Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, REYNEL CARMONA, SILVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLDS, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL & LUIS OCHOA, Plaintiffs, v. SWIFT & COMPANY, Defendant. ______________________________________________________________________________ DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE CERTAIN EXPERT TESTIMONY OF GAIL PICKETT ______________________________________________________________________________ Swift & Company ("Defendant") respectfully submits this Reply in Support of Its Motion In Limine To Exclude Expert Testimony of Gail Pickett: INTRODUCTION Defendant filed its Motion in Limine to Exclude Expert Testimony of Gail Pickett ("Defendant's Motion") seeking to exclude consideration of reports and testimony from

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Plaintiffs' vocational "expert" concerning their alleged substantial limitation in the major life activity of working. In response to Defendant's arguments that Ms. Pickett's reports fail to meet the standards of admissibility for expert testimony, Plaintiffs merely set forth a summary of Ms. Pickett's conclusions regarding each Plaintiff and make the following arguments: (1) the "national economy" is the reasonable geographic area to which each Plaintiff has access and which Ms. Pickett took into account based on the fact that two Plaintiffs moved out of state and one applied for work in Kansas; (2) in addition to the strength classifications contained in the Dictionary of Occupational Titles,1 Ms. Pickett utilized her training, education and experience2 "as to particular plaintiff's restrictions significantly restrict [sic] his or her access to various classes of jobs"; and (3) Ms. Pickett considered "the appropriate factors that a court may consider" by considering each plaintiff's "work history, restrictions, education, and the jobs within the national economy, the impact of the restrictions upon access to the jobs, and in various plaintiff's that particular types of jobs" [sic]. (Plaintiffs' Response at 2-8.) Plaintiffs do not contend that the standard of admissibility for Ms. Pickett's testimony, as set forth in Defendant's Motion, is in any way incorrect.

The Dictionary of Occupational Titles (DOT) is a U.S. Department of Labor publication that consists of an alphabetical index of occupational titles and standardized information for occupations in the U.S. labor market. Although not explained anywhere in Ms. Pickett's reports, she considers only the "Physical Demands ­ Strength Rating" component of the DOT, which "reflects the estimated overall strength requirement of the job," and is "expressed by one of five terms: Sedentary, Light, Medium, Heavy and Very Heavy." Dictionary of Occupational Titles (4th ed., Rev. 1991), Appendix C. 2 Plaintiffs provide no description of Ms. Pickett's "training, education and experience" to establish that she should be qualified as an "expert."

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ARGUMENT I. MS. PICKETT'S REPORTS DO NOT MEET THE STANDARDS FOR ADMISSIBILITY UNDER FED. R. EVID. 702 OR DAUBERT AND MUST BE EXCLUDED FROM EVIDENCE. As set forth in Defendant's Motion, Ms. Pickett's testimony is inadmissible under Federal Rule of Evidence 702 and the relevant Daubert analysis. To be admissible to assist the trier of fact, the proffered expert testimony must be both reliable and relevant. FED. R. EVID. 702; Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citations omitted); accord Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 592 (1993). To be relevant, expert testimony must assist the trier of fact in understanding the evidence or determining a fact. EEOC v. Cambridge Indus., No. 98 C 4413, 2000 U.S. Dist. LEXIS 14753, at *11 (D. Ill. 2000) (citing United States v. Hall, 165 F.3d 1095, 1101-02 (7th Cir. 1999)); accord Daubert, 509 U.S. at 591 (to be admissible, evidence must be properly tied to facts at issue). If an expert's testimony is merely conclusory, it fails to raise a genuine issue of material fact and can be rejected at the summary judgment phase. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1247 (10th Cir. 1999). In the specific context of this case, for an expert's report to be considered relevant on the issue of a substantial limitation in the major life activity of working, it should include information regarding the number and type of jobs in the geographical area to which the plaintiff has reasonable access; it is not sufficient to simply outline the plaintiff's educational qualifications and current job position. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 796 (9th Cir. 2001) (plaintiff "failed to present evidence of the jobs from which she was precluded and of the relevant labor markets for that class of jobs" and thus presented no triable

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issue of material fact); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994) (citing 29 C.F.R. § 1630.2(j)(3)(ii)).3 A. Although Ms. Pickett References the "National Economy" in Selected Reports, This Is Not Sufficient to Establish the Geographical Area to Which Any Plaintiff Has Reasonable Access.

Plaintiffs' Response claims that Ms. Pickett took into account "each Plaintiff's access to employment within the national economy." (Plaintiffs' Response at 2.) However, Ms. Pickett merely mentions, without explanation, the "national economy," "United States economy" or "United States labor market" in eleven out of twenty-six reports.4 Even in those eleven reports, Ms. Pickett fails to explain what the terms mean, or the basis for her belief that those Plaintiffs have reasonable access to a nationwide geographical area. Despite the fact that the majority of the reports do not mention the national economy, or any other particular job market for that matter, and assuming that Ms. Pickett was, in fact, "considering" the national economy while evaluating each Plaintiff, her reports still do not contain sufficient analysis and information to be relevant and admissible on this point. The relevant geographical area is the one to which the plaintiffs have reasonable access; in most cases, including this one, the relevant area is the local employment market in which the plaintiff resides. See Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 796 n3 (9th Cir.

As set forth in the relevant regulations, the following factors should be considered in determining whether an individual is significantly restricted in the ability to perform a class of jobs or a broad range of jobs: (1) the geographical area to which the individual has reasonable access; (2) the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills, or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (3) the job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographic area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). 29 C.F.R. § 1630.2(j)(3)(ii). 4 Plaintiff's response indicates Ms. Pickett uses the term "national economy" or similar language in reports for Plaintiffs Arenivar, Campos, Estevez, Flores, Gallegos, Martinez, Meza, Pacheco, Reyes, Rosales and Tovar.

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2001) (citing Duncan v. Washington Metro. Transit Auth., 240 F.3d 1110 (D.C. Cir. 2001) (en banc) ("We hold that the ADA requires a plaintiff . . . to produce some evidence of the number and types of jobs in the local employment market in order to show that he is disqualified from a substantial class or broad range of such jobs.") (emphasis added)); see also Witter v. Delta Air Lines, 138 F.3d 1366, 1370 (11th Cir. 1998) ("A `class of jobs' consists of jobs in the geographic area in which the plaintiff resides that utilize `similar training, knowledge, skills or abilities.'" (emphasis added)). Here in particular, the "national" job market is not an appropriate geographical area because neither Plaintiffs nor Ms. Pickett have made any showing that it is reasonable to believe any of the Plaintiffs actually have access to this broad area. In fact, the available evidence demonstrates exactly the opposite. The only evidence offered by Plaintiffs to support their position is that Plaintiffs Rangel and Reyes moved out of state "to seek employment opportunities," and Plaintiff Martinez applied for work in Kansas. (Plaintiffs' Response at 2.) Yet Ms. Pickett notes in her report only that Plaintiff Reyes "moved . . . to Texas to live with her sister" and "plans to remain living in Texas." (Pickett Report on Laura Reyes at 4-5, attached as Ex. E to Defendant's Motion.) There is no mention that Ms. Reyes moved to Texas to seek employment. In fact, she lived in Texas previously, and she has not found employment in Texas. (Id.) Likewise, Ms. Pickett notes in her report concerning Plaintiff Rangel only that "he resides in Los Angeles, California." (Pickett Report on Ignacio Rangel at 1, attached as Ex. E to Defendant's Motion.) There is no mention that Mr. Rangel moved to Los Angeles to seek employment. In fact, he lived in Los Angeles prior to his employment with Swift, and has since returned to Greeley where he is currently employed by Swift. (Id.) Concerning Mr. Martinez

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applying for work in Kansas, this fact is not mentioned in Ms. Pickett's report at all. (Pickett Report on Jorge Martinez, attached as Ex. E to Defendant's Motion.) Thus, it is reasonable to conclude that she either had no knowledge of this information or did not rely on it. With regard to the remaining 23 plaintiffs, there is absolutely no evidence to support the position that they have reasonable access to any geographical area outside of the city or county in which they reside. Indeed, most of the Plaintiffs specifically told Ms. Pickett that they had no plans to move from northeastern Colorado, and this information is actually included in her reports.5 In addition, when asked what jobs they had applied for since being placed on medical leave, Ms. Pickett's reports consistently show that Plaintiffs applied for positions in and around northeastern Colorado. The reports further recognize that most Plaintiffs have worked in northeastern Colorado before and since their employment with Swift. Finally, most of the plaintiffs read only Spanish,6 speak only Spanish,7and write little or no English.8 Ms. Pickett has not claimed or demonstrated that the individual Plaintiffs have computer skills, access to the internet or any other means or opportunity of conducting a nationwide job search. All of these factors restrict the geographical area to which these Plaintiffs reasonably have access.

Ms. Pickett's reports indicate that Plaintiffs Arenivar, Barrios, Campos, Cruz, Estevez, Estrada, Flores, McReynolds, Meza, Ochoa, Pacheco, Pineda, Rosales, Tovar and Zubia specifically told Ms. Pickett they planned to remain living in or near Greeley, Colorado. Despite this information, Ms. Pickett expressly stated her opinions in terms of the "national economy" for Plaintiffs Arenivar, Campos, Estevez, Flores, Meza, Pacheco, Rosales and Tovar. 6 Ms. Pickett's reports indicate Plaintiffs Alva, Arras, Arenivar, Barrios, Carmona, Coreas, Estevez, McReynolds, Meza, Pacheco, Pineda, Rangel and Zubia read little or no English. 7 Ms. Pickett's reports indicate Plaintiffs Alva, Arras, Barrios, Carmona, Coreas, Cruz, Estevez, Estrada, Flores, McReynolds, Meza, Pacheco, Pineda, Rangel, Zubia, Zunun speak little to no English. 8 Ms. Pickett's reports indicate Plaintiffs Alva, Arras, Arenivar, Barrios, Campos, Carmona, Coreas, Estevez, Estrada, Flores, McReynolds, Meza, Pacheco, Pineda, Rangel, Rosales and Zubia write little to no English.

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Thus, Ms. Pickett's reports are not relevant or reliable on the issue of the geographical area to which the Plaintiffs have reasonable access and must be excluded from consideration on summary judgment and/or at trial. B. Ms. Pickett's Reports Fail to Provide Any Information Regarding the Number and Types of Jobs Available In Any Accessible Job Market

Ms. Pickett's reports fail to provide any meaningful information regarding the number and types of jobs available in any identified geographical area, national or otherwise. For an expert's report to be considered relevant, it must include information regarding the number and type of jobs in the geographical area to which the plaintiff has reasonable access. 29 C.F.R. §§1630.2(j)(3)(ii); Thornton v. McClatchy Newspapers, Inc., 261 F.3d at 796; see also Bolton v. Scrivner, Inc., 36 F.3d at 944. Determination of the number and types of jobs available in the accessible geographic area is central to any determination concerning the Plaintiffs' access to or exclusion from such jobs. Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994) Lewis v. Indep. Sch. Dist. No. I-89 of Okla., 201 F.3d 448, 448 (10th Cir. 1999). None of Ms. Pickett's reports contains any discussion regarding the number of jobs, in the national economy or otherwise, from which the Plaintiffs may be excluded due to their impairments. In only seven of her twenty-six reports does Ms. Pickett go so far as to identify some general types of jobs, such as construction, janitorial/cleaning, agriculture, landscape, kitchen worker, production, etc., from which a particular Plaintiff is supposedly precluded.9

Ms. Pickett's conclusions here are particularly suspect as several of the Plaintiffs are actually currently employed in exactly the types of jobs which she claims they can no longer perform. For instance, Ms. Pickett claims Plaintiff Arenivar has lost access to construction jobs within the national economy. (Plaintiffs' Response at 3.) Yet, Mr. Arenivar worked for a construction company while on medical leave of absence from Swift and was able to clean, install screws, drive a forklift, cut up pieces of wood with a saw, use a drill and hammer, and lift up to 70 pounds. (See Defendant's Brief In Support of Motion for Summary Judgment Concerning Jesus Arenivar at 4.) Similarly, while Ms. Pickett claims Plaintiff McReynolds has lost the ability to work in production jobs (Plaintiffs' Response

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(Plaintiffs' Response at 2-8.) Even in those reports, however, Ms. Pickett never analyzes the number of such jobs available in the relevant geographic area, or the number of those positions from which Plaintiffs are disqualified due to their impairments. She merely concludes that Plaintiffs have "lost access." Most of Ms. Pickett's reports consist largely of conclusory statements such as: As a result of her restrictions, Maria Alva lost all access to the very heavy, heavy, and medium classes of jobs. This represents a loss of `access to a broad range and class of jobs due to her inability to lift, reach above shoulder with her left hand on more than an occasional basis, and to handle items as [sic] a frequent basis.' (Plaintiffs' Response at 2-3.) As addressed in Defendant's Motion, these types of conclusory statements, which rely solely on vague categorizations, lack comparison to the average person's skills and abilities, and merely mimic the language of the applicable regulations, are insufficient to support an "expert" conclusion concerning access to or exclusion from a class of jobs or a broad range of jobs. To the large degree that Ms. Pickett's opinions consist of her conclusions that Plaintiffs are variously restricted from performing "very heavy, heavy, medium, light, or sedentary" categories of work, such conclusions in no way establish a substantial limitation of the ability to work. See e.g. Gibbs v. St. Anthony Hosp., No. 96-6063, 107 F.3d 20 (10th Cir. Feb 12, 1997) (evidence of restriction to light and selected medium category jobs failed to provide any comparative evidence relating to the capabilities of the average person and thus, failed to establish that the plaintiff was substantially limited in her ability to work) (unpublished opinion attached to Defendant's Motion as Ex. I); EEOC v. Rockwell Int'l Corp., 60 F. Supp. 2d 791,
at 5), Ms. McReynolds was recalled to work by Swift in April 2005 and is currently employed in a production job. (See Defendant's Brief In Support of Motion for Summary Judgment Concerning Maria McReynolds at 4.)

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796-98 (N.D. Ill. 1999); Zarzycki v. United Tech. Corp., 30 F. Supp. 2d 283, 290-292 (D. Conn. 1998). Courts have expressly held that complete or partial exclusion from sedentary, light, medium, heavy and/or very heavy work, as defined by the Dictionary of Occupational Titles, does not necessarily establish exclusion from a class of jobs or a broad range of jobs. See Burgard v. Super Valu Holdings, Inc., No. 96-1199, 1997 U.S. App. LEXIS 12228, at *5-6 (10th Cir. May 27, 1997) (unpublished opinion attached to Defendant's Motion as Ex. J); Lucarelli v. Consolidated Rail Corp., No. 98-CV-5904, 2002 U.S. Dist. LEXIS 12201, at *22 (E.D. Pa. Mar. 26, 2002) (unpublished opinion attached to Defendant's Motion as Ex. K); Wicks v. Riley County Bd. of County Commissioners, 125 F. Supp. 2d 1282, 1292 (D. Kan. 2000). Ms. Pickett's opinions that Plaintiffs are substantially limited in their ability to work appears to rest solely on her conclusory statements that various Plaintiffs have "lost access" to jobs within the sedentary, light, medium, heavy or very heavy categories of work. As she utterly failed to analyze the specific numbers and types of jobs utilizing similar training, skills, knowledge or abilities within the geographical area to which the Plaintiffs have access, her reports are neither relevant nor reliable and must be excluded from evidence. CONCLUSION Contrary to Plaintiffs' claim that Ms. Pickett "considered the appropriate factors," her reports provide no evidence that she indeed did so. Thus, Ms. Pickett's reports are neither relevant nor reliable on the issue of whether Plaintiffs are substantially limited in the major life activity of working and must be excluded from evidence.

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Respectfully submitted this 4th day of May, 2006.

s/ Heather Fox Vickles W. V. Bernie Siebert Heather Fox Vickles SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Tel: (303) 297-2900 Fax: (303) 298-0940 [email protected] [email protected] Stuart B. Johnston, Jr. VINSON & ELKINS, L.L.P. 3700 Trammell Crow Center 2001 Ross Avenue Dallas, TX 75201-2975 Tel: (214) 220-7842 Fax: (214) 999-7842 [email protected] Attorneys for Defendant Swift & Company

CERTIFICATE OF SERVICE I hereby certify that on the 4th day of May, 2006, a true and correct copy of the foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY OF GAIL PICKETT was electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address: Britton Morrell at [email protected]

s/ Fran Aragon Eaves

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