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Martin v. F.E. Moran, Inc.

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

March 24, 2017

Kenneth Martin, et al., Plaintiff,
F.E. Moran, Inc., Fire Protection of Northern Illinois, Defendant.


          Virginia M. Kendall, U.S. District Court Judge

         Kenneth Martin, Aaron Truesdell, and Johnny Tejada (Plaintiffs) brought claims of racial discrimination against their former employer, Fire Protection of Northern Illinois (FPN). Plaintiffs now propose experts to support their theory that African American employees and other minority individuals received disparate treatment resulting in fewer employment opportunities and a greater incidence of termination. First, Plaintiffs propose Destiny Perry, JD/PhD, to present sociological evidence that pervasive discriminatory attitudes in the workplace can lead to adverse employment actions. Additionally, Plaintiffs propose William Bridges, PhD[1], to present a sociological analysis that would support claims of racial discrimination. FPN moves to strike both experts' reports and bar their testimony. FPN has proposed Jonathan Guryan, PhD[2], to present labor and employment statistics that rebut Dr. Bridges' testimony. Plaintiffs move to strike Dr. Guryan's report and bar his testimony. For the reasons discussed below, the Court will permit the three experts to testify at trial.


         “The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (citing Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006)). “The purpose of [the Daubert] inquiry is to vet the proposed testimony under Rule 702's requirements that it be ‘based on sufficient facts or data, ' use ‘reliable principles and methods, ' and ‘reliably appl[y] the principles and methods to the facts of the case.'” Lapsey v. Xtek, Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting Fed.R.Evid. 702). In evaluating whether an expert's proposed testimony meets the Daubert standard, the Court “scrutinize[s] the proposed expert witness testimony to determine if it has ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'” Id. at 805 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 152 (1999)). “The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard” by a preponderance of the evidence. Lewis, 561 F.3d at 705; see also Fed. R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified . . . .”); see also Fed. R. Evid. 702 advisory committee's note to 2000 Amendment.

         Whether to admit expert testimony rests within the wide discretion of the district court. See Gen. Elec. v. Joiner, 522 U.S. 136, 142 (1997); Lapsey, 689 F.3d at 810. Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may 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. Fed.R.Evid. 702; see also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011). While, in a bench trial, “the judge need not conduct a Daubert (or Rule 702) analysis before presentation of the evidence, ” she “must determine admissibility at some point.” Kansas City S. Ry. Co. v. Sny Island Levee Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016) (citing Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010)); see also Estate of Stuller v. United States, 811 F.3d 890, 895 n.3 (7th Cir. 2016) (citing In re Salem, 465 F.3d 767, 777 (7th Cir.2006)) (“[W]here the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.”).

         In assessing a witness's qualifications, the issue is not whether the witness is qualified in general, but “whether his ‘qualifications provide a foundation for [him] to answer a specific question.'” Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir.1994)). Additionally, in assessing the reliability of an expert's testimony, the court primarily reviews the “validity of the methodology employed by an expert, not the quality of the data used in applying the methodology or the conclusions produced.” Manpower, Inc. v. Ins. Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir. 2013); see also Metavante, 619 F.3d at 761 (noting that Rule 702 requires “that the expert explain the ‘methodologies and principles' that support his opinion”). As such, “criticisms do not go to admissibility but to the appropriate weight that should be accorded to the evidence” such that “[d]etermination on admissibility should not supplant the adversarial process; shaky expert testimony may be admissible, assailable by its opponents through cross-examination.” Metavante, 619 F.3d at 762 (quoting Gayton, 593 F.3d at 616).


         Plaintiffs seek to offer expert testimony from Destiny Peery, Ph.D. Peery will testify on the topics of stereotyping, aversive racism, social tuning, and implicit bias. (Dkt. 171 at 2.) Peery's opinions and testimony are based on her review of the relevant literature, her experience as a social psychologist, and a study of emails and deposition testimony produced by FPN during discovery. (Dkt. 171 at 7.) The purpose of her testimony is to describe the context in which FPN made employment decisions and to rebut FPN's proffered legitimate business reasons as pretextual. (Dkt. 171 at 3.)

         Plaintiffs also seek to present William Bridges, Ph.D., as an expert witness who will testify as to discrepancies between white sprinkler fitters and black sprinkler fitters in FPN's employment practices. (Dkt. 242 at 1-2.) Bridges' opinions and testimony are based on a statistical analysis of data sets provided by FPN and Sprinkler Fitters Local 281 (Local 281). (Dkt. 242 at 1.) The purpose of his expert testimony is to offer probative evidence of disparate treatment of black sprinkler fitters. (Dkt. 242 at 3.)

         FPN seeks to present Jonathan Guryan, Ph.D., as a rebuttal expert witness who will testify to deficiencies in Bridges' statistical analysis. (Dkt. 252 at 5.) Guryan's opinions and testimony are based on his own statistical analysis of the data produced during discovery and his experience as a labor economist. (Id.) The purpose of his expert testimony is to show that Bridges' work is not scientifically reliable or proper as a matter of social science and to offer alternative explanations for FPN's employment actions. (Id. at 5, 7.)

         I. Dr. Destiny Peery

         Peery is an Assistant Professor of Law at Northwestern University, where she has been a research faculty member since 2014. (Dkt. 160-A at 1.) She received both a J.D. and a Ph.D. in social psychology from Northwestern University. (Id.) Peery's academic areas of expertise include racial identity, racial categorization and perceptions of race, stereotyping, prejudice, and discrimination. (Id.) She has published her research in peer-reviewed psychology journals and law journals. (Id.) Peery has also conducted trainings on implicit bias for law practitioners and has taught courses in discrimination law, race, and social science. (Id.) Relying on her experience, research in the field, and analysis of statements produced in discovery, Peery intends to provide the following opinions: (1) there is evidence of explicit racial stereotypes at FPN; (2) there is evidence of aversive racism in the form of anti-affirmative action sentiment at FPN; (3) FPN management tolerated and/or cultivated a discriminatory work environment and created an atmosphere influenced by implicit bias; (4) FPN employment decisions and processes are prone to the influence of implicit bias; and (5) implicit bias can lead to adverse employment action. (Id. at 3.) FPN moves to strike Peery's reports and bar her testimony based on lack of qualification as an expert and inadmissibility of her opinions.

         A. Qualifications

         Peery is qualified under Rule 702. Peery's extensive background in social psychology as it relates to legal doctrine and practice-evidenced by peer-reviewed publications, classroom teaching, and invitations to speak at the Seventh Circuit Bar Association-is sufficient to qualify her as an expert in this subset of social psychology. Contrary to FPN's assertions, Peery is not offering expert testimony on FPN's established policies or procedures, and therefore does not require any background in human resources or corporate management. (Dkt. 160 at 13.) Instead, her testimony relates to the psychology of a corporate culture of discrimination and people's susceptibility to implicit bias. Her background in social psychology qualifies her to give these opinions.

         B. Reliability and relevance of Peery's report

         Peery explains that her methodology consists of employing “her professional background and experience to identify and evaluate the characteristics and factors in this case, as supported by general psychological principles from the literature, that bear on the question of whether implicit bias is relevant to understanding the alleged race discrimination in this case.” (Dkt. 160-A at 2.) She supports her conclusions in both the record of the case and external research. (Dkt. 160-A at 4-12.) FPN attacks Peery's report for a lack of scientific basis and testable methodology. (Dkt. 160 at 5-6.) But these arguments are unfounded because Peery is not purporting to conduct a traditional scientific assessment, but rather is basing her opinion on general psychological principles and her experience in the field. See Kumho Tire Co., 526 U.S. at 148 (holding that Rule 702 grants testimonial latitude “to all experts, not just to ‘scientific' ones”). In cases where “reliability concerns focus on [the expert's] personal knowledge or experience, ” the trial court has “broad latitude to determine” whether the specific factors described in Daubert are reasonable measures of reliability in a particular case. See, e.g., Loeffel Steel Prod., Inc. v. Delta Brands, Inc., 372 F.Supp.2d 1104, 1118 (N.D. Ill. 2005) (citing Kumho Tire, 526 U.S. at 153) (admitting testimony from an expert based on his years of experience in the field and his evaluation of the materials related to the case).

         The Seventh Circuit has determined that the critical metric in determining reliability is whether there is a sufficient connection between the methodology and the opinion offered; if the opinion is connected to the underlying information “only by the ipse dixit of the expert, ” then it may be properly excluded. Manpower, Inc., 732 F.3d at 806 (quoting General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)); see also Metavante Corp., 619 F.3d at 761 (holding that an expert's testimony was reliable because he did more than “simply testify that [the party]'s performance was commercially reasonable because he said so[.]”). Here, Peery's opinions are connected to established psychological principles, substantial research into the subject of implicit bias, and her own ...

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