Opinion
No. 3:06-CV-32.
June 29, 2007
MEMORANDUM AND ORDER
This matter is before the Court pursuant to Order [Doc. 23] of the District Judge to consider and determine the defendant's Motion In Limine To Exclude Testimony Of Charles Miner [Doc. 18]. The Court conducted a hearing on this Motion on June 20, 2007.
The plaintiff, a former employee of the defendant, has sued the defendant for wrongful discharge. [Doc. 1-2]. The plaintiff alleges that he was terminated in retaliation for filing a claim for workers compensation following a job-related injury. The defendant denies retaliatory discharge, alleging that the plaintiff was terminated due to his permanent physical restrictions and because no other positions were available for which the plaintiff was qualified. [Doc. 6; Doc. 19].
The plaintiff has identified Charles Miner as an expert witness. During the hearing, the Expert Witness Report of Charles W. Miner ("the Miner Report"), was marked as Exhibit 1 and received into the record. A copy of the Miner Report is attached hereto and filed as Exhibit 1 to this Memorandum and Order. Mr. Miner did not testify at the hearing.
In the Miner Report, Mr. Miner states that he interviewed the plaintiff and reviewed "all documents provided." Although he does not list the documents provided to him, the Miner Report refers to several documents in the section titled, "Termination of Victor Wilhoite, Understanding the Facts."
Mr. Miner's opinions are contained in the section of the Miner Report titled "Conclusion," which states, in its entirety, as follows:
In conclusion, my review of all documents provided including conducting an interview with Plaintiff does not support legitimate non-discriminatory reason(s) for the termination of Plaintiff.
The Employee did not inquire if Plaintiff needed accommodation or attempt to find other work for Plaintiff. Employer did not contact treating physician for advice on continuing work. Instead, Employer continued to allow Plaintiff to work with more severe medical restrictions and following MMI with far less severe restrictions. This continued for six (6) months beyond MII [sic] without question or concern on the part of the Employer. Then, on February 20, 2005, Employer terminated Plaintiff without due consideration or concern.
It is obvious that Plaintiff performed the duties of his job sufficient to support continued employment. The Employer terminated the Plaintiff for reasons other than those stated. Termination cannot be justified under these circumstances.
The defendant stated at the hearing that it does not dispute Mr. Miner's qualifications in the general field of human resources. Rather, the defendant argues that Mr. Miner's opinions are simply legal conclusions which do nothing to assist the jury in its role as fact finders. The defendant also argues that Mr. Miner's opinions are unreliable, not relevant, and based on facts which are in dispute.
The plaintiff argues that Mr. Miner's opinions are based on specialized knowledge. Plaintiff asserts that Mr. Miner's testimony will assist the trier of fact by providing "background information" regarding whether non-discriminatory reasons exist for plaintiff's termination, and whether acceptable human resources practices were followed. [Doc. 21].
The defendant cites Rieger v. Orlor, Inc., 427 F. Supp.2d 99 (D. Conn 2006), for support. In Rieger, plaintiff sued her employer for discrimination under Title VII and the Age Discrimination in Employment Act, and also under Connecticut state law. The plaintiff sought to present expert testimony by Dr. Brian Kleiner, a professor of Human Resources Management for over 25 years at California State University. Dr. Kleiner's opinions were: (1) that the defendants could have accommodated the plaintiff's disability, but instead chose to retaliate against her; (2) that the defendants did not take reasonable care to prevent discrimination and harassment of the plaintiff; and (3) that the defendants' rationale for "downsizing" the plaintiff is "inadequate." Id. at 101. The defendants moved to preclude these opinions.
After considering essentially the same arguments which have been made in the present case, the Rieger court granted the motion and precluded the opinions of Dr. Kleiner. The Rieger court held that the opinions of Dr. Rieger would not aid the jury in making a decision, but rather attempt to substitute his judgment for the jury's judgment. Id. at 104-05.
The discretion of this Court to admit expert testimony is governed principally by Fed.R.Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of this case.
The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), made clear that Rule 702 charges district courts with "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Under the relevancy prong of Rule 702, the Court must determine if the expert's testimony will assist the trier of fact. See Daubert, 509 U.S. at 591. As with any other relevant evidence, the court should exclude expert testimony if its prejudicial effect substantially outweighs its relevance. In addition, it is well-settled that the Court should not admit testimony that is directed solely to lay matters which a jury is capable of understanding and deciding without the expert's help. The expert must not usurp either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying the law to the facts before it. Although an expert may opine on an issue of fact within the jury's province, he may not give testimony stating ultimate legal conclusions based on those facts.
The Court finds that the holding in Rieger was based on sound reasoning and a proper application of Rule 702. In the present case, the opinions of Mr. Miner are substantially similar to the opinions of Dr. Kleiner which were precluded in Rieger. The Court holds that the opinions of Mr. Miner as set forth in the Miner Report, as was the case with the opinions of Dr. Kleiner inRieger, improperly invade the province of the jury and, in essence, simply tell the jury what result to reach. The Court will not admit testimony proffered by an expert that is directed solely to lay matters which a jury is capable of understanding and deciding. See also Pittman v. General Nutrition Corp., No. H-04-3174, 2007 WL 951638 (S.D. Texas Mar. 28, 2007) (plaintiff in Title VII action could not offer expert opinion evidence by human resources professional which invades the province of the jury and is inadmissable as legal conclusions).
Therefore, the Motion In Limine To Exclude Testimony Of Charles Miner [Doc. 18] is GRANTED.
IT IS SO ORDERED.Victor Wilhoite vs. BI-LO, LLC Expert Witness Report of Charles W. Miner Prepared by: Charles W. Miner January 12, 2007 Prepared for: Beecher A. Bartlett, Jr. Kramer Rayson LLP Expert Witness Report of Charles W. Miner Victor Wilhoite vs. BI-LO, LLC
Credentials:
I have twenty years of experience in the area of Human Resources and Labor Relations. This included positions as an Associate, Representative, Specialist and Manager at the US Department of Energy's Y-12 Site located in Oak Ridge, Tennessee for successive management and operating prime contractors Union Carbide, Martin Marietta and Lockheed Martin Energy Systems. I retired in 2000 as Labor Relations Manager.I have 32 years of industrial experience, including 30 years in supervisory and management positions. My twenty years in Labor Relations and Human Resources functions included labor contract administration and negotiations. I also was responsible for policy development and administration of Attendance Control, Drug and Substance Abuse, and Disciplinary Programs. I conducted disciplinary interviews and recommended disciplinary actions to senior management, including "for cause" terminations. I was required to personally administer the most severe levels of disciplinary action, including termination. I conducted and managed personnel investigations of all payrolls with in excess of 6,000 employees. I was a Certified Interaction Management Instructor for supervisors and mid-managers and trained approximately 350 supervisors and mid-managers. I served as a member of the Y-12 Medical Review Team, which was responsible for evaluating employee work restrictions to determine their ability to perform work. I also acted as the Employer Representative in litigation involving adverse employment actions and Whistleblower claims defense.
I served as Human Resources Director and Labor Relations Manager and consultant for WESKEM, LLC for 3 years. I established the Human Resources infrastructure, including policy development and an Employee Handbook. Additional responsibilities included contract negotiations, management and administration of 3 separate collective bargaining agreements, including the grievance and arbitration procedure, management and development of employee performance improvement plans, compensation plans, and benefits administration. I managed and conducted personnel investigations and assured compliance with state and federal laws including Americans with Disabilities Act and Family Medical Leave Act of 1993 (FMLA).
I am currently the sole owner of EM Corporate Services, Inc. (EM). EM provides consulting services in Human Resources and Labor Relations for several government subcontractors, private companies, and county governments. My expertise is applied to the following EM business:
Administration and negotiation of five separate collective bargaining agreements
Proactive advice to management on personnel investigations, disciplinary matters, attendance control, FMLA, Drug Control and Substance Abuse Programs and general compliance with Fair Labor Standards Act.
Employee Satisfaction Surveys, data analysis and recommendations based on results.
Management Advocate
Unemployment Compensation Cases
Arbitration under collective bargaining agreements
Defense of National Labor Relations Board Unfair Labor Practices Charges filed by local unions.
My hourly rate for meetings, analysis, reports writing and testimony is $110 per hour. I have given testimony as an Expert Witness in one previous case on behalf of the plaintiff, Baker v. National Seating Company, U.S.D.C. No. 3:05-cv-187, and given depositions as an Employer Advocate and representative in several cases.
Termination of Victor Wilhoite Understanding of Facts:
BI-LO, LLC (Employer) terminated Victor Wilhoite (Plaintiff) due to his medical restrictions on February 20, 2005 following eighteen (18) years of service with the Employer. Plaintiff's work record and attendance were satisfactory. Plaintiff was classified as a Meat Cutter in the Market Department. On May 31, 2003 Plaintiff was injured during the performance of his work in a motor vehicle accident, sustaining a back injury. Plaintiff underwent medical treatment for his injury and was placed on a temporary medical restriction, no lifting or push/pull greater than twenty (20) pounds, no bending. Plaintiff continued to work during this period with the temporary medical restrictions. Plaintiff only missed work during the period to attend doctor appointments or to receive Physical Therapy. Plaintiff's medical restrictions were relaxed during the treatment period until June 24, 2004, when a Physical Work Performance Evaluation was administered to the Plaintiff. The evaluation results stated in part; recommend full return to work according to the job demands provided by the Employer with reasonable accommodations regarding stooping. On July 13, 2004 Plaintiff reached Maximum Medical Improvement and was released by the treating physician to return to regular duty status with the limitation of stooping for fifty (50) to seventy-five (75) percent of Plaintiff's employment. Plaintiff continued to work without additional medical restrictions until being terminated by the Employer six (6) months following due to Permanent Physical Restrictions Determined by his Physician.
Review and Analysis:
Plaintiff was sixty (60) years old and employed by the Employer for eighteen (18) years with a satisfactory work record. Plaintiff's back was injured in a work-related automobile accident. Plaintiff continued to perform his job responsibilities during the entire medical treatment period. Employer continued employment of Plaintiff throughout medical treatment, following MMI that occurred July 13, 2004 until his termination six (6) months later. During the period management did not inquire of Plaintiff as to his ability to perform his duties or was Plaintiff informed that his performance was unsatisfactory. Plaintiff's Performance Development Review for the period 05/09/2003 to 05/05/2004 was above average with positive comments by the evaluator and without any comment concerning his ability to perform the full function of his job duties. Plaintiff was not offered any other position with the Employer
Conclusion:
In conclusion, my review of all documents provided including conducting an interview with Plaintiff does not support legitimate non-discriminatory reason (s) for the termination of Plaintiff.
The Employer did not inquire if Plaintiff needed accommodation or attempt to find other work for Plaintiff. Employer did not contact treating physician for advice on continuing work. Instead, Employer continued to allow Plaintiff to work with more severe medical restrictions and following MMI with far less severe restrictions. This continued for six (6) months beyond MII without question or concern on the part of the Employer. Then, on February 20, 2005 Employer terminated Plaintiff without due consideration or concern.
It is obvious that Plaintiff performed the duties of his job sufficient to support continued employment. The Employer terminated the Plaintiff for reasons other than those stated. Termination cannot be justified under these circumstances.