Sanchez v. City of San Antonio, by and through its agent, City Public Service Board of San Antonio

Filing 30

ORDER GRANTING IN PART AND DENYING IN PART 23 Motion to exclude; GRANTING IN PART AND DENYING IN PART 27 Motion to exclude. Signed by Judge Xavier Rodriguez. (rg) Modified on 2/19/2019 (rg).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
GABRIEL SANCHEZ,
v.
CITY OF SAN ANTONIO

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SA-18-CV-184-XR

ORDER
On this day came on to be considered Plaintiff’s Motion to Exclude and Strike the
Testimony of Dwight D. Steward (Dkt. No. 23) and Objections to and Motion to Exclude and
Strike Testimony of Defendant’s Expert Dr. Dwight D. Steward (Dkt. No. 27)1.
Plaintiff was formerly employed with the City’s public utility service, CPS Energy. He
now brings suit alleging disability discrimination and a claim under the Family and Medical Leave
Act.
CPS Energy engaged Dwight D. Steward, Ph.D., an economist and statistician, to perform
an economic and labor market analysis. Plaintiff engaged Thomas Glass, Ph.D. and CPA, who
opined that Plaintiff has suffered $1.6M in past and future lost wages and $1.325M in lost
retirement benefits. Plaintiff also engaged R. Brad Coffey, a vocational counseling expert. Dr.
Steward has opined that “Dr. Glass’ analysis overstates any alleged economic losses in this case
by overestimating the income that Mr. Sanchez could have reasonably been expected to earn from
CPS even if Mr. Sanchez’s employment had not been terminated. Dr. Glass’ analysis further
inflates the alleged economic damages in this case by underestimating Mr. Sanchez’s current

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This filing makes the same arguments previously raised in the earlier motion.

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earnings ability. Further, the post-CPS jobs that Dr. Glass uses in his analysis, which are based on
the vocational report of Mr. Brad Coffey, are overly restrictive.”
Plaintiff specifically objects to pages 10 through 15 of Dr. Steward’s report. In sum,
Plaintiff contends that Dr. Steward is not a vocational expert, unqualified to render expert opinions
on Plaintiff’s future employability, fails to explain his methodology, and his testimony would be
unreliable, misleading and invites speculation.
Defendant responds that any objections to Dr. Steward’s report and anticipated expert
testimony concern the weight, not the admissibility. Defendant notes that Dr. Steward is a labor
economist, scholar, and teacher on employment-related issues, economics, and statistics, and
lectures on “labor market research methodologies and data used to analyze labor market issues,
such as unemployment and re-employment, expected job unemployment duration, job skill
transferability in the labor market, and the determination of an employee’s wage rate in the labor
market.”2 Importantly, Defendant notes that Dr. Steward “makes no assumptions whatsoever
regarding Sanchez’s physical ability to return to work. Instead, Dr. Steward, as is typical in
employment discrimination cases, performs a labor market analysis in terms of Sanchez’s failure
to mitigate his damages in this lawsuit. Neither Dr. Steward’s report nor his testimony renders
any opinion as to Plaintiff’s ability or capacity to physically return to work.”
In Dean v. Sea Supply, Inc., No. CV 16-14254, 2017 WL 3773149, at *1 (E.D. La. July 13,
2017), that Court encountered the argument here, in reverse. The defendants argued that the expert
economist’s opinion on Plaintiff’s future earning capacity was based on two incorrect assumptions:

Defendant also notes that Dr. Steward as a statistician reviews “occupational employment statistics, statistics
regarding the job openings and labor turnover survey, the occupational outlook handbook, and the current population
survey….”
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(1) Plaintiff cannot return to work at all, or (2) the most he can earn in the future is full-time,
minimum-wage work. The defendants argued that economic calculations not based on the findings
of a vocational rehabilitation expert were “clearly erroneous” and failed to survive a Daubert
challenge. The Court denied the Daubert challenge, stating, the “party seeking to introduce the
expert testimony bears the burden of demonstrating that the testimony is both relevant and reliable.
The requirement of reliability does not strictly bind an expert within the proffered field of
expertise; an expert may also testify concerning related applications of his or her background.” Id.
at *4. See also Puga v. RCX Sols., Inc., No. 17-41282, 2019 WL 409698, at *4–5 (5th Cir. Feb.
1, 2019) (“When evaluating expert testimony, the overarching concern is generally whether the
testimony is relevant and reliable. To be reliable, expert testimony must ‘be grounded in the
methods and procedures of science and ... be more than unsupported speculation or subjective
belief.’ To be relevant, the expert’s ‘reasoning or methodology [must] be properly applied to the
facts in issue.’ When performing this analysis, the court’s main focus should be on determining
whether the expert’s opinion will assist the trier of fact…. As this court has noted, however, the
‘helpfulness threshold is low: it is principally ... a matter of relevance.’ As a general rule, questions
relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion
rather than its admissibility.”); Sanchez v. Swift Transportation Co. of Arizona, LLC, No.
4:15CV15-LG, 2017 WL 3333118, at *1 (W.D. Tex. June 29, 2017)(denying motion to strike
expert where the economic expert testified that he was not proffering vocational opinions).
Here, Dr. Steward’s opinions are clearly relevant. Nor can Plaintiff challenge the entirety
of Dr. Steward’s testimony. It is uncertain whether Plaintiff is seeking to strike the first part of the
report - “Dr. Glass’ analysis overstates any alleged economic losses in this case by overestimating
the income that Mr. Sanchez could have reasonably been expected to earn from CPS even if Mr.

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Sanchez’s employment had not been terminated.” In the event he does seek this testimony
stricken, that request is denied. This testimony clearly falls within Dr. Steward’s expertise, is
helpful to the jury, and his methodology meets Daubert’s requirements.
Regarding the second major opinion expressed by Dr. Steward - Mr. Sanchez’s current
earnings ability has been under-estimated, given Dr. Steward’s expertise, he is entitled to express
an opinion inasmuch as data of the type he reviews is routinely applied by economic experts in
calculating damages in employment cases.3
The third major area of Dr. Steward’s report is more problematic. Although Defendant
asserts that neither “Dr. Steward’s report nor his testimony renders any opinion as to Plaintiff’s
ability or capacity to physically return to work”, Dr. Steward does opine: “the post-CPS jobs that
Dr. Glass uses in his analysis, which are based on the vocational report of Mr. Brad Coffey, are
overly restrictive.” This opinion may or may not be challenging the vocational expert’s opinion
on what type of employment Plaintiff is capable of physically performing. See Dunmiles v. Jubilee
Towing, LLC, No. CV 16-14325, 2017 WL 1212091, at *4 (E.D. La. Apr. 3, 2017) (“when
calculating future lost wages, economists typically rely on other experts—such as vocational
rehabilitation experts—to advise them as to the income a plaintiff can probably earn due to his
injuries. Economists then use that information in conjunction with actuarial data to estimate the
wage loss the plaintiff will probably sustain over the course of his lifetime.”). To the extent that
Dr. Steward is rendering an opinion as to what Plaintiff’s physical limitations may be, the Daubert
challenge is sustained. However, Dr. Steward’s expertise does extend to opining what jobs may

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See e.g. § 13:72. Economic loss expert's analysis, 3 Pattern Disc. Empl. Discrim. § 13:72.

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exist (and what those pay ranges may be) within the physical limitations set forth by the vocational
expert and Plaintiff’s physicians.
Conclusion
Plaintiff’s motions are denied in part and granted in part as set forth above.
SIGNED this 18th day of February, 2019.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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