Equal Employment Opportunity Commission v. Wesley Health System, LLC
Filing
99
MEMORANDUM OPINION AND ORDER denying 75 Motion to Exclude. Signed by District Judge Keith Starrett on 11/19/18. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
v.
PLAINTIFF
CIVIL ACTION NO. 2:17-CV-126-KS-MTP
WESLEY HEALTH SYSTEM, LLC
DEFENDANT
MEMORANDUM OPINION AND ORDER
The Court previously discussed the facts of this case. See Memorandum Opinion
and Order, EEOC v. Wesley Health Sys., LLC, No. 2:17-CV-126-KS-MTP (S.D. Miss.
Nov. 14, 2018), ECF No. 97. Defendant filed a Motion to Exclude [75] the testimony of
Plaintiff’s vocational expert, Trey Moseley. For the reasons provided below, the Court
denies the motion.
Federal Rule of Evidence 702 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.
FED. R. EVID. 702. Therefore, “when expert testimony is offered, the trial judge must
perform a screening function to ensure that the expert’s opinion is reliable and relevant
to the facts at issue in the case.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th
Cir. 1997). In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993), the Supreme Court provided a nonexclusive list of “general
observations intended to guide a district court’s evaluation of scientific evidence . . . .”
Id. at 989.
Not every guidepost outlined in Daubert will necessarily apply to expert
testimony [in every case], but the district court’s preliminary assessment
of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue is no less important.
Id. at 990-91.
Expert testimony must be supported by “more than subjective belief or
unsupported speculation.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388
(5th Cir. 2009). It “must be reliable at each and every step or it is inadmissible. The
reliability analysis applies to all aspects of an expert’s testimony: the methodology, the
facts underlying the expert’s opinion, the link between the facts and the conclusion, et
alia.” Seaman v. Seacor Marine LLC, 326 F. App’x 721, 725 (5th Cir. 2009). “Overall,
the trial court must strive to ensure that the expert, whether basing testimony on
professional studies or personal experience, employs in the courthouse the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.”
United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
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The Court’s role as gatekeeper is not meant to supplant the adversary system
because “[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.” Daubert, 509 U.S. at 596. While the Court
should focus solely on the proposed expert’s “principles and methodology, not on the
conclusions they generate,” id. at 595, “nothing in either Daubert or the Federal Rules
of Evidence requires a district court to admit opinion evidence which is connected to
existing data only by the ipse dixit of the expert.” GE v. Joiner, 522 U.S. 136, 146, 118
S. Ct. 512, 139 L. Ed. 2d 508 (1997)).
In summary, the proponent of expert testimony must demonstrate that the
proposed expert is qualified as an expert, that the testimony is reliable, and that it is
relevant to a question of fact before the jury. United States v. Hicks, 389 F.3d 514, 525
(5th Cir. 2004). The proponent must prove these requirements by a preponderance of
the evidence. United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).
A.
Relevance
First, Defendant argues that Moseley can not provide opinions as to 1) whether
it failed to reasonably accommodate Cooper, 2) whether receiving assistance from
coworkers was a reasonable accommodation, or 3) whether receiving assistance from
coworkers would create an undue hardship on it. Defendant contends that these are
legal questions and, therefore, inappropriate topics for an expert to address.
Expert testimony which offers a legal opinion is inadmissible, Estate of Sowell
3
v. United States, 198 F.3d 169, 171 (5th Cir. 1999), as such testimony does not “help
the trier of fact to understand the evidence or to determine a fact in issue . . . .” FED.
R. EVID. 702(a). But “[w]hether an accommodation is reasonable is a question of fact.”
Antoine v. First Student, Inc., 713 F.3d 824, 831 (5th Cir. 2013); see also Alford v.
Teleplex, Inc., 95 F.3d 48, 1996 WL 405767, at *2 (5th Cir. 1996); Brennan v. Stewart,
834 F.2d 1248, 1262 (5th Cir. 1988). Likewise, whether an accommodation poses an
“undue hardship” for an employer is a question of fact. See EEOC v. Universal Mfg.
Corp., 914 F.2d 71, 74 (5th Cir. 1990); Turpen v. Missouri-Kansas-Texas R. Co., 736
F.2d 1022, 1026 (5th Cir. 1984). Therefore, whether an accommodation is reasonable,
and whether it poses an undue hardship for an employer are questions for the jury.
Accordingly, they are appropriate topics for expert testimony.
B.
Qualifications
Next, Defendant argues that Moseley is not qualified to provide an opinion as
to 1) whether it failed to reasonably accommodate Cooper, 2) whether receiving
assistance from coworkers would be an unreasonable accommodation, and 3) whether
receiving assistance from coworkers would create an undue hardship on it. Defendant
contends that Moseley is not qualified to testify on these issues because they are legal
questions and he is not an attorney. As noted above, these are factual questions – not
legal questions. Therefore, Moseley’s lack of specialized legal knowledge, experience,
or training is irrelevant.
C.
Reliability
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Finally, Defendant argues that Moseley’s opinions are unreliable because they
are not based on sufficient facts or a reliable methodology. First, Defendant argues that
Moseley has insufficient facts to support his opinions. Among other things, Defendant
notes that 1) Moseley did not speak to any of its employees besides Cooper; 2) he has
never viewed photos or video of its TCU; 3) he has never viewed photos or video of
nurses working in a TCU, its own or otherwise; 4) he has never spoken with directors
or administrators of a TCU, its own or otherwise; 5) he does not know the condition of
patients in its TCU; and 6) he has no knowledge of the staffing patterns in its TCU.
Defendant also contends that Moseley neglected to ask Cooper key questions about her
job duties, such as what tasks she performed as an RN in the TCU, how much time she
spent lifting fifty pounds or more, how often patients called for assistance, how
frequently she assisted patients in going to the restroom, or how much the patients
weighed.
Rule 702 specifically requires that an expert’s testimony be based upon sufficient
facts or data. FED. R. EVID. 702(b). Phrased differently, proposed expert testimony
“must be supported by appropriate validation – i.e., good grounds, based on what is
known.” Daubert, 509 U.S. at 590 (punctuation omitted). Therefore, “[w]here an
expert’s opinion is based on insufficient information, the analysis is unreliable.” Paz,
555 F.3d at 388. “Although the Daubert reliability analysis is flexible and the
proponent of expert testimony need not satisfy every one of its factors, the existence
of sufficient facts is . . . in all instances mandatory.” Moore, 547 F. App’x at 515. But
“[v]igorous cross-examination, presentation of contrary evidence, and careful
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instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. 596.
Moseley’s testimony is not wholly unsupported. In preparing his report, he relied
on a telephonic interview of Cooper, her job description, Defendant’s employee
handbook and orientation materials, the Dictionary of Occupational Titles published
by the Department of Labor, an interview with the former administrator of a nursing
home, Cooper’s medical records and FMLA documentation, and his experience in
vocational rehabilitation. Moseley certainly could have been more thorough in his
research, as Defendant demonstrated in briefing. But he consulted relevant sources of
information in forming his opinions. Accordingly, Defendant’s criticisms go to the
weight of his testimony, rather than its admissibility. Id.
Defendant also argues that the Court must exclude Moseley’s opinions because
they are only based on two anecdotal accounts of RN duties. This is not an accurate
assessment of Moseley’s testimony. As noted, he also based his opinions on an
interview with Cooper, Defendant’s own job description and orientation materials, and
Department of Labor publications. Again, Moseley’s testimony is not unassailable.
Indeed, Defendant highlighted several key shortcomings of his research. However, his
opinions are not without factual support. Accordingly, they are admissible, and
Defendant is free to attack them via “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof . . . .” Id.
Finally, Defendant argues that Moseley employed no methodology to confirm
that his anecdotal accounts of RN duties were comparable to Cooper’s duties in
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Defendant’s TCU. This is not a case involving scientific evidence. Vocational and
occupational rehabilitation, as a field, is not subject to the same type of rigorous testing
and review that the hard sciences are. Defendant contends that Moseley did not gather
sufficient information to know whether its TCU is comparable to the facility of the
nursing home administrator he interviewed. Defendant may be right on that point. But
it does not render Moseley’s testimony inadmissible, for the same reasons provided
above. Moseley’s methodology was simple – perhaps so simple that it is subject to
attack at trial. But he had a method, and he has some information to support his
opinions. That is enough to satisfy Rule 702.
For the reasons provided above, the Court denies Defendant’s Motion to
Exclude [75] the testimony of Trey Moseley.
SO ORDERED AND ADJUDGED this 19th day of November, 2018.
/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE
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