MAJOR TOURS, INC. et al v. COLOREL et al

Filing 420

OPINION. Signed by Judge Jerome B. Simandle on 06/06/2011. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MAJOR TOURS, INC., et al.,
Plaintiffs,

HON. JEROME B. SIMANDLE
Civil No. 05-3091 (JBS/JS)

v.
OPINION
MICHAEL COLOREL, et al.,
Defendants.

APPEARANCES:
Terry Davon Johnson, Esq.
BLANK ROME LLP
301 Carnegie Center
3rd Floor
Princeton, NJ 08540
-andEzra D. Rosenberg, Esq.
Evan Wainhouse Davis, Esq.
Irene Ayzenberg-Lyman, Esq.
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
-andYvette Claudia Sterling, Esq.
Barbara E. Ransom, Esq.
STERLING LAW FIRM, L.L.C.
400 High Street
Suite A
Burlington City, NJ 08016
-andMichael Churchill, Esq.
Public Interest Law Center Of Philadelphia
1709 Benjamin Franklin Pkwy.
Second Floor
Philadelphia, PA 19103
Counsel for Plaintiffs
Nonee Lee Wagner, Deputy Attorney General
Wayne J. Martorelli, Deputy Attorney General
Office of the NJ Attorney General
25 Market Street

PO Box 114
Trenton, NJ 08625
-andHolly Rebecca Rogers, Esq.
DILWORTH PAXSON LLP
1500 Market Street
3500E
Philadelphia, PA 19102
-andJohn J. Higson, Esq.
DILWORTH PAXSON, LLP
The Mellon Bank Center, 3200
1735 Market Street
Philadelphia, PA 19103
Counsel for Defendants Michael Colorel, New Jersey
Department of Transportation, Sharon Harrington, Diane
Legriede, Vincent Shulze, New Jersey Motor Vehicle
Commission, Kris Kolluri, and John F. Lettiere
William J. Pollinger, Esq.
WILLIAM J. POLLINGER, P.A.
Claridge Plaza
302 Union Street
Hackensack, NJ 07601
Counsel for Defendants Jimmy's Lake Side Garage and James
Restuccio
SIMANDLE, District Judge:
I.

INTRODUCTION
This matter is before the Court on the State Defendants'

motion to exclude the testimony of Plaintiffs' racial profiling
expert, Dr. John Lamberth.
issues are:

[Docket Item 363.]

The principal

(1) whether Dr. Lamberth's method of analyzing

inspection data in his initial expert report is reliable and
helpful to a trier of fact; (2) whether Dr. Lamberth's analysis
of evidence that Defendants used racist epithets is an expert
opinion that is helpful to a trier of fact; and (3) to the extent
Plaintiffs have sought to introduce the briefly-stated

conclusions offered in Dr. Lamberth's rebuttal report, whether
Plaintiffs have shown them to be based on a reliable method.

II.

BACKGROUND
Plaintiffs are attempting to prove that two individual state

officials — members of New Jersey's Commercial Bus Inspection
Unit (CBIU) — discriminated against each of Plaintiffs' bus
companies on the basis of the race of the owners of the bus
companies over a period of several years.

Plaintiffs argue that

they were disproportionately stopped for inspection, subject to
greater scrutiny, and issued more citations than white-owned bus
companies.

Plaintiffs hired Dr. Lamberth, a social psychologist

who is an expert on racial profiling, to examine the data
regarding the inspection of Plaintiffs' buses.
Dr. Lamberth prepared his opinion by examining the State's
inspection records regarding Plaintiffs and one other company who
leased buses from one of the Plaintiffs (Rahman Muhammad, doing
business as Yours Charter Service).1

Lamberth compared that

group's collective experience with that of all other bus
companies traveling to Atlantic City.
("Lamberth Report") at 5-6.]

[Docket Item 363-2

The CBIU performed 7,975 bus

1

Dr. Lamberth's list does not perfectly correspond to the
parties as named in the operative complaint, but the parties
agree that all but Mr. Muhammad are Plaintiffs. The divergence
may be because Dr. Lamberth's list includes various trade names
for bus companies.
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inspections in Atlantic City between 2000 and 2007.
and Rahman Muhammad were inspected 130 times.

Plaintiffs

[Id. at 5.]

Dr.

Lamberth compared this fraction (130/7,975, or approximately
1.6%) to the fraction of bus trips to casinos that his test group
constituted (calculated to be .34%), the latter percentage having
been developed by straightforward but rough methods of
extrapolation from limited data.

[Id. at 6-8.]

Dr. Lamberth

observed that the likelihood of this distribution of inspections
occurring by random chance is vanishingly small, and this remains
true even if the calculation of the fraction of bus trips to
casinos that his test group constituted is off by a reasonable
degree.
Dr. Lamberth also examined the duration of inspections,
level of inspection, results of the inspection, and other
inspection-related variables using the identical method (i.e.,
comparing the sum or mean of each group's results and showing
that it would be very unlikely for an underlying normal
distribution to yield both sets of results by random chance).

He

showed that there were statistically significant differences in
the results for each group for each category.
at 11-14.]

[Lamberth Report

Finally, Dr. Lamberth's initial report also briefly

comments on the import of evidence that the State Defendants made
racist remarks in the workplace, opining that this is consistent
with a finding of racial discrimination.

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[Id. at 19-20.]

In response to criticism from Defendants' expert and in
order to respond to Defendants' expert report, Dr. Lamberth
prepared a rebuttal report.
Rebuttal").]

[Docket Item 363-3 ("Lamberth

Among other things, in this rebuttal report Dr.

Lamberth offers some new conclusions about what the inspection
database reveals.

[Id. at 15-17.]

Dr. Lamberth opines that the

condition of Plaintiffs' buses cannot explain the pattern he
observed.

He reaches this new conclusion based on an exhibit,

which is not in the record, that purportedly suggests the buses
were not in worse condition than other inspected buses, and based
on a new statistical analysis comparing the outcomes of New
Jersey State Police inspections to CBIU inspections.

[Id.]

The question before the Court is whether Dr. Lamberth's
initial report, and the conclusions in his rebuttal report, are
admissible under the Federal Rules of Evidence.

III.

DISCUSSION
A.

Standard

The admissibility of putative expert testimony is governed
by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) and Rule 702 of the Federal Rules of Evidence.

Rule 702

provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
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knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2)
the testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods
reliably to the facts of the case.
As the Supreme Court explained in Daubert, district court judges
perform a "gatekeeping role," 509 U.S. at 596, by assessing
whether expert testimony is both relevant and methodologically
reliable in order to determine whether it is admissible under
Rule 702.

Id. at 590-91.

The proponent of expert testimony must

establish the admissibility of the expert's opinion by a
preponderance of the evidence.

In re Paoli R.R. Yard PCB Litig.,

35 F.3d 717, 744 (3d Cir. 1994).
In this case, Defendants challenge both the reliability of
Dr. Lamberth's method for reaching his conclusions, and challenge
whether the conclusions, properly understood, "assist the trier
of fact to understand the evidence or to determine a fact in
issue."

Fed. R. Evid. 702.

As to reliability, the Court is to

scrutinize the expert's method only as necessary to ascertain
whether the opinion is based on valid reasoning and sound
methodology; the Court need not agree with the opinion, or
believe that the method used to reach it was ideal.

Oddi v. Ford

Motor Co., 234 F.3d 136, 145-46 (3d Cir. 2000); In re Paoli, 35
F.3d at 742, 744 ("[T]hey do not have to demonstrate to the judge

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by a preponderance of the evidence that the assessments of their
experts are correct, they only have to demonstrate by a
preponderance of evidence that their opinions are reliable.").
As to whether the opinion is useful to a lay jury, Rule 702
"demands that the expert testimony assist the trier of fact," and
so the Court must also consider whether "the research is
sufficiently connected to the facts and issues presented in a
given case."

Suter v. General Acc. Ins. Co. of America, 424 F.

Supp. 2d 781, 787 (D.N.J. 2006) (citing Paoli, 35 F.3d at 743).

B.

Initial Report
1.

Reliability of conclusion based on inspection data

Reliability is about the relationship between the
conclusions an expert reaches and the data and method used to
reach those conclusions.

Assessing reliability therefore begins

with an examination of the conclusions drawn by the expert.
Reading Dr. Lamberth's report, it is easy to have a mistaken
impression about his conclusions.

He is a racial profiling

expert; his report uses the vocabulary of racial profiling; he
references other racial profiling studies; and he refers to his
self-selected group of companies as the "Minority-Owned Bus
Companies," suggesting they represent a protected class and are
being compared to an unprotected class.

But despite this

formulation, Dr. Lamberth did not perform a standard racial

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profiling analysis.

He actually makes no conclusions from the

inspection data about the relevance of race to this case.
Indeed, although he produced a 33-page report, his conclusion is
actually quite simple and limited:

when Plaintiffs are combined

as a group with one additional non-Plaintiff bus company, that
group was subject to more stops and greater scrutiny than their
proportion of overall trips to Atlantic City would suggest.
[Lamberth Report at 20.]
Defendants' criticisms largely address conclusions that one
might expect Dr. Lamberth to reach given the nature of his
rhetoric and expertise, but which he does not actually reach.
For example, the Court need not decide whether Dr. Lamberth's
method could be used to reliably reach conclusions about
particular plaintiffs or particular defendants, because Dr.
Lamberth draws no such conclusions.

Similarly, the Court need

not decide whether Dr. Lamberth's method could be used to
reliably reach conclusions about the presence of racial
profiling, because, again, he draws no such conclusions (though
the Court will address the related question of whether Dr.
Lamberth's study assists a trier of fact in reaching such
conclusions).
For the very limited conclusion Dr. Lamberth does actually
reach, his method is reliable.

Because Dr. Lamberth's approach

involves straightforward math, the only conceivably problematic

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aspect of his analysis would be the raw numbers being input into
the equations.

To the extent there is even a genuine dispute

about the underlying numbers, it is ultimately a dispute about
issues on which reasonable people can disagree; in other words,
it may undermine the correctness of Dr. Lamberth's conclusions,
but not the reliability of his method.
Dr. Lamberth's method for reaching his limited conclusion is
sufficiently reliable to make his conclusion admissible, so long
as it also meets the other requirements of Rule 702, Fed. R.
Evid.

2.

Usefulness of conclusion based on inspection data

Because Dr. Lamberth does not opine that black-owned buses
as a whole were treated differently by the CBIU (or by the
individual defendants), nor does he opine as to whether racial
discrimination was the cause of the disproportionate treatment of
his non-random sample, the primary obstacle to the admissibility
of the statistical aspect of his initial report is whether it is
helpful to the trier of fact in determining whether the State
Defendants discriminated against Plaintiffs on the basis of the
race of the bus companies' owners.
The most obvious way Dr. Lamberth's opinion might be helpful
is if a trier of fact could reasonably infer from Dr. Lamberth's
conclusion that his test group was discriminated against on the

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basis of race.

This conclusion would be helpful even if it did

not specifically implicate the conduct of the individual
defendants, since a conclusion need not be dispositive of a
matter to be helpful in its resolution.

But an inference of

racial discrimination based solely on Dr. Lamberth's method would
not be reasonable in this case for two fundamental reasons.
First, the studied sample is small, self-selected, and
related by characteristics other than race.

In the typical

racial profiling cases, the subjects of the discrimination are so
numerous and engaged in such a common activity that it is
reasonable to assume that they have little in common other than
their race that might explain their disparate treatment.

See,

e.g., State v. Soto, 734 A.2d 350 (N.J. Super. Ct. L. Div. 1996).
But in this case, Dr. Lamberth was not analyzing stops of all
drivers on a certain roadway, or pat-downs of everyone living in
a certain neighborhood.

Nor was he analyzing a random or

representative sample.

Instead, he was analyzing eight bus

companies that make trips to Atlantic City casinos, who are the
companies who brought this action plus one company recommended by
them for inclusion in the study, and about whom we know that at
least two of the companies shared the same vehicles.

Because of

the nature of the group studied in this case, it is unreasonable
to conclude from this data alone that race explains the observed
disparity.

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The second fundamental problem is that the study did not
compare a protected class to a similarly-situated unprotected
class.

Comparing a self-selected group of companies to a

comparison group that includes bus companies owned by AfricanAmericans does not tell us anything meaningful about the presence
of racial discrimination, without more information.

Troublingly,

Dr. Lamberth does not appreciate why this presents an obstacle to
drawing inferences about racial profiling from his data.

Dr.

Lamberth wrote in his report, and testified at the hearing on
this motion, that the inclusion of black-owned companies in the
comparator group just understates any racially disproportionate
results.

[Lamberth Report at 12.]

Dr. Lamberth's argument is

circular — it is only the case that including black-owned
companies in the comparator group would understate the degree of
disparate treatment if one assumes to be true what the argument
seeks to prove, that there was racial profiling.

If instead

there was just something about the handful of companies studied
by Dr. Lamberth (or just enough of them to skew the data, given
the small sample) that made them more likely to be inspected and
to have worse inspection outcomes — such as the condition of
their buses, or the location of their routes — then the inclusion
of self-selected complainants and the exclusion of other blackowned companies would present a very misleading picture about the
presence of racially disparate treatment of bus companies.

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While a finding of causation cannot be reasonably inferred
from Dr. Lamberth's statistical analysis contained in the initial
report, that is not the only possible way that Lamberth's expert
opinion might prove helpful.

The bare existence of differential

treatment of Plaintiffs does not itself satisfy either prong of
the equal protection claim they seek to prove (since it does not
even show that they were treated differently from a similarlysituated unprotected class), but it is a necessary predicate to
those elements.

Plaintiffs adduce other evidence to support the

premise that racial bias was the cause of the disparate treatment
of Plaintiffs, including statements made by Defendants regarding
their views of black-owned bus companies.

To the extent that Dr.

Lamberth's opinion forms part of a larger web of circumstantial
evidence, it can be helpful even if it alone is not dispositive
of any disputed element.2
In summary, Dr. Lamberth's limited conclusion that
Plaintiffs plus one other company were collectively subject to
more stops and greater scrutiny than their proportion of overall
trips to Atlantic City would suggest is a conclusion that is

2

Additionally, at the Daubert hearing, Defendants appeared
to maintain that there is no room for discretion in the CBIU
inspections, and that there is not even evidence that Plaintiffs
were more frequently inspected and found to be in violation of
the regulations. Defendants' expert, Dr. McCombs, also opined
that Plaintiffs were not inspected more often than other bus
companies. These too are disputes of fact on which Dr.
Lamberth's opinion may be useful.
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reached using a reliable method.

And though it is of somewhat

limited help to resolving the key issues of fact in this case,
the Court cannot find that it is of no use at all.

The Court

will preclude any testimony, however, suggesting that Dr.
Lamberth's conclusions regarding the self-selected group of
Plaintiffs is representative of the treatment given to minority
owned bus companies as a whole, because the data compiled by Dr.
Lamberth do not permit such an inference.

Such a limitation of

testimony is necessary to assure that there is no confusion to
the jury concerning the purposes for which this opinion testimony
may be considered.

3.

Conclusion Regarding Racial Epithets

At a deposition in this case, a former CBIU inspector named
Wilfred Grotz testified that Defendant Calorel used racial slurs
in reference to African-Americans, and that Calorel said "niggers
run junk."

(Grotz Dep. 18:17-19:3.)

Grotz also testified that

Defendant Schulze liked to go to Atlantic City because he thought
it was easy to ticket and impound black-owned buses there,
because "blacks had junk buses."

(Grotz Dep. 48:21-49:17.)

The

evidence also includes the existence of an Equal Employment
Office investigation based on allegations that Schulze called his
secretary, who was both African-American and blind in one eye, a

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"worthless one-eyed nigger."3
Dr. Lamberth concludes from this evidence that "While I
cannot say that these inspectors allowed their feeling[s] to
influence their work and who they inspected and how harsh they
were, the data are consistent with targeting of [black-owned bus
companies]."

[Lamberth Report 21.]

This conclusion is self-

evident and therefore not helpful to a trier of fact.

A lay

juror does not need an expert to tell him or her that openly
racist statements "are consistent with" racist conduct.
At the hearing, Dr. Lamberth and Plaintiffs' counsel
elaborated upon this conclusion in an attempt to show how Dr.
Lamberth was using specialized or scientific knowledge in a way
that might be helpful to a lay juror.

Plaintiffs' counsel

proffered various hypothetical positions Defendants might take
for which it would be useful to have Dr. Lamberth's testimony.
If Defendants argued that they were merely joking, for example,
Dr. Lamberth could be called to testify that it is unlikely that
people would use racial slurs in this way in jest.

Even assuming

such a hypothetically necessary opinion, which is not offered in
the report, could satisfy Plaintiffs' burden on this motion to
exclude, the Court has not been presented with sufficient

3

Dr. Lamberth also refers in his report to an admission
made by Calorel in a deposition that he used some kind of racial
slur, but no party has attached the relevant deposition to this
motion, or to the summary judgment record.
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evidence or argument to persuade it that Dr. Lamberth's status as
a social psychologist gives him any specialized or scientific
insight into whether Defendants could have been joking when they
allegedly made these statements.
Because Dr. Lamberth's opinion as to the import of this
evidence does not constitute the kind of scientific, technical,
or other specialized knowledge that will assist the trier of fact
to understand the evidence, it is not admissible as an expert
opinion.

Defendants' motion to exclude this aspect of Dr.

Lamberth's proposed opinion will be granted.

C.

Rebuttal Report

In his rebuttal report, Dr. Lamberth belatedly addresses the
crucial issue that the fact-finder in this case must resolve:
whether race was the cause of the increased scrutiny experienced
by Plaintiffs.

In that report, Dr. Lamberth makes two new

observations about the data in order to rule out the possibility
that the relative age of Plaintiffs' buses explains their
experience of increased scrutiny.

At the Daubert hearing,

Plaintiffs took the position that they need not defend the
admissibility of these rebuttal opinions yet, if ever, because
they had not yet sought to introduce them into evidence.4

4

Unfortunately, Plaintiffs mistakenly believe that they
are entitled to a presumption of discriminatory intent, because
no neutral reason for the disparate treatment of Plaintiffs has
15

In fact, Plaintiffs have sought to introduce one of the two
rebuttal opinions into evidence.

Plaintiffs cite and rely on the

rebuttal report's discussion of safety scores in their opposition
to summary judgment.

(Pl.'s Statement of Material Facts ¶ 31.)

Dr. Lamberth observed that an exhibit used in Defendants' expert
report (Exhibit 105) shows that in some unspecified period
Plaintiffs' buses were not flagged as having more safety issues
than other buses which had been stopped for inspection.
Unfortunately, the exhibit in question is not in the record, and
even though the Court alerted Plaintiffs to the importance of

been put forward by Defendants. This model of evidentiary
burdens in which evidence of disparate treatment creates a
presumption of discriminatory intent, called McDonnell Douglas
burden-shifting, is applicable in employment discrimination
actions, but not in this non-employment action. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) ("The critical
issue before us concerns the order and allocation of proof in a
private, non-class action challenging employment
discrimination."). Plaintiffs cited Stewart v. Rutgers, 120 F.3d
426 (3d Cir. 1997), at the Daubert hearing for the proposition
that McDonnell Douglas burden-shifting applies to this nonemployment case. But Stewart is an employment discrimination
case. It has nothing to say about the applicability of McDonnell
Douglas to non-employment selective enforcement or racial
profiling cases. The Court is not aware of any reported case
applying McDonnell Douglas burden-shifting to a non-employment §
1983 claim. On the contrary, every reported racial profiling
case the Court is aware of is inconsistent with the application
of McDonnell Douglas burden-shifting. See, e.g., Bradley v.
United States, 299 F.3d 197, 205 (3d Cir. 2002) (noting that it
was the plaintiff's burden to prove discriminatory intent at the
summary judgment stage); Chavez v. Illinois State Police, 251
F.3d 612, 645 (7th Cir. 2001) (affirming grant of summary
judgment to defendant when plaintiff failed to adduce evidence of
discriminatory intent, and not applying burden-shifting
analysis).
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this document in assessing the admissibility of Dr. Lamberth's
testimony, Plaintiffs opted not to introduce the exhibit into the
record in the belief that they did not need to do so.

Without

this crucial evidence, Plaintiffs fail to meet their burden of
showing that this rebuttal opinion is admissible.

Dr. Lamberth's

opinion about Exhibit 105 will therefore be excluded.
The second point made by Dr. Lamberth in the rebuttal is an
argument that the relative safety of Plaintiffs' buses cannot
explain the differential treatment because the State Police did
not stop and cite Plaintiffs' buses with as much greater
frequency as the CBIU did.

Plaintiffs correctly noted at the

Daubert hearing that have not yet sought to introduce this
opinion into the evidentiary record, and no mention is made of it
in the summary judgment record.

It is therefore unnecessary to

resolve its potential admissibility at this stage.

If

Plaintiffs' case proceeds past summary judgment and at a later
time Plaintiffs seek to introduce Dr. Lamberth's opinion
regarding what the State Police data shows, Defendants will be
permitted to renew their motion.

See Titan Stone, Tile &

Masonry, Inc. v. Hunt Const. Group, Inc., Civ. No. 05-3362 (GEB),
2007 WL 1659056, at *4 (D.N.J. June 5, 2007) (declining to
determine whether to exclude expert before it had become clear
whether or how the expert's opinion would be used); AUSA Life
Ins. Co. v. Dwyer, 899 F. Supp. 1200, 1203 (S.D.N.Y. 1995)

17

(deeming premature a motion in limine to preclude expert report,
and choosing to wait until trial to rule on admissibility of the
report).

IV.

CONCLUSION
In summary, Dr. Lamberth's opinion contained in his initial

report regarding the disparate treatment of the group he studied
(Plaintiffs plus one related bus company) is reliable and helpful
to a trier of fact insofar as he analyzes the data that tend to
show that the selected group's buses were inspected by the CBIU
at a rate significantly greater than expected from their
proportionate share of bus trips and with similarly higher rates
of violations, provided that Dr. Lamberth does not suggest that
his data and conclusions regarding this self-selected group is
representative of all minority owned bus companies.

However, his

opinion as to the meaning of Defendants' alleged use of racial
slurs and racist statements is not the kind of scientific,
technical, or other specialized knowledge that will assist the
trier of fact to understand the evidence.

Finally, Plaintiffs

have not shown that the one opinion from the rebuttal report that
Plaintiffs do seek to introduce, regarding what is shown by an
exhibit that is neither extensively described nor admitted into
the record, is reliable.

Such a showing would require Plaintiffs

to introduce the relevant exhibit, or at a minimum describe it in

18

more detail.

The accompanying Order will be entered.

June 6, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

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