U.S. Equal Employment Opportunity Commission v. MJC, Inc. et al
Filing
148
ORDER Granting Plaintiff's Motion To Preclude David Fram From Testifying and Offering Expert Opinion re 120 . Signed by JUDGE SUSAN OKI MOLLWAY on 7/9/2019. (cib)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
)
)
)
Plaintiff,
)
)
vs.
)
)
MJC, INC.; GAC AUTO GROUP,
)
INC. dba CUTTER MAZDA OF
)
HONOLULU; and DOES 1-10
)
INCLUSIVE,
)
)
Defendants.
_____________________________ )
Civ. No. 17-00371 SOM-WRP
ORDER GRANTING PLAINTIFF’S
MOTION TO PRECLUDE DAVID FRAM
FROM TESTIFYING AND OFFERING
EXPERT OPINION
ORDER GRANTING PLAINTIFF’S MOTION TO PRECLUDE DAVID FRAM
FROM TESTIFYING AND OFFERING EXPERT OPINION
I.
INTRODUCTION.
Plaintiff U.S. Equal Employment Opportunity Commission
(“EEOC”) seeks to bar an opinion and testimony by David Fram, an
expert offered by Defendants MJC, Inc. and GAC Auto Group, Inc.
dba Cutter Mazda of Honolulu (collectively, “Defendants”).
No. 120.
ECF
In this employment discrimination case, Fram proposes
to opine on whether Defendants complied with the Americans with
Disabilities Act (“ADA”).
The court grants the motion,
concluding that Fram’s opinion and testimony go to legal issues,
have not been shown to be reliable and relevant, and go to
Defendants’ intent.
II.
BACKGROUND.
The EEOC is suing Defendants under the ADA for
allegedly refusing to hire Ryan Vicari on the basis of his
hearing disability.
ECF No. 27.
The EEOC seeks, among other
things, “punitive damages for [Defendants’] malicious and/or
reckless conduct.”
Id., PageID # 223.
On April 12, 2019, Defendants disclosed that they
intended to call Fram as an expert witness at trial.
120-2, PageID # 1729.
ECF No.
Attached to this disclosure was Fram’s
report dated April 11, 2019.
See id. at 1731-34.
The report explains that, from 1991 to 1996, Fram was
a Policy Attorney for the EEOC in Washington, D.C., where he
“supervised and consulted with EEOC investigators and EEOC
attorneys during the investigation and resolution of all forms
of discrimination complaints, including ADA complaints.”
1731.
Id. at
Since 1996, Fram has been the Director of ADA Services
for the National Employment Law Institute, a nonprofit
educational organization focused on employment law issues.
Id.
Fram states that he has “spoken extensively around the country
concerning ADA issues” and has “trained tens of thousands of HR
professionals, attorneys, and others.”
Id. at 1732.
Fram was retained to opine on “whether Cutter Mazda of
Honolulu’s treatment of Ryan Vicari during his interview for
employment with Cutter was consistent with the industry training
I provide on what is required during an interview of a job
applicant in order to comply with the ADA standard of care.”
Id.
The report explains, “This is relevant because [the EEOC]
2
has alleged that the employer’s conduct fell below the standard
of care and was ‘malicious’ and/or ‘reckless.’”
Id.
Fram
states that he reviewed briefing, deposition excerpts, and “EEOC
regulations, and formal and informal guidance regarding the ADA,
as well as federal Court of Appeals cases and U.S. Supreme Court
cases on the ADA.”
Id.
The report summarizes Fram’s opinion as follows:
Employers are Permitted, But Not Required,
to Ask Applicants to Describe/Demonstrate
Performance When a Known Disability Would
Reasonably Interfere with a Job.
In the EEOC Preemployment Enforcement
Guidance, which I wrote when I was employed
by the EEOC’s Office of Legal Counsel, the
Commission stated that an “employer may ask
applicants to describe how they would
perform any or all job functions, as long as
all applicants in the job category are asked
to do this.” The Commission went one step
further, allowing for certain disparate
treatment in limited circumstances. In this
regard, the Commission stated that, “[w]hen
an employer could reasonably believe that an
applicant will not be able to perform a job
function because of a known disability, the
employer may ask that particular applicant
to describe or demonstrate how s/he would
perform the function. An applicant’s
disability would be a ‘known disability’
either because it is obvious (for example,
the applicant uses a wheelchair), or because
the applicant has voluntarily disclosed that
s/he has a hidden disability.” The
Commission specifically allowed employers to
engage in this disparate treatment in
response to employers’ concerns that
requiring only particular applicants to
describe/demonstrate would be illegal under
the ADA. Importantly, although the
3
Commission allowed for this disparate
treatment, it did not require it.
I train employers, employees, and their
respective representatives on what I believe
are the ADA’s “legal” requirements and also
what I believe to be “best practices.” On
issues like those raised in this case, I
would train employers that there is no legal
obligation to make further inquiries during
an interview if an applicant discloses a
hidden disability that the employer
reasonably believes would interfere with
safe performance of job functions.
Likewise, I would train an applicant that
there is no legal obligation to explain
to the employer how s/he could safely
perform the job if the employer raises
safety concerns.
From a “best practices” perspective, I would
train employers that, when an applicant
discloses such a disability, I believe it is
a best practice to ask the applicant to
describe how s/he would safely perform the
job. I would also train an applicant that,
in circumstances where an employer has
raised safety concerns, the applicant
should, as a best practice, proactively
explain to the employer how s/he could
safely perform the job.
In this case, it appears that neither party
engaged in what I train to be the best
practices. However, neither party engaged
in conduct that falls below the ADA standard
of care according to my training in regard[]
to the legal obligations of applicants and
employers and, moreover, would not be
conduct that is “malicious” or “reckless.”
Id. at 1733.
III.
STANDARD OF REVIEW.
The party submitting opinions of an expert has the
burden of demonstrating the admissibility of those opinions.
4
Lust By & Through Lust v. Merrell Dow Pharms., Inc., 89 F.3d
594, 598 (9th Cir. 1996) (“It is the proponent of the expert who
has the burden of proving admissibility.”).
Rule 702 of the Federal Rules of Evidence governs the
admissibility of expert testimony and states:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical,
or other specialized knowledge will
help the trier of fact to understand
the evidence or to determine a fact in
issue;
(b) the testimony is based on
sufficient facts or data;
(c) the testimony is the product of
reliable principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of
the case.
Fed. R. Evid. 702; see also Clausen v. M/V New Carissa, 339 F.3d
1049, 1055 (9th Cir. 2003).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the
Supreme Court, focusing on the admissibility of scientific
expert testimony, found that such testimony is admissible only
if it is both relevant and reliable.
(1993).
See 509 U.S. 579, 589
In Kumho Tire Co. v. Carmichael, the Court explained
that the presiding judge’s role (or gatekeeping function) in
ensuring the reliability and relevancy of expert testimony
5
extends to all expert testimony.
See 526 U.S. 137, 146 (1999);
see also Clausen, 339 F.3d at 1056 (noting that district courts
are “charged . . . with the responsibility of ensuring that
proffered [expert] evidence is both relevant and reliable”).
Daubert outlined nonexclusive factors, such as
testing, peer review and publication, error rates, and
acceptance in the relevant scientific community, some or all of
which might help a court to determine the reliability of a
particular scientific theory or technique.
94.
See 509 U.S. at 593–
The Daubert test is “flexible,” and the “list of specific
factors neither necessarily nor exclusively applies to all
experts or in every case.”
Kumho, 526 U.S. at 141.
“Rather,
the law grants a district court the same broad latitude when it
decides how to determine reliability as it enjoys in respect to
its ultimate reliability determination.”
Id.; see also Living
Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 369
(9th Cir. 2005) (noting that the inquiry envisioned by Rule 702
is a flexible one that must be tied to the facts of each
particular case).
“[T]he test under Daubert is not the correctness of
the expert’s conclusions but the soundness of his methodology.”
Primiano v. Cook, 598 F.3d 558, 564-65 (9th Cir. 2010), as
amended (Apr. 27, 2010).
“Under Daubert, the district judge is
a gatekeeper, not a fact finder.
When an expert meets the
6
threshold established by Rule 702 as explained in Daubert, the
expert may testify and the jury decides how much weight to give
that testimony.”
Id. (quotation marks and citation omitted).
“A trial court not only has broad latitude in
determining whether an expert’s testimony is reliable, but also
in deciding how to determine the testimony’s reliability.”
Avila v. Willits Envtl. Remediation Tr., 633 F.3d 828, 834 (9th
Cir. 2011) (quoting Elsayed Mukhtar v. Cal. State Univ.,
Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002), overruled on other
grounds by Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457
(9th Cir. 2014)).
IV.
ANALYSIS.
Defendants have not met their burden of proving the
admissibility of Fram’s expert opinion.
The court therefore
grants the EEOC’s motion.
A.
Fram Offers Legal Opinions.
“[A]n expert witness cannot give an opinion as to her
legal conclusion, i.e., an opinion on an ultimate issue of law.”
Mukhtar, 299 F.3d at 1065 n.10 (citations omitted); see also
United States v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999)
(excluding testimony calling for a legal conclusion); Aguilar v.
Int’l Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th
Cir. 1999) (stating that “matters of law for the court’s
determination” are “inappropriate subjects for expert
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testimony”).
Thus, “while an expert witness generally may give
opinion testimony that embraces an ultimate issue to be decided
by the trier of fact, that expert may not express a legal
opinion as to the ultimate legal issue.”
Wiles v. Dep’t of
Educ., Civ. Nos. 04-00442 ACK-BMK, 05-00247 ACK-BMK, 2008 WL
4225846, at *1 (D. Haw. Sept. 11, 2008).
“Courts have held that
expert witnesses’ use of ‘judicially defined terms,’ ‘terms that
derived their definitions from judicial interpretations,’ and
‘legally specialized terms’ would constitute expression of
opinion as to the ultimate legal conclusion.”
Id. (quoting
United States v. Duncan, 42 F.3d 97, 101-02 (2d Cir. 1994)
(cited approvingly in Mukhtar, 299 F.3d at 1066)).
The ultimate legal issues in this case include
determinations of whether Defendants violated the ADA and
whether their conduct was malicious and/or reckless.
Fram’s
testimony goes to these exact issues.
Based on his review of the Complaint, deposition
excerpts, EEOC regulations, and case law, Fram offers his
opinion that “neither party engaged in conduct that falls below
the ADA standard of care according to my training in regard[] to
the legal obligations of applicants and employers.”
120-2, PageID # 1733.
ECF No.
He explains that this “ADA standard of
8
care” 1 is based on “what I believe are the ADA’s ‘legal’
requirements and also what I believe to be ‘best practices.’”
Id.
Fram proposes to give his interpretation of ADA
requirements and to opine on whether Defendants violated them.
See Coelho v. Life Ins. Co. of N. Am., Civ. No. 08-00569 HG-BMK,
2010 WL 11610356, at *2 (D. Haw. Apr. 6. 2010) (excluding expert
testimony going to “legal interpretations of an insurance
policy”).
Fram further concludes that Defendants’ conduct “would
not be conduct that is ‘malicious’ or ‘reckless.’”
2, PageID # 1733.
ECF No. 120-
In other words, he applies judicially defined
terms to the facts of the case, effectively determining whether
the EEOC is entitled to punitive damages.
See Wiles, 2008 WL
4225846, at *1 (explaining that “Plaintiffs’ experts may not
couch their opinions in terms of whether or not Defendant
engaged in ‘deliberate indifference’” because that term is “a
judicially defined and/or legally specialized term”).
In his
deposition, Fram explained that “if [Defendants’ conduct is]
consistent with how I train employers in this industry, or in
1
In his deposition, Fram clarified that the industry standard of
care is the ADA:
Q.
And just to be clear, Mr. Fram, the industry standard
of care is the ADA; is that correct?
A.
Yes.
ECF No. 120-3, PageID # 1793.
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any employment industry, then it can’t be malicious or
recklessly indifferent.”
ECF No. 120-3, PageID # 1740; see also
id. at 1750 (agreeing that whether the EEOC shows malice or
reckless indifference on Defendants’ part is “a legal issue”).
This constitutes a legal conclusion (and one without any basis
in law).
Defendants argue that Fram “opines on the very limited
question of whether Guy Tsurumaki had an obligation to make
further inquiries of Ryan Vicari upon learning that Mr. Vicari
is deaf, including inquiries regarding Mr. Vicari’s ability to
perform job functions.”
ECF No. 135, PageID # 2400.
Defendants’ characterization of Fram’s testimony neglects to
mention his opinion on whether Defendants met the “ADA standard
of care” (i.e., Fram’s interpretation of what the ADA requires)
and whether Defendants’ conduct was malicious or reckless.
Moreover, any “obligation” that Tsurumaki did or did not have
during his interview with Vicari would be a legal obligation
based on the ADA.
Defendants further argue that Fram’s opinion is akin
to testimony by “human resources experts” that courts have
allowed.
ECF No. 135, PageID # 2395 (quoting Maharaj v. Cal.
Bank & Tr., 288 F.R.D. 458, 460 (E.D. Cal. 2013) (“In
particular, courts commonly permit human resources experts to
testify on human resources management policies and practices and
10
whether an employer deviated from those policies and
practices.”).
Defendants assert that they “are allowed to rely
on expert testimony regarding the issue of whether Defendants
acted according to the standards relied upon by Mr. Fram in his
training.”
Id.
The court disagrees.
The standards relied on
in Fram’s training are not “industry standards” but standards
based on his interpretation of what the ADA requires.
Whether
Defendants deviated from what the ADA requires is the central
issue in this case.
Fram offers legal conclusions, which are inadmissible.
B.
Defendants Have Not Shown That Fram’s Opinion
Is Reliable.
In assessing reliability, “[t]he question is whether
an expert’s methodology can be ‘challenged in some objective
sense, or whether it is instead simply a subjective, conclusory
approach that cannot reasonably be assessed for reliability.’”
City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1046 (9th
Cir. 2014) (quoting Fed. R. Evid. 702 Advisory Committee’s Note
to 2000 Amendments).
Expert testimony may not be based on
“subjective belief or unsupported speculation.”
Daubert, 509
U.S. at 590.
Fram’s opinion is based on his experience as an EEOC
attorney over 20 years ago, his belief of what the ADA requires,
and the training he developed based on that experience and
belief.
See ECF No. 120-2, PageID # 1733 (“I train employers,
11
employees, and their respective representatives on what I
believe are the ADA’s ‘legal’ requirements and also what I
believe to be ‘best practices.’”).
Further, in his deposition,
Fram explained that his “best practices” are based on common
sense and human experience:
Q.
So there is no objective guidance for
applicants in that situation that you have
developed to tell them how they can
proactively explain how to safely perform
the job?
A.
No. This is just a matter of being a
human being and common sense. This is just
talking it through. There is not a legal
standard that triggers the individual’s
obligation and what he or she has to say.
Q.
Right.
practices?
A.
This is all your best
Yes.
. . . .
A.
. . . . I don’t think it’s that
complicated because really what I am talking
about is being a human being and
communicating. So that’s really what my
best practices come down to is communicating
what your needs are, communicating what your
concerns are. It’s communication that we
just learn in life. So it’s not that there
is any magic best practices that somebody
has to be trained on.
ECF No. 120-3, PageID #s 1783-86.
The EEOC argues that “Mr. Fram’s self-published
training has never been peer reviewed, approved or endorsed by
any court of the EEOC, and lacks general recognition and
12
acceptance as a standard of practice.”
#s 1718-19.
ECF No. 120, PageID
Defendants do not respond by showing that Fram’s
opinion is based on something more than his subjective belief.
Instead, Defendants argue that Fram’s testimony is reliable
because “Mr. Fram’s report--in addition to his CV--demonstrate
his breadth of knowledge and experience regarding how he trains
employers to comply with the ADA.”
However, as explained above,
Fram’s opinion as to how to comply with the ADA constitutes
impermissible legal conclusions.
Fram’s opinion is excluded because Defendants do not
show that it is reliable.
C.
Defendants Have Not Shown That Fram’s Opinion
Is Relevant.
“The requirement [in Rule 702 of the Federal Rules of
Evidence] that the opinion testimony ‘assist the trier of fact’
‘goes primarily to relevance.’”
Primiano, 598 F.3d at 564
(quoting Daubert, 509 U.S. at 591).
“To be admissible, ‘expert
testimony must . . . address an issue beyond the common
knowledge of the average layman.’”
Mukhtar, 299 F.3d at 1065
n.9 (quoting United States v. Vallejo, 237 F.3d 1008, 1019 (9th
Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001).
Fram’s opinion would likely confuse or mislead the
jury.
In addition to constituting legal conclusions, his
opinion discusses the ADA training that he offers, as well as
his “best practices.”
At the hearing on this motion,
13
Defendants’ counsel argued that Fram’s opinion would help the
jury determine whether Defendants’ equal employment training
program was satisfactory.
However, Fram did not train
Defendants or anyone else involved in this case.
Further,
Fram’s training is based on his experience and beliefs, not on
an accepted industry standard.
Fram stated in his deposition
that his best practices are based at least in part on common
sense and the human experience, which is not “beyond the common
knowledge of the average layman.”
Defendants fail to show that Fram’s opinion will
assist the trier of fact and therefore be relevant.
D.
Fram’s Opinion Goes to Defendants’ Intent.
Experts may not offer opinions regarding a defendant’s
“intent, motive, or state of mind” because “[s]uch opinions
invade the province of the trier of fact.”
Sec. & Exch. Comm.
v. Jensen, No. CV 11-5316-R, 2013 WL 12216855, at *1 (C.D. Cal.
Jan. 9, 2013); see also Siring v. Or. State. Bd. Of Higher Educ.
ex rel. E. Ore. Univ., No. 3:11-cv-1407-SI, 927 F. Supp. 2d
1069, 1077 (D. Or. 2013) (“Courts routinely exclude as
impermissible expert testimony as to intent, motive, or state of
mind.” (collecting cases)).
Fram’s opinion provides that Defendants’ conduct
“would not be conduct that is ‘malicious’ or ‘reckless.’”
No. 120-2, PageID # 1733.
ECF
Whether Defendants acted with malice
14
or recklessness for the purpose of awarding punitive damages is
a question going to Defendants’ state of mind or intent.
See
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999) (“The
terms ‘malice’ and ‘reckless’ ultimately focus on the actor’s
state of mind.”); EEOC v. Scolari Warehouse Markets, Inc., 488
F. Supp. 2d 1117, 1139 (D. Nev. 2007) (“Punitive damages may be
awarded if the EEOC can demonstrate that Defendant engaged in a
discriminatory practice with malice or reckless indifference to
its employees’ rights.” (citing 42 U.S.C. § 1981a(b)(1);
Kolstad, 527 U.S. at 535-36)).
Defendants argue that Fram’s opinion should be
admitted because, as stated in his deposition, Fram was not
asked to give an opinion on what “maliciousness” or “reckless
indifference” means:
Q.
And how is malicious and/or reckless
conduct connected to punitive damages?
What’s your understanding about that?
A.
My understanding is that you would have
to show--meet that standard in order to get
punitive damages.
Q.
You would have to show that the
employer acted either with maliciousness or
reckless indifference, correct?
A.
That’s my understanding. And I haven’t
been asked to give an opinion on what that
means, so that is my understanding.
Q.
Oh, you haven’t been asked to give an
opinion about what maliciousness means?
A.
Or reckless indifference.
15
Q.
Okay. Do you have an understanding
about what those terms mean?
A.
I do not.
ECF No. 120-3, PageID #s 1741-42.
Even if he was not asked to
opine on his understanding of those terms, Fram was asked to
provide his opinion on whether “the employer’s conduct fell
below the standard of care and was ‘malicious’ and/or
‘reckless.’”
ECF No. 120-2, PageID # 1732.
Fram’s opinion is excluded as offering an opinion on
Defendants’ intent.
V.
CONCLUSION.
The EEOC’s motion to preclude Fram’s expert opinion
and testimony is granted.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 9, 2019.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
U.S. Equal Employment Opportunity Commission v. MJC, Inc. et
al., Civ. No. 17-00371 SOM-WRP; ORDER GRANTING PLAINTIFF’S
MOTION TO PRECLUDE DAVID FRAM FROM TESTIFYING AND OFFERING
EXPERT OPINION.
16
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