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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ALEXANDRIA L. ERWIN, CASE NO. 2:22-cv-00893-JHC 8
Plaintiff, ORDER GRANTING MOTION TO 9 EXCLUDE v. 10 OBI SEAFOODS, LLC, 11
Defendant. 12 13
14 I INTRODUCTION 15
This matter comes before the Court on Defendant OBI Seafoods, LLC’s Motion to 16 Exclude Plaintiff’s Expert Witness. See Dkt. # 70. OBI seeks to exclude Plaintiff Alexandria L. 17 Erwin’s expert witness Judith Clark because Clark’s preliminary “report fails to satisfy the 18 Daubert test as it is neither reliable nor relevant.” See Dkt. # 70 at 1; Dkt. # 71-2 at 2–35. 19 Applying the standard under Federal Rule of Evidence 702, Daubert v. Merrell Dow 20 Pharmaceuticals, Inc. (“Daubert I”), 509 U.S. 579, 597 (1993), and its progeny, the Court 21 concludes that Clark’s testimony lack reliability and GRANTS the motion. See Dkt. # 70.1 22
23 1 Neither party requests a Daubert evidentiary hearing. The Court determines that it has “an adequate record before it to make its ruling” without holding such a hearing. In re Hanford Nuclear Rsrv. 24 Litig., 292 F.3d 1124, 1138–39 (9th Cir. 2002). 1 II LEGAL STANDARDS 2 Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, 3 experience, training, or education may testify in the form of an opinion or otherwise,” provided: 4 (a) the expert’s scientific, technical, or other specialized knowledge will help the 5 trier of fact to understand the evidence or to determine a fact in issue; 6 (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and 7 (d) the expert has reliably applied the principles and methods to the facts of the 8 case. 9 Fed. R. Evid. 702. “Before admitting expert testimony into evidence, the district court must 10 perform a ‘gatekeeping role’ of ensuring that the testimony is both ‘relevant’ and ‘reliable’ under 11 Rule 702.” United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1188 (9th Cir. 2019) (quoting 12 Daubert I, 509 U.S. at 597). “[J]udges are entitled to broad discretion when discharging their 13 gatekeeping function.” United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). 14 The proponent of the expert testimony bears the burden of establishing admissibility by a 15 preponderance of the evidence. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 16 1996). Courts liberally construe Rule 702 in favor of admissibility. See Daubert I, 509 U.S. at 17 588; Chinn v. Whidbey Pub. Hosp. Dist., No. C20-995 TSZ, 2021 WL 5200171 (W.D. Wash. 18 Nov. 9, 2021). 19 III 20 DISCUSSION 21 Erwin retained Clark as a “Human Resources [(“HR”)] expert . . . to testify about typical 22 employer practices and human resources standards with respect to responding to, investigating, 23 and remediating reports of discrimination and harassment; preventing retaliation at work; and to 24 rebut the testimony of OBI’s four witnesses.” Dkt. # 82 at 1–2. OBI seeks to exclude Clark’s 1 testimony on the ground that it “is neither reliable nor [relevant] and is therefore inadmissible.” 2 See Dkt. # 70 at 4. Erwin responds that Clark offers reliable testimony “informed by her years of 3 experience and extensive training on human resources practices” and it is relevant because
4 “standard human resources and employment practices” are typically unknown to “the average 5 person” and are “central to this case.” Dkt. # 82 at 10. 6 A. Reliability 7 According to OBI, Clark’s testimony is unreliable and lacks “any foundation or 8 evidentiary support beyond her personal, rather than professional opinions.” Dkt. # 70 at 4. OBI 9 contends that Clark’s testimony lacks sufficient “methodology” and “fails to satisfy the required 10 analytical rigor of a testifying expert” because it does not “provide explanation as to the 11 fundamental basis for her opinions” or demonstrate “how [her relevant] experience was reliably 12 applied to the facts.” Id. at 4–5. OBI says that the Court should exclude this testimony because 13 Clark’s “report contains no reference . . . of any objective, independent validation in support of 14 her conclusions.” Dkt. # 87 at 2–3 (citing Easton v. Asplundh Tree Experts, Co., Case No. C16- 15 1694RSM, 2017 WL 4005833 (W.D. Wash. Sept. 12, 2017); Arjangrad v. JP Morgan Chase 16 Bank, N.A. Case No. 3:10-cv-01157-PK, 2012 WL 1890372 (D. Or. May 23, 2012). 17 Erwin responds that Clark’s testimony is reliable because “HR does not fall into the 18 traditional category of science that Daubert considerations are crafted to address.” Dkt. # 82 at 19 8. Erwin notes that “Clark has been working in HR for over 40 years,” and maintains that 20 21 22 23 24 1 Clark’s extensive professional experience proves that her “opinions are supported by well- 2 established industry practices.” Id. at 9.2 3 Reliability “requires that the expert’s testimony have ‘a reliable basis in the knowledge 4 and experience of the relevant discipline.’” Ruvalcaba-Garcia, 923 F.3d at 1188 (quoting 5 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)). When the testimony concerns “non- 6 scientific” issues, the reliability inquiry of “the Daubert factors (peer review, publication, 7 potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability 8 depends heavily on the knowledge and experience of the expert, rather than the methodology or 9 theory behind it.” Hangarter, 373 F.3d 998, 1017 (9th Cir. 2004) (citation omitted) (concluding 10 that an expert’s “‘experience, training, and education’ provided a sufficient foundation of 11 reliability for his testimony”). When the expert witness relies 12 solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis 13 for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply “taking the expert's word 14 for it.” 15 Fed. Civ. R. P. 702 Committee Notes on Rules—2000 Amendment (quoting Daubert v. 16 Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) (“We've been presented 17 with only the experts’ qualifications, their conclusions and their assurances of reliability. 18 Under Daubert, that's not enough.”)). 19 Human resources experts—despite being in a “non-scientific” profession—are not 20 immune from scrutiny under Rule 702. In Easton, the district court excluded an HR expert 21 22
2 Without citing authority, Erwin alternatively requests “the opportunity to make an offer of proof 23 as to the methodology used to inform [Clark’s] opinions.” Dkt. # 82 at 9. OBI does not address this request. If the parties agree that Erwin may make such an offer of proof, she may file it with the Court. If 24 the parties disagree, Erwin may file a motion.
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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ALEXANDRIA L. ERWIN, CASE NO. 2:22-cv-00893-JHC 8
Plaintiff, ORDER GRANTING MOTION TO 9 EXCLUDE v. 10 OBI SEAFOODS, LLC, 11
Defendant. 12 13
14 I INTRODUCTION 15
This matter comes before the Court on Defendant OBI Seafoods, LLC’s Motion to 16 Exclude Plaintiff’s Expert Witness. See Dkt. # 70. OBI seeks to exclude Plaintiff Alexandria L. 17 Erwin’s expert witness Judith Clark because Clark’s preliminary “report fails to satisfy the 18 Daubert test as it is neither reliable nor relevant.” See Dkt. # 70 at 1; Dkt. # 71-2 at 2–35. 19 Applying the standard under Federal Rule of Evidence 702, Daubert v. Merrell Dow 20 Pharmaceuticals, Inc. (“Daubert I”), 509 U.S. 579, 597 (1993), and its progeny, the Court 21 concludes that Clark’s testimony lack reliability and GRANTS the motion. See Dkt. # 70.1 22
23 1 Neither party requests a Daubert evidentiary hearing. The Court determines that it has “an adequate record before it to make its ruling” without holding such a hearing. In re Hanford Nuclear Rsrv. 24 Litig., 292 F.3d 1124, 1138–39 (9th Cir. 2002). 1 II LEGAL STANDARDS 2 Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, 3 experience, training, or education may testify in the form of an opinion or otherwise,” provided: 4 (a) the expert’s scientific, technical, or other specialized knowledge will help the 5 trier of fact to understand the evidence or to determine a fact in issue; 6 (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and 7 (d) the expert has reliably applied the principles and methods to the facts of the 8 case. 9 Fed. R. Evid. 702. “Before admitting expert testimony into evidence, the district court must 10 perform a ‘gatekeeping role’ of ensuring that the testimony is both ‘relevant’ and ‘reliable’ under 11 Rule 702.” United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1188 (9th Cir. 2019) (quoting 12 Daubert I, 509 U.S. at 597). “[J]udges are entitled to broad discretion when discharging their 13 gatekeeping function.” United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). 14 The proponent of the expert testimony bears the burden of establishing admissibility by a 15 preponderance of the evidence. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 16 1996). Courts liberally construe Rule 702 in favor of admissibility. See Daubert I, 509 U.S. at 17 588; Chinn v. Whidbey Pub. Hosp. Dist., No. C20-995 TSZ, 2021 WL 5200171 (W.D. Wash. 18 Nov. 9, 2021). 19 III 20 DISCUSSION 21 Erwin retained Clark as a “Human Resources [(“HR”)] expert . . . to testify about typical 22 employer practices and human resources standards with respect to responding to, investigating, 23 and remediating reports of discrimination and harassment; preventing retaliation at work; and to 24 rebut the testimony of OBI’s four witnesses.” Dkt. # 82 at 1–2. OBI seeks to exclude Clark’s 1 testimony on the ground that it “is neither reliable nor [relevant] and is therefore inadmissible.” 2 See Dkt. # 70 at 4. Erwin responds that Clark offers reliable testimony “informed by her years of 3 experience and extensive training on human resources practices” and it is relevant because
4 “standard human resources and employment practices” are typically unknown to “the average 5 person” and are “central to this case.” Dkt. # 82 at 10. 6 A. Reliability 7 According to OBI, Clark’s testimony is unreliable and lacks “any foundation or 8 evidentiary support beyond her personal, rather than professional opinions.” Dkt. # 70 at 4. OBI 9 contends that Clark’s testimony lacks sufficient “methodology” and “fails to satisfy the required 10 analytical rigor of a testifying expert” because it does not “provide explanation as to the 11 fundamental basis for her opinions” or demonstrate “how [her relevant] experience was reliably 12 applied to the facts.” Id. at 4–5. OBI says that the Court should exclude this testimony because 13 Clark’s “report contains no reference . . . of any objective, independent validation in support of 14 her conclusions.” Dkt. # 87 at 2–3 (citing Easton v. Asplundh Tree Experts, Co., Case No. C16- 15 1694RSM, 2017 WL 4005833 (W.D. Wash. Sept. 12, 2017); Arjangrad v. JP Morgan Chase 16 Bank, N.A. Case No. 3:10-cv-01157-PK, 2012 WL 1890372 (D. Or. May 23, 2012). 17 Erwin responds that Clark’s testimony is reliable because “HR does not fall into the 18 traditional category of science that Daubert considerations are crafted to address.” Dkt. # 82 at 19 8. Erwin notes that “Clark has been working in HR for over 40 years,” and maintains that 20 21 22 23 24 1 Clark’s extensive professional experience proves that her “opinions are supported by well- 2 established industry practices.” Id. at 9.2 3 Reliability “requires that the expert’s testimony have ‘a reliable basis in the knowledge 4 and experience of the relevant discipline.’” Ruvalcaba-Garcia, 923 F.3d at 1188 (quoting 5 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)). When the testimony concerns “non- 6 scientific” issues, the reliability inquiry of “the Daubert factors (peer review, publication, 7 potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability 8 depends heavily on the knowledge and experience of the expert, rather than the methodology or 9 theory behind it.” Hangarter, 373 F.3d 998, 1017 (9th Cir. 2004) (citation omitted) (concluding 10 that an expert’s “‘experience, training, and education’ provided a sufficient foundation of 11 reliability for his testimony”). When the expert witness relies 12 solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis 13 for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply “taking the expert's word 14 for it.” 15 Fed. Civ. R. P. 702 Committee Notes on Rules—2000 Amendment (quoting Daubert v. 16 Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) (“We've been presented 17 with only the experts’ qualifications, their conclusions and their assurances of reliability. 18 Under Daubert, that's not enough.”)). 19 Human resources experts—despite being in a “non-scientific” profession—are not 20 immune from scrutiny under Rule 702. In Easton, the district court excluded an HR expert 21 22
2 Without citing authority, Erwin alternatively requests “the opportunity to make an offer of proof 23 as to the methodology used to inform [Clark’s] opinions.” Dkt. # 82 at 9. OBI does not address this request. If the parties agree that Erwin may make such an offer of proof, she may file it with the Court. If 24 the parties disagree, Erwin may file a motion. 1 witness because his report did not identify the source of his cited “HR best practices” and the 2 report impermissibly concluded that the defendant employer’s policies and actions were 3 “reasonable, without explanation or analysis as to how those policies and actions [were]
4 consistent with any HR ‘best practices[.]’” 2017 WL 4005833, *1. In Arjangrad, the district 5 court also found that an HR specialist’s expert testimony was unreliable “because the expert 6 failed to explain ‘how his experience performing discrimination investigations or his expertise 7 advising employers and HR professionals led him to understand and define generally accepted 8 standards of HR investigation practices.’” 2012 WL 1890372, *4. 9 Even when the Court liberally construes Rule 702 in favor of admissibility, Clark’s 10 expert testimony fails to demonstrate how her experience has informed her conclusions on best 11 or “typical” practices in the HR field. See Daubert I, 509 U.S. at 588; Chinn, 2021 WL 12 5200171. Put another way, her report lacks a methodological nexus between her experience and
13 her conclusions. See Fed. Civ. R. P. 702 Committee Notes on Rules—2000 Amendment; see 14 also Moussouris v. Microsoft Corp., 311 F. Supp. 3d 1223, 1246 (W.D. Wash. 2018) (finding 15 that expert testimony was not reliable because experts that rely primarily on experience must 16 explain how their experience led to the conclusion reached and this expert did not “adequately 17 specif[y] the method by which she arrived at her conclusions”). 18 / 19 / 20 / / 21 / 22 / 23 / 24 l IV CONCLUSION 2 Accordingly, the Court GRANTS OBI’s motion (Dkt. #70) and EXCLUDES Clark’s 3 ex : 3 pert testimony. 4 Dated this 12th day of February, 2024.
6 John H. Chun United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 3 OBI contends that Clark’s testimony is also inadmissible because it is irrelevant under Daubert. According to OBI, Clark’s report makes “conclusions of law” and opines “beyond the acceptable bounds 22 of an expert on HR practices and standards.” Dkt. #70 at 6-7. The Court disagrees in part, observing that certain portions—but not all—of Clark’s report threaten to invade the role of the jury and judge by 23 asserting legal conclusions. Nevertheless, because Clark’s expert testimony is unreliable, the Court must exclude her testimony and declines to address this portion of the Daubert test. 24