Free Motion to Exclude - District Court of Colorado - Colorado

Case 1:01-cv-02324-JLK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2324-JLK-MEH CHARLES T. GREEN, PHILLIP R. WENTLAND and MARILYN BREITHAUPT, Plaintiffs, v. SEARS, ROEBUCK & CO., a New York corporation, Defendant _____________________________________________________________________________ DEFENDANT'S MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS _____________________________________________________________________________ Defendant Sears, Roebuck & Company ("Sears") submits the following Motion to Exclude Plaintiffs' Expert Witness, Jane Lillydahl. INTRODUCTION In this case, Plaintiffs Green, Wentland, and Breithaupt allege that they were laid off following a restructuring at Sears because of their age in violation of the Age Discrimination in Employment Act. Plaintiffs designated Jane Lillydahl as an expert economist to opine regarding the amount of Plaintiffs' economic damages. Lillydahl admitted in her deposition that she failed to consider Plaintiffs' vocational capabilities, availability of comparable jobs in the relevant labor market, or the reasonableness of Plaintiffs' mitigation efforts in calculating Plaintiffs' economic damages. Sears moves to exclude Lillydahl's testimony on the grounds that Plaintiffs cannot meet their burden of proof that Lillydahl's opinion has a legitimate factual basis, is reliable, or would be helpful to the trier of fact.

Case 1:01-cv-02324-JLK-MEH

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BACKGROUND Lillydahl is an economist and mathematician. In her expert report, Lillydahl determined the amount of Plaintiffs' economic damages attributable to Sears by simply subtracting the amount Plaintiffs have actually earned since being laid off from Sears from the amount Plaintiffs would have earned had they remained at Sears. Deposition of Jane H. Lillydahl, attached as Exhibit A at 23:13-25:25; 48:23-49:3; 53:15-23; Lillydahl Report, attached as Exhibit B. Lillydahl made no effort to determine (a) what jobs Plaintiffs were qualified to perform, (b) whether there were available jobs in the labor market for which Plaintiffs were qualified, (c) whether the available jobs in the labor market were comparable, (d) whether Plaintiffs made reasonable efforts to obtain replacement employment, (e) whether Plaintiffs turned down any job opportunities, or (f) the effect that Plaintiffs' personal decisions such as voluntarily resigning from replacement employment had on their economic damages. Exhibit A at 9:20-10:22; 13:2023; 30:16-31:1; 47:8-49:8; 52:15-53:14. Lillydahl admits that she has no expertise in and has never been qualified as an expert in the areas of vocational job analysis or damages mitigation and was not retained in this case to perform any vocational or mitigation related analysis. Exhibit A at 9:20-10:22; 16:14-19:3; Exhibit B. Nor did Lillydahl rely upon any other expert's vocational or mitigation analysis in reaching her opinion that Plaintiffs' entire economic losses are attributable to Sears. Instead, Lillydahl purports to attribute Plaintiffs' economic losses to Sears, regardless of Plaintiff's job qualifications or employability, regardless of the availability of replacement employment or efforts to obtain replacement employment, and regardless of Plaintiffs' decisions

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to take themselves out of the job market for various personal reasons. Exhibit A at 42:18-45:5; 52:5-8; 53:15-22. It is undisputed that Plaintiff Wentland has dropped out of the labor force on two occasions since leaving Sears and, despite his qualifications, has earned only $1,600 in the last two years. Exhibit A at 42:18-45:5; Letter from Margaret Funk dated August 18, 2006, attached as Exhibit C. Plaintiff Breithaupt chose to begin a new career in the medical coding industry, resulting in lower wages than she earned as a repair technician. Exhibit B at p. 5. Plaintiff Green, despite his qualifications as a repair technician, has earned $0 since leaving Sears. Exhibit A at 24:18-25; Exhibit B at p. 3. DISCUSSION I. Legal Standard. Under Federal Rule of Evidence 702, a witness may testify as an expert "[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." Fed. R. of Evid. 702. The proponent of the expert testimony bears this burden of proving that the expert is qualified and that the proffered testimony is reliable, relevant and helpful. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, n. 10 (1993). The Court must perform a "gatekeeping" function in order to ensure that the expert is qualified and that the proffered testimony is reliable, relevant and helpful. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999);United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006) ("Under Rule 702, a district court must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact").

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An expert may qualify as an expert by "knowledge, skill, experience, training or education" and must possess such "skill experience, or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for the truth." Lifewise Master Funding v. Telebank, 374 F.3d 917 (10th Cir. 2004) (excluding expert damages testimony); Broadcort Capital Corp. v. Summa Medical Corp., 972 F.2d 1183, 1195 (10th Cir. 1992) (general experience and education in field did not qualify witness as expert). With respect to expert testimony regarding economic damages, courts have excluded such testimony where it lacks a sufficient factual foundation. See, e.g., Elcock v. Kmart Corp., 233 F.3d 734, 754 (3rd Cir. 2000). In Elcock, the court rejected the plaintiff's vocational expert on the grounds that the expert failed to take into account various factors that might affect plaintiff's future employability such as his job limitations and preexisting injuries. Id. at 747-48 (finding vocational expert's testimony unreliable).

II.

Lillydahl Is Not Qualified To Testify Regarding Plaintiff's Vocational Capabilities Or Mitigation Efforts. Lillydahl should be precluded from offering any testimony regarding Plaintiff's job skills,

vocational capabilities, or mitigation efforts because she is not qualified as an expert in any of these areas by "knowledge, skill, experience, training or education." Graham v. Wyeth Labs., 906 F.2d 1399, 1408 (10th Cir. 1990). Lillydahl is a mathematician and economist. Exhibit A at 16:24-17:2. She has no formal training in vocational assessment and her only training on job search methods is a section in an economics textbook. Id. at 17:3-23. Lillydahl has never been engaged to analyze a person's job

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search methods. Id. at 18:21-24. She has never been qualified as an expert witness in vocational assessment. Id. at 18:25-19:3. In this case, Lillydahl was not retained to perform any vocational or mitigation related analysis of Plaintiffs. Id. at 9:20-25. Lillydahl performed no analysis of whether Plaintiffs' job search efforts were reasonable and rendered no opinions on Plaintiffs' vocational capabilities. Id. at 10:1-22; 13:20-23. Despite her admitted lack of qualifications to render a vocational or mitigation opinion and lack of any analysis of Plaintiffs' job search efforts, Lillydahl purports to opine that Plaintiffs engaged in reasonable mitigation efforts. See Exhibit A at 29:12 ­ 31:24 ("It seemed like [Green] did the standard things that seemed reasonable"). For example, Lillydahl testified with respect to Wentland: Q: But you didn't render any opinions on the reasonableness or lack thereof of [Wentland's] job methods; is that right? My opinion would be that those are the reasonable and standard things to do to look for a job. Did you have any opinion about whether [Wentland] could have done more? I didn't ask [Wentland] about the quantity of each of these things or how many times he went to the job search center. I just know that those were the methods he used. So it's possible if you learned more information that you might determine he didn't engage sufficiently in his job search? I wasn't asked to do an analysis of his mitigation. I'm just saying that the things he did were standard things. And just off the top of my head as a labor economist, my opinion would be that those were reasonable, but I'm not saying that I was asked to look at mitigation. So that is not something I would put in my report.

A:

Q: A:

Q:

A:

Exhibit A at 45:9 ­ 46:21 (emphasis added).

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Lillydahl should not be permitted to offer any opinion as to either Plaintiffs' job qualifications, the availability of comparable jobs in the relevant job market, or the reasonableness of Plaintiffs' job search efforts because she is not qualified to do so. Because Plaintiffs have failed to meet their burden of proof to show that Lillydahl is qualified to offer the opinions she renders, her testimony in these areas must be excluded.

III.

Lillydahl's Opinion Regarding Lost Wages Is Unreliable And Unhelpful. Absent any analysis of Plaintiff's vocational capabilities, availability of replacement jobs

in the relevant labor market, or the reasonableness of Plaintiffs' mitigation efforts, Lillydahl's testimony regarding the amount of Plaintiffs' damages should be excluded because it is not reliable or helpful to the trier of fact. First, Lillydahl's opinion regarding the amount of Plaintiffs' lost wages should be excluded because it is unreliable. In determining whether an expert's testimony is reliable, the trial court must assess the "reasoning and methodology underlying the expert's opinion." Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003). "Daubert's gatekeeping requirement . . . makes certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of the expert in the relevant field." Kumho Tire, 526 U.S. at 152. An expert's testimony must be based on actual knowledge as opposed to subjective belief or speculation. Dodge, 328 F.3d at 1222. Here, Lillydahl's opinion regarding Plaintiffs' economic damages is unreliable because it is based on faulty (or missing) factual foundations. Lillydahl calculates Plaintiffs' economic loss and attributes it to Sears without performing any analysis of what jobs Plaintiffs were qualified

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to perform, whether there were available jobs in the labor market for which Plaintiffs were qualified, whether the available jobs in the labor market were comparable, whether Plaintiffs made reasonable efforts to obtain replacement employment, whether Plaintiffs turned down any job opportunities, or the effect that Plaintiffs' personal decisions such as voluntarily resigning from replacement employment had on their economic damages. Failing to consider any of these factors renders Lillydahl's conclusions regarding Plaintiffs' economic damages inherently unreliable. Because Plaintiffs have a legal duty to reasonably mitigate, no damages assessment can be accurate without consideration of these key mitigation factors. In addition, Lillydahl's testimony should be excluded because her simplistic calculation of lost wages without consideration of any vocational or mitigation factors it is not likely to be helpful to the Court.1 Expert testimony is helpful if it is relevant and not within the trier of fact's common knowledge or experience. U.S. v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006). Here, Lillydahl's testimony is not likely to be helpful to the Court. Absent any consideration of the vocational or economic factors affecting Plaintiffs' damages, Lillydahl's opinion is nothing more than a math problem that can be performed by the Court itself. CONCLUSION For all the foregoing reasons, Sears respectfully requests that the Court (1) exclude Lillydahl's testimony in its entirety, or (2) in the alternative, excludes any testimony by Lillydahl regarding Plaintiffs' vocational abilities or mitigation efforts.

1

Because Lillydahl's testimony concerns back and front pay, the Court, not the jury, is the trier of fact. (Cite)

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Dated this 23rd day of October, 2006

s/Shannon M. Henderson Shannon M. Henderson HALE FRIESEN, LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 [email protected]

Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on the 23rd day of October, 2006, I electronically filed the foregoing DEFENDANT'S MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS with the Clerk of Court using the CM/ECF system. Diane S. King KING & GREISEN, LLP Email: [email protected]

s/Patricia Foos Patricia Foos HALE FRIESEN, LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 E-mail: [email protected]

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