Chodnicki v. Old Forge Bank

Filing 59

MEMORANDUM and ORDER denying 47 Motion in Limine re testimony of Reese A. Thomas; granting 49 Motion in Limine re expert testimony of Dr. Joseph Costello; and granting 51 Motion in Limine re testimoncy of Linda Rowan.Signed by Honorable James M. Munley on 3/12/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPH CHODNICKI, Plaintiff, : No. 3:07cv1112 : : (Judge Munley) : v. : : OLD FORGE BANK, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are defendant's motions in limine. (Docs. 47, 49, 51). Having been fully briefed, the matters are ripe for disposition. B a c k g ro u n d T h is case concerns employment discrimination claims made by Plaintiff J o s e p h Chodnicki regarding his employment with defendant Old Forge Bank. Defendant, who lost his job, claims that he was dismissed because of his age. P la in tiff filed his complaint in this court on June 21, 2007. The complaint consisted o f two counts. Count One alleged age discrimination pursuant to the Age D is c rim in a tio n in Employment Act, 29 U.S.C. § 621. Plaintiff contended that he was fire d on account of his age, 58, and replaced by a significantly younger worker who h a d much less experience. Count Two alleged disability discrimination pursuant to th e Americans with Disabilities Act, 42 U.S.C. § 12101. Plaintiff asserted that he w a s disabled within the meaning of the Act, was qualified to perform his job, and was term in a te d by the defendant because of a perception about his disability.

A fte r the parties completed discovery, defendant filed a motion for summary ju d g m e n t. In a decision issued on January 21, 2009, the court granted this motion w ith reference to plaintiff's Americans with Disabilities Act claims and denied it in re la tio n to plaintiff's Age Discrimination in Employment Act claim. (See Doc. 45). The court then scheduled a pre-trial conference. Defendant filed the instant motions in limine, and both parties filed briefs, bringing the case to its present posture. Jurisdiction B e c a u s e this case is brought pursuant to the Age Discrimination in E m p lo ym e n t Act, 29 U.S.C. §§ 621, et seq, the court has jurisdiction pursuant to 28 U .S .C . § 1331 ("The district courts shall have original jurisdiction of all civil actions a ris in g under the Constitution, laws or treaties of the United States."). Discussion D e fe n d a n t filed three separate motions in limine. The court will address each in turn. a . Motion to exclude the report and testimony of Reese A. Thomas D e fe n d a n t seeks to exclude the expert report and testimony of Reese A. T h o m a s (Doc. 47). Thomas's report offers an opinion on whether the record s u p p o rts defendant's claim that plaintiff lost his job as part of "downsizing" at the b a n k branch, and whether discrimination on the basis of age and perceived disability

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b e tte r explains the reasons for plaintiff's termination.1 Defendant argues that T h o m a s is not qualified to testify as an expert, that his report does not offer any s c ie n tif ic or technical knowledge that would aid the jury, and that the report offers im p r o p e r legal conclusions. F e d e ra l Rule of Evidence 702 provides that "a witness qualified as an expert b y knowledge, skill, experience, training or education" may provide opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the p ro d u c t of reliable principles and methods, and (3) the witness has applied the p rin c ip le s and methods reliably to the facts of the case." FED. R. EVID. 702. Courts h a ve described the function of the district court in determining whether to admit e xp e rt testimony as a "gatekeeping" one. The trial judge has "the task of ensuring th a t an expert's testimony both rests on a reliable foundation and is relevant to the ta s k at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 598 (1 9 9 3 ). Thus, "[t]he objective of that requirement is to ensure the reliability and re le va n c y of expert testimony. It is to make certain that an expert, whether basing te s tim o n y upon professional studies or personal experience, employs in the c o u rtro o m the same level of intellectual rigor that characterizes the practice of an e xp e rt in a particular field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1 9 9 9 ).

The court notes that the portions of the report that discuss plaintiff's disability discrimination case are no longer relevant to the instant action and should not be the subject of testimony. 3

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D e fe n d a n t first contends that Thomas is not qualified to offer an expert opinion. Thomas was educated at Kings College in W ilk e s -B a rre , Pennsylvania, St. J o s e p h 's College in Standish, Maine and Cornell University. (Curriculum Vitae of R e e s e A. Thomas, Exh. A to Defendant's Motion in Limine (Doc. 47-2)). He studied lib e ra l arts, business administration and human resources. (Id.). Thomas also has tra in in g in human resource management, including a certificate in human resources fro m Cornell University, board certifications in human resources management, and tra in in g in personnel management from the United States Office of Personnel M a n a g e m e n t. (Id.). Thomas was employed from 2006-2008 as a human resource m a n a g e r by Diageo North America in Breingsville, Pennsylvania. He also acts as a h u m a n resources consultant, assisting both attorneys and companies in a variety of in d u s trie s to evaluate their human resource programs. (Id.). He has also been a p p o in te d to serve as a consultant in human resource and labor relations by the C o m m is s io n e rs of Luzerne County, Pennsylvania and to make recommendations for a county-owned and operated nursing home. (Id.). From 1992-2000, Thomas s e rve d as director of human resources and staff development for the United States D e p a rtm e n t of Veteran's Affairs in W ilk e s -B a r re , Pennsylvania. (Id.). From 2002 u n til 2005, he worked in human and employee relations for the Pennsylvania D e p a rtm e n t of Military and Veterans Affairs. (Id.). Thomas has also testified as an

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e xp e rt or served as a consultant in dozens of cases.2 (Id.). A witness may offer expert opinion "if he or she is `qualified as an expert by k n o w le d g e , skill, experience, training or education.'" United States v. W a ts o n , 260 F .3 d 301, 306-307 (3d Cir. 2001) (quoting FED. R. EVID. 702). Courts have c o n s tru e d this requirement "liberally," and noted that advisory committee comments o n the Rule indicate that "within the scope of the rule are not only experts in the s tric te s t sense of the word, e.g., physicians, physicists, and architects, but also the la rg e group sometimes called `skilled' witnesses, such as bankers or landowners te s tifyin g to land values.'" Id. (quoting FED. R. EVID. 702, Advisory Committee's Notes to 1972 Proposed Rule 702). The court finds that Thomas is qualified as an expert to testify on matters of personnel policy. He has years of experience in the field, as w e ll as extensive training, and has offered that expertise in dozens of cases. His te s tim o n y could assist the trier of fact in determining whether the defendant's p ro ffe re d reason for plaintiff's termination­"downsizing"­actually meets the u n d e rs ta n d in g of such action common to the human resources field. Next, defendant argues that Thomas's opinion offers improper legal c o n c lu s io n s and does not support those conclusions with any specialized, expert k n o w le d g e . The plaintiff agrees that Thomas could not offer his own opinion about

Defendant cites to two district-court cases where Thomas was excluded from testifying. The court finds that the exclusion of Thomas from testifying in those cases has no import on this case. The court's role here is to examine Thomas's report and qualifications to determine whether his proposed testimony is admissible in this case. 5

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w h e th e r he was the victim of discrimination based on age, but argues that his o p in io n on whether downsizing actually and properly occurred in this case is a p ro p e r subject for an expert report. An expert witness generally may not provide le g a l opinions. See United States v. Leo, 941 F.2d 181, 196 (3d Cir. 1991) (finding th a t "it is not permissible for a witness to testify as to the governing law since it is the d is tric t court's duty to explain the law to the jury."). An expert witness may, however, b e used by the finder of fact to help unsnarl complicated factual issues. Federal R u le of Evidence 702 provides, in pertinent part, that "[i]f scientific, technical, or o th e r specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" a fully qualified expert may testify. See also United S ta te s v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995) (recognizing "the `strong and u n d e n ia b le preference for admitting any evidence having some potential for assisting th e trier of fact' which is embodied in the Federal Rules of Evidence'" [citations o m itte d ] and noting that "Rule 702, which governs the admissibility of expert te s tim o n y, specifically embraces this policy."). Since there is an issue here about w h e th e r downsizing actually occurred, Thomas may offer his opinion as to what "d o w n s iz in g " means, and whether the defendant actually engaged in that process w h e n it decided to terminate the plaintiff. As the parties agree, however, Thomas m a y not offer an opinion as to whether, as a legal matter, plaintiff was the victim of d i s c r i m i n a t io n . Defendant also complains that Thomas's report is not based on sufficient

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in fo rm a tio n or study to qualify as an expert opinion. Defendant's complaint here is m o re about the report's persuasiveness than its admissibility. Defendant will have a n opportunity to cross-examine Thomas at trial, and can point out any weaknesses in his testimony then. The court will not exclude an expert report simply because the re p o rt is not entirely convincing: "cross-examination, presentation of contrary e vid e n c e , and careful instruction on the burden of proof," after all, "are the traditional a n d appropriate means of attacking shaky but admissible evidence." Daubert, 509 U .S . at 596. The court will therefore deny the defendant's motion. b . Motion to Exclude the expert testimony of Joseph Costello D e fe n d a n t seeks to exclude the expert testimony and report of Dr. Joseph C o s te llo , which describes the medical problems faced by the plaintiff. (Doc. 49). The court will grant this motion, as the report deals only with the plaintiff's physical c o n d itio n . The court has granted summary judgment on plaintiff's ADA claim, and h is physical condition is no longer at issue in this case. "`Relevant evidence' means e vid e n c e having any tendency to make the existence of any fact that is of c o n s e q u e n c e to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Because plaintiff's physical a ilm e n ts are no longer of consequence to the litigation, Dr. Costello's report is irr e le va n t. Since "[e]vidence which is not relevant is not admissible," the court will g ra n t the defendant's motion and exclude the expert report and testimony related to th a t report from Dr. Costello. FED. R. EVID. 402.

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P la in tiff argues that Dr. Costello could testify that plaintiff walked slowly and w ith a limp, and that such testimony is relevant to his age discrimination case. This te s tim o n y would help plaintiff establish that defendant discriminated against him b e c a u s e he appeared to be an older worker. Dr. Costello's appearance would thus b e relevant to a fact at issue in the litigation: namely whether plaintiff's firing was re la ted to his age and his employer's attitudes about workers who appeared older. S u c h testimony would not, however, qualify as expert testimony, since describing a p e rs o n 's appearance does not require "scientific, technical or other specialized k n o w le d g e ." FED. R. EVID. 702. Of course, Costello's testimony in this context would h a rd ly be central to the case, since the issue for which plaintiff seeks to use that te s tim o n y­ h is claim that defendant perceived him as old and infirm and thus an u n d e s ira b le employee­cannot be proved except through testimony about how his e m p lo ye r actually perceived him. The testimony would thus be limited to plaintiff's g e n e ra l appearance, as plaintiff does not contend that Costello has any knowledge o f how defendant perceived plaintiff. See FED. R. EVID. 701(a) (limiting "testimony in th e form of opinions or inferences . . . to those opinions or inferences which are (a) ra tio n a lly based on the perception of the witness."), P la in tiff also argues that Dr. Costello's testimony is relevant and admissible b e c a u s e he anticipates defendant will put at issue plaintiff's application for social s e c u rity disability benefits in arguing that defendant was not qualified for his position. The court finds that if plaintiff puts at issue defendant's physical condition, then Dr.

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C o s te llo 's testimony would be relevant to the case. Dr. Costello could then testify as a rebuttal witness to the medical treatment he provided plaintiff. Dr. Costello could te s tify to his knowledge of that treatment and plaintiff's condition as plaintiff's p e rs o n a l physician. Dr. Costello could testify as a fact witness to his treatment and o b s e rva tio n s of plaintiff, not an expert, since he would offer facts to rebut d e fe n d a n t's contentions about plaintiff's physical condition. c . motion to preclude evidence related to discrimination suffered by L in d a Rowan D e fe n d a n t seeks to exclude testimony about the disability discrimination claim b ro u g h t against Old Forge Bank by Linda Rowan. The parties settled this claim w ith o u t any admission of liability. Defendant argues that this information is irre le v a n t, and even if relevant is overly prejudicial. The court agrees that evidence a b o u t disability discrimination is not relevant to this case, which concerns age d is c rim in a tio n . Moreover, "[e]vidence of other crimes, wrongs, or acts is not a d m iss ib le to prove the character of a person in order to show action in conformity th e re w ith ." Fed. R. Evid. 404(b). The only reason to offer testimony on Rowan's e xp e rie n c e would be to convince the jury that because defendant had discriminated a g a in s t one employee that it would discriminate against the plaintiff too. As such, e vid e n c e about Rowan's disability discrimination claim is inadmissible and the court w ill grant defendant's motion to preclude testimony about her discrimination case. At th e same time, to the extent that Rowan has evidence about issues relevant to the 9

c a s e ­ s u c h as whether the legitimate non-discriminatory reasons offered for plaintiff's te rm in a tio n were genuine or whether defendants made discriminatory statements re la te d to age­the testimony would be relevant and admissible. Conclusion F o r the reasons stated above, the court will grant defendant's motions in lim in e in part and deny them in part. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPH CHODNICKI, Plaintiff, : No. 3:07cv1112 : : (Judge Munley) v. : : OLD FORGE BANK, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 12th day of March 2009, the defendant's motions in lim in e are hereby GRANTED in part and DENIED in part, as follows: 1 ) The motion in limine to exclude the report and testimony of Reese A. T h o m a s (Doc. 47) is hereby DENIED; 2 ) The motion in limine to exclude the expert report and testimony of Dr. J o s e p h Costello (Doc. 49) is hereby GRANTED: 3 ) The motion in limine to exclude evidence relating to and testimony of Linda R o w a n (Doc. 51) regarding her discrimination claim against defendant is h e re b y GRANTED. BY THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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