Jones et al v. Faribault, City of

Filing 254

MEMORANDUM OPINION AND ORDER denying #143 Plaintiffs' Motion to Exclude Expert Testimony and denying #152 Defendant's Motion to Exclude Expert Testimony. (Written Opinion) Signed by Chief Judge John R. Tunheim on 2/18/2021. (HMA)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THELMA JONES, PRIYIA LACEY, FAISA
ABDI, ALI ALI, RUKIYA HUSSEIN, DAVID
TROTTER-FORD, LUCIA PORAS, and
SOMALI COMMUNITY RESETTLEMENT
SERVICES, INC.,
Plaintiffs,

Civil No. 18-1643 (JRT/HB)

MEMORANDUM OPINION AND ORDER
DENYING MOTIONS TO EXCLUDE EXPERT
TESTIMONY

v.
CITY OF FARIBAULT,
Defendant.
Alejandro Ortiz and Jennesa Calvo-Friedman, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, 125 Broad Street, Eighteenth Floor, New York, NY
10004; O. Joseph Balthazor, Jr., Scott Flaherty, and Brandon Blakely TAFT
STETTINIUS & HOLLISTER LLP, 2200 IDS Center, 80 South Eighth Street,
Minneapolis, MN 55402; Ian Bratlie, ACLU OF MINNESOTA, 709 South Front
Street, Suite 1B, Mankato, MN 56001; Teresa J. Nelson, ACLU OF
MINNESOTA, P.O. Box 14720, Minneapolis, MN 55414, for plaintiffs.
Andrew A. Wolf, Jason J. Kuboushek, Paul D. Reuvers, and Stephanie A.
Angolkar, IVERSON REUVERS CONDON, 9321 Ensign Avenue South,
Bloomington, MN 55438, for defendant.
The City of Faribault (“the City”) implemented a Rental Licensing Ordinance (the
“Ordinance”), including a Crime-Free Multi-Housing (“CFMH”) program and rental unit
occupancy restrictions, in 2014 and subsequently revised the Ordinance in 2017 and
2019. See Faribault, Minn., Code of Ordinances, Ch. 7, Art. V § 7-36–44 (2019). Plaintiffs,

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a group of current and former Faribault renters, challenge the Ordinance, including what
Plaintiffs refer to as the “criminal screening policy”—the requirement that landlords
conduct criminal background checks on all potential tenants and attend an eight-hour
CFMH training—and the occupancy restriction. Plaintiffs claim that the Ordinance
violates the Fair Housing Act (“FHA”) through both disparate treatment and disparate
impact on the basis of race and national origin, and that it violates 42 U.S.C. § 1981, the
Fourteenth Amendment Equal Protection Clause, and the Minnesota Equal Protection
Clause.
Relevant here, Plaintiffs claim that the criminal screening policy predictably creates
a disparate impact on potential Black and Hispanic renters in violation of the FHA because
Black and Hispanic residents are more likely to have contact with the criminal justice
system reflected on a criminal background check as compared to white residents.
Plaintiffs also claim that the occupancy restriction will predictably result in a disparate
impact on potential Black Somali renters because Somali families are larger than white
families.
In support of their FHA disparate impact claims, Plaintiffs disclosed two expert
witnesses, Dr. Christopher Wildeman and Dr. Allan Parnell, to provide demographic and
statistical analysis of incarceration rates and apply those statistics to the rental housing
market, and analyze occupancy levels in rental units where Somali residents live in
Faribault. The City likewise disclosed two experts, Dr. Dwight Steward to rebut Plaintiffs’
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experts, and Dr. Daniel Kennedy to opine on the purpose and efficacy of crime-free
housing programs. The parties have each filed a Motion to Exclude Expert Testimony.
(See Pls.’ Mot. Exclude Expert Testimony, Aug. 18, 2020, Docket No. 143; Def.’s Mot.
Exclude Expert Testimony, Sept. 2, 2020, Docket No. 152.)
Because the parties present arguments related to the credibility and weight of the
proposed expert testimony rather than the testimony’s relevance, and because the Court
finds that none of the testimony is fundamentally unsupported and resolves all doubts in
favor of admissibility at the Daubert stage, the Court will deny both Motions.
I.

STANDARD OF REVIEW
Under Rule of Evidence 702, expert testimony must satisfy three prerequisites to

be admitted:
First, evidence based on scientific, technical, or other specialized knowledge
must be useful to the finder of fact in deciding the ultimate issue of fact.
This is the basic rule of relevancy. Second, the proposed witness must be
qualified to assist the finder of fact. Third, the proposed evidence must be
reliable or trustworthy in an evidentiary sense, so that, if the finder of fact
accepts it as true, it provides the assistance the finder of fact requires[.]
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (cleaned up); see also Fed.
R. Evid. 702. The Court has a “gatekeeping” obligation to ensure that all testimony
admitted under Rule 702 satisfies these prerequisites and that “any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 589, 597 (1993). The proponent of the testimony must
establish, by a preponderance of the evidence, that the expert is qualified, their
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methodology is valid, and “the reasoning or methodology in question is applied properly
to the facts in issue.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757–58 (8th Cir.
2006).
The Supreme Court in Daubert outlined a non-exhaustive list of factors for
assessing reliability, such as (1) whether the opinion is based on scientific knowledge, is
susceptible to testing, and has been tested; (2) whether the opinion has been subjected
to peer review; (3) whether there is a known or potential rate of error associated with the
methodology; and (4) whether the theory has been generally accepted by the scientific
community. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149–50 (1999) (summarizing
Daubert factors). However, in Kumho Tire, the Court explained that “the test of reliability
is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies
to all experts or in every case.” Id. at 141. The reliability inquiry is designed to “make
certain that an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Marmo, 457 F.3d at 757
(quoting Kumho Tire, 526 U.S. at 152).
The Court resolves doubts regarding the usefulness of an expert’s testimony in
favor of admissibility. Marmo, 457 F.3d at 758. “Only if the expert’s opinion is so
fundamentally unsupported that it can offer no assistance to the jury must such
testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929–30 (8th Cir. 2001)
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(quotation omitted). Rather than exclusion, “[v]igorous cross examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” Robinson v. GEICO
Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (quoting Daubert, 509 U.S. at 595).
However, even if expert-witness evidence meets the Rule 702 standard, it may be
excluded “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
II.

DEFENDANT’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT TESTIMONY
The City moves the Court to exclude proposed expert testimony from both of the

Plaintiffs’ experts because their testimony is not helpful, reliable, or relevant due to their
reliance on general population statistics and erroneous assumptions regarding the City’s
Ordinance.
A.

Summary of Testimony

Plaintiffs disclosed two expert witnesses, Dr. Daniel Wildeman and Dr. Allan
McMillan Parnell, who are both trained demographers with backgrounds in sociology and
policy analysis. (Decl. Alejandro Ortiz (“Ortiz Decl.”) ¶ 4, Ex. C (“Wildeman Report”) at 3–
4, Aug. 18, 2020, Docket No. 146-3; Ortiz Decl. ¶ 6, Ex. E (“Parnell Report”) at 3–4, Aug.
18, 2020, Docket No. 146-5.)

First, Dr. Wildeman examined racial disparities in

incarcerated populations at county, state, and national levels to estimate risk of contact
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with the criminal justice system by using incarceration rate data as a proxy for criminal
history. (Wildeman Report at 2–3.) Dr. Wildeman utilized several datasets from various
points in time, and applied various statistical methods based on the type of data. (See id.
at 4–9.) Dr. Wildeman generated one dataset himself by examining the Rice County jail
roster to determine racial makeup of the incarcerated population at different points in
time. 1 (See id. at 6–7; Ortiz Decl.¶ 5, Ex. D (“2nd Wildeman Report”) at 4–5, Aug. 18, 2020,
Docket No. 146-4.) Throughout his report, Dr. Wildeman notes shortcomings in his
estimates because of dataset constraints, particularly at the local level. (See, e.g.,
Wildeman Report at 6–7.) Dr. Wildeman concluded that there is evidence that racial
disparities in the cumulative risk of experiencing imprisonment at some point in time,
which strongly correlates with felony conviction, are at least as high in Minnesota as
nationally and that there are substantial racial and ethnic disparities in Rice County
incarceration rates, even using an overly conservative method for estimating. (Wildeman
Report at 3.)
Then, applying Dr. Wildeman’s estimates of cumulative risk of incarceration, a
proxy for criminal conviction and criminal history, Plaintiffs’ second expert, Dr. Parnell,

In his initial Report, Dr. Wildeman examined the Rice County jail roster to generate a dataset
from two dates, and a third date through a pre-existing dataset. (See 2nd Wildeman Report at 2.)
In his second Report, Dr. Wildeman provided additional data through web scraping and use of
the “Wayback Machine” to create a larger sample. (See id. at 3–4.) He concluded that the
additional data provides further support for the existence of substantial racial/ethnic disparities
in incarceration in Rice County, Minnesota. (Id. at 4.)
1

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“determine[d] if exclusion of those with any criminal conviction from the opportunity to
rent in Faribault has a significant disproportionate effect on the ability to rent for Blacks
and Latinos relative to Whites.” (Parnell Report at 5, Aug. 18, 2020, Docket No. 146-5.)
In the course of his analysis, Dr. Parnell also opines that in Faribault and Rice County, Black
residents are much more likely than white residents to rent, more likely to have children
under 18, more likely to have more than 1.01 occupants per room, and Black Somali
residents are more likely to have very large families. (Parnell Report at 10.)
Using Dr. Wildeman’s estimates, Dr. Parnell conducted a Z-test for two
proportions, which he refers to as the standard statistical test for the type of question at
issue. (Id. at 12–15.) Dr. Parnell’s analysis demonstrated statistically significant outcomes
suggesting that higher proportions of Black and Hispanic families would not be able to
rent in Faribault compared to white families, if potential tenants with criminal histories
are prohibited from renting or excluded from the Faribault rental market. (Id. at 10–15.)
Dr. Parnell reached the same conclusion using an analysis of income-based disparities.
(See id. at 18–24.)
Dr. Parnell submitted a Supplemental Report focused on the occupancy restriction
after the Plaintiffs received rental occupancy registers from the City. (Ortiz Decl. ¶ 7, Ex. F
(“Supp. Parnell Report”) at 2, Aug. 18, 2020, Docket No. 146-6.) Relying on identification
information provided by a Somali elder in Faribault, Dr. Parnell analyzed the occupancy
registers to conclude that a disproportionate share of the higher-occupancy units were
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rented by Somali families. (Supp. Parnell Report at 3–4.) Although Dr. Parnell noted that
the occupancy register data was limited, he stated that the occupancy registers supported
his prior opinion that Somali residents are more likely to have large families than white
residents, and are therefore more likely to be affected by the occupancy restriction. (Id.
at 5–6.)
In his Supplemental Report, Dr. Parnell also provided a survey of literature on
“overcrowding.”

(See id. at 6–9.)

Dr. Parnell explained that “overcrowding” is

“problematic and ill-defined,” highlighted cultural differences related to housing
occupancy expectations, and opined that the City ignored the limits of overcrowding
studies, resulting in a weak basis for the occupancy restriction. (Id.)
In sum, Dr. Parnell opines that the effects of race-based conviction disparities,
large Somali families, racial differences in renting, and income differentials are “evidence
of the significant racial disparities that result from Faribault’s Rental Housing Ordinance.”
(Parnell Report at 24.)
B.

Analysis

In its Motion to Exclude, the City does not dispute that Dr. Wildeman and Dr.
Parnell are qualified as expert witnesses. Rather, the City argues that their proposed
testimony should be excluded because of their reliance on general population statistics
and erroneous assumptions regarding the City’s Ordinance. In particular, the City asserts
that general disparities in the criminal justice system are too attenuated to use as a proxy
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for disparities in the ability to rent in Faribault and that Dr. Parnell incorrectly assumed
that the Ordinance flatly prohibits renting to individual with criminal histories.
Plaintiffs respond that the City’s arguments relate to questions about the merits of
the proposed testimony, not its admissibility, and the Court agrees. First, Dr. Parnell’s
assumptions that the Ordinance prohibits renting to individuals with criminal histories is
consistent with Plaintiffs’ position on the merits of their case, so that factor alone does
not render the expert testimony unreliable. Second, expert analysis on the extent of
racial disparities in the criminal justice system is helpful for a jury to obtain greater
understanding of the context of the Ordinance and is probative of the risk of disparate
impact from the Ordinance.
Third, the City contends the experts should be excluded because the “best
evidence” of a disparate impact is a comparison between two groups—those affected and
those unaffected by the policy—based on “actual data.” See, e.g., Tsombanidis v. W.
Haven Fire Dep’t, 352 F.3d 565, 575 (2d Cir. 2003). However, at this stage, Plaintiffs are
not required to provide the “best” expert testimony; rather, proposed expert testimony
must be useful and reliable. See Lauzon, 270 F.3d at 686. Particularly in this case, in the
absence of “actual data” on all rental applicants for comparison to accepted and rejected
applications, and because no special qualifications are required to rent in Faribault, the
proposed proxy-based testimony is useful and therefore admissible. Permitting proxy-

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based testimony does not change the ultimate burden on Plaintiffs to establish a
disparate impact actually or predictably caused by the Ordinance.
As the Court has previously instructed, if the City feels that Plaintiffs’ experts could
have used different statistical methods or that their factual basis for the analysis was
insufficient, it may attack those insufficiencies on cross-examination. See Khoday v.
Symantec Corp., 93 F. Supp. 3d 1067, 1078 (D. Minn. 2015). But the Court finds that the
proposed testimony satisfies the requisite preliminary assessment and will deny the City’s
Motion.
III.

PLAINTIFFS’ MOTION TO EXCLUDE DEFENDANT’S EXPERT TESTIMONY
Plaintiffs argue that proposed testimony by the City’s expert witnesses should be

excluded because their opinions are neither reliable nor relevant, and therefore not
useful to the trier of fact. Because the City’s expert witnesses provide distinct opinions,
each witness’s proposed testimony will be addressed in turn.
A.

Testimony of Dr. Daniel Kennedy

Dr. Daniel Kennedy is a forensic criminologist with expertise in housing-related
crime and housing for ex-offenders. (Ortiz Decl.¶ 3 , Ex. B (“Kennedy Report”) at 2–3,
Aug. 18, 2020, Docket No. 146-2.)

Dr. Kennedy’s Report includes seven opinion

statements, as well as additional detail and explanation related to each:
• Opinion 1: American policing has made many strategic and tactical
improvements over the past four decades.
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• Opinion 2: The elements of Crime Free housing programs enjoy wide-spread
criminological foundation.
• Opinion 3: Crime Free programs have enjoyed excellent reputations across the
U.S. and Canada.
• Opinion 4: Within appropriate parameters, criminal background checks are of
critical importance to effective tenant screening.
• Opinion 5: Faribault’s Crime Free Housing Program has improved living
conditions in apartment buildings and has resulted in decreases in crime.
• Opinion 6: Neither the former Crime Free/Rental Licensing Ordinance nor the
Revised Ordinance prohibits a landlord from renting to someone with a criminal
record.
• Opinion 7: Prohibiting Access to Criminal Histories by Landlords Would Result
in Harmful Consequences.
(See Kennedy Report at 4–10.)
Plaintiffs do not dispute that Dr. Kennedy is qualified to offer his opinion on crimefree housing programs. Rather, they argue that his opinions are neither reliable nor
relevant because they are based on a model Crime-Free Multi-Housing Program that
differs from the Faribault CFMH, and therefore the testimony is not based on facts
relevant to the case. Plaintiffs further assert that Dr. Kennedy’s opinions include legal
conclusions, would not help the trier of fact, and should be excluded under Rule 403
because any probative value is outweighed by a risk of misleading the jury or confusing
the issues.
The Court disagrees and will deny the Plaintiffs’ Motion as to Dr. Kennedy. First,
Dr. Kennedy’s testimony about the purpose, reputation, use, and impact of crime-free
housing programs, including the model program, is relevant and helpful to the trier of

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fact. The City has indicated that the CFMH program is based on model crime-free
programs, so testimony about the purpose and reputation of the model program is
probative as to the City’s understanding of the program when it chose to implement it.
In other words, Dr. Kennedy’s testimony is relevant to the question of whether the City
had a legitimate basis for imposing the Ordinance. Plaintiffs also argue that Dr. Kennedy
based his analysis on incorrect assumptions about how the City’s CFMH aligns with the
model programs. Yet the City states throughout its CFMH training that the program is
based on the model. Thus, cross-examination is a more appropriate avenue to address
differences between the City’s program and the model program than exclusion. See
Robinson, 447 F.3d at 1100.
Second, the Court will not exclude Dr. Kennedy’s testimony due to improper legal
conclusions. Plaintiffs contend Opinion 6, that the Ordinance does not prohibit a landlord
from renting to someone with a criminal record, is an improper conclusion on a legal
matter that would intrude on the role of the Court. See S. Pine Helicopters, Inc. v. Phoenix
Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003). However, the Plaintiffs argue
that the Ordinance prohibits renting to individuals with criminal histories, based not on
the language of the Ordinance, but on the required training and application of the
Ordinance. In other words, as a fact issue. It is not a legal conclusion for Dr. Kennedy to
read the Ordinance and notice that its wording does not explicitly prohibit renting to
someone with a criminal background.
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The Court also declines to exclude Dr. Kennedy’s proposed testimony under Rule
403 based on a risk of misleading the jury or confusing the issues. Any undue prejudice
or risk of confusion that arises at trial will be dealt with accordingly, but at this time the
Court expects that the jury will be capable of differentiating between the model crimefree housing program and the City Ordinance at issue in the case.
In sum, Plaintiffs will have an opportunity to attack the basis of Dr. Kennedy’s
opinion, including discrepancies between his understanding of the CFMH program and its
actual operation, and differences between the City’s CFMH and the model program,
through cross-examination. However, an expert witness’s incorrect factual basis does not
justify exclusion at the Daubert stage, see Bonner v. ISP Techs., Inc., 259 F.3d 924, 929–30
(8th Cir. 2001) (“As a general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it is up to the opposing party to
examine the factual basis for the opinion in cross-examination.”), and the Court will deny
the Motion.
B.

Testimony of Dr. Dwight Steward

Dr. Dwight Steward is an economist and statistician. (Ortiz Decl. ¶ 8, Ex. G
(“Steward Report”) ¶ 1, Aug. 18, 2020, Docket No. 146-7.) The City retained Dr. Steward
as a rebuttal expert in response to the Plaintiffs’ experts. (Steward Report ¶ 1.) Dr.
Steward has extensive prior experience as an expert witness providing statistical analysis
on racial profiling and racial discrimination in the employment context. (See id. ¶¶ 2–3.)
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Dr. Steward opined that the Plaintiffs’ experts employed flawed datasets and
statistical methods. (Id. ¶ 6.) In particular, Dr. Steward highlights that Plaintiffs’ experts
rely on general population data and their analyses lack data on actual rental housing
applicants in Faribault. (See id. ¶ 9–12.) Additionally, Dr. Steward asserts that Dr.
Parnell’s statistical analyses on incarceration and conviction rates are based on a
“mishmash” of data. (Id. ¶ 12.) Dr. Steward also submitted a Supplemental Rebuttal
Report, providing additional refutation of Dr. Parnell’s second report focused on the
impact of the occupancy restriction. (Ortiz Decl. ¶ 9, Ex. H (“Steward Supp. Report”), Aug.
18, 2020, Docket No. 146-8.)
Overall, Dr. Steward opines that the Plaintiffs’ experts’ methodologies are
inconsistent with generally accepted methods for showing disparate impact by
“comparing the pool of individuals who were actually impacted by a given policy to the
pool of individuals who were actually at risk of being impacted by the given policy at
issue.” (Steward Report ¶ 13.) Dr. Steward contends that Plaintiffs’ experts have not
shown statistical evidence of a disparate impact caused by the Ordinance—either
because of the CFMH requirements or the occupancy restriction. (Id. ¶¶ 42–44.)
Plaintiffs ask the Court to exclude Dr. Steward’s testimony because he is
purportedly unqualified to rebut a fair housing disparate impact analysis, since he has not
previously conducted a disparate impact analysis specifically related to a housing policy
or Fair Housing Act case. Plaintiffs argue that Dr. Steward lacks knowledge about
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disparate impact analyses under the FHA and knows nothing about overcrowding issues.
Therefore, Plaintiffs argue that his testimony would not be reliable or relevant.
Additionally, Plaintiffs point out that Steward insists that their experts should have used
an “actual applicant approach” to disparate impact without explanation as to why it is the
only approach, and in contrast to the required proof for FHA liability, which could be
established by showing either an actual or predicable disparate impact. As such, Plaintiffs
contend that Steward’s opinions are largely legal conclusions that tell the jury what result
to reach—that there is no disparate impact—and should be excluded.
Upon consideration of Dr. Steward’s report and Plaintiffs’ Motion, the Court will
deny Plaintiffs’ Motion. First, Plaintiffs do not dispute that Dr. Steward is qualified as a
statistician and economist. Dr. Steward’s rebuttal is focused on a critique of the statistical
methods used by the Plaintiffs’ experts. Dr. Steward emphasizes that, in his opinion, Dr.
Parnell’s report uses a statistical analysis that merely shows correlation rather than
causation. Dr. Steward also critiques the datasets used by Dr. Wildeman. Dr. Steward’s
rebuttal based on the statistical methods, form of analysis, and reliability of datasets does
not depend on any special knowledge of housing or the Fair Housing Act.
Plaintiffs compare Dr. Steward’s proposed testimony to the excluded testimony in
Khoday v. Symantec Corp., 93 F. Supp. 3d 1067 (D. Minn. 2015). In Khoday, the Court
excluded proposed expert testimony regarding a “conjoint analysis” because the
defendants “offered no evidence that [the expert] ha[d] ever been trained in or
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performed conjoint analysis[.]” Id. at 1079. In other words, the Court found that an
expert could not rebut statistical testimony about a research method with which the
expert had no prior personal experience.
The Court does not find a similar fatal defect in Dr. Steward’s proposed testimony.
Unlike the expert in Khoday, the City offers evidence that Dr. Steward has previously
performed statistical analyses of disparate impact. Rather, it is the substantive subject
matter of the statistical analysis with which Dr. Steward lacks experience. Yet parallels
between disparate impact under the Fair Housing Act and under employment
discrimination laws are well-recognized. See Tex. Dep’t Hous. & Cmty. Affairs v. Inclusive
Cmtys. Project, 576 U.S. 519, 539–41 (2015) (discussing similarities and differences
between Title VII and the FHA). 2 As such, statistical analysis of disparate impact for this
case is not wholly outside Dr. Steward’s expertise, as the conjoint analysis was in Khoday.
Although Dr. Steward’s lack of experience with housing cases may make his
testimony weaker, it is does not make it fundamentally unsupported and therefore
excludable at the Daubert stage. See Bonner, 259 F.3d at 929–30. Weaknesses in Dr.
Steward’s testimony, including any misgivings about his understanding of the Fair Housing

2

See also, e.g., Sw. Fair Hous. Council Inc. v. Maricopa Domestic Water Improvement Dist., 438
F. Supp. 3d 991, 1001 (D. Ariz. 2020) (“Disparate-impact and disparate-treatment claims are
generally handled the same from one statutory context to the next.” (citing Hardie v. National
Collegiate Athletic Ass’n, 876 F.3d 312, 319, 319 n.8 (9th Cir. 2017)).

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Act or the goals of Plaintiffs’ expert testimony, may be exposed through rigorous crossexamination.
Lastly, Plaintiffs express concern that Dr. Steward misunderstands the
requirements for proving disparate impact under the FHA. Irrespective of the fact that
FHA disparate impact caselaw encompasses both actual and predictable effects, it is valid
for the City to contest whether Plaintiffs’ experts have shown an actual, documented
impact through data or statistical analysis. The lack of evidence of an actual impact may
be probative as to questions of causation between the Ordinance and any potential racial
disparities among renters in Faribault. Conflicting expert testimony about statistical proof
of causation is relevant and helpful to the trier of fact in weighing the evidence.
At trial, articulating the legal standard and burden of proof is the role of the Court,
and if Dr. Steward’s testimony improperly intrudes, it will be excluded at trial. However,
for purposes of the Daubert preliminary assessment, his testimony is not so
fundamentally unsupported or unhelpful to the trier of fact to warrant exclusion.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiffs’ Motion to Exclude Expert Testimony [Docket No. 143] is DENIED.
2. Defendant’s Motion to Exclude Expert Testimony [Docket No. 152] is DENIED.

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DATED: February 18, 2021
at Minneapolis, Minnesota.

_____

_____

JOHN R. TUNHEIM
Chief Judge
United States District Court

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