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Karlo v. Pittsburgh Glass Works, LLC

United States District Court, W.D. Pennsylvania

July 13, 2015



TERRENCE F. McVERRY, Senior District Judge.

Pending before the Court are the (1) DEFENDANT'S RENEWED MOTION TO BAR PROPOSED EXPERT OPINION OF ANTHONY G. GREENWALD RELATED TO PURPORTED IMPLICIT SOCIAL BIAS (ECF No. 380); (2) DEFENDANT'S RENEWED POST-DECERTIFICATION MOTION TO BAR DR. MICHAEL CAMPION'S STATISTICAL ANALYSIS (ECF No. 381); (3) DEFENDANT'S RENEWED MOTION TO BAR DR. CAMPION'S EXPERT OPINION ON REASONABLE HUMAN RESOURCE PRACTICES (ECF No. 382); and (4) DEFENDANT'S MOTION TO BAR PURPORTED REBUTTAL EXPERT OPINION OF DAVID DUFFUS (ECF No. 383), all of which were filed on behalf of Pittsburgh Glass Works, LLC ("PGW"). The issues have been fully briefed and well-argued by the parties in their memoranda and attached exhibits (ECF Nos. 392, 393, 394, 395, 413, 414, 415, 416, 423, 427, 428, 429). The Court heard oral argument on January 13, 2015 at which counsel for Plaintiffs Rudolph A. Karlo, Mark K. McLure, William S. Cunningham, Jeffrey Marietti, and David Meixelsberger presented additional authority in support of their position; PGW has since filled a RESPONSE TO SUPPLEMENTAL AUTHORITY PRESENTED BY PLAINTIFFS AT ORAL ARGUMENT (ECF No. 432-1). The motions are ripe for disposition.

I. Background

The Court has previously detailed the background of this action in its forty-four page Memorandum Opinion and Order issued on March 31, 2014, and it need not be reprised here. See Mem. Op., ECF No. 343 at 3-26. Since that time, PGW has filed three motions for summary judgment relating to the individual disparate impact and disparate treatment claims of Karlo, McLure, Cunningham, Marietti and Meixelsberger as well as the individual retaliation claims of Karlo and McLure; and four renewed motions to bar Plaintiffs' experts, Anthony G. Greenwald, Ph.D., Michael Campion, Ph.D., and David Duffus, CPA/ABV/CFF, CFE. This Memorandum Opinion will address only the renewed expert-related motions, which the Court will now address.

II. Legal Standard

"Under the Federal Rules of Evidence, a trial judge acts as a gatekeeper' to ensure that any and all expert testimony or evidence is not only relevant, but also reliable." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citing Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)). Thus, whenever a party seeks to admit expert testimony at trial, the district court must make an initial preliminary determination "that the requirements of Fed.R.Evid. 702 have been met." Magistrini v. One Hour Martinizing Dry Cleaning, 68 F.Appx. 356, 356 (3d Cir. 2003) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)).

Federal Rule of Evidence 702 provides that "[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." Moreover, the United States Court of Appeals for the Third Circuit has interpreted Rule 702 as having "three major requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact." Pineda, 520 F.3d at 244 (citing Kannankeril, 128 F.3d at 806). Our Court of Appeals has also "interpreted the second requirement to mean that an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable.'" Id. (citing Kannankeril, 128 F.3d at 806 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994)).

The qualification prong of Rule 702 "requires that the witness possess specialized expertise.'" Id. (citing Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003)). The Court of Appeals has "interpreted [this] requirement liberally." Id. (citing Schneider, 320 F.3d at 404; Paoli, 35 F.3d at 741). It has explained that "a broad range of knowledge, skills, and training'" can suffice to "qualify an expert.'" Id. (quoting Paoli, 35 F.3d at 741). "This liberal policy of admissibility extends to the substantive as well as the formal qualifications of experts." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citing Paoli, 35 F.3d at 741). The Court of Appeals has repeatedly "stated that it is an abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate.'" Kannankeril, 128 F.3d at 809 (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996)).

"The second requirement is that of reliability." Meadows v. Anchor Longwall & Rebuild, Inc., 306 F.Appx. 781, 788 (3d Cir. 2009). In evaluating whether a particular methodology is reliable, the Court of Appeals has identified several factors district courts should consider:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Id. (citing Paoli, 35 F.3d at 742 n.8). However, these factors "are neither exhaustive nor applicable in every case.'" Id. (quoting Kannankeril, 128 F.3d at 806-07). Whether they are relevant "depend[s] on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). This inquiry remains inherently "flexible." Pineda, 520 F.3d at 247 (quoting Daubert, 509 U.S. at 594). The question "is not whether a particular scientific opinion has the best foundation, or even whether the opinion is supported by the best methodology or unassailable research." In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999), amended, 199 F.3d 158 (3d Cir. 2000). The goal is simply "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 the relevant field." Kumho Tire, 526 U.S. at 152. Therefore, the focus must remain "on principles and methodology, not on the conclusions generated by the principles and methodology." In re TMI Litig., 193 F.3d at 665 (citing Kannankeril, 128 F.3d at 806).[1] "The analysis of the conclusions themselves is for the trier of fact when the expert is subjected to cross-examination.'" Id. (quoting Kannankeril, 128 F.3d at 806).

"The third element under Rule 702, namely, whether the expert testimony would assist the trier of fact, "goes primarily to relevance.'" Meadow, 306 F.Appx. at 790 ( quoting Lauria v. Amtrak, 145 F.3d 593, 599 (3d Cir. 1998). This element requires that "[t]he expert's testimony must fit' under the facts of the case so that it will aid the jury in resolving a factual dispute.'" Id. And "[t]he standard for the factor is not high; it is met when there is a clear fit' connecting the issue in the case with the expert's opinion that will aid the jury in determining an issue in the case." Id. (citing Lauria, 145 F.3d at 600 (quoting Paoli, 35 F.3d at 745)); see also In re TMI Litig., 193 F.3d at 670 ("[A]dmissibility depends, in part, on a connection between the expert opinion offered and the particular disputed factual issues in the case.") (citation omitted). Therefore, "expert testimony based on assumptions lacking factual foundation in the record is properly excluded" under the fit requirement in addition to the reliability requirement. Meadows, 306 F.Appx. at 790 (citing Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002)).

III. Discussion

A. Dr. Anthony G. Greenwald (Implicit Social Bias)

Dr. Anthony G. Greenwald, Ph.D is a tenured faculty member at the University of Washington in its Department of Psychology, where he has been an active member of its teaching and research faculty since 1986. Previously, Dr. Greenwald served as a tenured faculty member at The Ohio State University in its Department of Psychology from 1965 to 1986. Among the many accomplishments throughout his career, Dr. Greenwald has published more than one-hundred-and-eighty refereed journal articles and book chapters in the areas of social psychology, cognitive psychology, and research methodology; received six awards for career research achievements; and served on journal editorial boards of prominent publications.

Dr. Greenwald has been retained by Plaintiffs' counsel to provide his opinion "in the area of social psychological research on attitudes, prejudices, and stereotypes, " which includes the topic of implicit bias- i.e., "a lay designation for mental processes that function outside of conscious awareness." Greenwald Exp. Rep. at 2, ECF No. 380-5. In that capacity, Dr. Greenwald has authored an expert report in which he uses the term "implicit bias" as "an informal reference to the relevant scientific work on attitudes and stereotypes." Id. at 4. Citing to that report, Plaintiffs submit that they offer Dr. Greenwald's opinion to "provide a framework that can aid a judge or jury in evaluating the facts of this case to better understand the evidence as it relates to discriminatory intent, to counteract common misconceptions concerning the character of discriminatory intent, and to determine whether the Plaintiffs' ages substantially motivated the defendants' [sic] actions outlined in the Complaint.'" Pls.' Br. in Opp. at 4 (quoting Greenwald Exp. Rep. at 6, ECF No. 395-2).

Moreover, in his report, Dr. Greenwald explains that his original research in the area of implicit social cognition includes the "invention and development of a specific research method-the Implicit Association Test (IAT")." Greenwald Exp. Rep. at 2, ECF No. 380-5. One district court has described the IAT in a race-based employment discrimination action as follows:

[I]t is a computerized exercise based on automatic word associations that test subjects make when shown pictures of individuals of various genders, races, and ethnicities. The photos are displayed for only milliseconds; then the test subjects are asked to make an association. If a test-taker responds more quickly, say, to the pairing of photographs of African-American faces with negative character trait words than to the pairing of European-American faces with the same negative traits, the test-taker is said to exhibit an implicit negative stereotype toward African-Americans.

Jones v. Nat'l Council of Young Men's Christian Associations of the United States of Am., 34 F.Supp. 3d 896, 899 (N.D. Ill. 2014) (internal citation and quotation marks omitted). The IAT is apparently "considered an implicit' measure because it infers the strength of a mental association that links a social category (such as race, gender, or age group) with a trait (i.e., a stereotype) from testing procedures that are influenced by those associations in a manner not discerned by the respondents." Greenwald Exp. Rep. at 2, ECF No. 380-5. According to Dr. Greenwald, the IAT has "been successfully used as an implicit measure for a wide variety of mental associations that underlie stereotypes and social attitudes, " with his own research including the "study of implicit biases involved in age attitudes."[2] Id.

After outlining his credentials, Dr. Greenwald discloses that he based his "opinions rendered in this case on the results of [his] own research as well as on [his] knowledge of published works of many others who have conducted research relevant to the conditions of this case." Id. at 5. Dr. Greenwald also has "become acquainted with the conditions of this case by reading the Complaint statement prepared by Plaintiffs' attorneys" and has "read the depositions of Kevin Cooney in full, as well as a collection of excerpts from the depositions of James Wiggins, Gary Cannon, Diana Jarden, Paul McFarland, Sarah Leider, Tom Casey, Craig Barnette, John Wysseier, Mark Bulger, Anthony Canil, Myrtle Smith, David V. King, Ed Dunn, Peter Dishart, and Gary Eilers."[3] Id. at 5-6. In sum, Dr. Greenwald opines "that there are a number of research findings regarding implicit biases that bear on this case." Id. at 6.

Dr. Greenwald's report then "summarizes [his] opinions based on research-established findings that bear on the case." Id. Those opinions include the following:

¶ 13. Implicit biases are pervasive, often observed in more than 70% of Americans, most of whom regard themselves as unprejudiced...
¶ 14. In contrast to the small percentages of survey respondents who express self-reported ("explicit") bias based on age, approximately 80% of all research participants hold implicit (sometimes called "unconscious") bias based on age...
¶ 15. Implicit bias is scientifically established as a source of discriminatory behavior in employment...
¶ 16. Discretion-affording personnel evaluations that permit subjectivity in decision making are open to influence by implicit bias...

Id. at 6-8. Dr. Greenwald continues: "[t]he next five paragraphs (¶¶ 17-21) describe prominent recent articles by economists, organizational psychologists, and legal scholars, based on their consideration of research on the roles of subjectivity and discretion in personnel decision making" and "[t]he seven paragraphs after those (¶¶ 22-28) summarize the ...

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