HOWARD v. PHILADELPHIA HOUSING AUTHORITY et al

Filing 63

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE DAVID R. STRAWBRIDGE ON 6/16/16. 6/17/16 ENTERED AND COPIES E-MAILED.(mbh, ) .

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHENECQUA BUTT, et al
v.
UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF
AMERICA, et al
THERESA HOWARD
v.
METROPOLITAN REGIONAL
COUNSEL OF CARPENTERS &
JOINERS OF AMERICA, et al

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CIVIL ACTION

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CIVIL ACTION

NO. 09-4285

NO. 13-374 (consolidated with 09-4285)

MEMORANDUM OPINION ON MOTION IN LIMINE
DR. PHILIP L. TAYLOR
DAVID R. STRAWBRIDGE
UNITED STATES MAGISTRATE JUDGE
I.

June 16, 2016

Introduction
Defendants Metropolitan Regional Council of Carpenters and Joiners of America,

Edward Coryell and Mark Durkalec (collectively, the “Union Defendants”) and the Philadelphia
Housing Authority (“PHA”), bring Motions in Limine seeking to preclude expert psychological
testimony from Dr. Philip L. Taylor. Docs. 141, 142.
This matter comes before the Court pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R.
Civ. P. 72(a).

In conformity with the scheduling orders governing these cases, Plaintiffs

obtained reports from Dr. Taylor in August 2015. The Union Defendants and the PHA filed their
Motions in Limine on November 9, 2015. Docs. 141, 142.

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Plaintiffs filed oppositions on

December 21, 2015. Docs. 155, 156 and 157. The Union filed replies on December 30, 2015.
Doc. 160.
For the reasons that follow, the Motions shall be granted in part and denied in part.
Specifically, Dr. Taylor will be permitted to testify as to his diagnosis of plaintiffs Shenecqua
Butt and Theresa Howard (“Plaintiffs”), but he may not offer legal conclusions nor comment
upon the purported credibility of either plaintiff.
II.

Factual Background
The relevant procedural and factual background of this case is well known to the parties

and their counsel so we dispense with setting it out other than with respect to that pertinent to the
resolution of these motions. Dr. Taylor was retained through counsel to undertake psychological
examination of Ms. Butt and Ms. Howard in the summer of 2015. The record reflects that he
interviewed Plaintiffs on August 7, 2015 and issued reports on August 10, 2015. See Doc. 141-5
(Howard Report); 1 Doc. 142-3 (Butt Report). He diagnosed both Plaintiffs with post-traumatic
stress disorder and adjustment disorder. He further diagnosed Ms. Butt with chronic pain. By
his reports, he has attributed these conditions to Defendants’ alleged discriminatory employment
practices.
III.

Discussion
A. Legal Standards
Federal Rule of Evidence 702 governs the admissibility of expert testimony. The rule

“has three major requirements: (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

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Dr. Taylor supplemented the Howard Report two days after he initially issued it to claim that
Defendant PHA was also responsible for the conduct giving rise to Ms. Howard’s post-traumatic
stress disorder and adjustment disorder. See Doc. 141-5 at 10-11.
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knowledge; and (3) the expert’s testimony must assist the trier of fact.” Pineda v. Ford Motor
Co., 520 F.3d 237, 244 (3d Cir. 2008). “[T]he testimony must be reliable; it must be based on
the methods and procedures of science rather than on subjective belief or unsupported
speculation; [and] the expert must have good grounds for his on her belief.” Schneider ex rel.
Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citations omitted). Determining
if testimony will assist the trial of fact “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.” In re TMI Litig., 193 F.3d 613, 663
(3d Cir. 1999) (citations omitted).

“[E]ven if an expert’s proposed testimony constitutes

scientific knowledge, his or her testimony will be excluded if it is not scientific knowledge for
purposes of this case.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)
(emphasis in original).
B. Application to Taylor’s Opinions
Defendants concede that Dr. Taylor was qualified to render opinions as an expert in the
field of psychology. Doc. 142-1 at 8 (“Dr. Taylor is a qualified psychologist”); Doc 141-1 at 5
(“Defendant PHA does not dispute that Dr. Taylor is highly qualified and reliable in the area of
psychology.”). However, Defendants argue that Dr. Taylor’s purported opinions impermissibly
stray beyond the bounds of his expertise to the extent they offer legal conclusions and credibility
determinations. 2 We discuss each below.

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Defendants also argue that Dr. Taylor’s opinions are the result of improper collaboration with
his wife, a retired employment discrimination attorney. Doc. 141-1 at 11-13; Doc. 142-1 at 1011. However, the cases Defendant PHA cites for this argument appear to apply the test of
whether the expert is improperly offering a legal opinion. Defendants cite no case, and the Court
is aware of none, for the proposition that such collaboration in and of itself is enough to render
Dr. Taylor’s opinion inadmissible. The Court’s rulings infra prohibiting Dr. Taylor from
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a.

Improper Legal Conclusions

Although Federal Rule of Evidence 704 will permit an expert to offer testimony “that
embraces an ultimate issue to be decided by the trier of fact,” an expert is “prohibited from
rendering a legal opinion” as it would usurp the District Court’s pivotal role in setting out the
legal requirements involved in the case to the jury. See Berckeley Investment. Group., Ltd. v.
Colkitt, 455 F.3d 195, 217 (3d Cir. 2006).
Here, Dr. Taylor improperly proffered many legal conclusions in his report, including the
following instances:
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Referring to Ms. Howard’s sexual assaults, the report states “instead of getting
redress for these assaults, Ms. Howard was forced to endure further retaliatory
harassment for complaining.” Doc. 141-5 at 5 (Howard Report);

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Referring to the scores of a test administered to Ms. Howard, Dr. Taylor stated
“…she is highly distressed and disturbed as a result of the sexual assault, the
harassment, the discrimination [sic] which she has endured for many years.” Id. at 9;

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After concluding that Ms. Howard suffered from post-traumatic stress disorder and
adjustment disorder, Dr. Taylor stated that these conditions were “caused by the
intentional racial and gender harassment, and racial and sex discrimination
perpetrated by” defendants. Id. at p. 11;

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Similarly, Dr. Taylor concluded that Ms. Butt’s “Post Traumatic Stress Disorder,
Adjustment Disorder and Chronic Pain [were] caused by the intentional, pervasive
and severe racial and sexual harassment and discrimination perpetrated by” the Union
Defendants. Doc. 142-3 at 14;

offering legal conclusions should cure this defect, and Defendants remain free to cross examine
Dr. Taylor about the collaboration at trial.
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•

Dr. Taylor also claimed as to Ms. Butt that “Attorney Gelman escalated the
harassment by bringing a wiretap charge against [her]” after Ms. Butt recorded a
telephone call between herself and one of the individual defendants. Id. at 7.

As we conclude these all represent opinions of legal conclusions, they are not opinions
that may be presented to the jury. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 790 (3d
Cir. 2016) (allegations that a plaintiff “was sexually harassed” and experienced “disparate
treatment based on her gender and retaliation for making complaints about discrimination and
sexual harassment” all constituted legal conclusions for purposes of a 12(b)(6) motion to dismiss,
even if the underlying facts of the encounters did not).

Dr. Taylor may opine on the

psychological tests he ran on the Plaintiffs and his expert opinions about their mental states. He
may further explain how information the Plaintiffs provided during his clinical interviews played
a role in his analysis. He may not, however, offer legal conclusions about the Defendants’
alleged conduct.
b. Credibility Determinations
The credibility of witnesses is left to the purview of the jury and is not to be the subject to
an opinion of an expert witness. “[I]t is generally inappropriate for a witness to judge the
credibility of another witness.” Griggs v. BIC Corp., 844 F. Supp. 190, 201 (M.D. Pa. 1994),
aff’d, 37 F.3d 1486 (3d Cir. 1994). The Third Circuit has affirmed a past decision of this Court
excluding testimony from a treating physician regarding the veracity of plaintiff’s purported
complaints even though the complaints played a role in the physician’s diagnosis. Coney v.
NPR, Inc., 312 F. App’x 469, 474 (3d Cir. 2009) (unpublished) (citations omitted) (“The District
Court here acknowledged that a physician’s consideration of his patient’s subjective complaints
of pain is important as it may play a part in forming the basis of his opinion. Indeed, the record

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indicates that Dr. Park expressed his reliance on Coney’s subjective complaints in forming his
diagnosis. Yet as the District Court also recognized, this does not mean . . . that Dr. Park should
have been able to testify more broadly as to his opinion concerning the truthfulness and
reliability of Coney’s complaints.”).
In this case, Dr. Taylor’s reports express his views that he believes Ms. Butt and Ms.
Howard are credible, in part because their interviews with him were consistent with their
deposition testimony. E.g., Howard Report at 10 (“Ms. Howard presented as totally honest,
extremely credible, and as with Ms. Butt, her remarks were consistent with previous statements
in her Deposition, consistent with her Therapy notes, and consistent with her test results.”); Butt
Report at 14 (same). At trial, Dr. Taylor will not be allowed to opine on either Ms. Butt’s or Ms.
Howard’s credibility. Nor will he be allowed to comment on the consistency, if any, of what
Plaintiffs said to him as compared to what they said in their depositions in this case. See FedEx
Ground Package Sys., Inc. v. Applications Int’l Corp., 695 F. Supp. 2d 216, 222 (W.D. Pa. 2010)
(citations omitted) (“It is the duty of the jury, not an expert witness, to decide credibility. To
allow such testimony at trial would usurp the court’s duty to instruct the jury on the law and the
jury’s role of determining credibility of witnesses and applying the law to the evidence.”).
IV.

Conclusion
For the reasons outlined above, we preclude Dr. Taylor from offering testimony that

constitutes legal conclusions or credibility determinations.

Acknowledging that sometimes

distinguishing facts relied on in forming expert opinions and handling of legal conclusions may
be somewhat “hazy,” we further recommend that the trial Court make determinations predicated
upon the specific questions and their context at the time of trial and permit those questions which
do not invade either the function of the Court or the jury as to credibility determinations.

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An appropriate Order follows.

BY THE COURT:

/s/ David R. Strawbridge
DAVID R. STRAWBRIDGE
UNITED STATES MAGISTRATE JUDGE

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