Opinion
Civil Action No. 97-WY-2662-AJ
October 9, 2001
ORDER Re: Expert Testimony and Resetting Pretrial Conference
This is an employment case, in which the remaining claims are race or national origin discrimination under Title VII and retaliation. Before the court is Defendant's Motion to Strike Plaintiff's Expert Witness [filed May 15, 2001]. The matter has been fully briefed and a hearing on the motion was held on June 4, 2001.
Plaintiff Dr. Toth is a chemist who was employed by defendant "(Gates"). According to defendant, plaintiff's employment was terminated because plaintiff possessed poor interpersonal skills and because she failed to complete her work in a timely manner. Plaintiff has endorsed Dr. William J. McCarthy to give opinions about the "FTIR" technique, the technical nature of plaintiff's job at Gates, difficulties in interpreting lab analyses, his opinions as to Dr. Toth's reports, the problems with the equipment Dr. Toth used in the laboratory, and his opinions finding Dr. Toth's work to be satisfactory. See Def. Motion, Ex. A, McCarthy Preliminary Report.
As grounds for its Motion to Strike, Gates argues that Dr. McCarthy's anticipated testimony does not meet the Daubert reliability standard and that, even if it does, his testimony is otherwise irrelevant. Gates contends that Dr. McCarthy's testimony about the type of equipment and technology Dr. Toth used and his testimony about the quality of plaintiff's work are both unreliable and not relevant because the opinions are not scientific or technical; they are not based on any clear methodology; and Dr. McCarthy is not qualified to testify regarding personnel matters.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
There is no dispute that plaintiff has endorsed Dr. McCarthy as an expert witness. Plaintiff argues that an understanding of the work Dr. Toth did is important for the jury, and that her problems with Gates's equipment was at least one reason her reports were not always timely. Plaintiff claims that Dr. McCarthy is endorsed "to describe what FTIR is, how it is used, its general function, what is necessary to properly perform testing, the appropriateness of the equipment used, as well as the type of equipment which should be used." Pl. Resp. ¶ 10. Dr. McCarthy is also endorsed to analyze the quality of the testing perform ed by Dr. Toth. Id. Plaintiff contends that this technical testimony will aid the jury in understanding Dr. Toth's work performance.
In Daubert, 509 U.S. at 589, the Supreme Court held that Rule 702 imposes a special obligation upon the trial court to ensure that scientific testimony is not only relevant, but reliable. Testing, peer review, error rates, and "acceptability" in the relevant scientific community are four factors which the Daubert Court held might prove helpful in determining the reliability of a particular scientific theory or technique. Id., at 593-594. But, as the Court stated, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. The trial court is to determine whether an expert's methodology is scientifically valid and whether the expert's testimony fits the facts of the case. Id. at 592-93. A district court is permitted the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997) (abuse of discretion standard).
The Daubert analysis has been extended to all expert testimony, and the trial court may consider some or all of the Daubert factors. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The gatekeeper inquiry under Rule 702 is ultimately a flexible determination of the reliability and relevancy of a proposed expert's testimony, which is demonstrated by specific findings on the record. Goebel v. Denver and Rio Grande Railroad, 215 F.3d 1083, 1088 (10th Cir. 2000) (internal citation omitted); United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000).
Recently amended Rule 702, Fed.R.Evid. (2001), which codifies Daubert and Kumho, provides:
"[i]f 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."
Plaintiff has produced what appears to be a description of the materials Dr. McCarthy reviewed and what appears to be his personal test results using an unexplained "ATR technique." See Pl. Resp., Ex. B. Dr. McCarthy holds a bachelor's degree in electrical engineering and computer science, a master's degree from an "electronic materials" program, and a doctoral degree in electrical engineering. See id., Ex. C. He has approximately eighteen years of experience as a scientist using spectrometers and other analytical instruments. Id. He lists a number of publications and presentations in various aspects of spectroscopy, including FT-IR imaging. Id. Based on his education, experience and research, I would find him to be qualified as an expert in the field of spectroscopy and in the operation of spectrometers, associated computers and computer programs, and other related analytical instruments and techniques. I also find him qualified to testify about his personal experience using what is presumably Gates's equipment. Dr. McCarthy may, under Kumho, testify about the equipment Dr. Toth used and his personal use of the equipment as a reliable technical expert to describe what FTIR is, how it is used, its general function, what is necessary to properly perform testing, the appropriateness of the equipment used, and the type of equipment which should be used.
It is a more difficult question as to whether Dr. McCarthy's testimony is reliable with respect to his opinions about Dr. Toth's work performance as it relates to use of the equipment, and to his other opinions about her work performance. In addition to commenting on Gates's equipment, Dr. McCarthy opines that Dr. Toth's reports were "concise and professional" and her work was "satisfactory." Id. He also opines that plaintiff's "sample output could have been improved by the following: updating the FTIR computer and software to modern standards; investing in new accessories; further training." Id., at 2. There is nothing in the report or the materials presented to the court, however, to demonstrate that, in reaching those opinions, Dr. McCarthy used reasoning or methodology that is scientifically valid. In fact there is no mention of the reasoning or methodology he used to arrive at his opinion that upgrading the computer or spectrometer would have improved Dr. Toth's work performance. There is also nothing in the materials to show what testing standards were required or what the performance expectations of a person in Dr. Toth's position were. See Pl. Resp., Exs. A, B, C. Accordingly, Dr. McCarthy's testimony in any area except spectrometers, related analytical testing instruments and his experiences with Gates's equipment fails to meet the reliability standard required by Daubert and Kumho, and should be stricken.
Dr. McCarthy is also not qualified to render opinions about Dr. Toth's work performance because there is nothing in the pleadings to even suggest that he may qualify as an expert in the areas of work performance standards, personnel training or management. Accordingly, he may not render opinions about the quality of Dr. Toth's testing, whether her work was "satisfactory," that her reports were "concise and professional," or to any other performance issue because his testimony would be unreliable without either experience or training in performance and personnel areas. See Reiff v. The Denver Publishing Co., 1999 W L 1442047, *8 (D.Colo.) (M.J. Schlatter) (although expert found to be qualified in the area of computers and computer technology, no evidence to support claim of qualifications to testify in areas of business or personnel administration).
The court also finds that even if he were qualified to render expert opinions about plaintiff's work performance, Dr. McCarthy's report is woefully deficient in that there is not a single basis stated for any of his conclusions, comments, or opinions, as required by Rule 26(a)(2)(B), Fed.R.Civ.P. For example, while testimony about the nature of Dr. Toth's work on spectrometers and related analytical instruments is arguably relevant, Dr. McCarthy has not provided any link between the presumably faulty equipment and the impact of the equipment on Dr. Toth's job performance or any connection between deficiencies in the equipment as related to any of the reasons for Dr. Toth's termination.
Federal Rule of Civil Procedure 26(a)(2)(B) requires "a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor . . ."
The court has discretion to determine whether the testimony should be stricken under Rule 37(c)(1). The Rule provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) shall not, unless such failure is harmless, be permitted to use as evidence at trial . . . any witness or information not so disclosed." Rule 37(c)(1), Fed.R.Civ.P.
The court finds that Dr. McCarthy's factual and opinion testimony about the subject equipment and his use of that equipment should be allowed as helpful to the trier of fact in understanding the nature of Dr. Toth's work. However, all of Dr. McCarthy's opinions as to plaintiff's testing, "satisfactory" performance and her "concise and professional" reports concern supervisory judgments about work performance, which Dr. McCarthy is clearly not qualified to render. Those job performance opinions are thus unreliable under Kumho and should be stricken.
Gates also argues that Dr. McCarthy's testimony is irrelevant because the only question at trial is whether Dr. Toth can show pretext and that the only proper inquiry is whether Gates's decision to terminate Dr. Toth was honest, relying upon Bullington v. United Airlines, 186 F.3d 1301, 1317(10th Cir. 1999). Because the court has determined that Dr. McCarthy's testimony as to plaintiff's work performance is unreliable, it need not address Gates's relevancy argument.
Accordingly, it is hereby
ORDERED that Defendant's' Motion to Strike Plaintiff's Expert Witness [filed May 15, 2001] is granted in part and denied in part. Plaintiff's endorsement of Dr. McCarthy is limited to testimony about the Gates equipment. All other opinions are stricken. It is further
ORDERED that Defendant may depose Dr. McCarthy no later than July 15, 2001. Defendant may have until August 15, 2001 to provide Rule 26(a)(2) rebuttal information to Dr. McCarthy. Before August 23, 2001, plaintiff may depose any rebuttal expert so identified. It is further
ORDERED that the final pretrial conference set for July 3, 2001 is vacated and reset to September 6, 2001 at 9:00 a.m. in C-504. The proposed final pretrial order is due to the court no later than August 31, 2001.
NO EXTENSIONS OF THESE DEADLINES WILL BE GRANTED.