United States District Court, E.D. Pennsylvania
I. QUINONES ALEJANDRO, J.
Jordan ("Plaintiff) filed an amended complaint against
her former employer, Temple University Health System, Inc.
("TUHS"), supervisor, Noelle Stuart, and TUHS Human
Relations Representative, Jacqueline Nardi (collectively,
"Defendants"). Plaintiff alleges that she was
harassed, discriminated against, and terminated due to her
age, disability, perceived disability, and in retaliation for
protected activity. [ECF 1]. She brings these claims pursuant
to, inter alia, the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et. seq., the Americans
with Disabilities Act (the "ADA"), 42 U.S.C. §
12101 et. seq., and the Pennsylvania Human Relations
Act, 43 Pa. Cons. Stat. §§ 951-963. Plaintiff
retained Michael J. Torchia, Esq., to provide expert
testimony in support of her various claims. [ECF 42-1].
Before the Court is Defendants' Motion to Exclude the
Opinions and Testimony of Michael Torchia, Esq. Pursuant to
Fed.R.Evid. 702 (hereinafter "Motion to
Exclude"), [ECF 42], which Plaintiff has opposed.
[ECF 43-1]. For the reasons set forth herein,
Defendants' motion is granted.
Federal Rules of Evidence are prescribed to govern procedures
in federal courts. Thus, when a party offers an expert
witness, the court functions as a 'gatekeeper' to
ensure that the expert's testimony complies with these
rules and commanding case law. In re Paoli R.R. Yard PBC
Litig., 35 F.3d 717, 732 (3d Cir. 1994) (hereinafter,
"Paoli"). Federal Rule of Evidence
("Rule") 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 . . . 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.
United States Court of Appeals for the Third Circuit has
interpreted Rule 702 as requiring three criteria:
qualification, reliability, and fit. Paoli, 35 F.3d
at 741-743. "Qualification refers to the requirement
that the witness possess specialized expertise."
Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.
2003). Reliability requires that the testimony "be based
on the 'methods and procedures of science' rather
than on 'subjective belief or unsupported
speculation'; the expert must have 'good grounds'
for his or her belief." Paoli, 35 F.3d at 742
(quoting Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 590 (1993)). Lastly, "fit"
refers to the relevancy of the expert's testimony
"for the purposes of the case" and its ability to
"assist the trier of fact." Schneider, 320
F.3d at 404.
are limitations to an expert's opinion. For example,
"it is not permissible for a witness to testify as to
the governing law." United States v. Leo, 941
F.2d 181, 196 (3d Cir. 1991). This preclusion includes
testimony as to the legal effect of federal regulations,
and/or testimony on "the meaning of terms in a statute
or regulation or the application of such terms to specified
conduct." Rich v. Bailey, 1996 WL 745298, at *5
(E.D. Pa. Dec. 23, 1996) (citing Stissi v. Interstate and
Ocean Transport Co. of Philadelphia, 765 F.2d 370, 374
(2d Cir. 1985)). "Such testimony is prohibited because
it would usurp the District Court's pivotal role in
explaining the law to the jury." Berckeley Inv.
Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006)
(citing First National State Bank v. Reliance Elec.
Co., 668 F.2d 725, 731 (3d Cir. 1981)); see also
Highway Materials, Inc. v. Whitemarsh Twp., 2004 WL
2220974, at *20 (E.D. Pa. Oct. 4, 2004) ("an expert may
not state his or her opinion as to legal standards nor may he
or she state legal conclusions drawn by applying the law to
the facts"); United States v. Monaghan, 648
F.Supp.2d 658, 661 (E.D. Pa. 2009) ("testimony
concerning the law itself . . .is inappropriate expert
testimony"). Notably, the Advisory Committee's notes
on Rule 704 reaffirm the notion that Rule 702 prohibits
"opinions which would merely tell the jury what result
to reach." Fed.R.Evid. 704 advisory committee's
an expert witness is precluded from presenting legal
conclusions, an expert's "opinion is not
objectionable just because it embraces an ultimate
issue." Fed.R.Evid. 704. The Third Circuit has
interpreted this to permit testimony "concerning
business customs and practices." Leo, 941 F.2d
at 196. For example, an expert may opine on established
industry customs and standards, provided the testimony stops
short of defining the legal duties arising from industry
customs or opining on whether the defendant has complied with
those duties. Berckeley, 455 F.3d at 218; see
also First National, 668 F.2d 725, 732 (holding that an
expert may testify on established customs in the banking
industry in order to help the jury evaluate the
defendant's conduct). Ultimately, "the expert's
proponent bears the burden of establishing the admissibility
of his expert's testimony by a preponderance of the
evidence." Monaghan, 648 F.Supp.2d at 660
(citing Daubert, 509 U.S. at 592).
issue before this Court is whether the opinions proffered in
Mr. Torchia's expert report comply with the governing
case law. In his report, Mr. Torchia recounts facts from the
record, describes federal law and regulations, and opines on
their relevance. He explains at length the ADA, Equal
Employment Opportunity Commission ("EEOC")
regulations, and pertinent case law. Mr. Torchia also cites
two non-legal sources: a Disability Law Compliance Manual and
EEOC Enforcement Guidance, but offers no indication of their
use as industry standards. The final section of the report,
titled "Conclusions," contains a list of
"highly relevant" facts and a list of law
"most relevant to the jury." (Torchia's Expert
Report at p. 27). Defendants have moved to exclude Mr.
Torchia's proffered testimony, arguing that it
constitutes improper legal opinion.
response, Plaintiff contends that Mr. Torchia's opinions
fit within a narrow exception to the governing case law's
exclusion of legal testimony. Her argument relies primarily
on Orner v. Nat'l Beef Packaging Co., LLC, 2015
WL 8334544, at *9 (M.D. Pa. Dec. 9, 2015). Plaintiff asserts
that the Orner decision permits testimony which,
like Mr. Torchia's report, outlines the facts and legal
principles relevant to the jury's ultimate legal
analysis. However, as argued by Defendants, Plaintiffs
reliance on Orner is misplaced. While it is true
that the court in Orner allowed an expert witness to
recount facts relevant to the defendant's compliance with
EEOC guidance and industry standards for the ADA interactive
process, the court explicitly held that the expert's
"testimony must stop, however, before reaching... the
particular legal duties that the ADA imposes upon employers,
or. . . whether [the defendant] complied with those
duties." Orner, 2015 WL 8334544, at *9. As
such, expert testimony which purports to identify the
relevant facts and legal principles for the jury's
analysis does not comport with Orner.
clear, then, that the proffered opinions in Mr. Torchia's
expert report do not comport with Orner or the
accompanying case law. The majority of the report consists of
recitations of case law and federal regulations. Such
testimony pertaining to "the governing law" is
indisputably inadmissible. Leo, 941 F.2d at 196. The
conclusion of his report-the only section that actually
appears to contain opinion-consists of a list of facts
"highly relevant" to the jury's determination
of "whether TUHS violated the ADA for failing to engage
in the interactive process," and a list of the "law
most relevant to the jury." (Torchia's Expert Report
at pp. 26-27). None of these opinions are admissible, as they
relate directly to the legal duties existing under the ADA,
and unduly infringe on the judge's lawgiving and
jury's fact-finding. Berckeley, 455 F.3dat217.
Mr. Torchia's proffered testimony contains no actual
opinion regarding the industry standards for ADA compliance.
Though Mr. Torchia's report includes brief mention of
non-legal guidelines from the EEOC and excerpts from the
Disability Law Compliance Manual, it provides no information
beyond the identification of those resources. The report
provides no context for the guidelines or reference to their
relationship to industry standards. Consequently, it is
evident that Mr. Torchia's testimony at trial would not
"help the trier of fact to understand the evidence"
beyond what will already be provided by fact witnesses and
this Court's legal instructions. Fed.R.Evid. 702.
also argues that Mr. Torchia's previous expert testimony
in this District supports the admissibility of his testimony
in the present case. However, an examination of Mr.
Torchia's role in those previous cases actually suggests
the opposite. When Mr. Torchia testified in Vandegrift v.
City of Phila., he was allowed to comment on
"alleged deviations from cited nonlegal standards,"
but was not permitted to "opine as to a
deviation from legal standard." 228 F.Supp.3d 464 (E.D.
Pa. 2017) (Mem. at 1, ECF No. 52). Despite what he may have
provided in previous proceedings, Mr. Torchia's ...