Emperador-Baker v. Harrah's New Orleans Casino

Filing 57

ORDER AND REASONS: For all of the foregoing reasons, IT IS ORDERED that defendant's 48 motion to Strike Garry Neil Roark as a Designated Expert is DENIED as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/15/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EVELYN EMPERADOR-BAKER

CIVIL ACTION

VERSUS

NO. 16-17058

JAZZ CASINO COMPANY, LLC

MAGISTRATE JUDGE
JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTION
This is an employment action brought by plaintiff Evelyn Emperador-Baker against
her former employer, Jazz Casino Company, LLC d/b/a Harrah’s New Orleans Casino
(“Harrah’s”).

Plaintiff’s remaining claims assert sex discrimination, hostile work

environment and constructive discharge in violation of Title VII, 42 U.S.C. § 2000e et seq.
Harrah’s filed a Motion to Strike Garry Neil Roark as a Designated Expert. Record Doc.
No. 48. Plaintiff filed a timely memorandum in opposition. Record Doc. No. 50.
Defendant received leave to file a reply memorandum. Record Doc. Nos. 51, 52, 53. For
the following reasons, IT IS ORDERED that the motion is DENIED.
ANALYSIS
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593 (1993),
“the Supreme Court explained that [Fed. R. Evid.] 702 assigns to the district judge a
gatekeeping role to ensure that scientific testimony is both reliable and relevant.” Johnson
v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quotation and citation omitted). “The
aim is to exclude expert testimony based merely on subjective belief or unsupported
speculation.” Johnson v. Big Lots Stores, Inc., No. 04-3201, 2008 WL 1930681, at *1
(E.D. La. Apr. 29, 2008) (citing Daubert, 509 U.S. at 590). Plaintiff, as the party offering

the expert testimony, bears the burden of establishing its reliability and relevance by a
preponderance of the evidence. Johnson, 685 F.3d at 459.
To qualify as an expert, the witness “must have such knowledge or experience in
[his] field or calling as to make it appear that his opinion or inference will probably aid the
trier [of fact] in [its] search for truth.” United States v. Hicks, 389 F.3d 514, 524 (5th Cir.
2004) (quotation omitted). “As long as some reasonable indication of qualifications is
adduced, the court may admit the evidence without abdicating its gate-keeping function.
After that, qualifications become an issue for the trier of fact rather than for the court in its
gate-keeping capacity.” Rushing v. Kan. City S. Ry., 185 F.3d 496, 507 (5th Cir. 1999),
superseded in part by statute on other grounds as noted in Mathis v. Exxon Corp., 302 F.3d
448, 459 n.16 (5th Cir. 2002).
“The qualification standard for expert testimony is not stringent, and so long as the
expert is minimally qualified, objections to the level of the expert’s expertise [go] to
credibility and weight, not admissibility.” QBE Ins. Corp. v. Jorda Enters., Inc., No. 1021107, 2012 WL 913248, at *3 (S.D. Fla. Mar. 16, 2012) (quotations omitted) (citing
Rushing, 185 F.3d at 507; Clena Invs., Inc. v. XL Specialty Ins. Co., No. 10-62028, 2012
WL 266422, at *6 (S.D. Fla. Jan. 30, 2012); Vision I Homeowners Ass’n, Inc. v. Aspen
Specialty Ins. Co., 674 F. Supp. 2d 1321, 1324 (S.D. Fla. 2009); Johnson, 2008 WL
1930681, at *14).
“‘[A]s a general rule, questions relating to the bases and sources of an expert’s
opinion affect the weight to be assigned that opinion rather than its admissibility and should
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be left for the jury’s consideration.’” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382
F.3d 546, 562 (5th Cir. 2004) (quoting United States v. 14.38 Acres of Land, 80 F.3d 1074,
1077 (5th Cir. 1996)). As the Supreme Court noted in Daubert, “‘[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.’” Id. (quoting 14.38 Acres of Land, 80 F.3d at 1078) (internal quotations
omitted)).
The district court has considerable discretion to admit or exclude expert testimony.
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc.,
200 F.3d 358, 371 (5th Cir. 2000).
Harrah’s asserts four basic reasons why Roark should be stricken as an expert for
plaintiff: (1) his report lacks any opinions; (2) he lacks adequate qualifications to be
accepted as an expert; (3) his report does not contain an adequate methodology; and (4) his
report fails to comply with Fed. R. Civ. P. 26(a). All of these arguments are unpersuasive.
First, Roark’s opinions and expert conclusions are stated at pages 2 and 3 of his
report. Second, he has adequate experience and knowledge based on his work history to
qualify as an expert in security procedures in the gaming industry, which is the subject
matter in which his expertise is being proffered. He is not being proffered, and will not be
accepted, as defendant apparently argues, as an expert specifically in sexual harassment
protocols or an employer’s legal duties regarding sexual harassment. Harrah’s correctly
argues that Roark’s opinions are not relevant to its Ellerth/Faragher defense. However, his
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opinions are relevant to plaintiff’s claim that Harrah’s fostered and permitted a sexually
harassing and hostile work environment by allowing its customers to make sexually explicit
remarks and physical contact with its women employees, including plaintiff, as a result of
its inadequate security procedures and its instructions to its employees not to upset
customers by complaining about the customers’ sexually harassing actions. Third, Roark’s
methodology and the basis for his opinions are adequately described in his report. He bases
his conclusions on his observations about security practices at Harrah’s. Finally, Roark’s
report complies adequately with Fed. R. Civ. P. 26(a)(2)(B).
CONCLUSION
Defendant’s arguments go principally to the weight, if any, that the jury should
assign to Roark’s testimony. Those positions are properly expressed through crossexamination of Roark at trial, not through his exclusion as a witness. For all of the
foregoing reasons, IT IS ORDERED that defendant’s motion to Strike Garry Neil Roark
as a Designated Expert is DENIED.

15th
New Orleans, Louisiana, this _________ day of November, 2017.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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