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Weirich v. Horst Realty Company

March 27, 2009


The opinion of the court was delivered by: Golden, J.


Before the Court is Defendant Horst Realty Company, LLC's Motion to Preclude from Evidence both the Expert Testimony of John S. Risser ("Risser") and Risser's "Assessment of Employment Potential" (hereinafter "Report" or "Expert Report"). (Doc. No. 34). After careful consideration of the briefs submitted by the parties and the exhibits appended thereto, Defendant's Motion is granted in part and denied in part.*fn1


In this matter, Plaintiff Brian L. Weirich alleges that Defendant Horst Realty Company, LLC wrongfully terminated him from his Front Desk Clerk/Leasing Consultant position on the basis of his disability-namely, his multiple sclerosis ("MS") condition-in violation of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951, et seq. In September 2001, Plaintiff was hired by non-party Horst Property Management, Inc. as an HVAC Technician at the Briarcrest Gardens apartment complex ("Briarcrest"). In February 2004, Plaintiff left this position and became a Front Desk Clerk/Leasing Consultant while employed by non-party Horst Property Management, Inc. When Defendant Horst Realty Company, LLC assumed property management duties of Briarcrest on March 1, 2004 from Horst Property Management, Inc., Plaintiff remained in his Front Desk Clerk/Leasing Consultant position. In mid-May 2004, Defendant terminated Plaintiff's employment. Since April 2005, Plaintiff has worked as an HVAC Technician for the Commonwealth of Pennsylvania's Department of General Services. (Risser Report at 5 ¶ 8, Def.'s Ex. A).


John S. Risser has been proffered by Plaintiff as a vocational rehabilitation expert to testify as to what effect, if any, Plaintiff's termination of employment by Defendant Horst Realty Company, LLC had on Plaintiff's (a) potential for engaging in work-related activities and (b) wage earning capacity/earning power. (Id. at 1). It is worth noting that Defendant does not claim that Risser is unqualified to testify as a vocational expert. (Def.'s Supp. Br. at 2).

Using various methodologies and vocational scenarios, Risser estimates the past and future wage loss allegedly suffered by Plaintiff as a result of Defendant's adverse employment action. These calculations are premised on several assumptions made by Risser, including, among other things, various factual scenarios and Plaintiff's work-life expectancy. For example, in "Vocational Scenario #2," Risser calculates a future wage loss figure of approximately $65,700 assuming that (1) Defendant did not terminate Plaintiff and rather allowed Plaintiff to work as an HVAC Technician after May 2004 and (2) Plaintiff would work until he reached the age of 59.35 years. (Risser Report at 12). Risser also calculates a past wage loss of $54,000 as a result of Defendant's adverse employment action. (Id. at 10). Defendant has made a number of objections to Risser's Report, which Defendant claims justify the preclusion of Risser's Report and testimony at trial. These objections are addressed below.


"When a party seeks to admit expert testimony, the District Court must make an initial determination under Fed. R. Evid. 104(a) that the requirements of Fed. R. Evid. 702 have been met." Magistrini v. One Hour Martinizing Dry Cleaning, 68 F. App'x 356, 356 (3d Cir. 2003); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). Rule 702 of the Federal Rules of Evidence requires that "the proffered evidence possesses sufficient evidentiary reliability to be admissible as scientific, technical, or other specialized knowledge and that the proffered evidence is relevant in the sense that it will assist the trier of fact to understand the evidence or to determine a fact in issue." United States v. Ford, 481 F.3d 215, 218 (3d Cir. 2007), cert. denied, 128 S.Ct. 213 (2007). Under Rule 702, a court may admit proffered expert testimony only if the proponent demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The evidence presented must be "helpful to the jury's evaluation of such evidence." Elcock v. Kmart Corp., 233 F.3d 734, 744 (3d Cir. 2000). A court acts as a gatekeeper in determining the admissibility of expert testimony. Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (citing Daubert, 509 U.S. at 589). This gatekeeping obligation "applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire, 526 U.S. at 141. "The judge's inquiry is a flexible one, with the burden falling on the expert's proponent to establish the reliability and admissibility of the expert's testimony by a preponderance of the evidence." Martin v. Yellow Transp., Inc., No. 05-2958, 2006 WL 494880, at *2 (E.D. Pa. Feb. 28, 2006). The Federal Rules of Evidence "embody a strong preference for admitting any evidence that may assist the trier of fact." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997).


A. Personal Trauma and Emotional Harm

Defendant argues that the portion of Risser's Report referencing "personal trauma and emotional harm" exceeds the scope of Risser's qualifications, thereby justifying preclusion of Risser's Report and expert testimony. (Def.'s Br. at 4). In making this argument, Defendant specifically references the following statement by Risser in his Report: "However, any reader of this report must recognize that statistics on displaced workers do not include forensic matters involving litigation, rather they most often relate to corporate downsizing, plant shutdowns, etc., and as such do not involve the personal trauma and emotional harm which can follow the idiosyncratic path of cases which involve single individuals who are removed from their workplace for varied and diverse reasons which end up being litigated." (Risser Report at 9 ¶ 2) (emphasis added). As Plaintiff correctly notes in his brief, this statement is not opining as to whether Plaintiff suffered from such emotional harm-an opinion which likely would be outside the scope of Risser's qualifications. (Pl.'s Br. at 3). Accordingly, this portion of Risser's Report will not be stricken and an attack on this statement can be adequately conducted on cross-examination by Defendant. See Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.").

B. Risser's Statements on Plaintiff's Qualifications

Defendant also claims that Risser's Report offers commentary addressing the appropriateness of Defendant's employment decisions that is unhelpful to a trier of fact. (Def.'s Br. at 2). In his Report, Risser states, among other things, that Plaintiff has received work as an HVAC Technician for the Commonwealth of Pennsylvania at a lower pay scale than "if he had been appropriately promoted to maintenance supervisor [Service Superintendent]." (Risser Report at 13 ΒΆ 1) (emphasis added). Risser also states that Plaintiff was "eminently qualified" for the Service Superintendent position, to which Plaintiff was not promoted. (Id.). ...

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