Small v. Memphis-Shelby County Airport Authority et al

Filing 118

ORDER denying in part 77 Motion to Exclude Expert Testimony. Signed by Judge Jon Phipps McCalla on 6/25/2015. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ROSALYN SMALL,
Plaintiff,
v.
MEMPHIS-SHELBY COUNTY AIRPORT
AUTHORITY and M. CHAD BEASLEY,
in his individual capacity,
Defendants.

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No. 2:13-cv-02437-JPM-dkv

ORDER DENYING IN PART SMALL’S MOTION TO EXCLUDE EXPERT TESTIMONY

Before the Court is Plaintiff Rosalyn Small’s Motion to
Exclude Expert Testimony of Ray Turner, filed April 10, 2015.
(ECF No. 77.)

For the following reasons, the Motion is DENIED

IN PART.
I.

BACKGROUND
A.

Factual Background

This case concerns allegations of violations of Small’s
constitutional rights, Title VII of the Civil Rights Act of
1964, and of the Americans with Disabilities Act (“ADA”).

(See

2d Am. Compl., ECF No. 59.)
Small was employed as a sergeant in the Memphis
International Airport Police Department -- a department of the
Memphis-Shelby County Airport Authority (“MSCAA”) -- from 1999
until she was terminated on July 3, 2012.

(2d Am. Compl. ¶¶ 3,

6; Def. M. Chad Beasley’s Am. Answer to Pl.’s 2d Am. Compl.

(“Beasley’s Am. Answer”) ¶ 3, ECF No. 84; Memphis-Shelby Cnty.
Airport Auth.’s 1st Am. Answer to Pl.’s 2d Am. Compl (“MSCAA’s
Am. Answer”) ¶¶ 3, 6, ECF No. 113.)
Small alleges that she was referred for a fitness for duty
exam (“FFDE”) by Defendant M. Chad Beasley on May 18, 2012.
Am. Compl. ¶¶ 27, 30.)

(2d

According to Small, the referral to

complete the FFDE “violated 42 U.S.C. § 12112(4)(A) because its
requirement that Plaintiff complete a FFDE was neither jobrelated nor consistent with business necessity.”

(Id. ¶ 120.)

On April 10, 2015, Small filed a Motion to Exclude Expert
Testimony of Ray Turner.

(ECF No. 77.)

response in opposition on April 24, 2015.

MSCAA filed its
(ECF No. 82.)

Court held a hearing on the Motion on June 24, 2015.

The

(Minute

Entry, ECF No. 116.)
B.

Testimony at the Hearing

Dr. Ray Turner was the only witness at the June 24, 2015,
hearing.

(See id.)

Dr. Turner received a bachelor’s degree in

psychology from Texas Christian University, a master’s degree in
behavioral science from The Catholic University of America, and
a Psy.D. in Clinical Psychology from the Forest Institute of
Professional Psychology.
Dr. Turner has had a private practice in Memphis, TN, since
1994, and has worked with the Memphis Police Department since
2001.

At the Memphis Police Department, Dr. Turner serves as
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Coordinator of Psychological Services.

In that role, his

activities have largely focused on pre-employment screening of
applicants.

He has also provided counseling and intervention

services to police officers and their families.

Additionally,

he has advised Memphis Police Department management in areas of
psychological concern, including recommendations as to whether
to refer a particular officer for a FFDE.
Outside his role with the Memphis Police Department,
Dr. Turner has performed FFDEs as an independent contractor.

He

estimated that he has performed approximately fifty such
examinations over the last twenty years.
Dr. Turner has several board certifications, including one
in Police and Public Safety Psychology by the American Board of
Professional Psychology.

The process to obtain this

certification is extensive -- with an application process that
can take as long as a year -- and requires a demonstration to
the American Board of Professional Psychology of a strong
background in the subspecialty.
II.

LEGAL STANDARD
According to the Sixth Circuit, under Rule 702, “a proposed

expert’s opinion is admissible, at the discretion of the trial
court, if the opinion satisfies three requirements,” In re Scrap
Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008):

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First, the witness must be qualified by “knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702.
Second, the testimony must be relevant, meaning that it
“will assist the trier of fact to understand the evidence
or to determine a fact in issue.” Id. Third, the testimony
must be reliable.
Id. at 529.
Rule 702 guides the trial court by providing general
standards to assess reliability: whether the testimony is
based upon “sufficient facts or data,” whether the
testimony is the “product of reliable principles and
methods,” and whether the expert “has applied the
principles and methods reliably to the facts of the case.”
[Fed R. Evid. 702.]
Id.
In addition, Daubert provided a non-exclusive checklist for
trial courts to consult in evaluating the reliability of
expert testimony. These factors include: “testing, peer
review, publication, error rates, the existence and
maintenance of standards controlling the technique’s
operation, and general acceptance in the relevant
scientific community.” United States v. Langan, 263 F.3d
613, 621 (6th Cir. 2001) (citing Daubert, 509 U.S. at 593–
94).
Id.
Although “[t]he party offering the expert’s testimony has
the obligation to prove the expert’s qualifications by a
preponderance of the evidence,”

Burgett v. Troy-Bilt LLC, 579

F. App’x 372, 376 (6th Cir. 2014), “rejection of expert
testimony is the exception, rather than the rule.” In re Scrap
Metal, 527 F.3d at 530 (internal quotation marks omitted).

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III. ANALYSIS
Plaintiff moves to exclude Turner from testifying as to two
topics: (1) whether the FFDE was job-related and consistent with
business necessity; and (2) that Beasley acted in a reasonable
and prudent manner by relieving Small of duty and referring her
for a FFDE.

(ECF No. 77 at 1–2.)

According to Small, exclusion

is necessary for five reasons: (A) Defendants’ expert
disclosures were untimely; (B) Turner’s opinion is an
impermissible legal conclusion; (C) his opinion includes
descriptions of state of mind, motive, and credibility; (D)
Turner’s qualifications do not provide a foundation for his
opinions; and (E) Turner’s opinion will not assist the trier of
fact.

(ECF No. 77 at 1.)

A.

The Court addresses each in turn.

Timeliness of MSCAA’s Disclosures

The Scheduling Order set a deadline of January 26, 2015,
for disclosure of expert information for Plaintiff “or party
with burden of proof.”

(ECF No. 46 at 2.)

The deadline for

Defendants “or opposing party” was set for February 25, 2015.
(Id.)

It is uncontested that MSCAA disclosed its expert

information on February 25, 2015.

MSCAA argues that because

“Plaintiff must initially show that the referral to the FFDE
amounted to a prohibited medical examination under” the ADA,
Plaintiff has the burden of proof.
correct.

(ECF No. 82 at 8.)

MSCAA is

Plaintiff has the burden of proof on her ADA claim -5

not MSCAA.

Accordingly, the Court finds that MSCAA’s

disclosures as to Dr. Turner were timely.
B.

Legal Conclusions

Small moves to exclude Turner’s testimony as to whether
Beasley was “acting in a reasonable and prudent manner” when he
referred Small for an FFDE, on the basis that it is a legal
conclusion.

(ECF No. 77-1 (quoting ECF No. 77-3 at 3).)

According to Small, opinion testimony as to the reasonableness
of the referral of Small for an FFDE would “‘embrace the actual
legal conclusion the [fact-finder] is asked to decide in the
case.’”

(Id. at 4 (quoting Alvarado v. Oakland Cnty., 809 F.

Supp. 2d 680, 691 (E.D. Mich. 2011).)

At the hearing,

Dr. Turner clearly stated that he was not opining on the actual
motive for Small’s referral -- just that the evidence before
Beasley would support the reasonableness of a referral for a
FFDE.

None of Small’s claims require the fact-finder in this

case to make such a determination.

The opinion is thus not a

legal conclusion, and therefore is not inadmissible on that
basis.
C.

Descriptions of State of Mind, Motive, and Credibility

In his report, Turner writes the following: “Based on the
information that he had at the time, Chief Beasley was acting in
a reasonable and prudent manner when he referred Sgt. Small to
an FFDE following the events of May 3, 2012.”
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(ECF No. 77-3 at

3.)

Small argues that “[w]here a party acted in a reasonable

and prudent manner are legal constructs inexorably intertwined
with a party’s state of mind and motive at the time of the
action.”

(ECF No. 77-1.)

Small is mistaken.

As noted above, Dr. Turner’s opinion

does not purport to assess Beasley’s state of mind, motive, or
credibility.

Instead, the opinion solely relates to whether, in

Dr. Turner’s opinion, the referral was reasonable and prudent
based on the information that Beasley had available.

The

opinion is therefore not about Beasley’s state of mind.
Consequently, Dr. Turner’s opinion is not inadmissible on this
ground.
D.

Qualifications and Foundation

“The issue with regard to expert testimony is not the
qualifications of a witness in the abstract, but whether those
qualifications provide a foundation for a witness to answer a
specific question.”
1351 (6th Cir. 1994).

Berry v. City of Detroit, 25 F.3d 1342,
The Court finds that Dr. Turner’s

background provides sufficient foundation for his opinions.

Dr.

Turner has been a practicing clinical psychologist for more than
twenty years.

More importantly, Dr. Turner has worked with a

major metropolitan police department for fourteen years in a
capacity in which he has had to determine whether to send
individual officers for FFDEs.
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Small argues that “[t]he reasonableness opinion is based
solely on his summary of some memos from Sgt. Small’s colleagues
purporting to assess her state of mind without any context or
analysis provided by Dr. Turner.”
Small is mistaken.

(ECF No. 77-1 at 6.)

Again,

Dr. Turner testified that he considered the

guidelines of the International Association of Chiefs of Police
(“IACP”) in considering whether the evidence before Beasley
rendered a decision to refer Small for a FFDE reasonable.

The

IACP guidelines refer to certain “red flags” that render a
referral of a police officer for a FFDE reasonable, including
excessive suspiciousness, uncharacteristic irritability, and
difficulty controlling emotions.

In determining whether a

referral for a FFDE is appropriate for a particular officer,
Dr. Turner testified that it is common for practitioners in his
field to rely on the written reports by other officers of
observed behaviors.

Dr. Turner stated that his opinion that the

evidence before Beasley rendered a referral for Small reasonable
was based on a review of the reports of several other officers
regarding observed behavior of Small, indicating what he
determined to be excessive suspiciousness, uncharacteristic
irritability, and difficulty controlling emotions.
The Court finds that Dr. Turner’s opinion is based on
substantial qualifications and has been made on reliable

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methods.

Accordingly, his testimony is also not inadmissible on

this ground.
E.

Assisting the Trier of Fact

Small argues that Dr. Turner’s opinion “constitutes his
mere personal belief as to credibility and the weight of that
evidence and as such invades the province of the fact-finder.”
(ECF No. 77-1 at 9.)

Consequently, Small argues that it is not

helpful to the fact-finder.

The Court disagrees.

The Sixth Circuit has articulated four factors a court
should look to when considering whether an employee posed a
sufficient direct threat to warrant an examination consistent
with the ADA: “(1) the duration of the risk; (2) the nature and
severity of the potential harm; (3) the likelihood that the
potential harm will occur; and (4) the imminence of the
potential harm.”

Kroll v. White Lake Ambulance Auth., 763 F.3d

619, 626 (6th Cir. 2014) (internal alternations and quotation
marks omitted).

Turner’s testimony as to these factors would

assist the trier of fact.

Turner states in his report that “[a]

police officer displaying th[e] range of emotions [that Small
exhibited on May 3, 2012,] would call into question her ability
to perform her job, including the decisions to arrest or use her
firearm.”

(ECF No. 77-3 at 3.)

This is relevant to “the nature

and severity of the potential harm.”
626.

See Kroll, 763 F.3d at

Turner’s testimony regarding whether Beasley’s referral
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was “reasonable and prudent,” however, is not relevant to any of
the factors.

It also does not appear to have relevance to any

other legal issue in the case.

Because the facts at trial could

possibly render the opinion relevant, the Court reserves ruling
as to whether to exclude Dr. Turner’s opinion regarding whether
Beasley’s referral was “reasonable and prudent.”
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion is DENIED IN

PART.

The Court RESERVES RULING as to whether to exclude Dr.

Turner’s opinion regarding whether Beasley’s referral was
“reasonable and prudent.”

IT IS SO ORDERED, this 25th day of June, 2015.

/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

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