Yu v. Idaho State University et al

Filing 156

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED that Plaintiff's Motion inLimine Requesting the Court to Exclude Dr C. Gladney, Ph.D., as an Expert Witness or Strike His Testimony (Dkt. 89 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No.: 4:15-cv-00430-REB

JUN YU,

MEMORANDUM DECISION AND
ORDER RE:

Plaintiff,
vs.

PLAINTIFF’S MOTION IN LIMINE
REQUESTING THE COURT TO
EXCLUDE DRU C. GLADNEY, PH.D.
AS AN EXPERT WITNESS OR
STRIKE HIS TESTIMONY (DKT. 89)

IDAHO STATE UNIVERSITY,
Defendant.

This decision resolves Plaintiff’s Motion in Limine Requesting the Court to Exclude Dr
C. Gladney, Ph.D., as an Expert Witness or Strike His Testimony (Dkt. 89).
BACKGROUND
Plaintiff Jun Yu alleges that Defendant Idaho State University (hereafter “Defendant” or
“ISU”) deliberately and unlawfully discriminated against him due to his national origin in
violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d et. seq. FAC ¶ 353 (Dkt.
41). In this motion, Plaintiff seeks an order excluding Defendant’s expert Dr. Gladney as a
witness or striking his testimony and limiting the topics on which he may testify.
LEGAL STANDARDS
Pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), a trial judge must ensure that expert testimony is both relevant and reliable.
Wendell v. GlaxoSmithKline LLC, 858, F.3d 1227, 1232 (9th Cir. 2017). Testimony is relevant if
it “logically advance[s] a material aspect of [a] party’s case.” Estate of Barabin v. Astenjohnson,
Inc., 740 F.3d 457, 463 (9th Cir. 2014) (citation omitted). This is a “low” bar. Messick v.
Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (citing Daubert v. Merrell Dow
Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995)).

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The goal of the reliability inquiry is for district courts to “play an active and important
role as gatekeepers examining the full picture of the experts’ methodology and preventing
shoddy expert testimony and junk science from reaching the jury.” Murray v. Southern Route
Maritime SA, 870 F.3d 915, 923 (9th Cir. 2017) (citing Daubert, 509 U.S. at 595–97). More
specifically, the reliability inquiry “asks whether an expert’s testimony has ‘a reliable basis in the
knowledge and experience of the relevant discipline.’” United States v. Wells, 879 F.3d 900,
933–34 (9th Cir. 2018) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999), with
alteration omitted).
DISCUSSION
Plaintiff’s motion seeks (1) to strike the entire testimony of Dr. Gladney under Federal
Rules of Civil Procedure 26 and 37; (2) to exclude Dr. Gladney as an unqualified expert under
Federal Rule of Evidence 702; and/or (3) to strike Dr. Gladney’s testimony in whole or in part as
inadmissible under Federal Rules of Evidence 702, 703, 704, 104, 402, and 804. The Court will
first address the issue of Defendant’s disclosure of Dr. Gladney as an expert and will then
address the issue of Dr. Gladney’s qualification as an expert.
1. The Court Will Not Strike or Limit Dr. Gladney’s Testimony Under FRCP 26 or 37.
Plaintiff argues that Defendant’s disclosure of Dr. Gladney as an expert failed to comply
with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). He contends that Dr.
Gladney’s curriculum vitae (“CV”) was not current and that Dr. Gladney’s expert report did not
attach (but did reference) an Exhibit B providing Dr. Gladney’s experience testifying in other
cases in the previous four years. He also challenges the completeness of Dr. Gladney’s report
with respect to the opinions it expresses and the bases for such opinions.
Rule 26 places certain requirements upon the details of an expert witness disclosure. If a

DECISION RE: MOTION IN LIMINE TO EXCLUDE DEFENSE EXPERT – 2

disclosed expert report falls short of the requirements, the expert may not be allowed to testify in
whole or in part. FED. R. CIV. P. 37(c)(1). However, such sanctions do not apply if the party’s
failure was substantially justified or harmless. Id. The party facing the sanction has the burden
of showing substantial justification or harmlessness. Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
The Court is not persuaded under Rule 26(a)(2)(B)(iv) that Plaintiff has shown that
Defendant failed to disclose “the witness’s qualifications, including a list of all publications
authored in the previous 10 years.” Plaintiff’s initial argument was that Dr. Gladney’s CV,
which was provided in 2016, showed no publications since 2011. However, the first page of the
CV indicates it was current as of March 2015. The CV also discloses three forthcoming
publications, including one that was scheduled to be published in September 2014. There is a
cobbled overlap in the dates of all of that, but nothing indicates that the required information (as
opposed to a particular date on which the document may have been prepared) was not current as
to this particular detail at the time it was disclosed, and therefore it does not run afoul of Rule 26
– at least as to the detail of the witness’s qualifications and publications.
However, the Rule 26(a)(2)(B)(v) requirement was not met – that there be a disclosure of
“a list of all other cases in which, during the previous 4 years, the witness testified as an expert at
trial or by deposition.” Defendant’s disclosure contains a reference to an “Exhibit B” to Dr.
Gladney’s report that was to include such a list, but there was no such list provided with the
disclosure and it was never provided subsequently, even after the omission was highlighted in
the instant motion.
The question then remains as to whether the failure to provide the testimony list was
substantially justified or harmless. Defendant contends Plaintiff has not shown that he was

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prejudiced, but Plaintiff argues that “[i]f the improperly disclosed expert is allowed to testify, the
harm to Mr. Yu will be significant and irremediable now on the near eve of trial.” Mem. ISO 9
(Dkt. 89-1). Specifically, Mr. Yu describes “the impact upon his trial team in preparing to crossexamine Dr. Gladney, if permitted to testify, without having the required disclosure of and the
ability to prepare using his recent past testimonial experience.” Id. Defendant also argues that
Plaintiff could have deposed Dr. Gladney, but, of course, a party is not required to depose an
opposing expert and the fact that a deposition was not taken does not in any way excuse a failure
to comply with Rule 26 expert disclosure requirements.
Not having the required information makes it more difficult, albeit not necessarily
impossible, to locate information about prior instances in which Dr. Gladney has testified in the
four years prior to the disclosure. The information should have been provided, and there is no
explanation that the court can discern for why – at a minimum – the information was not
immediately disclosed once the Plaintiff’s motion was filed on September 28, 2018. At that
point, even if the failure to include the information in the disclosure was an oversight, it should
have immediately been corrected. But, there is also the failure on the part of the Plaintiff’s
counsel to explain why the missing information from “Exhibit B” was not made known to
Defendant’s counsel with a request that it be supplied as soon as possible. The Court recognizes
that there is no specific duty under Rule 26 to do so (although Rule 1 could be read to impose
such a duty), but it is also more difficult for a party to claim prejudice in trial preparation in not
having such information when it knows it does not have it and has sat on its hands about it.
Finally, Plaintiff does not explain how his trial team would prepare differently if it had
access to the subject information. Such an explanation is a bit of a circular exercise, the Court
acknowledges. In other words, if the information is missing, how can Plaintiff explain to the

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Court how he is prejudiced by not having it? But the fact of this bare record on the subject
illustrates that the question of prejudice is completely undefined. Is it possible that there might
be information in the details of the prior testimony that could be mined by Plaintiff to assist his
counsel’s cross-examination of Dr. Gladney? Maybe. Is it probable? Perhaps. Might there be
nothing of significance at all, at least as it pertains to Dr. Gladney’s testimony in this case? Who
knows?
On the present record, the Court is left with two conclusions. First, the expert disclosure
of Dr. Gladney violated Rule 26(a)(2)(B)(v) by failing to provide Dr. Gladney’s prior testimony.
Second, despite knowing of that omission, (1) Plaintiff never made a specific request to
Defendant to remedy the failure; and (2) Defendant never provided the missing information. In
the exercise of its discretion, the Court concludes that – on the present record – the open question
of whether any prejudice has resulted tips the balance into a finding of harmlessness. However,
the Court requires Defendant to provide the list to Plaintiff’s counsel – from four years prior to
the date of the disclosure current to February 19, 2019 – no later than February 19, 2019.
Plaintiff may then file a memorandum (no more than ten pages in length) no later than February
22, 2019 outlining any further argument Plaintiff may have as to prejudice in the failure to
provide such information at an earlier time.
2. Dr. Gladney Is Partially Qualified to Provide Expert Testimony Under FRE 702.
Dr. Gladney possesses a Ph.D. in social anthropology. He is a full professor in the
Department of Anthropology at Pomona College in California, where he has worked since 2006.
His scholarly work concentrates on field work in China, Asia Minor, and elsewhere abroad
regarding minority populations, including ethnic and religious minorities in those locations. He
has published extensively.

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Defendant’s expert witness disclosure of Dr. Gladney states that
Dr. Gladney is designated to provide expert testimony on the issue of minority
affairs, ethnicity and the Chinese culture within our educational system. He will
opine as to the ability of Chinese students including the Plaintiff to acclimate to
U.S. educational institutions and their ability to acclimate to the nuances of our
society. Dr. Gladney will also be utilized to rebut the Plaintiff’s experts’ opinions
regarding adverse racism.
(Dkt. 89-3.) The disclosure says Dr. Gladney will provide expert opinions on particular subjects.
It does not itself contain “a complete statement of all opinions the witness will express and the
basis and reasons for them” as required by Rule 26(a)(2)(B)(i). Therefore, the only source
identifying his opinions is his expert report. (Dkt. 89-5.)
Plaintiff contends that Dr. Gladney should be excluded as a witness because he is not
qualified as an expert under Federal Rules of Evidence 702, 703, and 704. First, Plaintiff argues
that each of Dr. Gladney’s opinions is either not relevant to any subject at issue in this lawsuit or
is a matter of common sense and knowledge such that expert testimony would not assist the jury.
Next, Plaintiff argues that Dr. Gladney’s opinions are inadmissible under Federal Rule of
Evidence 702 because they fail to meet the applicable standards of intellectual rigor. Plaintiff
finds fault in Dr. Gladney’s reference to just one scholarly publication, the “Wholeren Paper,”
which Plaintiff argues is both irrelevant and flawed. Finally, Plaintiff contends that certain of
Dr. Gladney’s opinions should be excluded as impermissible opinions of law that invade upon
the province of the judge and jury.
In opposition, Defendant says that “Plaintiff does not get to dictate the Defendant’s casein-chief and what specific testimony Dr. Gladney should provide as an expert.” That is true, so
far as it goes, but it is not specifically responsive to all of Plaintiff’s objections to Dr. Gladney’s
testimony. Defendant then takes issue with Plaintiff’s listing of “subjects at issue for trial,”
arguing that Defendant is entitled to present evidence – including properly-disclosed expert

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testimony – on any issue relevant at trial. Defendant asserts that Dr. Gladney is qualified to
provide “an expert opinion as to whether Plaintiff was able to properly acclimate to U.S. culture
and whether he was subject to deliberate and unlawful discrimination in violation of Title VI.”
Defendant quotes from Federal Rule of Evidence 703, which provides in part that “[a]n expert
may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed.” Dr. Gladney’s report also states that his opinions are based upon his
background, education, and experience, in addition to the materials he reviewed and relied upon.
It is, as mentioned above, entirely the decision of the party to decide whether to seek to
provide expert testimony and on what issues and subjects. Part of Plaintiff’s argument in
bringing this motion appears to be focused on the perception that Dr. Gladney can only be
utilized as some sort of opposing viewpoint to the opinions Plaintiff intends to elicit from his
own expert witnesses, particularly in the context of aversive racism and the field of psychology.
But the Defendant is entitled to offer expert testimony in support of its own theories of the case,
particularly as to the defenses being raised to Plaintiff’s claim of discrimination. Among other
things, Dr. Gladney is being offered to provide his opinion as to why Plaintiff did not succeed in
the doctoral program, as an alternative explanation to Plaintiff’s claim of discrimination. That is
an appropriate subject for the Defendant to pursue, and for the Defendant to proffer expert
testimony upon, so long as the proffered testimony otherwise complies with applicable law and
the rules of evidence.
The Court is persuaded that Defendant has shown that Dr. Gladney is qualified, as a
social anthropologist with extensive experience working in China and with Chinese nationals, to
opine as to the cultural differences and difficulties Chinese nationals encounter in American
society, particularly in an academic setting. He need not be a clinical psychologist or have

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familiarity with an academic program in clinical psychology to be qualified to opine generally on
difficulties that Chinese nationals may experience as students in America. The Court is also
persuaded that such testimony would assist the jury because it is relevant to Defendant’s stated
reason for dismissing Plaintiff – that he could not successfully complete a clinical internship
because he could not relate well culturally to his patients.
However, the Court rules that Dr. Gladney is not qualified to opine or has not made an
adequate disclosure under Rule 26 as to (1) any opinions he might offer regarding cultural
difficulties specific to the study or practice of clinical psychology; (2) any opinions upon
whether Defendant’s actions or inactions dealing with Plaintiff were justified; or (3) any
opinions as to whether Defendant’s dismissal of Plaintiff was discriminatory.
For convenience, the Court addresses here each of the four paragraphs that arguably
could be said to describe opinions Dr. Gladney intends to express as contained in his report.1
The opinions contained in the first paragraph on the second page of his report, including a
quotation from the Wholeren Paper, are admissible because Dr. Gladney’s background and
experience qualify him to opine on this subject.2
The opinions in the next paragraph, which discuss challenges specific to second-language
learners studying in the field of or training for practice (such as in an internship setting) in
clinical psychology, will not be permitted. Nothing in Dr. Gladney’s report, CV, or background

1

The Court notes here that Rule 26(a)(2)(B)(i) requires both “a complete statement of all
opinions” and “the basis and reasons for them.” The particular opinions that the Court will not
allow, as further described in this decision, implicate one or both of these prongs, as well as the
deficiencies in an adequate description of “the facts and data considered by the witness in
forming them” which is required by Rule 26(a)(2)(B)(ii).
2

The Plaintiff’s objections as to relevance or reliability do not foreclose the foundational
basis for Dr. Gladney’s testimony. Whether they have any strength for cross-examination, of
course, is a matter left for trial.

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indicates that he has familiarity with those details that would permit him to offer expert opinions
on the subjects.
The opinions in the third paragraph purport to be drawn from Dr. Gladney’s review of
Plaintiff’s student records at ISU and upon the subject of due process protections in Plaintiff’s
internship at the Cleveland Clinic. The Court’s threshold assessment of the opinions regarding
the student records and Dr. Gladney’s opinion upon how Plaintiff was treated, so to speak, by the
Department of Psychology is that such opinions are not drawn from, nor do they require, any sort
of expertise that would assist the jury in understanding the issues in the case or in reaching a
verdict. For present purposes, he will not be allowed to opine on those subjects. If the landscape
of the issue should change in some manner at trial to call for the Court to reconsider that
limitation, the Court will do so at that time. As to the issue of due process protections, even if
there is continuing relevance to that subject in the context of the discrimination claim, Dr.
Gladney will not be allowed to offer opinions regarding due process protections because he has
no expertise about such matters and his disclosure falls short of the Rule 26(a)(B)(2)(i) and (ii)
requirements. Further, such opinions are offered upon ultimate issues reserved for the Court and
the jury, and as such are not appropriate for expert testimony of such nature.
In the fourth and final opinion paragraph, Dr. Gladney says he has reviewed the report of
Plaintiff’s expert Dr. Zorwick and that he is “familiar with the theory of aversive racism.” But
familiarity, whatever that means to him, does not substitute for expertise. He does not describe
the source of such familiarity and he does not describe any underlying facts and data upon that
subject that he has considered apart from the report of Dr. Zorwick. There is nothing in his CV
that even touches upon the subject in a manner that has any adequate correlation to this lawsuit.
Similarly, although he opines on whether ISU discriminated against Plaintiff, he offers no basis

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qualifying him as an expert on that issue. He will not be permitted to testify as an expert witness
upon those subjects.
Dr. Gladney will be permitted to opine regarding the extent to which Plaintiff’s dismissal
was consistent with the struggles a Chinese national might experience in an American academic
setting. As described supra, Dr. Gladney is qualified as a social anthropologist to opine on this
topic generally, and it is not inconsistent for him to apply his background and experience to
opine in Plaintiff’s specific case as to whether any cultural challenges were responsible for
Plaintiff’s inability to finish the program. These are matters of general, but still relevant,
expertise. However, he may not opine as to discrimination or racism because he has not
established that he is qualified to do so and the disclosure of such intended testimony fails the
measure of Rule 26 requirements. In Daubert terms, Defendant has not established that Dr.
Gladney’s testimony will be sufficiently reliable that he is qualified to opine on such topics. To
be qualified, he must have “a reliable basis in the knowledge and experience of the relevant
discipline.” Wells, 879 F.3d at 933–34. Yet nothing in his report – which was required to state
the bases of his opinions – indicates he has knowledge or experience with Title VI, aversive
racism, or discrimination.
In summary, Dr. Gladney’s report proposes that he offer some expert testimony beyond
the bounds of which he is qualified to render an expert opinion and short of the disclosure
requirements that Rule 26 contains. Therefore, Plaintiff’s motion will be granted in part and
denied in part. Dr. Gladney may testify at trial as a social anthropologist regarding the cultural
differences Chinese nationals are likely to experience in America, including in an academic
setting. He may further testify as to the cultural factors applicable in Plaintiff’s specific case.
But Dr. Gladney may not directly testify on the topics of Title VI, aversive racism, or

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discrimination. Stated in the terms of Defendant’s characterization of Dr. Gladney’s anticipated
testimony, Dr. Gladney may opine as to “whether Plaintiff was able to properly acclimate to U.S.
culture” but not as to “whether he was subject to deliberate and unlawful discrimination in
violation of Title VI.”
3. Plaintiff’s Ancillary Requests for Relief.
Plaintiff’s motion also requested that Dr. Gladney be sequestered during trial so that he
cannot hear other witnesses’ testimony and that Plaintiff’s counsel be permitted to conduct voir
dire as to Dr. Gladney’s qualifications outside the presence of the jury. Consistent with the
Court’s prior order (Dkt. 144) that it “will allow all experts, from both parties, to be present
during trial for any witness testimony,” Plaintiff’s request to sequester Dr. Gladney is denied.
The Court will defer ruling on Plaintiff’s request that counsel be permitted to conduct voir dire
of Dr. Gladney’s qualifications outside the presence of the jury.
ORDER
For the reasons stated above, IT IS HEREBY ORDERED that Plaintiff’s Motion in
Limine Requesting the Court to Exclude Dr C. Gladney, Ph.D., as an Expert Witness or Strike
His Testimony (Dkt. 89) is GRANTED IN PART AND DENIED IN PART as follows:


The Motion is GRANTED to the extent that Dr. Gladney will not be permitted to express
an opinion at trial on the topics of Title VI discrimination or aversive racism, as more
fully described herein.



Defendant shall provide Plaintiff, by February 19, 2019, a list of all other cases in which
Dr. Gladney testified as an expert during the period beginning four years prior to the date
of the disclosure and ending February 19, 2019. Plaintiff may file a memorandum of no
more than ten pages in length no later than February 22, 2019 outlining any further

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argument Plaintiff may have as to prejudice in the failure to provide such information at
an earlier time. The Court will revisit this issue if such a memorandum is timely filed.


The Court reserves ruling on whether Plaintiff’s counsel may conduct voir dire of Dr.
Gladney’s qualifications at trial outside the presence of the jury.



The Motion is otherwise DENIED.

DATED: February 15, 2019

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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