Opinion
Case No. 01-2193-JWL
October 11, 2002
MEMORANDUM ORDER
Plaintiffs filed suit against defendants asserting various claims arising out of Genmar's acquisition of plaintiff Horizon Marine LC. On October 2, 2002, the court granted in part and denied in part defendants' motion for summary judgment. This matter is presently before the court on defendants' motion to exclude the testimony of plaintiff's expert economist, Dr. Gary Baker (doc. #130). As set forth below, defendants' motion is denied.
At trial, plaintiffs intend to have Dr. Gary Baker assist the trier of fact in calculating the present value of past and future lost wages and benefits incurred by the individual plaintiffs as a result of defendants' alleged breach of the individual plaintiffs' employment contracts and as a result of defendants' alleged Title VII violations. With respect to his calculation of the plaintiffs' future economic loss, Dr. Baker has provided damage calculations for each of three separate and alternative time periods-beginning on the date of trial and extending forward for five years; beginning from the date of trial and extending forward for ten years; and beginning from the date of trial and extending forward until the retirement age of each individual plaintiff. In essence, Dr. Baker has calculated the plaintiffs' lost future wages by totaling each plaintiff's annual wages, benefits and other compensation earned at the time defendant terminated his or her employment, minus earnings from other employment during the proposed five-year period, ten-year period, and until retirement.
Defendants move to exclude Dr. Baker's testimony under Federal Rule of Evidence 702 and the principles set forth by the Supreme Court in Daubert and Kumho Tire as well as under Federal Rule of Evidence 403. Federal Rule of Evidence 702 imposes upon the court "an important `gate-keeping' function with regard to the admissibility of expert opinions." Ralston v. Smith Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Rule 702 states as follows:
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 the case. Fed.R.Evid. 702. Thus, in order to determine whether Dr. Baker's expert opinion is admissible, the court must ascertain whether the opinion is "reliable" under the principles set forth in Daubert and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The rejection of expert testimony is the exception rather than the rule. Fed.R.Evid. 702 advisory committee notes.
Because defendants have not challenged in their motion Dr. Baker's qualifications to render an opinion on plaintiffs' economic damages, the court need not initially determine whether Dr. Baker is qualified by "knowledge, skill, experience, training, or education" to render the opinion. See Ralston, 275 F.3d at 969.
In support of their motion, defendants urge that Dr. Baker's calculations "ignore critical facts" such as the shutdown of the GMK facility; the time limitations contained in the individual plaintiffs' employment agreements; the fact that the individual plaintiffs' wages and benefits with GMK far exceeded their previous earnings; the fact that Mr. Pepper may have elected early retirement; and the fact that Ms. O'Tool was considering staying home in lieu of returning to the workplace after the birth of her second child. According to defendants, these omissions from Dr. Baker's calculations are so significant as to render Dr. Baker's opinions wholly unreliable.
The arguments set forth by defendants are based primarily on Judge Brown's decision in Garay v. Missouri Pacific Railroad Company, 60 F. Supp.2d 1168 (D.Kan. 1999). In Garay, Judge Brown excluded in part Dr. Baker's testimony regarding economic damages. See id. at 1173. Specifically, Dr. Baker's calculations in that case assumed that the decedent would have been continuously employed for the next 40 years in the United States at the wages he was earning with his employer at the time of his death. Id. at 1172. Dr. Baker's calculations, however, failed to take into account the fact that the decedent was in the United States illegally and, thus, that any future employment would have been unlawful and potentially precluded altogether. Id. at 1173. Dr. Baker also failed to consider the fact that the decedent was a temporary employee at the time of his death and failed to consider the decedent's actual employment history in Mexico. Id. Judge Brown ultimately concluded that "a projection of future wages that wholly fails to take into account such critical factors as are shown by the evidence in the case is speculative and unreliable, and must be excluded." Id.
While the court is not bound by Judge Brown's opinion, it does find his reasoning persuasive. Nonetheless, the court concludes that Judge Brown's decision in Garay is distinguishable from the circumstances presented here. In Garay, the facts ignored by Dr. Baker were undisputed. It was undisputed, for example, that the decedent was an illegal alien and that he was a temporary worker-facts that undoubtedly would affect the decedent's economic damages. By contrast, the vast majority of the "critical facts" that defendants contend were ignored by Dr. Baker in this case are disputed. For example, while defendants urge that the employment agreements were limited to three — or four-year terms, the trier of fact could reasonably conclude that those agreements were likely to have been renewed absent defendants' allegedly unlawful conduct. Similarly, while Ms. O'Tool apparently would have liked to stay home after the birth of her second child, plaintiffs' evidence indicates that the financial status of her and her husband would not have permitted her to stay home and that, as a result, she intended to return to GMK after the birth of her child. Moreover, while it is undisputed that the GMK facility was shut down shortly after the termination of plaintiffs' employment, plaintiffs' evidence, if credited by the trier of fact, demonstrates the likelihood that defendants, absent their unlawful conduct, would have transferred plaintiffs to other positions within the Genmar organization. Thus, while Dr. Baker's calculations may be inconsistent with defendants' theory of the case, those calculations appear to be consistent with plaintiffs' theory (and defendants do not contend that the calculations themselves are inaccurate or otherwise unreliable). Assuming the trier of fact believes plaintiffs' evidence and plaintiffs' theory of the case, the trier of fact could also find that Dr. Baker's calculations are an accurate basis on which to determine the economic damages sustained by plaintiffs.
If the trier of fact were to conclude that plaintiffs' employment agreements were likely to have been renewed, then plaintiffs, at least with respect to their Title VII claims, may be entitled to lost wages and benefits beyond the duration of the contractual employment relationship. See 2 Barbara Lindemann Paul Grossman, Employment Discrimination Law 1803-04 (3d ed. 1996) ("Where a fixed-term employment contract exists . . . a plaintiff may be entitled to back pay beyond the duration of . . . [the] employment relationship where the evidence shows that a renewal or other continuation of the employment was likely.").
For the foregoing reasons, defendants' motion is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to exclude expert testimony of Gary Baker (doc. #130) is denied.