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Chodnicki v. Old Forge Bank

March 12, 2009

JOSEPH CHODNICKI, PLAINTIFF,
v.
OLD FORGE BANK, DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court are defendant's motions in limine. (Docs. 47, 49, 51). Having been fully briefed, the matters are ripe for disposition.

Background

This case concerns employment discrimination claims made by Plaintiff Joseph Chodnicki regarding his employment with defendant Old Forge Bank. Defendant, who lost his job, claims that he was dismissed because of his age. Plaintiff filed his complaint in this court on June 21, 2007. The complaint consisted of two counts. Count One alleged age discrimination pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621. Plaintiff contended that he was fired on account of his age, 58, and replaced by a significantly younger worker who had much less experience. Count Two alleged disability discrimination pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101. Plaintiff asserted that he was disabled within the meaning of the Act, was qualified to perform his job, and was terminated by the defendant because of a perception about his disability.

After the parties completed discovery, defendant filed a motion for summary judgment. In a decision issued on January 21, 2009, the court granted this motion with reference to plaintiff's Americans with Disabilities Act claims and denied it in relation to plaintiff's Age Discrimination in Employment Act claim. (See Doc. 45). The court then scheduled a pre-trial conference. Defendant filed the instant motions in limine, and both parties filed briefs, bringing the case to its present posture. Jurisdiction

Because this case is brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States."). Discussion

Defendant filed three separate motions in limine. The court will address each in turn.

a. Motion to Exclude the Report and Testimony of Reese A. Thomas

Defendant seeks to exclude the expert report and testimony of Reese A. Thomas (Doc. 47). Thomas's report offers an opinion on whether the record supports defendant's claim that plaintiff lost his job as part of "downsizing" at the bank branch, and whether discrimination on the basis of age and perceived disability better explains the reasons for plaintiff's termination.*fn1 Defendant argues that Thomas is not qualified to testify as an expert, that his report does not offer any scientific or technical knowledge that would aid the jury, and that the report offers improper legal conclusions.

Federal Rule of Evidence 702 provides that "a witness qualified as an expert by knowledge, skill, experience, training or education" may provide opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." FED. R. EVID. 702. Courts have described the function of the district court in determining whether to admit expert testimony as a "gatekeeping" one. The trial judge has "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 598 (1993). Thus, "[t]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in a particular field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

Defendant first contends that Thomas is not qualified to offer an expert opinion. Thomas was educated at Kings College in Wilkes-Barre, Pennsylvania, St. Joseph's College in Standish, Maine and Cornell University. (Curriculum Vitae of Reese A. Thomas, Exh. A to Defendant's Motion in Limine (Doc. 47-2)). He studied liberal arts, business administration and human resources. (Id.). Thomas also has training in human resource management, including a certificate in human resources from Cornell University, board certifications in human resources management, and training in personnel management from the United States Office of Personnel Management. (Id.). Thomas was employed from 2006-2008 as a human resource manager by Diageo North America in Breingsville, Pennsylvania. He also acts as a human resources consultant, assisting both attorneys and companies in a variety of industries to evaluate their human resource programs. (Id.). He has also been appointed to serve as a consultant in human resource and labor relations by the Commissioners of Luzerne County, Pennsylvania and to make recommendations for a county-owned and operated nursing home. (Id.). From 1992-2000, Thomas served as director of human resources and staff development for the United States Department of Veteran's Affairs in Wilkes-Barre, Pennsylvania. (Id.). From 2002 until 2005, he worked in human and employee relations for the Pennsylvania Department of Military and Veterans Affairs. (Id.). Thomas has also testified as an expert or served as a consultant in dozens of cases.*fn2 (Id.).

A witness may offer expert opinion "if he or she is 'qualified as an expert by knowledge, skill, experience, training or education.'" United States v. Watson, 260 F.3d 301, 306-307 (3d Cir. 2001) (quoting FED. R. EVID. 702). Courts have construed this requirement "liberally," and noted that advisory committee comments on the Rule indicate that "within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called 'skilled' witnesses, such as bankers or landowners testifying to land values.'" Id. (quoting FED. R. EVID. 702, Advisory Committee's Notes to 1972 Proposed Rule 702). The court finds that Thomas is qualified as an expert to testify on matters of personnel policy. He has years of experience in the field, as well as extensive training, and has offered that expertise in dozens of cases. His testimony could assist the trier of fact in determining whether the defendant's proffered reason for plaintiff's termination--"downsizing"--actually meets the understanding of such action common to the human resources field.

Next, defendant argues that Thomas's opinion offers improper legal conclusions and does not support those conclusions with any specialized, expert knowledge. The plaintiff agrees that Thomas could not offer his own opinion about whether he was the victim of discrimination based on age, but argues that his opinion on whether downsizing actually and properly occurred in this case is a proper subject for an expert report. An expert witness generally may not provide legal opinions. See United States v. Leo, 941 F.2d 181, 196 (3d Cir. 1991) (finding that "it is not permissible for a witness to testify as to the governing law since it is the district court's duty to explain the law to the jury."). An expert witness may, however, be used by the finder of fact to help unsnarl complicated factual issues. Federal Rule of Evidence 702 provides, in pertinent part, that "[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" a fully qualified expert may testify. See also United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995) (recognizing "the 'strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact' which is embodied in the Federal Rules of Evidence'" [citations omitted] and noting that "Rule 702, which governs the admissibility of expert testimony, specifically embraces this policy."). Since there is an issue here about whether downsizing actually occurred, Thomas may offer his opinion as to what "downsizing" means, and whether the defendant actually engaged in that process when it decided to terminate the plaintiff. As the parties agree, however, Thomas may not offer an opinion as to whether, as a legal matter, plaintiff was the victim of discrimination.

Defendant also complains that Thomas's report is not based on sufficient information or study to qualify as an expert opinion. Defendant's complaint here is more about the report's persuasiveness than its admissibility. Defendant will have an opportunity to cross-examine Thomas at trial, and can point out any weaknesses in his testimony then. The court will not exclude an expert report simply because the report is not entirely convincing: "cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof," after all, "are the traditional ...


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