Brown v. West Corporation

Filing 255

ORDER granting 196 motion to strike the opinions and exclude the testimony of Dr. Brian H. Kleiner. Ordered by Senior Judge Lyle E. Strom. (JDR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
REX BROWN,

)
)
Plaintiff,
)
)
v.
)
)
WEST CORPORATION, a Delaware )
corporation,
)
)
Defendant.
)
______________________________)

8:11CV284

MEMORANDUM AND ORDER

This matter is before the Court on the motion of the
defendant West Corporation (“West”) to exclude the testimony of
Dr. Brian H. Kleiner (Filing No. 196).

Plaintiff Rex Brown

intends to use Dr. Kleiner’s expert testimony regarding human
resource practices to support Brown’s claims of disparate
treatment by showing that West’s actions toward Brown did not
conform to standard human resource practices or West’s own
policies.

Defendant West Corporation seeks the exclusion of the

testimony and report on the basis that Dr. Kleiner’s testimony is
irrelevant and unreliable and on the basis that expert testimony
is not necessary to the jury’s understanding of these issues.
The Court finds that the motion should be granted.
A. Legal Standard
Federal Rule of Evidence 702 places limitations on the
admission of expert testimony:

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.
Trial courts “must ensure 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 (1993).
“This entails a 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.”

Id. at 592-93.

Specifically,

the Court should consider where applicable the factors set forth
in Daubert: whether the experts method (1) has been or can be
tested, (2) “has been subjected to peer review,” (3) “has a known
or potential rate of error,” and 4) have gained general

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acceptance in the relevant community.

Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 149 (1999).

However, the factors

should be applied in a flexible manner that takes into
consideration the circumstances of the case.

Daubert, 509 U.S.

at 594-95.
The Court must also consider other applicable rules,

including Federal Rule of Evidence 403 which balances the
probative value of certain evidence against its potential to
prejudice the trier of fact.

Id.

B. Analysis
The central premise of the disputed testimony is
Kleiner’s opinion that:
The defendant’s treatment of Mr.
Brown prior to his resignation was
inconsistent with appropriate human
resource management practice
generally and its own policy to
provide equal employment
opportunities and fair treatment of
all employees specifically.
West contends that Dr. Kleiner’s opinion is not based on any
recognizable methodology, particularized knowledge, or expertise,
but rather consists of a blanket conclusion he reached after
reviewing specific facts of the case and deposition testimony of
the plaintiff and West’s employees.

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The Court agrees with the defendant that Dr. Kleiner’s
report offers only a conclusory statement without expressly
establishing or applying any industry standard.

It consists

mostly of a recitation of certain facts and deposition excerpts.
In addition, to the extent that Dr. Kleiner simply compared
evidence of West’s actions to West’s employment policies, the
jury is capable of making such a comparison without the aid of
expert opinion.
The lack of a need for expertise is borne out by the
nature of Dr. Kleiner’s analysis.

While the Court accepts that

Dr. Kleiner is qualified as an expert in human relations and that
he may be qualified to perform a “content analysis” consistent
with its usage in human resource management, the only analysis
apparent from Dr. Kleiner’s report does not reflect his claimed
area of expertise.

After the numerous citations to specific

deposition excerpts, paragraphs nine and ten of Dr. Kleiner’s
report question the reasonableness of the sales expectations
placed on Brown given the economic climate and opines on the
criteria for assessing the success and potential of employees in
a sales position at West in such a climate.

Paragraph eleven

directly questions the credibility of one of West’s employees who
will likely testify at trial, invading the province of the jury.
And in paragraphs twelve and thirteen, Dr. Kleiner weighs in on
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John Thielen’s motivations in his treatment of Brown, coming
dangerously close to invading the province of the jury on the
issue of discrimination:

“At this point it appears that it

obviously seemed easier for Mr. Thielen to get rid of Mr. Brown
than to listen and understand him and make serious efforts to
address his complaints regarding the ‘double standard within the
sales organization.’” and “Thus, the use of this tactic by Mr.
Thielen can be more accurately understood as a threat to Mr.
Brown than as severance pay to him, for which Mr. Thielen should
have been disciplined.”

Further, even the citations to

deposition excerpts contain subtle interpretations that are not
substantiated by any analysis.

For example Dr. Kleiner cites Mr.

Thielen’s deposition with quotation marks around certain words
implying that the statement is not credible or genuine:

“[John

Thielen] ‘liked’ Mr. Brown, as reflected by his above treatment
of him.”
Thus, introduction of the expert report and testimony
threaten to place too much emphasis on or lend undue credibility
to the interpretation of certain evidence without aiding the
jury’s understanding of its significance or providing expertise
that justifies the interpretation.

See United States v. Kime, 99

F.3d 870, 884 (8th Cir. 1996) (“[W]hen the layman juror would be
able to make a common sense determination of the issue without
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the technical aid of such an expert, the expert testimony should
be excluded as superfluous.”).
In addition, the Court has reviewed Dr. Kleiner’s
affidavit and could not find any evidence of actual analysis
except for passing references to “my analysis” by Dr. Kleiner.
This leaves the Court with no way to assess whether Dr. Kleiner
has “reliably applied the principles and methods to the facts of
the case.”

Therefore, under both Rule of Evidence 702(b) and

Rule 403, the expert report and testimony should not be admitted.
Accordingly,
IT IS ORDERED that defendant’s motion to strike the
opinions and exclude the testimony of Dr. Brian H. Kleiner
(Filing No. 196) is granted.
DATED this 1st day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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