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Mona Hamza v. Saks Fifth Avenue

December 5, 2011

MONA HAMZA PLAINTIFF,
v.
SAKS FIFTH AVENUE, INC., DEFENDANT.



The opinion of the court was delivered by: Frederick P. Stamp, Jr. United States District Judge

MEMORANDUM DECISION AND ORDER

RULING ON MOTIONS IN LIMINE

I. Background

Mona Hamza, the plaintiff, filed this civil action in this Court against the above-named defendant and Saks Incorporated, which was later dismissed from the case. The plaintiff, a former employee of the defendant alleged violations of Title VII of the Civil Rights Act of 1964, Section 701 et seq., 42 U.S.C.A. § 2000e et seq., as a result of her termination from her position as a sales associate at the Saks Fifth Avenue ("Saks") store located in Greenwich, Connecticut on or about March 3, 2007. Following dismissals of many of the claims originally raised, remaining in the action is an allegation that Ms. Hamza was impermissibly terminated in retaliation for her requests for leave for Ramadan, in accordance with her Islamic religious tradition in 2006.

The defendant filed three motions in limine with regard to pretrial matters. The first motion (Motion 1) seeks to exclude the testimony of plaintiff's proposed economic expert under Daubert and Federal Rule of Evidence 702. The second motion (Motion 2) argues that plaintiff's claims for punitive damages and front pay are inappropriate and should be stricken, that the plaintiff's claims for back pay should be limited, and that the plaintiff, her counsel and all witnesses should be precluded from submitting evidence of or testimony about any of these claims.

Finally, the third motion (Motion 3) asks this Court to preclude the introduction of testimony or evidence concerning claims previously dismissed in this action and testimony from other employees of Saks which is not related to Ramadan 2006. Following the pretrial conference in this case, wherein the plaintiff indicated her intention to call additional witnesses, the defendant submitted an addendum to this motion, extending it to request that the Court preclude certain witnesses from testifying because the defendant believes them to have no relation to Ramadan 2006.

The plaintiff timely responded to each motion and offered opposition to the defendant's arguments. The motions have now been fully briefed and are ripe for disposition. This Court will address each of the motions in turn.

II. Discussion A. Motion 1

The first motion in limine to be discussed is the defendant's challenge to the plaintiff's proposed economic expert's testimony under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The defendant argues in this motion that the plaintiff's expert, forensic economist Mr. Michael Soudry, seeks to offer testimony of conclusions and opinions which are based upon basic mathematical calculations and are therefore not the product of "technical or specialized knowledge" as required by Federal Rule of Evidence 702, and thus should be barred from presentation as expert testimony pursuant to Daubert.

Federal Rule of Evidence 702 provides that: "[i]f . . . technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact at 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 . . ." The United States Supreme Court placed trial judges in the position of gatekeepers with regard to the expert testimony requirements of Federal Rule of Evidence 702 in Daubert when it held that proposed expert testimony should be excluded by the trial judge if he determines that it does not meet the definition of the same set forth by Federal Rule of Evidence 702. 509 U.S. at 589-90.

The plaintiff proposes that Mr. Soudry will testify as to the amount of economic loss that the plaintiff has incurred as a result of her termination from Saks. The defendant argues that Mr. Soudry did not utilize any "specialized" knowledge in order to reach his conclusions in this regard, but rather employed basic mathematical calculations, and thus his testimony will not be helpful to the fact-finder.

The plaintiff responded to the defendant's arguments, asserting that Mr. Soudry's calculations are indeed based upon specialized knowledge outside the spectrum of "basic calculations" and that this assertion is bolstered by the fact that forensic economists, including Mr. Soudry, have been permitted to testify in federal court in the past. The plaintiff also cited multiple federal district cases wherein forensic economists offered to testify to past and future earnings have been permitted to testify as experts. Finally, the plaintiff listed all of the principles relied upon by Mr. Soudry in reaching his opinion as to economic damages in this case and maintained that this is evidence that technical and specialized knowledge was utilized beyond basic mathematical calculations.

This Court agrees with the plaintiff's position on Mr. Soudry's proposed testimony as to his qualifications. His opinion, as set forth within his report, was based upon a calculation not only of Ms. Hamza's earnings over the three years leading up to her termination, her statistical work life expectancy, the fringe benefits to which she was entitled at Saks, and her mitigation earnings (all earnings which she has received from the time of her termination until the suspected date of trial); but also the average earnings growth rate in the United States labor market, the probability of unemployment, based upon New York area unemployment statistics, as well as job maintenance expenses for both her job at Saks and her post-termination employment at Lord & Taylor and Bloomingdale's. While it is true, as the defendant points out, that most, if not all of the statistical bases for Mr. Soudry's calculations can be found online and are readily available to anyone who seeks them out, this Court is of the opinion that without technical and specialized knowledge and skill, one would not be able to appreciate or calculate the importance and effect that each of the bases has on Ms. Hamza's total economic loss. Mr. Soudry has employed his specialized knowledge as a forensic economist to organize and utilize each piece of this earnings "puzzle" into a final calculation at which fact-finders would not be able arrive themselves if each piece of information were presented to them individually. To put it differently, simply because the necessary ingredients of Mr. Soudry's final opinion were readily attainable does not mean that it did not require specialized knowledge in order to place them together into a meaningful economic loss calculation.

Further, the Southern District of New York cases cited by the defendant to bolster its argument that Mr. Soudry's opinion should not be admissible are factually distinguishable from the instant situation. In Schwartz v. Fortune Magazine, 193 F.R.D. 144 (S.D.N.Y. 2000), the Southern District of New York excluded the economic damages testimony of an accountant with regard to the plaintiff's lost commissions as a result of his termination. In that case, the court found that the expert's area of expertise was outside of that to which she proposed to testify in the Shwartz trial, and that her testimony was "unhelpful" because it was based upon simple calculations. The court cited Gray v. Briggs, 45 F. Supp. 2d 316, 323 (S.D.N.Y. 1999), to support its conclusion. Gray disqualified an expert witness because he did not have sufficient expert knowledge to testify on the issues to which he proposed to testify. Based upon this citation, it seems that the decision in Shwartz was based largely upon the expert's qualifications, rather than the technical nature of her calculations, and it seems that the final statement of the court that the calculations were based upon basic mathematics could be construed as dicta. Additionally, the Schwartz court's statement that the expert's report was "unhelpful" because it was based upon basic calculations helps to support this Court's conclusion that Mr. Soudry's report is not based upon basic calculations. This Court has determined that Mr. Soudry's calculations would be helpful to the fact-finder who might use this information to better appreciate the effect that each of the bases of Mr. Soudry's calculations would have on Ms. Hamza's economic loss.

Similarly, Anderson v. Sotheby's Inc. Severance Plan, No. 04 Civ. 8180, 2005 U.S. Dist. LEXIS 11816 (S.D.N.Y. June 13, 2005), does not convince this Court that Mr. Soudry's proffered testimony is not based upon technical knowledge. In Anderson, the court precluded testimony from an expert witness in the field of executive compensation because "[e]verything that [the witness] has included in his report . . . will be brought out at trial through lay witnesses" and the court found it unlikely that help would be needed to compare the evidence presented. Id. at *9. Again, this Court has determined that, although each piece of evidence utilized by Mr. Soudry in reaching his conclusions could be presented to the fact-finder individually without the help of an expert, the ...


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