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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. DIAL CORP.

United States District Court, Northern District of Illinois, Eastern Division


April 16, 2003

EQUAL EMPLOYMENT OPPORTUNITY COMMISISON, PLAINTIFF,
v.
DIAL CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Warren K. Urbom, Senior United States District Judge

MEMORANDUM AND ORDER ON EEOC'S MOTION IN LIMINE TO BAR TESTIMONY OF DIAL'S EXPERT BARBARA GUTEK
The plaintiff has moved in limine to bar the testimony of the defendant's expert, Dr. Barbara Gutek, Ph.D., on the ground that Dr. Gutek's, expert opinions address evidence that has been ruled inadmissible. For the following reasons, the plaintiff's motion will be granted in part.

I. STANDARD OF REVIEW

Rule 26(a)(2) of the Federal Rules of Civil procedure requires parties to disclose the identity any expert witnesses who may be used at trial. See FED. R. CIV. P. 26(a)(2)(A). In addition, the rule requires the production of a written report that sets forth, inter alia, "a complete statement of all opinions to be expressed and the basis and reasons therefor." FED. R. CIV. P. 26(a)(2)(B). These rules are meant to "allow[] both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case." Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000) (citing FED. R. CIV. P. 26(a)(2) advisory committee's note). Pursuant to Rule 37, "A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions." FED. R. CIV. P. 37(c)(1). "The sanction of exclusion is `automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless.'" NutraSweet Company v. X-L Engineering Company, 227 F.3d 776, 785-86 (7th Cir. 2000) (quoting Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996)). However, the district court is given "broad discretion in determining whether a violation [of Rule 26(a)] is justified or harmless." Miksis v. Howard, 106 F.3d 754, 760 (7th Cir. 1997).

II. ANALYSIS

The plaintiff argues that Dr. Gutek must not be allowed to testify at trial because her testimony is limited to the opinions expressed in her Rule 26 report, see FED. R. CIV. P. 26(a)(2)(B) and 37(c)(1), and all of the opinions set forth in that report are no longer relevant. According to the plaintiff, Dr. Gutek's report (see Def.'s Mot. in Limine to Exclude Pl.'s Expert Testimony, Ex. D, "Report of Dr. Barbara A. Gutek" (hereinafter "Gutek Report")) discusses only Dr. Gutek's opinions regarding survey research methodology, and, since I have already determined that the plaintiff's expert, Dr. Fitzgerald, will not be allowed to testify as to her survey, its results, and any conclusions based upon those results (see Mem. and Order on Def.'s Mot. in Limine to Exclude Pl.'s Expert Testimony), the plaintiff claims that "none of the opinions [Dr. Gutek] disclosed [in her report] are admissible." (Pl.'s Mot. in Limine to Bar Testimony of Dial's Expert Barbara Gutek (hereinafter "Pl.'s Mot.") ¶ 3.) The plaintiff also points out that Dr. Fitzgerald will only be allowed to testify regarding her scientific knowledge concerning sexual harassment in work organizations, and argues that Dr. Gutek's report fails to address this topic. (See Pl.'s Mot. ¶¶ 4-7.)

In response, the defendant first acknowledges that it "only plans to call Dr. Gutek if her testimony would be relevant to rebut the testimony of Dr. Fitzgerald." (Def.'s Mem. in Opp'n to EEOC's Mot. in Limine to Bar Testimony of Dial's Expert Barbara Gutek (hereinafter "Def.'s Response") at 1.)*fn1 Therefore, it appears that since Dr. Fitzgerald will be allowed to testify only about her opinions set forth in section II of her report (see Mem. and Order on Def.'s Mot. in Limine to Exclude Pl.'s Expert Testimony), Dr. Gutek's opinions are now relevant only insofar as they address matters discussed in section II of Fitzgerald's report.

The defendant has not referred me to those portions of Dr. Gutek's report that rebut section II of Fitzgerald's report. Instead, the defendant argues that Dr. Gutek offered certain opinions that are admissible because they extend beyond a mere critique of Dr. Fitzgerald's survey. (See Def.'s Response at 1-2.) Specifically, the defendant claims that, "[i]n her report, Dr. Gutek opines on Dial's sexual harassment policies and procedures, rebuts Dr. Fitzgerald's opinion that Dial's policies and procedures are inadequate, and concludes that Dial's policies and procedures are `consistent with good policies in other companies.'" (Def.'s Response at 1-2 (citing Gutek Report at 60-63).) The defendant also argues that Dr. Gutek should be allowed to criticize "Dr. Fitzgerald's opinions to the extent they are based on unreliable information derived from interviews with class members and/or a review of class member depositions." (Def.'s Response at 2 (citing Gutek Report at 64-68).) I will examine the portions of Dr. Gutek's report identified by the defendant in order to determine whether or not they are relevant to rebut the admissible portion of Dr. Fitzgerald's report.

On page 60 of her report, Dr. Gutek opined that "[t]he Dial Corporation has done a good job of informing its employees about its sexual harassment policy." (Gutek Report at 60; see also id. at 61 ("In general, the survey results show that Dial has improved substantially in informing employees about its sexual harassment policy and the figures today are higher than I have seen in any other study." (footnote omitted)).) However, this opinion is based upon a "Work Environment Survey" completed by Dial employees, (see id. at 60-61), and I have already ruled that this aspect of Dr. Fitzgerald's report will not be discussed at trial, (see Men-i. and Order on Def.'s Mot. in Limine to Exclude Pl.'s Expert Testimony at 14 (holding that "subjects, findings, and opinions developed and expressed in sections I, III, IV, and V of the Expert Report of Louise F. Fitzgerald, PhD, shall not be received into evidence in this case")). Therefore, Dr. Gutek's opinions regarding Dial's efforts to inform its employees of the sexual harassment policy will not be relevant to rebut Dr. Fitzgerald's testimony.

Similarly, it is apparent that the opinions set forth under the subheading, "Effective Policies," which begins on page 62 of Gutek's report, and under the subheading "Conclusions," which appears on page 63 of the report, also merely rebut a section of the Fitzgerald report that will not be received into evidence at trial. (Compare Mem. and Order on Def.'s Mot. in Limine to Exclude Pl.'s Expert Testimony with Gutek Report at 62-63 and Def.'s Mem. of Law in Supp. of Its Mot. in Limine to Exclude Pl.'s Expert Testimony, Ex. A., Fitzgerald Report at section IV.) I am therefore not persuaded that Dr. Gutek should be allowed to testify regarding these opinions.

Finally, on pages 64-68 of her report, Dr. Gutek critiques "other aspects" of Dr. Fitzgerald's report and Dr. Fitzgerald's final conclusions. (Gutek Report at 64; see also id. at 64-68.) Since I have already determined that the "other aspects" of Fitzgerald's report referred to by Dr. Gutek are inadmissible, along with all four of Dr. Fitzgerald's final conclusions, I cannot agree with the defendant that Dr. Gutek should be allowed to testify to the opinions set forth on pages 64-68 of her report. (Compare Mem. and Order on Def.'s Mot. in Limine to Exclude Pl.'s Expert Testimony with Gutek Report at 64-66 and Fitzgerald Report at section IV-V.)

In sum, since the portions of Dr. Gutek's report cited by the defendant in its response memorandum merely rebut portions of Dr. Fitzgerald's report that have already been ruled inadmissible, I find that the subject matter contained within those portions of the report will not be received into evidence at trial. Nevertheless, it seems to me that Dr. Gutek's report does contain certain opinions that are relevant to rebut Dr. Fitzgerald's anticipated testimony. Specifically, I note Dr. Gutek's observation that "[p]art II [of Dr. Fitzgerald's report] is [a] review of the literature, in which she relies mostly on her own research using an instrument called the Sexual Experiences Questionnaire (SEQ) to measure sexual harassment." (Gutek Report at 3-4.) Dr. Gutek then provides a detailed explanation of the reliability problems inherent in the "SEQ," and it is noteworthy that Dr. Gutek's criticisms of the "SEQ" are not limited to the particular version of the "SEQ" that was used to survey the present and former employees at Dial. (See id. at 14-32.) Therefore, to the extent that Dr. Fitzgerald testifies to her scientific knowledge concerning sexual harassment in work organizations and to the extent that Dr. Fitzgerald's knowledge is based upon studies that have employed the "SEQ," Dr. Gutek's criticisms of the "SEQ" may be received into evidence.*fn2

IT IS ORDERED that:

1. the opinions expressed in Dr. Gutek's report concerning the Sexual Experiences Questionnaire may be received into evidence to rebut the testimony of Dr. Fitzgerald to the extent that Dr. Fitzgerald's testimony is based upon research that employed the Sexual Experiences Questionnaire; and
2. the EEOC's Motion in Limine to Bar Testimony of Dial's Expert Barbara Gutek, filing 331, is otherwise granted.


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