DANIELS v. GRAND LUX CAFE, LLC et al
OPINION. Signed by Judge Joseph E. Irenas on 3/26/2015. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 12-7848
GRAND LUX CAFÉ, LLC and THE
ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, P.C.
By: Zachary A. Silverstein, Esq.
David F. McComb, Esq. (pro hac vice)
1818 Market Street, 13th Floor
Philadelphia, PA 19103
By: Jill Fisher, Esq.
5 Greentree Centre, Suite 303
Marlton, NJ 08053
Counsel for Plaintiff
BALLARD SPAHR LLP
By: Patricia A. Smith, Esq.
210 Lake Drive East, Suite 200
Cherry Hill, New Jersey, 08002
Counsel for Defendants
IRENAS, Senior District Judge:
Plaintiff, a former employee of Defendants Grand Lux Café,
LLC (Grand Lux) and The Cheesecake Factory, Incorporated
(Cheesecake Factory),1 brought this action after her alleged
sexual assault at the hands of another former employee, Francis
de los Hoyos.
Presently before the Court is Defendants’ motion in limine
to exclude the report and testimony of Plaintiff’s expert Dr.
For the reasons explained herein, Defendants’ motion
The Court recites only those facts relevant to the pending
A. Plaintiff’s Alleged Sexual Assault
Plaintiff was hired as a server at a new Grand Lux Café in
the Cherry Hill Mall around June 12, 2012.
Opposition (“Pl.’s Opp.”) at 3)
Mr. de los Hoyos, who worked at
the time as a cook at a Cheesecake Factory restaurant in
Florida, was flown in to train other cooks at the new Grand Lux
in a position known as “designated trainer” (“DT”).
Defendants maintain a policy against DTs fraternizing with
restaurant employees, such as Plaintiff.
(“Defs.’ Motion”) at 1)
Despite that policy, on July 16, 2012,
Plaintiff, accompanied by two friends who were also employees of
The Cheesecake Factory is the parent company of Grand Lux.
Defendants, went out for drinks with Mr. de los Hoyos.2
Opp. at 4)
Apparently changing the group’s original plan to go
to a bar frequented by other DTs, Mr. de los Hoyos selected as
their destination a bar at which other trainers would not be
(Id. at 5)
Plaintiff remembers having a few drinks
but claims to remember little else; she believes Mr. de los
Hoyos slipped drugs into her drink when she went to the
Plaintiff woke up the next morning in Mr. de
los Hoyos’s hotel room.
He instructed her to leave the
hotel through a side door to avoid detection and then drove her
to her car.
When Plaintiff reported to work on July 18, 2012, a coworker informed her that a picture of a naked woman who looked
like Plaintiff was circulating among the staff.
(Id. at 6)
Plaintiff notified her supervisors, including DT Raven Adair,
and, on July 21, 2012, reported the incident as a sexual assault
to the Mount Laurel Police Department.
On December 26, 2012, Plaintiff filed the present action in
Camden County Superior Court, which Defendants later removed to
Plaintiff’s Complaint asserts two counts: (1)
Defendants’ creation of a hostile work environment in violation
Plaintiff claims that she did not know Mr. de los Hoyos would be joining,
but that one of her friends, a cook training with Mr. de los Hoyos, told the
group they would be picking Mr. de los Hoyos up on their way out. (Pl.’s
Opp. at 4)
of New Jersey’s Law Against Discrimination (LAD) and (2)
negligent hiring, retention, training and supervision.
Plaintiff alleges that Defendants are vicariously liable for Mr.
de los Hoyos’s conduct because of their “negligence in failing
to have in place and/or enforce adequate and effective hiring
policies and practices, sexual harassment and/or fraternization
policies, and adequate supervision, training and monitoring of
their employees and their sexual harassment and/or
fraternization policies and procedures.”
(Compl. ¶ 30)
the negligence count, Plaintiff alleges that Defendants breached
their duty of care to keep employees such as Plaintiff safe from
harm by “negligently failing to have in place adequate and
effective hiring policies and negligently failing to adequately
and effectively train, supervise, control or otherwise monitor
Mr. de los Hoyos’s activities.”
(Id. at ¶ 35)
further that this breach of Defendants’ duty of care was the
foreseeable direct and proximate cause of Plaintiff’s injuries.
(Id. at ¶¶ 35-37)
B. Dr. Gray’s Report
Plaintiff retained Dr. Jane Gray in November 2013 to
“review and assess materials relevant to this matter and to
offer an opinion regarding the sexual harassment policies of the
defendants, as well as their employee training and supervision.”
(Pl.’s Opp. at 7)
Dr. Gray earned a Ph.D. from Ohio State
University in Sociology with a focus on Criminology.
(Deposition of Dr. Jane Gray (“Gray Dep.”) at 16:15-20)
wrote her dissertation on sexual crime and sexual deviants,
particularly individuals who go to public places for impersonal
(Id. at 16:21-17:3)
Dr. Gray has since taught numerous
criminology courses and been retained in over forty-five cases
as an expert in “the field of social science research in
general, and criminal behavior in particular.”
Report (“Gray Rpt.”) at 2)
Thirty-eight of those cases involved
“issues related to criminal acts committed in the context of
premises liability or negligent hiring and retention
Dr. Gray conceded in her deposition that
there is nothing in her CV that would qualify her as an expert
in sexual harassment policies, but stated that her expertise in
“criminal outcomes” gives her the basis for commenting on the
foreseeability of misconduct in Defendants’ work environment.
(Gray Dep. at 39:17-40:7; 49:17-50:24)
In January 2014, Dr. Gray issued a report stating the
following three opinions: (1) Defendants “lacked due care in
their failure to provide an effective sexual harassment policy
and program for their employees”; (2) Defendants “lacked due
care in their failure to provide ongoing training to Designated
Trainers who were traveling in the field”; and (3) “the sexual
assault perpetrated by Francis de los Hoyos upon Stephanie
Daniels on July 16, 2012 was causally related to the lack of
effective training, monitoring, and supervision provided by
[Defendants] to their Designated Trainers.”
(Gray Rpt. at 3-4)
In support on these conclusions, Dr. Gray cites Defendants’
“rudimentary” training of employees in sexual harassment and a
“culture of permissiveness” overriding actual policies.
Defendants, citing Dr. Gray’s expertise in criminology and
lack of experience in sexual harassment policies, filed the
present motion in limine to exclude Dr. Gray’s testimony under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993).
The Court held oral argument on March 23, 2015.
oral argument, Plaintiff conceded that Dr. Gray is not an expert
in sexual harassment policies and stated that she would not be
qualified to offer testimony on what policies, procedures or
training Defendants should have had in place.
Gray’s testimony would be limited to the consequences of
inadequate policies, procedures, and training in Defendants’
Defendants submitted further evidence of DT training
regarding sexual harassment policies that Defendants produced to
Plaintiff but that Plaintiff apparently did not provide to Dr.
(5/23/2015 Hearing, Defs.’ Ex. 2)
Under Federal Rule of Evidence 702,
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
(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.
In Daubert, the Supreme Court imposed a “gatekeeping” role
on district courts to “ensure that any and all expert testimony
or evidence is not only relevant, but also reliable.”
This gatekeeping obligation applies not only to
testimony based on scientific knowledge, “but also to testimony
based on ‘technical’ and ‘other specialized’ knowledge.”
Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).
The Third Circuit has articulated three major requirements
on the admissibility of expert testimony under Rule 702: “(1)
the proffered witness must be an expert, i.e., must be
qualified; (2) the expert must testify about matters requiring
scientific, technical or specialized knowledge; and (3) the
expert's testimony must assist the trier of fact.”
Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008).
proposed expert witnesses must satisfy a trilogy of
restrictions: “qualification, reliability, and fit.”
ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.
Defendants ask the Court to exclude Dr. Gray’s report and
testimony because (1) “she is not qualified to offer her
opinions as they are outside her area of expertise,” (2) “she
has not used a reliable methodology in reaching her opinions,”
and (3) “her testimony does not assist the trier of fact and
improperly usurps the role of the jury by opining on ultimate
issues in the case.”
(Def.’s Motion at 1)
The Court will
address each of these issues in turn.
Dr. Gray’s expertise in criminology does not qualify her to
offer opinions on the adequacy of Defendants’ sexual harassment
The Third Circuit has held it to be an “abuse of discretion
to exclude testimony simply because the trial court does not
deem the proposed expert to be the best qualified or because the
proposed expert does not have the specialization that the court
considers most appropriate.”
Pineda, 520 F.3d at 244.
Nevertheless, “[a]n expert may be generally qualified but may
lack qualifications to testify outside his area of expertise.”
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 322 (3d
Plaintiff argues that Dr. Gray’s specialization in criminal
outcomes is appropriate here because her testimony will show
that Defendants’ sexual harassment policies and training were
not sufficient to prevent the criminal outcome of Mr. de los
Hoyos’s alleged sexual assault.
Plaintiff also points to the
“liberal” interpretation of Rule 702’s “qualifications”
Defendants state that Dr. Gray’s expertise is not
sufficiently related to the subject matter of her testimony so
as to qualify her as an expert in this case.
Although Dr. Gray’s findings concern the adequacy of sexual
harassment policies, she has no prior experience reviewing or
evaluating such policies.
During her deposition, she conceded
her lack of expertise on the very issues for which she was
retained to offer an opinion:
Do you consider yourself to be an expert on the
effectiveness of sexual harassment policies?
Not an expert specifically on that . . . .
Have you ever been retained to opine on the efficacy
of a sexual harassment policy?
Have you ever before been retained to opine on the
efficacy of sexual harassment procedures?
Have you ever been retained to opine on the efficacy
of sexual harassment training in the workplace?
Is there anything in your CV or your website that
would qualify you as an expert in those areas?
Not in sexual harassment policy, no.
Or training. My expertise resides in prediction of
Do you have any knowledge of what would constitute
industry standards for sexual harassment policies in the
(Gray Dep. at 49:17-50:25)
Dr. Gray’s report also reveals the disconnect between her
past experience as an expert and her current assignment.
“Qualifications” section, Dr. Gray writes that her “education
and experience in the field of criminology qualifies me to
render expert opinions concerning issues of foreseeability of
crime and negligent hiring, retention, training and supervision
(Gray Rpt. at 2)
Two paragraphs later, however,
she states that the thirty-eight prior cases in which she had
been retained as an independent consultant “involved issues
related to criminal acts committed in the context of a premises
liability or negligent hiring and retention litigation.”
She was not retained in those matters to opine on the “training
and supervision” issues she claims to be part of her expertise.
The present case appears be her first foray into those subjects.
That Dr. Gray admits to not being an expert in sexual
harassment policies and training does not, by itself,
necessarily disqualify her from offering expert testimony in
See Pineda, 520 F.3d at 245.
In Pineda, the Court
of Appeals found an engineer qualified to testify about the
adequacy of service manual instructions even though he admitted
he was not a warnings expert.
Plaintiff in that case was an
automobile technician who suffered injuries while repairing a
car’s liftgate and brought a products liability suit against the
The Court found the expert to be
“substantively qualified to testify on [the warnings] because a
proper warning is also a solution to an engineering problem.”
The Court relied on the fact that his expertise was in the
stresses and other forces that might cause a material like glass
to fail, which, as an engineering issue, went to the substance
of the warnings.
While an expert’s specialization need not be the “most
appropriate” for the expert to be qualified under Rule 702, that
specialization must still be appropriate in some substantive
Here, Plaintiff presents no evidence, and Dr. Gray
does not actually claim, that a proper sexual harassment policy
would solve a criminology problem – that an individual inclined
to engage in criminal behavior, such as sexual assault, would be
less likely to do so if a stronger non-fraternization policy
were in place.
Neither does Dr. Gray’s expertise relate to
sexual harassment or human resources issues in general.
cannot speak to standard industry practice, which policies tend
to work, or how employers could best implement their policies.
Plaintiff states that she would limit Dr. Gray’s testimony to
the consequences (i.e. foreseeable criminal outcome) of
Defendants’ inadequate sexual harassment policies and
procedures, but that conclusion assumes that Defendants’
policies and procedures were insufficient.
The Court simply cannot find Dr. Gray, an expert in
criminal outcomes, substantively qualified to provide expert
testimony on the adequacy of sexual harassment policies and
procedures in a hospitality industry workplace.
better suited to a human resources expert.3
That subject is
The very concept of
due care, and any opinion as to whether Defendants exercised
such care in the context of providing effective policies and
procedures, requires knowledge of what would satisfy that
Dr. Gray could not opine on that subject.4
Plaintiff retained Dr. Gray to comment on the inadequacy of
Defendants’ policies and procedures.
Since Dr. Gray lacks any
Some courts have even found general human resources experts unqualified to
testify on this subject. See Carlson v. C.H. Robinson Worldwide, Inc., No.
Civ.02-3780 JNE/JGL, 2005 WL 758602 (D. Minn. March 31, 2005) (finding an
individual with thirty years of experience in the human resources field
unqualified to be an expert in the field of sexual harassment in the
workplace where her “resume fails to identify any experience, skill,
training, or education in sexual harassment in the workplace”).
4 Although Plaintiff’s Complaint alleges negligent hiring, Dr. Gray’s report
does not broach that issue and Dr. Gray stated during her deposition that she
was not retained to offer an opinion on the hiring of Mr. de los Hoyos.
knowledge and experience regarding sexual harassment policies
and procedures, the Court will not accept her as an expert
qualified to offer opinions on those subjects.
The Court also finds Dr. Gray’s testimony on the adequacy
of Defendants’ sexual harassment policies, procedures and
training to be unreliable.
According to the Supreme Court, the
reliability inquiry “must be solely on principles and
methodology, not on the conclusions they generate.”
509 U.S. at 594.
An expert’s testimony is admissible in this
regard “so long as the process of technique the expert used in
formulating the opinion is reliable.”
Pineda, 520 F.3d at 244.
In other words, “the expert’s opinion must be based on methods
and procedures of science rather than on subjective belief or
unsupported speculation; the expert must have good grounds for
his or her belief.”
Calhoun, 350 F.3d at 321 (internal
The Third Circuit has laid out several factors for district
courts to consider when determining the reliability of proposed
(1) whether a method consists of a testable hypothesis;
(2) whether the method has been subject to peer review;
(3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the
technique's operation; (5) whether the method is
generally accepted; (6) the relationship of the
technique to methods which have been established to be
reliable; (7) the qualifications of the expert witness
testifying based on the methodology; and (8) the nonjudicial uses to which the method has been put.
Calhoun, 350 F.3d at 321.
“In assessing reliability, a court
need not rely exclusively on this list and may take into account
any other relevant factors.
“[T]he law grants a district
court the same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability
Kumho Tire, 526 U.S. at 142 (emphasis in
As the Court understands Dr. Gray’s methodology, she came
to her conclusion as to the adequacy of Defendants’ sexual
harassment policies by first considering the general potential
for sexual misconduct, as a criminal outcome, in the hospitality
industry, and then determining whether, with the relevant
policies and procedures in place, Defendants’ work environment
was still conducive to such criminal outcomes.
She states that
she reviewed Defendants’ policies and procedures, along with the
filings in the present case, and relied on her “familiarity and
understanding of criminal behavior.”
(Gray Rpt. at 3)
also references the work of certain researchers on the social
informality that exists within the hospitality industry.
However, during her deposition, Dr. Gray admitted that her
conclusions regarding what she calls Defendants’ “culture of
permissiveness” stemming from sexual harassment policies and
procedures with “no teeth” – the basis for her ultimate opinions
– relied on the deposition testimony of only one individual, DT
Raven Adair, who testified that she was aware of and did not
report violations of the non-fraternization policy on a couple
(Gray Dep. at 86:25-87:11; 89:13-90:4)
oral argument, Plaintiff did not dispute that this finding rests
on Ms. Adair’s testimony alone.
Dr. Gray’s methodology does not constitute good grounds for
her opinions on the adequacy of Defendants’ sexual harassment
Dr. Gray makes no mention of, and seems not to have
reviewed, any other sexual harassment policies or procedures, or
any materials detailing what would be a satisfactory policy.
She does not know the industry standards for such policies.
a result, and considering Dr. Gray’s admitted inexperience
regarding sexual harassment policies, there is no foundation
from which Dr. Gray could come to any reliable conclusion as to
what kind of policy would be effective or the general practices
in the hospitality industry.
For example, she refers to
Defendants’ sexual harassment training as “rudimentary” without
any basis for knowing what a superior training system would
That there are specific sexual harassment training
materials Dr. Gray did not review before writing her report,
which Plaintiff did not dispute at oral argument, further erodes
the grounds for her ultimate opinions.
Tellingly, Dr. Gray
avoids detailing what specific mechanisms would be adequate to
prevent sexual harassment in the hospitality industry workplace:
What kind of supervision do you believe an employer
should be exercising over their adult employees who are
staying overnight in hotels on business trips?
In this case, I am suggesting that the DTs have an
effective supervisor also staying in the hotel.
To do what?
To enforce the policies. To enforce policies such
as no fraternizing, and I’ve been reading in Adair’s
deposition that she would witness that, yet not report
Is it your belief that it’s an employer’s
obligation to station management personnel in a hotel
any time they have lower level employees staying
overnight on business trips?
I’m not suggesting that.
That’s a blanket
statement. I am just, again, as a criminologist, trying
to give testimony as to how I assess environments being
conducive or non-conducive to criminal behavior.
Dr. Gray refuses to make what she calls a “blanket statement”
about what should be Defendants’ policy.
expertise, as Plaintiff concedes.
That is not her
Yet, such line drawing, which
would be the province of a human resources expert familiar with
industry standards, seems essential to any conclusion as to the
adequacy of any particular policy.5
Simply put, if she cannot
explain what “due care” in designing and implementing a sexual
harassment policy looks like – i.e. industry standards – it
Even had Dr. Gray detailed an adequate or effective policy, such a
description would be entirely hypothetical, as Dr. Gray, who has never
testified regarding sexual harassment policies before, has no basis for
concluding which policies work and which do not.
would be improper to allow her to testify that Defendants failed
to exercise “due care” in this case.
The Court also finds it concerning that Dr. Gray bases her
conclusion as to inadequate training and the permissive culture
at Defendants’ workplace on a few lines in the deposition
testimony of one individual, DT Raven Adair, who stated only
that she was “aware” of DTs and trainees fraternizing “a couple
(Adair Dep. at 26:5-16)
Since Dr. Gray has not made
(and, presumably, cannot make) comparisons between Defendants’
policies and procedures, and those of other employers in the
hospitality industry, her opinions regarding the inadequacy of
Defendants’ policies and procedures hinge on on the “culture of
permissiveness” at Defendants’ workplace.
Yet, Ms. Adair’s
vague statement, at best, evidences only the unsurprising fact
that employees occasionally disobey written policies.
end, Dr. Gray’s reasoning appears circular - there must have
been inadequate sexual harassment policies, procedures, and
training because the policies were violated.
This is not a
sound foundation for Dr. Gray’s conclusions and the Court will
therefore grant Defendants’ motion to exclude her report and
To be admissible, “the expert’s testimony must be relevant
for the purposes of the case and must assist the trier of fact.”
Calhoun, 350 F.3d at 321.
Dr. Gray’s report does not meet this
requirement for two reasons.
First, Dr. Gray provides legal
conclusions that invade the province of the jury.
the extent Dr. Gray does not present legal conclusions, the
Court questions the helpfulness of her report and testimony.
Plaintiff’s present claims rest on her allegations that
Defendants failed to put in place adequate sexual harassment
policies and procedures, and failed to supervise and monitor
compliance with those policies and procedures.
Under New Jersey
law, “a plaintiff may show that an employer was negligent by its
failure to have in place well-publicized and enforced antiharassment policies, effective formal and informal complaint
structures, training, and/or monitoring mechanisms.”
Toys R Us, Inc., 132 N.J. 587, 621 (1993).
“[T]he existence of
effective preventative mechanisms provides some evidence of due
care on the part of the employer . . . . Similarly, given the
foreseeability that sexual harassment may occur, the absence of
effective preventative mechanisms will present strong evidence
of an employer’s negligence.”
Id. at 621-22.
“The rule against the admissibility of legal conclusions is
Suter v. Gen. Acc. Ins. Co. of Am., 424 F. Supp.
2d 781, 793 (D.N.J. 2006).
Here, Dr. Gray’s opinions do little
more than mimic the framework for vicarious liability in hostile
work environment sexual harassment cases.
She writes that
Defendants “lacked due care” in their failure to provide an
“effective sexual harassment policy and program” and ongoing
She also concludes that Mr. de los Hoyos’s alleged
sexual assault of Plaintiff was “causally related to the lack of
effective training, monitoring, and supervision.”
In using this
language, which also happens to mirror the language of
Plaintiff’s Complaint, Dr. Gray addresses ultimate legal issues
in this case that are outside her purview, of little use to the
finder of fact, and therefore inadmissible.
It is also unclear how helpful the remainder of Dr. Gray’s
expert report would be to the jury.
She states that the
restaurant industry workplace environment, in which young
employees often drink and socialize, is “highly conducive to
behaviors associated with sexual misconduct and, therefore,
should be monitored and supervised in some meaningful way.”
(Gray Rpt. at 4)
The Court doubts that a jury needs an expert
to understand the potential for fraternization in such a
Dr. Gray then opines on Defendants’ culture of
permissiveness in which policies go unenforced.
discussed above, she bases that conclusion on Raven Adair’s
deposition testimony alone.
Merely reframing Ms. Adair’s
statement is not helpful for the jury; the jury would be better
off hearing Ms. Adair’s testimony and drawing its own
Here, it would be helpful for the jury to know what steps
employers, specifically those in the hospitality industry,
generally take to prevent sexual harassment in the work place.6
That is not the substance of Dr. Gray’s report and Dr. Gray has
no basis for providing such testimony.
For the reasons set forth above, the Court will GRANT
Defendants’ motion to exclude Dr. Gray’s expert report and
An appropriate Order accompanies this Opinion.
Date: March 26, 2015
s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.
This finding is in line with an earlier unpublished opinion from this Court
in a Title VII and LAD hostile work environment case regarding the
admissibility of testimony from an expert on sexual harassment in the
workplace. Blakey v. Cont’l Airlines, Inc., No. 93-2194, 1997 WL 1524797
(D.N.J. Sept. 9, 1997). In Blakey, the Court excluded the expert’s legal
conclusions, but allowed limited testimony on “the general policies and
practices a company may undertake in an effort to be effective in preventing
and addressing allegations of sexual harassment.” Id. at *4.
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