The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
The parties in this class action sex discrimination lawsuit
have submitted to the Court motions seeking to exclude expert
testimony at trial under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). For the reasons discussed below, the motions to exclude
Dr. Farrell Bloch, Dr. Barbara Gutek, Dr. William Wecker, Dr.
Louis L. Wilde, and Sheldon Wishnick are DENIED; the motions to
exclude Dr. William Bielby, Dr. June O'Neill, and Dr. Christopher
Winship are DENIED, IN PART, and GRANTED, IN PART; and the
motions to exclude Roger Blanc and Dr. Ira T. Kay are GRANTED.
The motions to exclude proposed experts span topics that
include statistics, sociology, and damages. In total, plaintiff
Equal Employment Opportunity Commission ("EEOC") has submitted
six motions to exclude, plaintiff-intervenor Allison Schieffelin
("Schieffelin") has submitted one, and defendants Morgan Stanley
& Co., Inc. and Morgan Stanley Dean Witter ("Morgan Stanley")
have submitted three. Judge Richard M. Berman recently severed the EEOC's pattern and
practice claim from Schieffelin's individual claims to conduct
separate trials. See Order Dated June 3, 2004 at 1-2. Damages
will be determined in a third, subsequent proceeding, in a format
yet to be determined. See id. at 2. The experts challenged in
the motions before the Court span all three proceedings.
Federal Rule of Evidence ("Rule") 702 governs the admissibility
of expert testimony at trial:
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.
Rule 702, most recently amended in 2000, reflects the United
States Supreme Court's analysis of the admissibility of expert
testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999). See FED. R. EVID. 702 advisory committee's notes at
423. The Daubert Court established that Rule 702 imposes a
special role on the trial court to function as a "gatekeeper"
regarding the admissibility of expert testimony, determining both
its relevance and its reliability. 509 U.S. at 589; see also
Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256
, 265 (2d
Cir. 2002). The Court discussed a non-exhaustive list of specific
factors that a court may consider, such as (1) whether the
expert's theory or technique can be, or has been, tested; (2)
whether the theory or technique has been subjected to peer review
and publication, (3) the known or potential rate of error of a
particular technique and the existence and maintenance of
standards and controls, and (4) whether the technique or theory has been generally accepted
in the scientific community. See Daubert, 509 U.S. at 593-94.
In its Kumho opinion, the Court made clear that the trial
court's gatekeeping obligation established under Daubert
applies to all testimony based on "technical or other specialized
knowledge," and not just scientific knowledge. Kumho, 526 U.S.
at 141. It also held that the factors articulated in Daubert
may apply to nonscientific expert testimony, id. at 150-51, but
that the trial court possesses flexibility in determining what
are reasonable measures of reliability. Id. at 152. The trial
court's discretion in determining how to assess reliability,
the Kumho court determined, should be as broad as its
discretion regarding whether to find relevant evidence
reliable. Id.; see also Robert Zaremba v. G.M.C.,
360 F.3d 355, 357-58 (2d Cir. 2004).
In Daubert, 509 U.S. at 595, the Court highlighted the fact
that the trial court's focus regarding admissibility must be
"solely on principles and methodology, not on the conclusions
that they generate." See also Amorgianos, 303 F.3d at 266
("the district court must focus on the principles and methodology
employed by the expert, without regard to the conclusions the
expert has reached or the district court's belief as to the
correctness of those conclusions"). Testimony that meets the
standards of Rule 702 is still subject to the rigors of
"[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof," which provide
the "traditional and appropriate means of attacking shaky but
admissible evidence." Daubert, 509 U.S. at 596. The Advisory
Committee Notes accompanying Rule 702 observe that "the rejection
of expert testimony is the exception rather than the rule." FED.
R. EVID. 702 Advisory Committee's Notes at 424; see also U.S.
Info. Sys. v. IBEW Local Union No. 3, 313 F. Supp.2d 213, 226
(S.D.N.Y. 2004). Other evidentiary rules impact the trial court's assessment of
the admissibility of expert testimony. The trial court must
ensure that any testimony admitted meets the basic, foundational
standard of admissibility set forth in Rule 104(a) of the Federal
Rules of Evidence. See Daubert, 509 U.S. at 592-93; FED. R.
EVID. 702 Advisory Committee's Notes at 423. The proponent of the
proposed testimony continues to have the burden of establishing
admissibility under Rule 104(a) by a preponderance of the
evidence. See Bourjaily v. United States, 483 U.S. 171
(1987). The Court in Daubert also noted that Rule 403 provides
the trial court with an important safeguard to limit otherwise
relevant evidence. Id. at 595 (quoting Jack B. Weinstein,
Rule 702 of the Federal Rules of Evidence is Sound: It Should Not
be Amended (July 10, 1991), in 138 F.R.D. 631, 632).
Finally, the trial court's determination regarding the
admissibility of expert testimony is reviewed for abuse of
discretion, Zaremba, 360 F.3d 355 at 357 (citing G.E. v.
Joiner, 522 U.S. 136, 143 (1997)), and a "decision to admit or
exclude expert scientific testimony is not an abuse of discretion
unless it is `manifestly erroneous.'" Id. (quoting
Amorgianos, 303 F.3d at 265).
The EEOC proposes to use the testimony of Dr. Farrell Bloch
("Bloch"), who holds a Ph.D. in labor economics, to "assist the
jury in understanding whether there is a pattern of differential
treatment with respect to compensation and promotion between men
and women" in Morgan Stanley's Institutional Equities Division
("IED"). EEOC's Memorandum of Law in Opposition to Morgan
Stanley's Motion to Exclude Expert Testimony of Dr. Farrell Bloch
("EEOC Mem. Opposing Excluding Bloch") at 1. In particular, the
EEOC states that Bloch evaluated pay and promotion information from Morgan Stanley's
personnel database, and found that it had paid comparable female
employees less than men in similar departments. Id. at 2. He
also found disparities in the promotion rates between men and
women. Id. at 3. Bloch prepared an initial report in 2002, and
a rebuttal report in 2004.
Morgan Stanley argues that Bloch's testimony should be excluded
because his opinions and statistical evidence are unreliable and
irrelevant. See Morgan Stanley's Memorandum in Support of its
Motion to Exclude Testimony of EEOC's Statistician Farrell Bloch
at 1-2, 5-6. First, it asserts that Bloch's compensation analyses
improperly group together employees performing different job
functions, and his rebuttal report fails to cure this problem.
Id. at 6-10. Because the elements of a pay discrimination case
under Title VII require assessment of classmembers' pay in
comparison to non-members for "work requiring substantially the
same responsibility," id. at 6 (quoting Belfi v.
Prendergast, 191 F.3d 129, 139 (2d Cir. 1999)), Morgan Stanley
claims that Bloch's analyses are inadmissible. Second, while
Bloch controls for department and length of service, id. at 13,
Morgan Stanley asserts that his analyses do not incorporate
non-discriminatory explanatory factors, and thus have no
probative weight. Id. at 10-17. Third, Morgan Stanley claims
that Bloch's analyses produce few statistically significant
results. Id. at 17-21. Finally, Morgan Stanley claims that
Bloch (1) improperly expanded his study to non-U.S. citizens in
offices outside of the United States, who are not protected under
Title VII, id. at 22; (2) improperly combined separate sets of
results to create the appearance of statistically significant
disparities, id. at 23-24; (3) used flawed methodology in his
2004 rebuttal report, id. at 25-27; (4) inappropriately pooled
pay and promotion decisions by different decision makers, id.
at 27-28; and (5) used software that produced fundamental errors.
Id. at 28-30. The EEOC maintains that Bloch's testimony meets the
requirements of Rule 702 and is admissible. See EEOC Mem.
Opposing Excluding Bloch at 1, 4. It asserts that Bloch's use of
experience and education are appropriate proxies for performance
and productivity, id. at 9-10, and that even Morgan Stanley
agrees that the variables it identified as missing are not
objectively quantifiable. See id. at 8. The EEOC argues that
these types of disputes should more properly be decided by the
jury, and that Morgan Stanley has not come forth with analyses
that rebut those of Bloch's studies. Id. at 10. The EEOC
further notes that Bloch, in his rebuttal report, incorporated
new analyses in an attempt to respond to Morgan Stanley's
criticisms, and that the new analyses showed little difference.
Id. at 3. The EEOC also submits a declaration by Bloch dated
April 8, 2004, in which he points out that there exists no
comprehensive, common database in this case. Declaration of
Michael Ranis in Support of EEOC's Response to Morgan Stanley's
Motion to Exclude Testimony of Plaintiffs' Expert Dr. Farrell
Bloch, Exhibit 1 (Declaration of Dr. Farrell Bloch) at 2. As a
result, Bloch states that the parties' analyses and critiques
cannot properly be tested against each other. See id.
The Court agrees with the EEOC that an evaluation of Bloch's
testimony should be left to the jury and that Morgan Stanley's
criticisms should be raised on cross-examination. First, Morgan
Stanley does not dispute Bloch's academic qualifications.
Disputes regarding the proper variables to employ in statistical
studies are more properly left for juries to consider and to
decide. Moreover, the variables identified by Morgan Stanley's
statistical expert, Dr. William Wecker ("Wecker") "an
employee's ability to interact productively with other employees;
assistance provided to co-workers; work ethic; participation in
firm recruiting, mentoring and training; and competitive market
dynamics. . . ." EEOC's Notice of Motion and Motion in Limine to
Exclude the Opinions and Testimony of Dr. William Wecker, Exhibit
1 (Report of William Wecker, Ph.D.) at 4 are subjective, and Wecker has
identified no data that captures this information.*fn1 While
Morgan Stanley is not required to perform its own analysis, the
absence of such analysis means that the effect of such variables
is speculative for statistical purposes. The jury can decide
whether the objective items used by Bloch are reasonable
substitutes. Finally, Wecker presents no data suggesting that
characteristics not considered by Bloch vary by gender at Morgan
Stanley.*fn2 At trial, each party may attempt to convince
the jury what impact, if any, such variables might have on
promotions. The Court thus finds that Bloch's testimony satisfies
Rule 702, and concludes that Bloch's analyses are more probative
than not. As a result, Morgan Stanley's motion is DENIED with
respect to this proposed witness.
2. William Wecker and Louis L. Wilde
Morgan Stanley proposes to use the testimony and opinions of
Wecker and Dr. Louis L. Wilde ("Wilde") to challenge the analyses
and conclusions of Bloch. Morgan Stanley Memorandum of Law in
Opposition to EEOC's Separate Motions to Exclude the Opinions and
Testimony of William Wecker and Louis Wilde ("Morgan Stanley Mem.
Opposing Excluding Wecker and Wilde") at 1. Wecker's report
examines whether Bloch's statistical analyses permitted an
inference that disparities in pay and promotion rates were caused
by gender. Id. The report concludes that Bloch's 2002
compensation analyses "fail to consider the `two major
determinates of compensation: job function and job performance,'"
and that Bloch's compensation analysis does not take account of
any factors assessed by IED managers. Id. at 2. Wecker also
repeated and scrutinized Bloch's promotion analyses, and
performed affirmative analysis of certain promotion data from
1995 to 2001, and concluded that there are many instances of statistical insignificance. Id. at 2-3. Wecker
also concluded that Bloch, in his rebuttal report, was not able
to cure the deficiencies that Wecker highlighted. Id. at 4.
Wecker performed statistical analyses to support these
criticisms. Id. at 4-5. In particular, he notes that Bloch was
not able to incorporate "meaningful measures" of job function and
job performance. Id. at 4.
Wilde's report focuses on the validity of the statistical
methods used by Bloch to estimate damages related to the claims
that Morgan Stanley under-compensated and failed to promote
women. See id. at 1. Through statistical analyses of Bloch's
data, and his own affirmative analyses, Wilde claims to show that
there are methodological shortcomings that render Bloch's
calculations unreliable and irrelevant. Id. at 3-4. He also
contends that his affirmative analysis demonstrates that the rate
of growth in compensation is either identical for men or women,
or favors women. Id. at 3. Wilde concludes that Bloch's 2004
report is also methodologically flawed. Id. ...