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Ebbert v. Nassau County

September 26, 2008

HELEN EBBERT, PAMELA EDWARDS, ISABELLA MINNECI, WENDY MURO, FRANCES KAMERER, LORI CONKLIN, AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NASSAU COUNTY, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE COMMISSION, THOMAS R. SUOZZI, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

MEMORANDUM AND ORDER

I. PRELIMINARY STATEMENT

Plaintiffs, as individuals and representatives of a class, commenced this action against Defendants Nassau County, the Nassau County Police Department, and the Nassau County Civil Service Commission alleging violations of the Equal Pay Act, 29 U.S.C. §§ 206(d), et seq. and the New York State Equal Pay Act, N.Y. Lab. Law §§ 194, et seq. Plaintiffs have also sued Defendant Thomas R. Suozzi, in his official capacity as County Executive, based upon alleged gender discrimination in violation of 42 U.S.C. § 1983. By Stipulation and Order dated August 3, 2006, this action was bifurcated to separate the issue of liability from damages [DE 20]. On August 13, 2007, District Judge Block granted Plaintiffs' motion to proceed as a collective action for violations of the Equal Pay Act and further certified the lawsuit as a class action for alleged violations of 42 U.S.C. § 1983 and the New York State Equal Pay Act [DE 67].

Before the Court now is Plaintiffs' motion (1) to preclude the Initial Expert Report and Rebuttal Expert Report (collectively, "the Reports") of Defendants' expert witness, Gerald Barrett, Ph.D., J.D. and (2) to preclude Dr. Barrett from testifying at trial. The thrust of Plaintiffs' argument is that the Reports are permeated with impermissible legal conclusions rather than the analysis the expert was hired to perform. Defendants deny this assertion and argue that the Barrett Reports "frame his analysis and discussion of technical, professional and statistical issues for the Court." Def. Mem. at 2. As an alternative to full preclusion, Plaintiffs request that the Court strike certain portions of the Reports and preclude Defendants' expert from testifying at trial about those corresponding segments. For the reasons set forth below, Plaintiffs' motion is GRANTED in part and DENIED in part.

II. THE FACTUAL CONTEXT

The factual background of this case has been set forth in previous Orders of the Court, familiarity with which is assumed. Only those facts necessary to determine the instant motion are included here. Plaintiffs and their representative classes are employed by Nassau County as Police Communications Operators ("PCOs") and Police Communications Operator Supervisors ("PCOSs"). Plaintiffs allege that Defendants discriminated against them by paying them lower wages than male employees who performed substantially equal work. In particular, Plaintiffs assert that female PCOs and PCOSs were paid lower wages than male Fire Communication Technicians ("FCTs") and Fire Communication Technician Supervisors ("FCT IIs"). At issue in this case is whether PCOs and PCOSs performed "equal work" to FCTs and FCT IIs and, specifically, whether those positions required "equal skill, effort, and responsibility, and [were] performed under similar working conditions." 29 U.S.C. § 206(d)(1).

Defendants retained Gerald Barrett, Ph.D., J.D. ("Dr. Barrett") as an expert in connection with this case.*fn1 Plaintiffs seek to strike Dr. Barrett's Reports and to preclude his testimony at trial. According to Defendants, Dr. Barrett is to testify as an expert "for the purpose of assisting the trier of fact in evaluating the jobs performed by the plaintiffs and those of their comparators." Def. Mem. at 2. Plaintiffs' expert, Kathleen K. Lundquist, Ph.D. ("Dr. Lundquist"), filed a Rebuttal Expert Report*fn2 responding to Dr. Barrett's findings and opinion. Subsequently, Dr. Lundquist filed her own Expert Report*fn3 on behalf of Plaintiffs, to which Defendants served a Rebuttal Expert Report from Dr. Barrett.*fn4 Plaintiffs maintain that Dr. Barrett's Rebuttal Report suffers from the same infirmity as his initial presentation. As such, Plaintiffs move to strike both reports. Alternatively, Plaintiffs request an Order that "edits" the offending portions of Dr. Barrett's Reports and that limits the content of his trial testimony accordingly. See Pl. Reply Mem. at 12-16.

III. THE PARTIES' CONTENTIONS

With respect to the current and putative class members, Plaintiffs allege that Defendants have discriminated against them by "paying them wages substantially lower than the wages paid to men for the performance of substantially equal work." in violation of the Equal Pay Act and New York State Labor Law § 194, et seq. Pl. Mem. at 1. According to Plaintiffs, Dr. Barrett's Reports are impermissibly "dominated by his opinions regarding legal standards and conclusions" and his "factual opinions . . . have been irreparably tainted by his impermissible legal analysis." Id. at 2. Plaintiffs argue that Dr. Barrett's Reports contain a "selective analysis of the Equal Pay Act jurisprudence and [an] application of selective facts to those opinions and conclusions" that will "impermissibly confuse the appropriate legal standards for the finder of fact." Id. at 2, 9. Ultimately, Plaintiffs maintain, "[r]ather than make a factual assessment of [the] jobs in question, Dr. Barrett seeks to decide the case for the trier of fact and function as judge and jury." Id. at 2. As such, Plaintiffs assert, Dr. Barrett's testimony is inadmissible.

Taking Dr. Barrett's Reports as a whole, Plaintiffs argue that the reports

1. contain conclusions based more on legal analysis than on an actual assessment of the jobs in question;

2. contain specific sections devoted to Dr. Barrett's assessment of the applicable legal standards;

3. set forth legal conclusions about the viability of the Plaintiffs' claims; and

4. provide legal analysis regarding the scope and parameters of the Equal Pay Act.

In response, Defendants assert that Dr. Barrett's testimony should not be precluded, but rather be deemed admissible for the purpose of assisting the trier of fact in evaluating the jobs performed by Plaintiffs and those of their comparators. Directing many of their arguments to the principles enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999), Defendants claim that Dr. Barrett's Reports are relevant and that his underlying methodology is scientifically valid. Def. Mem. at 3. Moreover, Defendants maintain that "Dr. Barrett does not attempt to draw any legal conclusions." Id. at 9. As to Plaintiffs' argument that Dr. Barrett draws legal conclusions regarding the Equal Pay Act, Defendants aver in their opposition papers and reiterated at oral argument that Dr. Barrett is simply repeating conclusions from his previously published and peer reviewed research and is "only providing a framework for his analysis" based upon those prior publications. Id.

IV. STANDARD OF REVIEW

A. Motions In Limine

"The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996) (internal quotation marks omitted); accord Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y.1996); Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp.2d 461, 467 (S.D.N.Y. 2005). When a party moves to preclude evidence by means of an in limine motion, the court is required to determine preliminarily under Fed. R. Evid. 104 whether the evidence is admissible. See Highland Capital Mgmt., L.P., 379 F. Supp.2d at 467 (citing Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., No. 01-CV-3796, 2004 WL 1970144, at *4 (S.D.N.Y. Sept. 3, 2004). "[O]nly when the evidence is clearly inadmissible on all potential grounds" should such evidence be excluded on a motion in limine. Commerce Funding Corp., 2004 WL 1970144 at *4 (citing Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-CV-5520, 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998)); accord Sec. Exch. Comm'n v. U.S. Envtl, Inc., No. 94-CV-6608, 2002 WL 31323832, at *2 (S.D.N.Y. Oct.16, 2002). It should be noted that an in limine ruling "is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the . . . proffer." Highland Capital Mgmt., L.P., 379 F. Supp. 2d at 467(quoting Luce v. United States, 469 U.S. 38, 41 (1984)).

B. Admissibility of Expert Testimony

A court maintains full discretion to determine whether expert testimony will be admitted. See United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (citing United States v. Schwartz, 924 F.2d 410, 425 (2d Cir. 1991)). The Federal Rules of Evidence "provide a liberal standard for the admissibility of expert testimony." United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2003) (citing Daubert, 509 U.S. at 588). Federal Rule of Evidence 702, which governs the admissibility of expert testimony, provides 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.*fn5 Accordingly, "[o]ne of the fundamental requirements of Rule 702 is that the proposed testimony 'assist the trier of fact to understand the evidence or to determine a fact in issue.'" In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 540 (S.D.N.Y. 2004) (quoting Fed. R. Evid. 702); accord Lippe v. Bairnco Corp., 288 B.R. 678, 685 (S.D.N.Y. 2003), aff'd, 99 Fed. Appx. 274 (2d Cir. May 17, 2004); see also In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 68 (S.D.N.Y. 2001) ("As Rule 702's plain language shows, the opinion of an expert witness is only admissible if it (1) assists the trier of fact in (2) understanding the evidence or determining a disputed fact.") (emphasis in original). Expert testimony that will not assist the fact-finder, and would thus be inadmissible under Rule 702, includes testimony that will "'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 that law to the facts before it.'" Duncan, 42 F.3d at 101 (quoting United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)); accord United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999).

Although Federal Rule of Evidence 704 provides that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact," the Second Circuit has noted that Rule 704 has not "lower[ed] the bar so as to admit all opinions." Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992) (quoting Fed. R. Evid. 704 Advisory Committee's note) (internal quotation marks omitted). Courts in this Circuit have repeatedly held that while an expert "may opine on an issue of fact within the jury's province," an expert "may not give testimony stating ultimate legal conclusions based on those facts." Bilzerian, 926 F.2d at 1294; see also DiBella v. Hopkins, 403 F.3d 102, 121 (2d Cir. 2005) (expert inappropriately drew legal conclusions by opining that Plaintiff's actions amounted to extortion); United States v. Scop, 846 F.2d 135, 142 (2d Cir.), rev'd in part on other grounds, 856 F.2d 5 (2d Cir. 1988) (expert witness statement "embodying legal conclusion exceeded the permissible scope of opinion testimony under the Federal Rules of Evidence"); Hygh, 961 F.2d at 363 ("This circuit is in accord with other circuits in requiring exclusion of expert testimony that expresses a legal conclusion"). Such findings are based on the premise that while "an expert might be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury." Hygh, 961 F.2d at 364.

Finally, as with all testimony, an expert's testimony must bear some relevance to an issue in the case. See, e.g., United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004); Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002); United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991); Fed. R. Evid. 401. Relevant evidence is defined as "'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.'" United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992) (quoting Fed. R. Evid. 401 ).

Even if an expert's testimony meets the requirements of Rules 702 and 704, and is deemed relevant, a court still retains discretion to exclude that expert's testimony if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403; see also United States v. Tapia-Ortiz, 23 F.3d 738, 742 (2d Cir. 1994); United States v. McBride, 786 F.2d 45, 49 (2d Cir. 1986); United States v. Locascio, 6 F.3d 924, 936 (2d Cir. 1993).

V. DISCUSSION

Initially, the Court notes that Defendants devote a substantial part of their argument to defending Dr. Barrett's credentials and qualifications as an expert. The Court finds it unnecessary to address these arguments because Plaintiffs' objections to Dr. Barrett's Reports and testimony are not challenges to his credentials, but rather objections to what Plaintiffs see as impermissible legal advocacy.

Dr. Barrett's expert testimony, according to Defendants, is being proffered in this case "to provide technical and specialized knowledge in the area of job evaluation." Def. Mem. at 1. Defendants assert that his testimony is directed to responding to Plaintiffs' allegations, among other things, that Defendants have violated the Equal Pay Act and "one of the elements of the claim is that the jobs performed by the plaintiffs and those performed by comparators are substantially similar." Id. Plaintiffs do not appear to have any quarrel with Dr. Barrett's being presented for this stated purpose. The disagreement arises in the manner in which this representation is embodied in the actual Reports - and Plaintiffs' challenge to what constitutes admissible information and conclusions proffered by Dr. Barrett.

Dr. Barrett has worked in the field of human resource management and industrial-organizational psychology for over 40 years, including 22 years as a professor at the University of Akron where he served as chairman of the Psychology Department. Barrett Rep. I at 10. He describes his specialties as including "Industrial-Organizational Psychology, human resource management, job analysis, job evaluation and pay systems." Id. at 9. In addition to obtaining a Ph.D. in Industrial Psychology and a J.D. from the University of Akron School of Law, Dr. Barrett has taught numerous courses and authored or co-authored "over 150 professional publications and four books in the area of Industrial/Organizational Psychology." Id. at 10. Further, Dr. Barrett notes that

[i]n addition to my applied experience in job evaluation and job analysis projects, I have published over 15 peer-reviewed articles that deal with issues of job analysis and job evaluation. This has included articles dealing with the issue of potential sex bias in job evaluation systems and also the use of job evaluation to address pay equity claims.

Id. at 11. The job analysis and job evaluation issues pertinent to Dr. Barrett's retention in this matter are set forth initially in the "Executive Summary" section of his Initial Report where he lists the fourteen conclusions he has drawn in addressing the issues raised in Plaintiffs' Complaint. A group of these conclusions forms the basis for Plaintiffs' motion to preclude Dr. Barrett's Reports and anticipated trial testimony.

The question before the Court is whether the substance of Dr. Barrett's Reports is admissible in so far as the Reports reflect the testimony that Dr. Barrett would offer as a witness at trial. More particularly, the key here is whether Dr. Barrett's testimony bears some relevance to one or more issues in the case and, if the answer to that inquiry is "yes," then what "facts" does Dr. Barrett help a jury to understand? The central issue in this case is whether the four jobs being compared are substantially similar in terms of skill, effort and responsibility. To answer these questions, then, it is necessary to address the admissibility of various sections of the Reports as well as Plaintiffs' request that the Reports either be stricken or, in the alternative, that they be edited to exclude what Plaintiffs claim are legal conclusions and misleading legal advocacy.

A. Admissibility of The Barrett Reports

1. The Initial Report

The primary issue in this case is whether PCOs and PCOSs perform work that is equal to that performed by FCTs and FCT IIs. In the "Executive Summary" found at the beginning of his ...


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