is GRANTED. The Court excludes Defendant's designated expert Christian Yates from this case. Signed by Judge James S. Moody, Jr. on 6/15/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEE RUSSELL,
Plaintiff,
v.
CASE NO: 8:16-CV-912-T-30JSS
CITY OF TAMPA, FLORIDA,
Defendant.
____________________________________/
ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion to Strike Defendant’s
Expert Witness and Expert Report (Dkt. 18) and Defendant’s Response in Opposition (Dkt.
28). The Court, upon review of the motion, response, and being otherwise advised in the
premises, grants Plaintiff’s motion because Defendant’s expert, Christian Yates, will not
assist the trier of fact.
BACKGROUND
On April 15, 2016, Plaintiff Dee Russell, a former employee of Defendant The City
of Tampa, filed an action against the City for unlawful retaliation in violation of the
Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq., as amended (“ADA”)
and the Florida Civil Rights Act of 1992, §760.01, Florida Statute, et seq. (“FCRA”).
Plaintiff was employed at the City as a Solid Waste Collection Driver during the
relevant time. At some time during his employment, Plaintiff was diagnosed with a medical
condition that allegedly limited one or more of his major life activities. On July 30, 2013,
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”), asserting that the City failed to reasonably accommodate his
disability. On March 13, 2014, Plaintiff filed, pro se, a lawsuit under the ADA for disability
discrimination against the City. Plaintiff was still employed by the City at the time he filed
his pro se lawsuit.
On December 18, 2014, during the pendency of his ADA lawsuit against the City,
Plaintiff was involved in an accident involving the City’s solid waste truck. Specifically,
while waiting in the queue at the McKay Bay transfer station to unload debris from City
vehicle #1240, Plaintiff exited the vehicle to speak to another driver. According to Plaintiff,
he believed he had pulled the parking brake prior to exiting the vehicle. However, while he
was talking to the other driver, the vehicle began moving forward, went over a speed bump,
and struck the vehicle in front of it, causing approximately $6,800 in damages. The accident
did not result in any injuries. Plaintiff repeatedly told the police officers who arrived at the
accident scene and the City, during its subsequent investigation of the accident, that he had
set the brake.1
The City ultimately concluded that Plaintiff had not set the brake and, on March 10,
2015, issued Plaintiff a “Letter of Counseling” related to the incident because the accident
1
Although absent from the complaint, it appears Plaintiff was involved in two additional
accidents, an October 31, 2014 accident, which the City deemed was non-preventable, and a
February 16, 2015 “backing accident.” (Dkt. 28).
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was preventable. The City relied on the recommendation from its Safety Review Committee,
which had concluded that Plaintiff had not pulled the parking brake, the traffic report, and
statements from a mechanic who inspected the vehicle after the accident.
On April 1, 2015, Plaintiff took the deposition of Mark Wilfalk, the City’s Solid
Waste Director, as part of his pro se lawsuit against the City, which was still pending at that
time. According to Plaintiff, Wilfalk’s deposition was “heated” and Wilfalk was “visibly
irritated during the deposition.” (Dkt. 1).
The complaint alleges that within a month of his deposition, Wilfalk issued Plaintiff
a notice of disciplinary action, accusing Plaintiff of making false statements, and thus
violating the City’s policy on “Moral Turpitude.” At a May 7, 2015 hearing, the City
showed Plaintiff video footage of the accident, which revealed Plaintiff exiting the vehicle
without setting the parking brake. Based on the video, the City terminated Plaintiff’s
employment for intentionally lying to the police officers and the City when he repeatedly
maintained throughout the investigation and grievance process that he had pulled the parking
brake.
Plaintiff alleges that the City’s stated reason for terminating his employment is “not
worthy of belief.” (Dkt. 1). Plaintiff contends that the City had already concluded in January
2015, based upon the mechanic’s report, that Plaintiff had not set the parking brake.
Plaintiff’s retaliation claims in this case are premised on the timing of Wilfalk’s April 1,
2015 deposition and Plaintiff’s May 7, 2015 termination—according to Plaintiff, these two
events are causally related. Plaintiff now admits that he did not pull the parking brake.
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Plaintiff argues that the real reason he was terminated was because he pursued the initial
discrimination case against the City.2
On May 8, 2017, the City designated Christian Yates, a mechanical engineer
specializing in accident reconstruction, as an expert witness. The City served Yates’ expert
report on May 10, 2017. Yates opines as follows:
1.
2.
3.
4.
5.
6.
The driver of the City of Tampa solid waste truck did not engage the
parking brake prior to exiting the vehicle at the time of the accident.
The driver of the City of Tampa solid waste truck did not put the
vehicle in neutral prior to exiting the vehicle at the time of the accident.
The driver of the City of Tampa solid waste truck did not follow the
proper procedure to exit his vehicle in that he did not put the vehicle in
neutral and apply the parking brake at the time of the accident.
The driver demonstrated a habit of not parking the vehicle properly
prior to exiting since he did the same thing approximately 5 minutes
before the accident.
The driver knew, or should have known, that he left the vehicle in drive
as he must have put it in neutral after the accident when he engaged the
parking brake.
The driver knew, or should have known, that he did not put the parking
brake on since he engaged the parking brake immediately after the
accident.
(Dkt. 18-1).
Plaintiff moves to strike Yates’ expert report in its entirety. Plaintiff argues that Yates
improperly opines on Plaintiff’s credibility; Yates does not have the adequate expertise to
testify about Plaintiff’s “habit” or what Plaintiff “knew or should have known;” and Yates’
2
With respect to Plaintiff’s pro se discrimination lawsuit against the City, on October 5,
2015, the district court granted the City’s motion for summary judgment and entered judgment in
the City’s favor. Plaintiff appealed and the Eleventh Circuit affirmed the district court on June 8,
2016. Case No. 8:14-cv-814-EAK-AEP, Dkts. 44 and 50.
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testimony as to the causation of Plaintiff’s accident will not assist the trier of fact. (Dkt. 18).
As explained below, the Court sustains Plaintiff’s objections and excludes Yates under
Daubert.
STANDARD
In federal court, expert opinions must meet the admissibility guidelines announced by
the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
and Federal Rule of Evidence 702. Under Rule 702:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.
Before permitting expert opinion testimony, the court must make certain that the
expert employs “in the courtroom the same level of intellectual rigor that characterizes the
practice of the expert in the field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). The court must act as gatekeeper to prevent speculative and unreliable “expert”
testimony from reaching the jury. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th
Cir. 2005) (noting that the “task of evaluating the reliability of expert testimony is uniquely
entrusted to the district court under Daubert”). The gatekeeping role is “significant” because
an “expert’s opinion ‘can be both powerful and quite misleading.’” U.S. v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (quoting Daubert, 509 U.S. at 595).
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As gatekeeper, the court makes three inquiries: (1) first, whether the expert is qualified
to testify competently regarding the matters that he intends to address; (2) second, whether
the methodology by which the expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert; and (3) third, whether the testimony
will assist the trier of fact, through the application of scientific, technical, or specialized
expertise, to understand the evidence or to determine a fact in issue. See City of Tuscaloosa
v. Harcros Chems., Inc., 158 F.3d 548, 562-63 (11th Cir. 1998); see also Cooper v. Marten
Transp., Ltd., 539 F. App’x 963, 965-67 (11th Cir. 2013). The party offering the expert
opinion testimony bears the burden of establishing, by a preponderance of the evidence, the
expert’s qualification, reliability, and helpfulness. See Kilpatrick v. Breg, Inc., 613 F.3d
1329, 1335 (11th Cir. 2010) (citing McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253,
1256 (11th Cir. 2002)); see also Sumner v. Biomet, Inc., 434 F. App’x 834, 841 (11th Cir.
2011); Frazier, 387 F.3d at 1260.
Importantly, although rulings on admissibility under Daubert inherently require the
court to conduct an exacting analysis of the proffered expert’s methodology, it is not the
court’s role to make ultimate conclusions as to the persuasiveness of the proffered evidence.
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).
Indeed, the gatekeeper role is not intended to supplant the adversary system or the role of the
jury. See id. “Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking
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shaky but admissible evidence.” Daubert, 509 U.S. at 596; see also U.S. v. Ala. Power Co.,
730 F.3d 1278, 1282-85 (11th Cir. 2013) (explaining that the Daubert inquiry “is not
intended to supplant” cross-examination and presentation of contrary evidence); Costa v.
Wyeth, Inc., No. 8:04-cv-2599-T-27MAP, 2012 WL 1069189, at *2 (M.D. Fla. Mar. 29,
2012).
DISCUSSION
Yates’ expert opinion must be excluded under Daubert because portions of his expert
report are based on pure speculation. More important, the report, in its entirety, would not
assist the trier of fact.
Yates, who is experienced in mechanical engineering and accident reconstruction, is
not qualified to testify about Plaintiff’s “habit” and state of mind. Yet, in paragraph 4 of his
expert report Yates concludes, without providing any supporting evidence, that Plaintiff had
a “habit of not parking the vehicle properly.” In paragraphs 5 and 6, Yates speculates about
what Plaintiff “knew, or should have known.” (Dkt. 18-1). These opinions are not based
upon sufficient facts or data. Moreover, no expert is truly qualified to opine on a person’s
credibility or state of mind—these determinations are typically left to the finder of fact.
Defendant appears to concede that it would be inappropriate for Yates to speculate
about Plaintiff’s habit, state of mind, and credibility. However, Defendant argues that Yates
should be permitted to testify as to how vehicle #240 reacted, as shown on the accident
video, to rebut the reasonableness of Plaintiff’s belief that he had set the brake. This
testimony, like the entirety of Yates’ report, would not assist the trier of fact because Plaintiff
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now admits that he did not set the parking brake. Therefore, paragraphs 1-3 of Yates’ expert
report, where he opines that Plaintiff did not engage the parking brake, did not put the vehicle
in neutral, and did not follow proper procedure, are superfluous because Plaintiff concedes
these points.
Finally, it is important to note that the reasonableness of Plaintiff’s initial belief that
he had set the parking brake is irrelevant to the legal claims in this case. Plaintiff’s
retaliation claim alleges that the real reason behind his termination was retaliation for filing
the pro se discrimination lawsuit against the City. The City argues that it terminated Plaintiff
because, after the City reviewed the video of the accident, the City concluded that Plaintiff
repeatedly lied about setting the parking brake. In order to demonstrate that the City’s stated
reason is pretext, the inquiry focuses on the City’s beliefs not on Plaintiff’s beliefs. See
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Indeed, the
City’s non-discriminatory reason could be based on erroneous facts as long as the reason was
not related to the protective activity. In other words, whether Plaintiff actually lied about
setting the brake is irrelevant to the analysis. See Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991) (pretext inquiry is limited to whether the employer believed the
employee was guilty of misconduct and if so, whether that was the reason behind the
discharge; evidence that the employee did not actually engage in the misconduct is
irrelevant).
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In sum, Yates’ opinion, which focuses on the reasonableness of Plaintiff’s
actions—and which was clearly not available to the City at the time that the City made the
decision to terminate Plaintiff—would offer no assistance to the trier of fact.
It is therefore ORDERED AND ADJUDGED that:
1.
Plaintiff’s Motion to Strike Defendant’s Expert Witness and Expert Report
(Dkt. 18) is GRANTED.
2.
The Court excludes Defendant’s designated expert Christian Yates from this
case.
DONE and ORDERED in Tampa, Florida on June 15, 2017.
Copies furnished to:
Counsel/Parties of Record
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