GUCKER v. U.S. STEEL CORPORATION

Filing 74

ORDER denying 65 Defendant's Daubert Motion to Exclude the Report and Proposed Testimony of Donal F. Kirwan; and that the expert reports will not be admitted into evidence (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 11/23/15. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALBERT E. GUCKER

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Plaintiff,
v.
UNITED STATES STEEL CORPORATION
Defendant.

Civil Action No. 13-583
Judge Nora Barry Fischer

MEMORANDUM ORDER
This is an employment discrimination case wherein Plaintiff Albert E. Gucker (“Gucker”)
contends that Defendant United States Steel Corporation (“USX”) unlawfully terminated him on
the bases of his age and disability in violation of the Age Discrimination in Employment Act
(“ADEA”), the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human
Relations Act (“PHRA”).1 (Docket No. 1). Presently before the Court is a Daubert Motion
brought by USX seeking to exclude the proffered expert testimony of Donal F. Kirwan opining
as to Gucker’s economic loss between the date of his separation from employment, i.e.,
December 28, 2011, and his sixty-sixth birthday, i.e., April 30, 2017. (Docket Nos. 65, 66).
USX argues that Kirwan’s opinions are inadmissible under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), because they rely upon allegedly
improper assumptions that Gucker was capable of working in his previous position as a
maintenance technician and would have worked beyond the date of his retirement and also
because his opinions failed to consider Gucker’s employability in the existing jobs in the national
economy. (Docket Nos. 65, 66).
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The Court excludes a lengthy recitation of the factual circumstances of this case, as the parties are well
aware of the underlying facts and the same is clearly set forth in its Memorandum Opinion denying USX’s motion
for summary judgment. See Gucker v. United States Steel Corporation, Civ. No. 13-583, 2015 WL 3693429 (W.D.
Pa. Jun. 12, 2015).
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Gucker responds that Kirwin’s opinions meet all of the requirements for admissibility
under Rule 702 and Daubert. (Docket Nos. 67, 68). Gucker continues that Kirwin properly
relied upon the evidence of record in reaching his opinions as to economic losses that were
sustained, making appropriate assumptions that the jury will find in his favor on the disputed
factual matters. (Id.). The Court held oral argument on USX’s Daubert Motion on November 6,
2015, (Docket No. 69), and the matter has been fully briefed both before, (Docket Nos. 66, 68),
and after argument (Docket Nos. 70, 71), with the parties producing the relevant portions of the
record, including the deposition testimony of Kirwin, (Docket No. 65-2), his expert report,
(Docket No. 65-1), and his curricula vitae. (Docket No. 68-1). After careful consideration of all
of the parties’ arguments, their briefs and the submitted exhibits and for the following reasons,
Defendant’s Motion [65] is DENIED.
This Court understands its important gatekeeper duty to fully evaluate proffered expert
opinions to ensure that they are both relevant and reliable before permitting such opinions to be
presented to a jury, see Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)
(citing Daubert, 509 U.S. at 589), and has excluded experts from testifying in cases where the
Court found that the three requirements set forth in Rule 702, “qualifications,” “reliability” and
“fit,” were not met. See Pritchard v. Dow Agro Sciences, 705 F. Supp. 2d 471 (W.D. Pa. Mar.
11, 2010), aff’d, 430 F. App’x 102 (3d Cir. 2011). But, USX has failed to meet its burden to
convince this Court that Kirwin’s proffered expert opinions should be excluded as they meet the
liberal standard of admissibility under Rule 702. See Pineda v. Ford Motor Co., 520 F.3d 237,
243 (3d Cir. 2008) (quoting Kannankeril, 128 F.3d at 806) (“Rule 702, which governs the
admissibility of expert testimony, has a liberal policy of admissibility.”). Overall, the Court
believes that USX’s challenges to Kirwin’s proffered testimony present questions concerning the

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underlying factual foundation and bases for his opinions that are properly resolved by the jury
after considering the conflicting evidence presented by both parties at trial. See Daubert, 509
U.S. at 596 (“[V]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.”).
In so holding, the Court briefly comments that USX has not meaningfully challenged
Kirwin’s qualifications as a forensic economics and human resources specialist, which are
extensive and include prior expert testimony in federal, see, e.g., Rocco v. Bodami, Civ. A. No.
08-1497, 2010 WL 3892183 at *1 (W.D. Pa. Sept. 24, 2010), and state courts throughout the
tristate area without having ever been disqualified through this type of motion to this Court’s
knowledge. (Docket No. 65-2 at 22; Docket No. 68-1). The Court would agree that he is
sufficiently qualified to provide the types of opinions that he has proffered here; indeed, he
completes hundreds of these economic loss calculations per year. (Docket No. 65-2 at 35-36).
There has also been no effort by USX to challenge the methods he employed to compute the
economic losses allegedly sustained by Gucker. (Docket Nos. 65, 66).
With respect to the three specific areas where USX claims that Kirwin erroneously relies
upon unsupported assumptions, the Court agrees with Gucker’s response that all of these areas
are both appropriately relied upon by an economic loss expert and are fully supported by the
facts in this case which outline his prior ability to perform the same job with the requested
accommodation for several years; medical evidence releasing him to work with such
accommodation; and, the admissions of USX’s own witness essentially confirming that his
retirement was not voluntary. (Docket Nos. 67, 68). Indeed, the Court fully explained and
analyzed the factual disputes between the parties when denying summary judgment to USX,

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expressly holding that: “a reasonable jury could find that Plaintiff was a qualified individual
under the ADA and thus able to perform the essential functions of his job” as a maintenance
technician and that “there are genuine disputes as to whether Gucker retired or whether U.S.
Steel’s discriminatory motive with regard to his age and/or disability caused him to be
constructively discharged.” See Gucker, 2015 WL 3693429 at *7-8. This case is thus clearly
distinguishable from Benjamin v. Peter’s Famr Condominium Owners Ass’n, 820 F.2d 640 (3d
Cir. 1987), which excluded opinions based on rank speculation and unsupported statements of
the plaintiff’s abilities. Kirwin did not rely solely upon Gucker’s self-serving statements about
his ability to work when reaching his opinions. He interviewed Gucker and reviewed his
deposition, including specific provisions cited by USX in their supplemental briefing, (Docket
No. 70), as well as a number of documents as outlined in the report. (See Docket No. 65-1).
With that backdrop, he put into play his background and experience in this marketplace to arrive
at his opinions. Moreover, it is certainly appropriate for an expert witness to rely on facts in
evidence and, contrary to the arguments of USX, to make assumptions of the type that Kirwin
has done here (i.e., that the jury will accept Gucker’s version of the facts).
Challenges to the factual foundation of expert opinions such as the ones raised by USX
go to the weight of such testimony which is more appropriately addressed through crossexamination at trial. See Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir.
2002) (“Rule 705, together with Rule 703, places the burden of exploring the facts and
assumptions underlying the testimony of an expert witness on opposing counsel during crossexamination.”).
For these reasons,
IT IS HEREBY ORDERED that Defendant’s Motion [65] is DENIED.

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IT IS FURTHER ORDERED that the expert reports will not be admitted into evidence.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: November 23, 2015
cc/ecf: All counsel of record

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