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Ernst v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

May 5, 2014

STACEY ERNST, et al., Plaintiffs,

Page 1006

For Stacy Ernst, Michelle Lahalih, Dawn Hoard, Irene Res Puallano, Katherine Kean, Plaintiffs: Susan Patricia Malone, LEAD ATTORNEY, Attorney at Law, Chicago, IL; David Borgen, Lin Yee Chan, PRO HAC VICE, Goldstein, Borgen, Dardarian & Ho, Oakland, CA; Marni J. Willenson, Willenson Law, LLC, Chicago, IL; Teresa Demchak, PRO HAC VICE, Goldstein Demchak Baller Borgen & Dardarian, Oakland, CA.

For City of Chicago, A municipal corporation, Defendant: Timothy L. Swabb, LEAD ATTORNEY, Kathleen Veronica Crowe, City of Chicago, Law Department, Corporation Counsel, Chicago, IL; Alison D. Alvarez, City of Chicago, Department of Law, Employment Litigation Division, Chicago, IL; Anne Katherine Preston, City of Chicago (30 N LS), Chicago, IL; Cary E. Donham, Shefsky & Froelich Ltd, Chicago, IL; Valerie Depies Harper, City of Chicago, Law Department, Chicago, IL.


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Jeffrey Cole United States Magistrate Judge.

The plaintiffs are five women who applied for paramedic positions with the Chicago Fire Department (" CFD" ) beginning in 2004. All five met the requirements for hire and were placed on the hiring eligibility list. Each took the CFD's physical ability test (PAT) and were informed they did not pass and, as a result, were removed from the hiring eligibility list. Each filed charges with the Equal Employment Opportunity Commission and Illinois Department of Human Rights and, subsequently, joined in this lawsuit against the City on August 1, 2008. Plaintiffs' complaint alleges that the PAT adversely impacts female applicants, is not job-related for the paramedic position, and violates Title VII of the Civil Rights Act of 1964

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(" Title VII" ); 42 U.S.C. § § 2000e et seq. [1]

The City has moved to exclude the expert testimony of both of the plaintiffs' experts in this case, Dr. William McArdle and Dr. Michael Campion. Although this is the City's first attack on Dr. McArdle or Dr. Campion, the reports at issue here have been discussed and considered on more than one occasion, including during a lengthy oral argument on the defendant's motions on February 28, 2014. [Dkt. #402]; see also Ernst v. City of Chicago, 2013 WL 4804837 (N.D.Ill. 2013). This time around, the City seeks to bar both expert witnesses from testifying under Fed.R.Evid. 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).[2]

Rule 702 governs the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education [to] testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Under the Rule, the trial judge acts as a " gatekeeper" to ensure that any and all expert testimony or evidence admitted " is not only relevant, but reliable." Daubert, 509 U.S. at 589. The insistence on reliability helps to ensure the integrity of the judicial process, Mid-- State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1340 (7th Cir.1989), and is of such transcendent importance that judges can act sua sponte to prohibit testimony that does not pass muster under Daubert. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1094 (7th Cir.1994).

While Daubert dealt with scientific testimony, its principles apply equally to non-scientific fields. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). And so, whatever the nature of the witness's expertise, Rule 702 " establishes a standard of evidentiary reliability," " requires a valid... connection to the pertinent inquiry as a precondition to admissibility," and mandates that the testimony have " a reliable basis in the knowledge and experience of [the relevant] discipline." Kumho Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 590, 592).

Trial court judges have " considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co., 526 U.S. at 152; American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 816 (7th Cir. 2010)(" We give the court great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable . . . ." ). But it is primarily a question of the reliability of the methodology employed by an expert, not the quality of the data used in

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applying the methodology or the conclusions produced. " The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th ...

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