Gauen v. Board of Education Highland Community Unit School District No 5
Filing
60
ORDER denying defendant's Daubert motion and motion in limine to exclude or in the alternative limit, the expert testimony of Dr. Rebecca Summary and memorandum in support 47 . Signed by Judge David R. Herndon on 1/22/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KAREN GAUEN,
Plaintiff,
v.
No. 16-0207-DRH
BOARD OF EDUCATION OF THE
HIGHLAND COMMUNITY UNIT
SCHOOL DISTRICT NO. 5,
Defendant.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction
Pending before the Court is defendant’s Daubert motion and motion in
limine to exclude, or in the alternative limit, the expert testimony of Dr. Rebecca
Summary (Doc. 47).
Plaintiff opposes the motion (Doc. 49).1
following, the Court denies the motion.
Based on the
As noted in previous Orders, Gauen
alleges that the Board paid her less compensation for her services as principal and
1 The Court notes that plaintiff argues that the Court need not address the motion because it is
untimely pursuant to the Court’s case management procedures. While plaintiff is correct in that the
motion was not filed as timely as the Court prefers, the Court will still entertain the motion.
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assistant principal than her male counterparts in violation of Illinois’ Equal Pay
Act, the federal Equal Pay Act, and Title VII of the Civil Rights Act of 1964. 2
Legal Standard
“A district court's decision to exclude expert testimony is governed
by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court
in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993).” Brown v. Burlington Northern Santa Fe Ry. Co., 765 F.3d
765, 771 (7th Cir. 2014); see also Lewis v. Citgo Petroleum Corp., 561 F.3d 698,
705 (7th Cir. 2009). Rule 702, governing the admissibility of expert testimony,
provides:
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.
“In short, the rule requires that the trial judge ensure that any and all expert
testimony or evidence admitted “is not only relevant, but reliable.” Manpower, Inc.
v. Ins. Co. of Pa. 732 F.3d 796, 806 (7th Cir. 2013) (citing Daubert, 509 U.S. at
589, 113 S.Ct. 2786); see also Bielskis v. Louisville Ladder, Inc., 663 F.3d 887,
894 (7th Cir. 2011) (explaining that ultimately, the expert's opinion “must be
2 The parties are aware of the specific allegations and facts contained in this lawsuit. Thus, the
Court need not recite them again in this Order as they are not necessary to the resolution of the
motion.
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reasoned and founded on data [and] must also utilize the methods of the relevant
discipline”); Lees
2013) (explaining
v.
Carthage
the
College, 714
current
version
F.3d
516,
of Rule
521
(7th
Cir.
702 essentially
codified Daubert and “remains the gold standard for evaluating the reliability of
expert testimony”). The Daubert principles apply equally to scientific and
non-scientific
expert
testimony.
See Manpower,
Inc., 732
F.3d
at
806 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999)).
Under the expert-testimony framework, courts perform the gatekeeping
function of determining whether the expert testimony is both relevant and reliable
prior to its admission at trial. See Manpower, Inc., 732 F.3d at 806; Lees, 714
F.3d at 521; United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (“To
determine reliability, the court should consider the proposed expert's full range of
experience and training, as well as the methodology used to arrive [at] a particular
conclusion.”). In doing so, courts “make the following inquiries before admitting
expert testimony: first, the expert must be qualified as an expert by knowledge,
skill, experience, training, or education; second, the proposed expert must assist
the trier of fact in determining a relevant fact at issue in the case; third, the expert's
testimony must be based on sufficient facts or data and reliable principles and
methods; and fourth, the expert must have reliably applied the principles and
methods to the facts of the case.” Lees, 714 F.3d at 521–22; see also Stollings v.
Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013); Pansier, 576 F.3d at 737.
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A district court's evaluation of expert testimony under Daubert does not “take the
place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v.
Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (citing Daubert, 509 U.S. at 596).
Once it is determined that “the proposed expert testimony meets the Daubert
threshold of relevance and reliability, the accuracy of the actual evidence is to be
tested before the jury with the familiar tools of ‘vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.’”
Id.
Furthermore, Rule 403 states:
The Court may exclude relevant evidence 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.
Analysis
Defendant maintains that Dr. Summary’s opinions do not meet the minimum
requirements for expert testimony; 3 that her methodology and factual basis for her
opinions are unsound, and that her opinions will not assist the trier of fact.
Plaintiff opposes the motion arguing that defendant is confusing liability issues with
damage issues and that Dr. Summary’s testimony goes to the important issues of
the decline of her future pension due to unlawful discrimination.
3 Defendant also argues that Dr. Summary cannot offer an opinion as to whether Gauen was the
victim of pay discrimination. In response, Plaintiff states that Dr. Summary has not and will not
opine on any issues reserved for the jury, including whether defendant paid plaintiff a lower salary
than her male counterparts on account of her gender. Thus, this issue is moot.
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Dr. Summary has a B.S., with honors, from Eastern Illinois University
(1975); a M.A., Economics, from Eastern Illinois University (1976) and a Ph.D.,
Economics, from the University of Illinois in Urbana-Champaign (1983).
Currently, she is a professor and chairperson of the Department of Economics at
the Department of Economics and Finance at Southeast Missouri State University.
In addition, since 1999, she is a forensic economist consultant for her own
company. She has authored/co-written many publications from 1982 to 2015 and
has participated in various professional presentations from 1985 to 2011 in the
field of economics. Reviewing Dr. Summary’s qualifications, it appears that she
has extensive experience in the field of economics. Further, defendant does not
seem to question her qualifications.
In preparing her report, Dr. Summary noted that the purpose of the report:
“The purpose of this report is to present the value of economic losses sustained by
Dr. Karen Gauen as a result of employment discrimination in pay on the basis of
her sex. Dr. Gauen’s past losses are calculated from the school year 2012/13
through 2015/16 and have no reduction for present value. Dr. Gauen’s future
losses are calculated from the school years 2016/17 through retirement, and are
reduced to present value.” (Doc. 45-3, p. 6; Dr. Summary’s Report, p. 1). In
rendering her opinion, Dr. Summary considered the employment records and
compensation records for Dr. Gauen and others employed in the Highland school
district. She also looked at those same records for other individuals employed in
the surrounding school districts as well.
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Here, the Court rejects defendant’s arguments and finds that pursuant to
Rule 702 there is scientific basis for Dr. Summary’s opinions. Dr. Summary’s
specialized training and extensive experience in the economic field provides
sufficient basis for her to offer her opinions.
After reviewing this motion, the
Court finds that this motion, out of the hundreds if not thousands of “Daubert”
motions the Court has had to endure over the years, is the most disingenuous one
the Court has read. Defendant essentially is simply arguing there is a different
way to do this; and since defendant does not agree with plaintiff’s method,
plaintiff’s method must be excluded. A difference of opinion does not make it
excludable.
Thus, the Court concludes that these matters, however, go to the
weight and/or credibility the trier of fact should give to Dr. Summary’s opinions, not
to their admissibility. In fact, Federal Rule of Evidence 703 provides 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.” FED.R.EVID. 703. “Unless the court
orders otherwise, an expert may state an opinion—and give the reasons for
it—with-out first testifying to the underlying facts or data. But the expert may be
required to disclose those facts or data on cross-examination.” FED.R.EVID. 705.
The Court finds that defendants may cross examine Dr. Summary on why it feels
her method is flawed and may cross examine Dr. Summary to point out any
discrepancies as to the correctness of Dr. Summary’s opinions based upon facts
Dr. Summary may or may not know.
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Conclusion
Accordingly, the Court DENIES defendant’s and motion in limine to exclude,
or in the alternative limit, the expert testimony of Dr. Rebecca Summary (Doc. 47).
Judge Herndon
2018.01.22
15:54:12 -06'00'
IT IS SO ORDERED.
United States District Judge
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