The Witness Box

Commenting on expert evidence, economic damages, and interesting developments in injury, wrongful death, business torts, discrimination, and wage and hour lawsuits

Tuesday, June 02, 2009

Testimony on Discriminatory Sales Lead System Stands

(See dauberttracker.com for a case documents and other details)

Motion Denied

In this case, the Plaintiff Eva A. Ramirez, a Hispanic, sued Defendant Olympic Health Management Systems, Inc. for employment discrimination.  The Defendant sells life insurance policies. While she was employed at the company, she alleges that the Defendant treated her differently than non-Hispanic employees.  She also alleged that after she complained of racist behavior at the company, she was constructively discharged.

One of the Plaintiff's claims was that because of her race she was never given sales leads in spite of being one of the top sales executives. The company had a policy that award sales leads to employees with the most sales.  She also contends that the company hurt her sales potential by only giving her Hispanic leads.

To help calculate the economic damages attributed to Plaintiff's alleged lost sales leads, Plaintiff retained Dr. Lori A. Geddes, Ph.D., an economist.   Dr. Geddes used a statistical techniques to determine the number of sales leads (which would turn into sales at some point) that Ms. rameriez should have recieved if the company was acting in a race neutral manner.  Dr. Geddes performed a sales-and-lead analysis after utilizing econometric statistical analysis to calculate total lost leads.  She applied correlation and standard regression analysis to demonstrate that the majority of Plaintiff's leads were from customers with Hispanic sounding surnames. 

The Defendants filed a Daubert motion to exclude the testimony of Dr. Geddes on the grounds that she was not qualified to serve as an expert, she did base her report upon any facts and neglected to use sound methodology. It was also alleged that her testimony would not assist the trier of fact and would prejudice the Defendant's case. The Court noted that Dr. Geddes was qualified to testify as an expert in this case and that her testimony was both reliable as well as relevant to the case. 

The motion to exclude was denied.



Case Details:

 Ramirez vs. Olympic Health Mgmt. Sys.
Washington, Eastern District
NO. CV-07-3044-EFS
EDWARD F. SHEA, United States District Judge.
Date of Decision: 4/17/2009


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Monday, April 27, 2009

Wage and hour and Daubert

Economist's testimony in FLSA case.

14. Johnson vs. Big Lots Stores, Inc.
Date of Decision: 5/7/2008
Jurisdiction: Federal
Docket Numbers: CIVIL ACTION NO: 04-3201c/w05-6627 SECTION: R(1)
Court: Louisiana, Eastern District
Area of Law: Labor & Employment
Judge(s): SARAH S. VANCE , UNITED STATES DISTRICT JUDGE.
Gatekeeping Issue: Federal Rules;Rule 702, Federal Rules;Rule 703, Federal Rules;Rule 803, Federal Cases;Daubert

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Friday, January 23, 2009

Calculating lost wages for foreign workers killed in the U.S.

Calculating damages for individuals who reside in other countries but are killed or injured in the U.S. is difficult. In these types of cases, we typically do not have sufficient knowledge, and/or data on a number economic factors that we usually consider when performing economic earnings or revenue loss. For instance, many countries do not have and maintain data that can be easily used to calculate personal consumption factors. In some instances, determining the amount of taxes the individual might have paid in the foreign country may also be difficult.

In the next few post, we will be discussing a case, Ostrowiecki vs. Aggressor Fleet, Ltd., CIVIL ACTION No. 07-6598,CIVIL ACTION No. 07-693, United States District Court in Louisiana, that deals with the death of a Brazilian business owner.

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Wednesday, September 03, 2008

Wage and hour survey discussion Part I

From the previous post (9/2/2008)According to the defense's Daubert motion, the wage and hour survey in the Big Lots case suffered from a number of flaws.

As mentioned, the court disagreed and denied the defense's motion.

List of criticisms:

* The survey responses conflicted with opt-in actual deposition testimony.

* Survey had “non-response bias and coverage error.”

* Another flaw with the survey is that it was not pretested, with the
exception of internally and with Plaintiffs’ counsel

*Recency bias, or the tendency to overweight recent experience in our perception of general experience.

* “Coverage error occurs when members of the survey population do not have an equal probability of being chosen to be part ofthe sample studied.” (Survey did not include non-opt-ins)

* Numerous survey responses that indicated confusion or dissatisfaction with survey questions. Of the 553 responses he reviewed, over 55 percent (306)contained missing or incomplete answers...

*Plaintiff expert did not provide a follow-up to questions

* Survey used the FLSA test qualifications. Focused on the long test (for exemption classification) when the short test questions were arguably the correct ones.

* Questions failed to seeks information regarding the respondent’s employment
history with BigLots. It fails to draw any distinction between time employed at Big Lots
that is at issue in thisaction and time that falls outside the statute of limitations.

*Use of the word “regularly” in the survey question resulted in a great
deal of confusion,destroying any confidence that the survey responses on the relevant
issues (hiring and firing) arereliable in terms of what is required by the regulations.

*“Regularly” is not defined in the survey instrument, leaving the respondents to formulate their own interpretations

* Term refers to average work week but does not define them.

* Some questions do not add correctly. Either their totals failed
to equal 100 percent or, as in the case of numerous respondents they listed very high percentages (between 75% to 100% foreach of the activities) evidencing total confusion about the question.

*Wrong defintion of work week. The employer defined a full time work week as 32 hours and not 40 as in the survey

* Disagreed with damage method.

Plaintiff expert calculated that, based upon the survey responses, the respondents worked anaverage of 59.3 hours per week. He further claimed, based upon a 95 percent confidenceinterval, that this means that 95 percent of all opt-ins worked 58.5 to 60 hours a week. He then concludes that all of the opt-ins should be awarded damages simplyby determining from payroll records how many weeks each Assistant Store Manager had worked, by applying theappropriate overtime factor to the base hourly rate and then multiplying the resulting overtimerate by the number of hours worked in excess of forty per week.

Sponsered Link: Looking for a survey and damages expert in a wage and hour case? Go to http://www.employstats.com/

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Tuesday, September 02, 2008

Wage and hour survey is admitted in FLSA case

John Johnson and Robert Burden v. Big Lots Stores, Inc., United States
District Court, Eastern District of Louisiana


In this case, the plaintiff's allege that the assistant store managers
are missclassifed as exempt from OT. According the plaintiff's report they
assistant managers worked on average 58 hours a week but were paid for
only 40 hours.

Plaintif's hired an ecoonomist to perform a survey of the opt-in members
of the class. The plaintiff's damage analysis was based on the survey.

Summary:

In a nutshell the defense argues that the plaintiff's survey is flawed. Argue to the brief, the flaws are as follow. First, the respondents are interested in the outcome of the litigation for
which the survey was conducted, and were told that the survey was to be used to help with their case, rendering the results unreliable. Second, additional methodological defects infected the survey with bias, rendering the analysis based upon it unreliable. Finally, the plaintiff's expert asked the wrong questions, resulting in misleading and unreliable answers.

The court disagreed and denied the defense's Daubert motion. In the coming post, we will discuss this case in more detail.

Sponsered Link: Looking for a survey and damages expert in a wage and hour case? Go to www.employstats.com

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Thursday, August 14, 2008

Hot tubbing Expert Witnesses

In a recent New York Times article ADAM LIPTAK's article discussed the potential problems associated with having experts that are hired by the individual parties. One interesting possibility to deal with the dueling experts is call 'hot tubbing experts'. While not nearing as fun as it sounds, in the process, (also called concurrent evidence), experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. The process has been used in Australia

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Friday, June 27, 2008

Drive-by Daubert Ruling

Judge throws out employment discrimination evidence on the way to a summary judgment for the plaintiffs...

In the last few years, the idea of stereo typing and racial profiling has really gained traction in employment discrimination cases. Prof. Bielby, a now well known sociologist from the University of Penn, has done a lot of research that suggest that race and gender stereotyping is unavoidable and happens all the time in the workplace.

In this case gender based employment discrimination case (CHADWICK v. WELLPOINT INC et al Federal Court-Maine), the plaintiffs alleged that the the employer had a policy of stereotyping female employees. In particular, the plaintiff was a mother of four who claims that she was discriminated against and should have received a job promotion that went to another employee.

The plaintiffs engaged a qualified sociologist with a Ph.D. from Cornell, who had studied and wrote her dissertation on the topic of gender stereotyping. She testified that some of the statements that were made by management were consistent with gender stereotyping behavior within the work place.

The judge, in a drive-by Daubert, disregarded her testimony stating that it would not help the trier of fact in this situation. He goes on to say in the court's order:


The plaintiff would like to have her expert testify about the extent of
sex based stereotyping in the United States and its workplaces, the meaning of certain words (for example, that “Bless you” in the context in which Miller
said it shows sexual stereotyping; likewise for the other supervisor’s
comment about child discipline strategy), and that it is very unlikely that a
man would have been told that he had too much on his plate because of school
and children. For the reasons I describe below, I conclude that the expert’s
testimony would not be helpful to a fact finder on the issues that are relevant to this decision....


While the judge did not make any assessment her qualifications or the underlying methodology she used in the report, he says:


The proposed expert testimony about the prevalence of sex-based stereotypes
in America is no substitute for actual evidence (direct or circumstantial)
about these decision makers and their beliefs and behaviors. The expert,
whatever her professional credentials, is not competent to testify about what these supervisors meant, consciously or unconsciously, in using certain words.


well01.pdf
well02.pdf

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Monday, June 23, 2008

Lack of evidence does not exclude economic damage calculations

Daubert Watch 6.23.2008

In this LA personal injury case, defendants appealed the trial court's ruling admitting the testimony of Plaintiffs' vocational expert and expert economist. The defendants had stated at the trial court level that there was no evidentiary basis for the opinions of the witnesses.

The appeals court affirmed the trial court's ruling, stating that defendants had not challenged the scientific basis or expertise of either expert. Accordingly, trial court properly admitted the testimony.

See: dauberttracker.com

For more information on the plaintiff verdict, go to:
http://www.judgeconque.com/Jury%20Verdicts/lafayette.html

Philip Broussard, et al vs. Lafayette Ins. Co., et al; #20060333
DAMAGES - PERSONAL INJURY
Judge Patrick L. Michot (Div. "K") Presiding, April 2007
Plaintiff(s) Attorneys: Joseph Gaar, Jr.; Jason Welborn
Defendant(s) Attorneys: Richard Petre, Jr.

VERDICT: In favor of Plaintiff and against Defendants

AWARD:
Past Medical Expenses $ 84,079.25
Future Medical Expenses 12,000.00
Pain, suffering and disability; physical and mental (past, present,future) 154,000.00
Loss of past earnings 23,423.00
Loss of future earning capacity 165,000.00
Loss of enjoyment of life 20,000.00

TOTAL AMOUNT $ 458,502.25

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Thursday, June 12, 2008

Court excludes the 'horse he rode in on' but lets expert testify

Daubert Watcher 6.10.2008

In a contracts case(American Fed. Bank vs. United States, US Ct. of Fed. Claims) , the court noted that one of the experts in the case (Dr. Anjan Thakor's) report was admitted into evidence although he relied upon a document that was not allowed into evidence in the case. The expert relied on the plaintiff's (American Federal) 1993 10-K, and that document was not admitted at trial.

The court said that Dr. Thakor's expert opinion could legitimately rely on documentary materials not admitted where such materials were "of a type reasonably relied upon by experts in the particular field." Fed. R. Evid. 703. American Federal's 10-K for 1993 satisfied that criterion.

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Tuesday, June 03, 2008

Daubert Watch 5.39.3008: Economist passes the muster

In Mcdaniel vs. Gallery Model Homes, Inc. age discrimination case, in the Southern District of Texas, JOHN D. RAINEY, UNITED STATES DISTRICT JUDGE ruled that the defendant's concerns went to the weight NOT the admissibility of the economist's testimony.

The motion by the defense attorney is particular interesting. It is clear that there was a lot of bad blood betwen these two parties.

In the motion the defense complained of :

- The economic damage report (on back and front pay) not meeting rule 26(b) standards. (According to the motion the plaintiff's economist did not provide all the required documents )

- Plaintiff economist not having enough data to perform and adequate analysis

- The unknown rate of error of his worklife estimates

- Use of benefits multiplier and the fact that the ezpert did not know the exact benefits that the defendant provided

- Growth rate did not match the plaintiffs job. Economist used aggregate data not specific to sales

- Health of the plaintiffs. The plaintiffs had knee surgery that may have prevented them from performing some types of work. The economist did not include this in his analysis.


(see: dauberttracker.com for details)

Defense's Motion to Exclude : 58-1.pdf

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Wednesday, May 21, 2008

Expert Directory Listing for Daubert-Quality experts ONLY

According to an email solicitation from, The Daubert Expert Witness directory, (http://www.daubertexpertwitness.com/) the group has created a new expert listing service. The new service will contain only those expert witnesses who can confirm that they have successfully defeated a Daubert challenge.

The charge for a listing is $495 a year for experts. Free for attorneys. Experts have to be able to prove they have survived a Daubert challenge in the past. The FAQ does not say that having your testimony excluded makes you ineligible; you just have to have survived one challenge in the past.

All and all a good idea; we wish them luck on the site.

However, one question comes to mind. What if the expert is 1 (successful challenge) and 29 (exclusions)? Only the 1 successful challenge will show. Not sure how a listing by this expert would be all that helpful for the potential retaining attorney.

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Monday, April 07, 2008

Daubert watch: Admissible police practices testimony in a personal injury case

From: dauberttracker.com


4. Bates vs. King County
Date of Decision: 5/9/2007
Jurisdiction: Federal
Docket Numbers: C05-1348RSM
Court: Washington, Western District
Judge(s): RICARDO S. MARTINEZ, UNITED STATES DISTRICT JUDGE.


Case Summary:

Plaintiff, Byron S. Bates, filed an action for damages and municipal liability against defendants King County, et. al., The plaintiff alleged that he was shot and injured at the time of his arrest by a deputy and asserted that King County failed to sensitize its police personnel on best police practices. The plaintiff proffered the testimony of Lee Libby, as an expert witness in police practices.The defendants filed a motion to exclude the testimony of Mr. Libby.

The court found that Mr. Libby had applied reliable methods to collect and analyze information related to this case and had followed proper procedures for a police practices expert.The trial court held that Mr. Libby's testimony would help the trier of fact to assess the reasonableness of the deputies' actions and the internal investigation performed by King County. The trial court observed that the probative value of Mr. Libby's testimony as to proper police officer and police department conduct was not substantially outweighed by any unfair prejudice, potential for confusion of issues, or danger of misleading the jury. Motion to exclude denied.

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Monday, January 07, 2008

Court allows statistical survey evidence

(thanks Dauberttracker.com!)

In Merisant Co. vs. McNeil Nutritionals, LLC ( 4/12/2007), CIVIL ACTION NO. 04-5504, Pennsylvania, Eastern District (GENE E.K. PRATTER, United States District Judge.)

Case Summary:

Plaintiff, Merisant Company, Inc., filed a case against defendant McNeil Nutritionals, LLC, and McNeil PPC, Inc. under the Pennsylvania common law of unfair competition. The plaintiff alleged that defendant had engaged in false and misleading advertising with respect to Splenda No Calorie Sweetener.

The defendant proffered the statistical survey evidence. The plaintiff sought to exclude the survey and all related testimony and opinion.

The plaintiff argued that the defendant's survey did not meet the "fit" and "reliability" elements required by Daubert. The plaintiff further argued that the defendant's survey was neither relevant nor reliable with respect to the issues of this case. While expressing some reservations, the court nonetheless denied the motions to exclude.

This is an interesting case because the court goes into much detail and provides detailed analysis about what is required for a survey to be admissible. The court states:

In order for a survey to be admitted, its design must "fit" the issues to be decided in this case. In J&J Snack Foods Corp. v. Earthgrains Co., 220 F. Supp. 2d 358, 370 (D.N.J. 2002), the court state that: Above all, the survey's design must fit the issue which is to be decided by the jury, and not some inaccurate restatement of the issue, lest the survey findings inject confusion or inappropriate definitions into evidence, confounding rather than assisting the jury. Only if the expert testimony and related survey are useful, reliable, and have probative value after all their deficiencies are taken into account is the evidence admissible. Id. In addition, the court noted that it was "essential to consider whether the population and terms were properly defined, whether the design, questionnaires, and interviews met objective standards, whether data was accurately collected and reported, whether data was properly analyzed, whether the questions asked were unrelated to the material issues of the case, whether questions were unfairly leading, and whether questions were confusing." Id. at 369. J&J Snack Foods addressed a dispute arising in the trademark context, where a survey was submitted to show the trademark should be classified as "suggestive" instead of "generic" or "descriptive." However, the survey did not properly define any of the classifications, and, consequently, the court found that the survey had "no bearing on the issue it was submitted for." Id. at 370. The court noted that "the flawed definition permeated the entire survey to make its finding completely untrustworthy and unreliable." Id. at 370-71.

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Saturday, December 22, 2007

Daubert challenges reach new level in Texas

Excerpted from the Austin American Statesman, December 22, 2007 article by Corrie MacLaggan.

In a lawsuit challenging the legality of a $5 tax on strip clubs in Texas, State District Judge Scott Jenkins had to rule on a Daubert/Robinson motion to exclude the expert witness testimony of University of Texas professor Robert Jensen. Prof. Jenson is an associate professor in the school of Journalism and a leading researcher on pornography. In this case, Prof. Jensen testified on behalf of the state.

As in expert witness challenge, the opposing attorney, went into much detail on how Prof. Jensen's work on was directly related to strip clubs. Prof. Jensen testified he had not done specific work on the industry, but testified that his work was generally related to the issues in the case.

The court allowed Prof. Jensen to testify. For more details on the case, see the Austin American Statesman. FYI, the court also upheld the tax.

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Friday, October 19, 2007

Mississippi Supreme Court rules that expert evidence deserves its day in court

In Smith v. Clement, No. 2006-CA-00018-SCT (Miss. 10/04/07)., THe Supreme Court of Mississippi ruled that courts must provide litigants with an opportunity to be heard before ruling on the admissibility of expert testimony – and in all but exceptional cases that requires courts to hold hearings with full briefing and argument.

This important ruling may make some attorneys think twice before expending the resources on a Daubert challenge.

In a nutshell, the court said that litigants should have an opportunity to be heard on the admissibility of expert testimony.

Hearings make sense, the court said, as the most cautious approach to complex evidentiary issues."Perhaps before Daubert, such a determination could be made without a hearing, but the continual evolution of science and the growing intricacies of litigation mandate that we take the trial court’s role as 'gatekeeper' seriously," the court explained. "A hearing is simply the best method of guarding the admission of expert testimony."

See IMS for more.

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Monday, September 24, 2007

Economist Daubert Watch: Sept. 24, 2007, Part I

Objection to defendant's statistical report is not enough to kick report and defeat summary judgement

(see dauberttracker.com for more details)

In Contreras vs. Chertoff, U.S. District Court, D.C., this class action discrimination case was before the district court on defendant's renewed motion for summary judgment. The plaintiffs sought to represent a class of current and former Customs Service agents alleging discrimination on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964.

Defendant submitted an extensive expert analysis of the discipline files to address the question of whether or not Hispanic customs agents received harsher disciplinary treatment than similarly situated white customs agents. The defendant's concluded that because no disciplined Hispanic and white customs agents were similarly situated, a proper statistical comparison was impossible. Furthermore, even using alternative statistical analysis, there was no evidence indicating discrimination against Hispanic agents in the disciplinary context.

Plaintiffs apparently discovered nothing among these thousands of documents worth presenting to the court to substantiate their claims of discrimination. Instead, their opposition to the renewed motion for summary judgment only complained again that defendant's analysis was inadequate. The plaintiffs' challenged the reliability of the databases relied upon by defendant's expert and the expert's methodology in analyzing the data.

Plaintiffs did not present statistical evidence supporting their claims of discrimination. Instead, they offered studies of Customs employment practices, anecdotal evidence from the named plaintiffs, an expert disputing the defendant's analysis, and the testimony of an expert in management and equal opportunity practices.

Plaintiffs' responses to defendant's motions for summary judgment were insufficient to defeat defendant's renewed motion.

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Wednesday, September 05, 2007

Daubert watch: Court allows economist to testify on damages of Mexican nationals

(see dauberttracker.com)

In a case concerned with wrongful death actions brought by the families of two Mexican Nationals, the defendants argued that the plaintiffs' expert did not have sufficient facts about the two decedents and their families and that the expert used statistics about the US for the purpose of calculating the plaintiffs' losses. The plaintiffs' families lived in Mexico.

The court said that to the extent Dr. Ward might have been able to obtain more complete information, that fact went to the weight to be ascribed to his opinions, not to their admissibility.

The district court noted that the plaintiffs' expert acknowledged at the conclusion of his reports that the plaintiffs resided in Mexico, and that the calculation of the plaintiffs' economic losses must be converted to Mexican standards and that this conversion constituted the application of reasonably reliable principles and methods to the facts known to the plaintiffs' expert.

see:


Alvarado vs. Loftus
Date of Decision: 3/19/2007
Jurisdiction: Federal
Docket Numbers: 05-cv-01666 REB-PAC
Court: Colorado

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Wednesday, August 29, 2007

Upcomming Daubert seminar

Daubert Motions: Challenging Expert Opinions
Live Teleconference - $199

September 11th, 2007 - 1:00 PM - 2:30 PM Eastern

Teleconference Highlights:
Since the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals in 1993, the federal law governing expert testimony has undergone a radical transformation. The courts of most states have also now adopted Daubert to some extent. Every litigator needs to understand the impact of Daubert and its progeny. Used properly, Daubert can be a powerful tool for excluding expert evidence. This teleconference will give you the ammunition you need to challenge opposing expert testimony. Basic concepts of the law governing admissibility of expert testimony, and will offer practical and concrete advice on how to bring and defend expert witness challenges under Daubert will also be discussed. We will explore the strategic question of when a challenge to expert testimony should be considered, as well as the tactical issue of how to prepare a case for such a challenge.

View Complete Agenda
Who Should Attend:Attorneys and legal staff
Faculty:G. Brian S. Jackson, Miller & Martin PLLC

Detailed Faculty Information

Register online at: Lorman

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Thursday, August 23, 2007

Economist Daubert Watch: Passing thru the gate

(Experts from Dauberttracker.com)

Case 1: Sharp Corp. vs. Au Optronics Corp.

Court says: Criticism by attorneys not enough for Daubert; plaintiff's economic expert can testify because defendant's failed to introduce opposing economic expert report;

See:
Sharp Corp. vs. Au Optronics Corp.
Date of Decision: 6/20/2005
Jurisdiction: Federal
Docket Numbers: C-03-4244 MMC
Court: California, Northern District
Area of Law: Corporate Law


Case 2: Reginald Martin Agency, Inc. vs. Conseco Med. Ins. Co.

Court says: Relying on the work of other experts does not make defendant's expert report inadmissible

Reginald Martin Agency, Inc. vs. Conseco Med. Ins. Co.
Date of Decision: 3/5/2007
Jurisdiction: Federal
Docket Numbers: 1:04-cv-01587-TAB-RLY
Court: Indiana, Southern District
Area of Law: Insurance Law

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Monday, July 23, 2007

Court allows economist to testify in high profile immigation case

In Lozano vs. City of Hazleton, the city ordinance that fined Hazelton employers and landlords for doing business with undocumented or unauthorized workers was challenged by a number of groups, including the ACLU. The groups alleged, among other things, that the ordinances were unconstitutional. (see complaint)

The City of Hazleton, called a well known labor economist Prof. George Borjas to discuss the potential economic impact of City's ordinance. The economist concluded that the reduction unauthorized workers in the City would produce 'significant economic benefits' for the authorized workers in Hazelton. (see report)

The plaintiffs attacked the report on the grounds that its filing was untimely and not relevant to the main issues in the case. (see motion)

The court allowed the economist to testify.

motiontoexclude1.pdf
borjas1.pdf
motion1.pdf

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Sunday, July 08, 2007

Daubert watch: S.F. BART's investigative cost

Economist allowed to testify on government agency's cost of investigating wrong doing by San Francisco, BART contractor.

San Francisco Bay Area Rapid Transit District, vs. William D. Spencer, F. W. Spencer & Son, Inc., et. al. (2007 U.S. Dist. LEXIS 10730; 2007 U.S. Dist. LEXIS 10730)

See dauberttracker.com (search above) for more information.

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Tuesday, June 19, 2007

Who pays the expert for Daubert hearings?

Not the opposing party says the Fifth Circuit....

From BullsEye Newsletter: JUNE 2007, Robert Ambrogi, Editor

A federal discovery rule requiring an opposing party to pay expert-related fees and expenses does not apply to pretrial Daubert hearings, the 5th U.S. Circuit Court of Appeals has ruled. "A Daubert hearing is not a discovery proceeding but an evidentiary hearing designed to screen expert testimony," the court reasoned.

The ruling came in a toxic tort case in which the 5th Circuit also upheld the trial court's exclusion of expert testimony linking the toxic chemical benzene to plaintiffs' cancers. The court said, although Fed. R. Civ. P. 26(b)(4)(C) allows a party to recover discovery costs relating to expert witnesses, the rule does not extend to the $64,000 in expenses these plaintiffs incurred in securing their expert's testimony at the Daubert hearing.

This something for all parties to be aware of....

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Wednesday, March 07, 2007

Court limits economic expert's testimony on worklife expectancy

In Arreola vs. Epic Divers, Inc., Louisiana, Eastern District, Judge Jay C. Zainey granted the courts motion in limine to exclude part of a defense expert's economic damage report on lost earnings in workers compensation case.

Plaintiff's complaint concerning the defense expert's report was limited solely to his assertion that plaintiff's worklife expectancy (the potential loss period) as a commercial diver was properly fixed at 5 years from the date of his accident. The defense expert had derived the 5 year estimate from a case study compiled by Louisiana State University's Department of Quantitative Business Analysis. Plaintiff argued that the LSU study did not satisfy the requirements of Daubert because no other court had ever ruled upon its admissibility, and because it had never been published or subject to peer review.

The court held that the expert would not be allowed to testify regarding any type of reduced worklife expectancy for divers because that was not his area of expertise. In addition any testimony regarding the LSU study was specifically excluded because the Court was not convinced that it was reliable.

For more details and discussion on the case see dauberttracker.com

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Monday, March 05, 2007

Daubert can be a plaintiff's best friend

Daubert motions to disqualify scientific expert witnesses have become a staple in many defense attorneys' war chests, but Brian Beckcom, a Texas attorney who specializes in plaintiff maritime personal injury cases, believes that Daubert is "a gun that kicks as hard as it shoots."

See: http://www.verdictsearch.com/jv3_verdictsearch/tactics/021307/ for the full story.

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Thursday, February 22, 2007

New Daubert article: The Failure of the Daubert Revolution

Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution
DAVID E. BERNSTEIN George Mason University - School of Law
February 2007George Mason Law & Economics Research Paper No. 07-11


Abstract: This manuscript raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision.

First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test?

Second, once we have identified this rationale, has the "Daubert revolution" succeeded on its own terms?
JEL Classifications: K00, K13

Working Paper Series

Suggested Citation
Bernstein, David E., "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution" (February 2007). George Mason Law & Economics Research Paper No. 07-11 Available at SSRN: http://ssrn.com/abstract=963461

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Sunday, January 14, 2007

A high stakes way of handling Daubert motions

How do most judges handle Daubert motions? Do they hold pre-trial hearings or just rule based on briefs?

One Federal Judge has an interesting approach to handling Daubert motions. He decides all motions right at the time the expert is to testify live at trial. When the challenged expert comes up, the Judge sends the jury out of the room and then allows the challenging side to cross examine the challenged expert witness.

The stakes are high because if the Judge allows the expert to testify then the time that the challenging party spent crossing the challenged expert witness is deducted from the challenger's allotted time. If the challenging party wins, then the time spent crossing the challenged expert is deducted from the challenged expert's side (the challengee?).

Needless to say, attorneys think long and hard in this judge's court before bringing a Daubert motion.

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Tuesday, January 09, 2007

Judge says: Let them both in!

In a N.J. employment discrimination case, Judge William Walls, faced with dueling stats experts found both of the cases to be admissible.

Background and case from www.dauberttracker.com

The plaintiffs were former and current employees of the defendants Johnson & Johnson. The plaintiff filed an employment discrimination suit on behalf of themselves and other similarly situated employees against Johnson & Johnson. The case was filed pursuant to Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, and the New Jersey Law Against Discrimination, N.J. Stat. ¤ 10:5-1.

The expert statistical report, prepared by Dr. Janice Madden and Dr. Alexander Vekker ("Madden Report"), was relied upon by the plaintiff to support their claim of commonality. Defendant filed a motion to strike the Madden Report arguing that (1) the Madden Report was irrelevant to class certification and therefore "unfit" under Daubert and (2) the Madden Report was unreliable.

The Madden Report concluded that from 1997 to 2003: (1) African American employees were less likely than comparably qualified white employees to be selected for promotion, (2) African Americans and Hispanics had lower base salaries than comparably qualified whites, and (3) there was an average wage differential at hire by race and ethnicity. The court rejected defendant's motion to preclude the Madden Report in light of the fact that the Madden Report controlled for job hierarchy, job function, age, tenure at Johnson & Johnson, and education.

The court held that Dr. Madden's regressions were not so incomplete that they were unreliable or irrelevant.

The Defendant submitted the Wise Report prepared by Dr. David Wise, an expert on statistical data, to support its contention that the Johnson & Johnson companies were not a single class environment for the purpose of class certification. The Wise Report concluded: (1) there was no common pattern of compensation and promotion consistently adverse to African American and Hispanic employees, (2) the data were inconsistent with the assumption that the determinants of compensation and promotion were the same at all Johnson & Johnson companies, (3) few of the estimated minority effects were statistically different than zero, and (4) to the extent that there were differences in compensation and promotion, they were small and could be explained by small differences between the job-related attributes of minority and white employees.

The court denied plaintiff's motion to strike the expert report as it concluded that the report was not so fatally flawed as to be inadmissible as a matter of law.

Therefore, the court denied both the plaintiff and defendant's motion to strike each other's expert

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Friday, January 05, 2007

What some judges think about economic testimony

A task force of judges, attorneys and economists were tasked with determining if economic evidence in anti-trust cases was useful or confusing to judges and juries. In a nutshell, the economists generally believed that their testimony was useful and not confusing. In contrast:

“A majority of Task Force members believe that there is a problem with confusing economic testimony in the federal courts....some characterize the problem as significant and others characterize it as only modest…"


See, 'Final Report of Economic Evidence Task Force" August 1, 2006' (at the bottom of the page..)

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Friday, November 03, 2006

Attorney argues misapplication of Daubert is killing the jury trial

Allan Kanner of Kanner & Whiteley PLLC, new paper, "Daubert and the Disappearing Jury Trial", argues that Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. He argues that the decision was meant to liberalize the standards for admissions of proof. However in practice the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

The paper can be found at:
Working Paper 1851. http://law.bepress.com/expresso/eps/1851

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Thursday, October 05, 2006

New study suggest that the Daubert bar may not be that high

A recent study by Seton Hall law professor, David Barnes, aptly subtitled "Mad Scientists in the courtroom", argues that although the Florida state courts have resisted imposing the Federal Daubert guidelines, their gatekeeping role concerning expert evidence is functionally the same as the federal guidelines. In fact, the authors argue that in some ways the Florida Frye-based expert evidence standard may impose a higher standard than Daubert.

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Wednesday, October 04, 2006

Daubert Watch 10.04.06

Court excludes economist testimony for using wrong data

Champagne Metals vs. Ken-Mac Metals, Inc.

Date of Decision: 8/7/2006, Federal 04-6222 & 05-6139, 10th Circuit
Area of Law: Antitrust & Trade Reg.

Source: http://www.dauberttracker.com/


Plaintiff, Champagne Metals, an aluminum distributor, sued defendants Ken-Mac Metals, Inc., et al, other aluminum distributors in the industry. The plaintiff alleged that the defendants agreed amongst themselves to exclude new competitors in the aluminum industry and violated federal and state antitrust laws.

The plaintiff proffered the testimony of an economic antitrust expert. The expert opined that the defendants' threat to shift their business away from a mill would amount to a credible threat because the defendants had sufficient market power in the upstream market. The trial court excluded the testimony of the economist on the ground that his analysis and conclusions were inexplicably based on the wrong data. According to the court there was not sufficient explantion in his report as to why the economist built his analysis on data from the downstream market instead of the upstream market for aluminum.

On appeal the appellate court held that the trial court's decision to exclude the economist's testimony was not arbitrary, capricious, whimsical or manifestly unreasonable. Thus, the appellate court affirmed the trial court's decision.

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Friday, June 16, 2006

Daubert watch: Damages testimony based on history of loss not sufficient

Case: Webb vs. Braswell, Mississippi, Supreme Court


Economic Testimony inadmissible.

Case Summary:

The reviewing court ruled that the testimony was proffered for one purpose, to show damages of lost profits as a result of unplanted crops. The plaintiffs (Webbs) brought this testimony forward without ever establishing that they were profitable. Rather, the Webbs had been farming and operating at a loss in the years prior to the farming year which was the subject of this litigation.

Therefore, the amount of damage allegedly resulting from the unplanted crops was not reasonably ascertainable based on the Webbs' past experience, as the rules required. This being the case, any testimony to prove damage to the Webbs was tenuous at best and failed the reliability prong of the Daubert/McLemore test.

See dauberttracker.com for more details....

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Friday, April 28, 2006

Daubert article in Michigan Bar journal

"Gatekeeping after Gilbert" by Brian Benner and Ronald Carlson, March 2006 issue of Michigan Bar Journal.

This article discusses Gilbert v Daimler Chrysler Corp. (470 Mich749; 685 NW2d 391 (2004)) and Michigan Rules of Evidence 702 and 703.

In Gilbert, the Michigan Supreme Court imposed gatekeeping responsibility on trial courts. Specifically it directed that an expert be limited to testifying in his of her area of expertise and not drift into other areas. The case involved a social worker who examined the plaintiff's hospital records and testified about the medical prognosis. The Court held "The medical 'prognosis of a social worker who has no training in medicine and lacks any demonstrated ability to interpret medical records meaningfully is of little assistance to the trier of fact."

The dictum of the Supremes is enbodied in Michigan Rules of Evidence 702 and MRE 703. MRE 702 tracks the Federal Rules of Evidence 702 and both are informed by Daubert v Merrell Dow.

MRE 703 however differs from FRE 703. In federal court an expert can rely on out of court documents but in Michigan the expert must base opinions on facts or data that are admitted in evidence at trial.

The authors of the article raise issues concerning written hearsay evidence like supporting reports that many economists use like the 'Dollar Value of a Day' and others.

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Friday, January 20, 2006

Daubert error rate in economic damage estimates

One question that attorneys in injury and wrongful death cases ask every now and then in depositions concerns the economic damages estimates 'error rate' . In most instances, the attorney asking the question is referring to the discussion of the error rate in the Daubert decision.

To some, see for example the article 'Kicking the Tires After Kuhumo' , the error rate does not really apply to economic testimony. Moreover it is not clear from a close read what is acceptable error.


That is, if one reads Daubert carefully it is obvious that they left out a lot in describing an error rate. All they really are saying is that the data should have a known error rate.

They did not say what an 'acceptable' error rate should be. For instance, we could say the error rate is XXX within 1 standard deviation, 2 standard deviations, 3 standard deviations, or 10 standard deviations. Literally speaking, any error rate is acceptable as no criterion for acceptable has been set.

It just has to be 'known.'

If you are an attorney asking questions about the error rate to an economist make sure you specify what error rate you are referring to.

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Thursday, December 01, 2005

What would Daubert say about those damages? 12.01.05

The situation

Plaintiff is discharged from a job. Ten months later, the plaintiff obtains a substantially equivalent position. After 3 months in the new position, plaintiff voluntarily resigns. There is no reason to believe the plaintiff would not have been able to remain in the job indefinitely. Plaintiff's attorney wants to argue that the earnings in the second job are not mitigating earnings, since the plaintiff resigned?

Does this make sense? What would Daubert say?


Some economists and vocational experts think so:

Voc. Expert and Economist #1 Says:

"I would think that the plaintiff's claims may have merit. Just being hired for a job (placeability) has little to do with the ultimate ability to complete the job tasks and be successful in this position (employability). A comprehensive vocational evaluation would suggest jobs in which the plaintiff could expect long-term success and these positions would be mitigating in nature.

Success on the job is a combination of having the appropriate skills to complete the essential job tasks required in that position AND a general liking of the job and all that it entails...I imagine that there are many jobs for which I would qualify but that I would have a total disgust of doing. In my opinion, it is not the responsibility of the plaintiff to mitigate losses by working in a position which may contribute to long-term frustration, stress, etc.

Voc Expert and Economist #2 Says:

I believe vocational experts can make a strong argument that interests and temperaments should be taken into account in evaluating losses and appropriate mitigation.

Stress (or properly, unhealthy reaction to stress)is the secret killer in our economy. It results from a poor match between work and worker. Chronic pain, either physical or emotional, is a contributor. Previously embedded triggers need to be identified and taken into account in the selection of mitigating employment. Without such analysis we may set the plaintiff up for failure.

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Tuesday, November 22, 2005

How not to do a 'failure to mitgate' study in an ADA case

Statistics and the ADA - 'Is the glass half empty or half full?'

(From Jottings by an employment lawyer)

In a nutshell, the plaintiff's statistical vocational study was used against them! The voc expert estimated that the person because of their injury was not able to work in 57% of the jobs that the person was qualified.

The court, instead of concluding that this was evidence of a disability, found that this meant that the injured plaintiff could work in 43% of jobs that were out there. This to the court showed that the person could in fact work.

Note: One thing that the plaintiff's consultant missed that was huge, was there was not a labor market study done by a economist to determine the supply and demand for the jobs that the injured person was able to work. There may have been relatively few job demand for the jobs that the person could do. In this case the labor market impairment may have been more apparent.

From: Jottings....

... the 4th Circuit holds an employee who needed to lift 75 pounds to do his job, and had a 30 pound lifting restriction following a back injury, was not disabled as that term is defined in the Americans with Disabilities Act. The plaintiff had tried using a statistical finding by a vocational counselor to show he had a substantial impairment in the major life of activity of working:

The vocational consultant estimated that Taylor’s work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor’s Dictionary of Occupational Titles. According to the consultant, Taylor’s injury excluded him from 1,871 job titles, or 57 percent of the job titles for which he would have been qualified absent his injury. These figures translate into disqualification from 370,000 jobs in the Baltimore-Washington metropolitan area. Despite his impairment, Taylor remained able to perform the work involved in 1,410 job titles, or over 130,000 jobs in the region.

The Court assumed without deciding that working is a major life activity, but found the district court's grant of summary judgment for the employer in light of these statistics plus evidence that the plaintiff could engage in a "range of daily activities requiring endurance, flexibility, and some strength" was not wrong. Taylor v. Federal Express Corp. (4th Cir. 11/16/05) [pdf].

Responding specifically to the argument that the district court had not given appropriate deference to the consultant's finding, the Court instead held:

Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work.

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Wednesday, September 21, 2005

Daubert Watch

Dauberttacker.com reported on an interesting Daubert challenge involving the expert witness fees of a expert who had been 'Dauberted' out of the case. In this case, the defendant who apparently was successful on their defense of the claims, attempted to get the court to award expert witness fees for the services of their banking expert. (click here for the complaint and jury verdict)

The court stated:

To require a party to pay for the costs of a witness who was not even called, and against whom the court had sustained a Daubert challenge was manifestly unjust. No fees were awarded as to [The Plaintiff].

Furthermore the court stated, in this banking case, 'the court declined to award defendant expert witness fees for the services of their expert...At the Daubert hearing on June 1, 2005, the court had stated that his testimony did not meet the reliability factors for expert testimony listed in Fed. R. Evid. 702, and discussed in Kumho. The court also stated that, absent the provision of some additional authority by defendant Penland, [Plaintiff]'s testimony would go beyond courts ruling on the limitations of the inpari delicto defense. '

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Sunday, September 04, 2005

An attorney's view on selecting Daubert proof experts

Evan Schaeffer, an attorney at Schaefeer and Lamere in Godfrey, Illinois, and the blawger of The legal underground, blawgcast.com, and Illinois Trial Practice offers about 9 great tips on selecting expert witnesses that should survive a Daubert related challenges of their qualifications. The tips are based on paper presented by Vance Andrus, Richard Arsenault, and Donald Marks, M.D., at a Mealey's litigation conference. Some of the tips however will need to be adjusted for non-medical experts.

For instance, one of the tips found on the post, suggests that the attorney should look for experts who have written on the precise topic involved in the case. However, in the economic damage realm it is relatively rare for economists to actually write or publish articles on the precise damage issue that is involved in the case.

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