Kimberly McKinney v. Land O’Lakes Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KIMBERLY MCKINNEY, No. 1:23-cv-01304-KES-HBK 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 13 v. MOTIONS IN LIMINE TO PRECLUDE TESTIMONY BY PLAINTIFF’S RETAINED 14 LAND O’LAKES INC., EXPERTS (1) DR. JOSEPH PENBERA, AND (2) DR. JULIE ARMSTRONG 15 Defendant. (Docs. 75, 77) 16 17 18 This action is set for trial on plaintiff’s California Fair Employment and Housing Act 19 (“FEHA”) claims for (1) wrongful termination, (2) failure to accommodate, (3) failure to engage 20 in the interactive process, (4) retaliation, and (5) failure to prevent retaliation; and plaintiff’s 21 claim for (6) wrongful termination and retaliation in violation of public policy (Labor Code 22 § 1102.5). 23 The Court held oral argument on the parties’ motions in limine on June 17, 2026, and 24 noted on the record its rulings as to plaintiff’s motions in limine 1–4 and defendant’s motions in 25 limine 1–4 and 7–8. As to defendant’s motions in limine 5 and 6, to preclude testimony of 26 plaintiff’s retained experts Dr. Joseph Penbera and Dr. Julie Armstrong, see Docs. 75 & 77, 27 defendant’s motions are granted in part and denied in part for the reasons set forth below and as 28 addressed at the hearing. 1 I. LEGAL STANDARD 2 A witness who has been qualified as an expert by knowledge, skill, experience, training, 3 or education may give an opinion on scientific, technical, or otherwise specialized topics if (1) the 4 expert’s scientific, technical, or other special knowledge will help the trier of fact understand the 5 evidence or determine a fact in issue, (2) the testimony is based upon sufficient facts or data, 6 (3) the testimony is the product of reliable principles and methods, and (4) the witness has applied 7 the principles and methods reliably to the facts of the case. Fed. R. Evid. 702; City of Pomona v. 8 SQM N. Am. Corp., 750 F.3d 1036, 1043–44 (9th Cir. 2014). The Court serves as a gatekeeper 9 by “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the 10 task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). 11 “Scientific evidence is reliable if it is based on an assertion that is grounded in methods of 12 science—the focus is on principles and methodology, not conclusions.” Metabolife Int’l, Inc. v. 13 Wornick, 264 F.3d 832, 841 (9th Cir. 2001). The test of reliability is flexible, and “[t]he Court 14 must assess the expert’s reasoning or methodology, using [] appropriate criteria such as 15 testability, publication in peer-reviewed literature, known or potential error rate, and general 16 acceptance.” City of Pomona, 750 F.3d at 1044. Other factors that might be considered include 17 whether an expert has unjustifiably extrapolated from an accepted premise to an unfounded 18 conclusion, see General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), or whether an expert has 19 adequately accounted for obvious alternative explanations, see Claar v. Burlington Northern R. 20 Co., 29 F.3d 499, 502 (9th Cir. 1994). 21 The judge should “screen the jury from unreliable nonsense opinions, but not exclude 22 opinions merely because they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., 23 Inc., 738 F.3d 960, 969 (9th Cir. 2013). Simply put, “[t]he district court is not tasked with 24 deciding whether the expert is right or wrong, just whether his testimony has substance such that 25 it would be helpful to a jury.” Id. at 969–70. “Shaky but admissible evidence is to be attacked by 26 cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” 27 Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). The Court has discretion to decide how to 28 test an expert’s reliability based on the type of expert testimony offered. City of Pomona, 750 1 F.3d at 1045. The test is the soundness of the methodology, with the fact finder weighing 2 testimony that meets the threshold established by Rule 702. Id. The party offering the expert 3 bears the burden of establishing that Rule 702 is satisfied. Daubert, 509 U.S. at 593 n.10. 4 II. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY DR. PENBERA 5 Defendant moves to preclude plaintiff’s expert, Dr. Joseph Penbera, from: (1) testifying to 6 lost wages that allegedly accrued after January 1, 2024 through trial, (2) offering opinions based 7 on unreliable methodology and testifying as to legal conclusions; and (3) testifying as to punitive 8 damages. Doc. 75. Plaintiff opposes the motion, arguing that Dr. Penbera’s calculations of 9 plaintiff’s lost income and benefits are appropriately based on his consideration of plaintiff’s past 10 earnings, and that any testimony in the punitive damages phase would be based on defendant’s 11 publicly available financial information.1 Doc. 101. The parties do not dispute Dr. Penbera’s 12 qualifications to offer the opinions as to lost wages and benefits set out in his report. See Doc. 75, 13 101. 14 A. Opinions on lost income and benefits since May 28, 2023 15 Defendant argues that Dr. Penbera’s testimony should be precluded to the extent it rests 16 on factual allegations in 2024 or later that are outside the scope of the operative complaint. 17 Doc. 75 at 6–7. Defendant also argues that Dr. Penbera’s calculations of lost income and benefits 18 damages are speculative and flawed. See id. 8–10. 19 1. Admissibility of Dr. Penbera’s expert testimony 20 Dr. Penbera calculates plaintiff’s lost income and benefits based on plaintiff’s past wages. 21 See Doc. 75-1 at 21–24. Defendant raises several objections regarding the method Dr. Penbera 22 utilized in calculating lost wages, but such objections go to the weight of Dr. Penbera’s opinion, 23 not its admissibility. Dr. Penbera’s report indicates that, among other information, he reviewed 24 plaintiff’s earnings statements from “12/23/2018 to 1/13/2024” and from “6/15/2023 to 25 5/15/2025.” Those include plaintiff’s earnings statements showing her 2023 income and 26 1 Plaintiff acknowledges that Dr. Penbera may not offer legal conclusions. See Doc. 101; United 27 States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (“an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.”). 28 1 deductions through May 2023, when she was put on leave or terminated, and showing her 2024 2 income and deductions through mid-December 2024. See Doc. 75–1, Ex. D. 3 To the extent defendant argues that Dr. Penbera relied on incomplete pay data from the 4 relevant years or failed to adequately consider plaintiff’s earnings in earlier years, “it is not the 5 role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.” 6 Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed Cir. 2003). Even if Dr. Penbera 7 had failed to consider all potentially relevant pay data, which is not evident, “[v]igorous cross- 8 examination, presentation of contrary evidence, and careful instruction on the burden of proof are 9 the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 10 U.S. at 595. Under Daubert, “[t]he district court is not tasked with deciding whether the expert is 11 right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” 12 Alaska Rent-A-Car, Inc., 738 F.3d at 969–70. “Shaky but admissible evidence is to be attacked 13 by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” 14 Primiano, 598 F.3d at 564. Dr. Penbera is not precluded as a general matter from offering 15 expert opinions on plaintiff’s lost income and benefits. 16 2. Lost income and benefits damages based on events occurring between 17 plaintiff’s 2022 injury and her starting a new position in March 2024 18 A plaintiff asserting claims under FEHA may seek back pay and front pay as 19 compensatory damages. Lopez v. Wal-Mart Assocs., Inc., No. 2:25-CV-07050-MCS-MAA, 2025 20 WL 2731005, at *2 (C.D. Cal. Sept. 24, 2025). “Front pay usually reflects a temporary situation 21 that will be remedied by other relief ordered in the judgment.” Horsford v. Bd. of Trs. of 22 California State Univ., 132 Cal. App. 4th 359, 388 (2005). Courts may award “front pay based 23 upon a wage differential that will persist over the employee’s working life.” Id. Nonetheless, 24 “[f]ront pay is intended to be a temporary measure, and courts are wary of front pay awards for 25 the remainder of a plaintiff’s career when that individual can mitigate his or her losses.” McCray 26 v. Westrock Servs., LLC, No. 21-9853-DMG (RAOX), 2024 WL 4579108, at *7 (C.D. Cal. Sept. 27 10, 2024) (collecting cases and finding that a 16-year front pay award was unduly speculative). 28 Defendant asserts that Dr. Penbera’s opinions rest “entirely” on 2024 and 2025 factual 1 allegations that are not part of plaintiff’s claims in this action. Doc. 75 at 6. But that is incorrect. 2 For example, Dr. Penbera’s report reflects that, among other data, he considered plaintiff’s past 3 wages from January through May 2023 in calculating plaintiff’s lost income for the period from 4 her alleged constructive termination in May 2023 through her starting a new position in March 5 2024. While Dr. Penbera’s report includes lost income and benefits calculations for periods after 6 December 2024, when plaintiff was allegedly terminated from her new position, Dr. Penbera also 7 clearly addresses plaintiff’s lost income and benefits for the period from May 2023 to March 8 2024. Dr. Penbera may testify as to plaintiff’s lost income and benefits through March 2024. 9 Dr. Penbera’s report also includes calculations of plaintiff’s future lost income and 10 benefits after December 2024. But the parties agree that plaintiff obtained a new job position 11 with defendant in March 2024. Doc. 44 at 4. And while plaintiff was allegedly terminated from 12 that new position in December 2024, that termination is not part of plaintiff’s claims in this 13 action. See Doc. 47. 14 To the extent plaintiff’s future lost income and benefits are based on plaintiff’s alleged 15 wrongful termination in December 2024, which is not a claim at issue in this case, testimony as to 16 such damages would not be relevant to plaintiff’s claims at trial. Dr. Penbera will be precluded 17 from testifying as to lost income and benefits damages that are due to plaintiff’s December 2024 18 termination. However, to the extent certain such future losses are attributable to actions that are 19 the subject of plaintiff’s claims—for example, plaintiff’s loss of future benefits due to her lost 20 income in the period from May 2023 to March 2024—then Dr. Penbera’s testimony as to such 21 specific future losses would be admissible to that extent. 22 B. Punitive Damages 23 Defendant argues that Dr. Penbera should be precluded from testifying to punitive 24 damages because he was not designated to testify to punitive damages, he did not provide an 25 expert report on punitive damages, and plaintiff did not seek financial records to support a 26 punitive damages analysis. Doc. 75 at 10–11. 27 Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose expert witnesses and 28 provide a written report that contains “a complete statement of all opinions the witness will 1 express and the basis and reasons for them.” The failure to make the disclosures required by Rule 2 26(a) precludes the party from using the information or witness at trial unless the failure was 3 substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1); see also Yeti by Molly, Ltd. v. 4 Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (“Rule 37(c)(1) gives teeth to 5 [disclosure] requirements by forbidding the use at trial of any information required to be 6 disclosed by Rule 26(a) that is not properly disclosed.”). 7 Plaintiff appears to concede that Dr. Penbera cannot provide expert testimony as to 8 punitive damages. See Doc. 101 at 7 (“Dr. Penbera’s expected testimony on defendant’s own 9 financial records is admissible as non-expert testimony…”). Plaintiff did not disclose 10 Dr. Penbera as an expert on any punitive damages issue, and Dr. Penbera’s expert report does not 11 include an opinion regarding punitive damages. Additionally, Dr. Penbera confirmed in his 12 deposition that his testimony was limited to determining damages with respect to lost income and 13 benefits. See Doc. 75 at 10–11; Doc. 101. Plaintiff does not argue that the failure to disclose Dr. 14 Penbera’s opinions on punitive damages was substantially justified or harmless. See Merch. v. 15 Corizon Health, Inc., 993 F.3d 733, 741 (9th Cir. 2021) (the party facing sanctions has the burden 16 to prove harmlessness); see also Yeti by Molly, Ltd., 259 F.3d at 1106 (noting that Advisory 17 Committee Notes describe Rule 37(c)(1) as a “self-executing,” “automatic” sanction to “provide[ 18 ] a strong inducement for disclosure of material....” and noting that courts have “upheld the use of 19 the sanction even when a litigant’s entire cause of action or defense has been precluded.”). 20 Dr. Penbera is therefore precluded from testifying as an expert as to punitive damages and 21 may not offer any opinion as to defendant’s financial documents or financial condition. Plaintiff 22 does not dispute the exclusion of expert opinion or expert testimony on this issue. Rather, 23 plaintiff appears to propose that Dr. Penbera read to the jury excerpts from admitted exhibits—to 24 “testify as a witness simply to assist the jury in reading” defendant’s publicly available financial 25 documents. Doc. 101 at 8. Plaintiff represented at the hearing that she would establish a basis to 26 admit defendant’s financial documents at any punitive damages phase of the trial, independent of 27 any testimony by Dr. Penbera. Assuming plaintiff establishes a basis to admit such records at 28 trial, the Court reserves for trial the issue of how plaintiff may present such records to the jury. 1 III. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY DR. ARMSTRONG 2 Defendant moves (1) to preclude plaintiff’s expert Dr. Julie Armstrong from testifying as 3 to plaintiff’s emotional distress and non-economic damages because, defendant claims, 4 Dr. Armstrong’s testimony is based on events in 2024 that are outside the scope of the litigation, 5 (2) to preclude Dr. Armstrong’s testimony because it is not based on any medical or employment 6 records, and (3) to preclude Dr. Armstrong from offering opinions regarding the causation of 7 plaintiff’s emotional distress damages. Doc. 77. Plaintiff opposes the motion, arguing that 8 Dr. Armstrong’s testimony that plaintiff suffers emotional distress is admissible because the 9 evidence shows that plaintiff’s emotional distress arose, at least in substantial part, due to 10 defendant’s actions in the relevant period, and that defendant’s objections to Dr. Armstrong’s 11 testimony go to the weight, not admissibility, of her opinions. Doc. 102. The parties do not 12 dispute Dr. Armstrong’s qualifications. See Doc. 77, 102. 13 Under Daubert, the district court is required to act as a gatekeeper of expert witness 14 testimony. Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1321 n.18 (9th Cir. 1995). “To 15 fulfil [their] substantive gatekeeping obligations, courts must determine if the proffered testimony 16 is reliable, and if it fulfills the ‘fit’ requirement, meaning that the expert’s testimony ‘logically 17 advances a material aspect of the proposing party’s case.’” Feindt v. United States, No. CV 22- 18 00397 LEK-KJM, 2024 WL 1514021, at *4 (D. Haw. Apr. 8, 2024) (quoting Daubert, 43 F.3d at 19 1315). “[I]f the facts or data would otherwise be inadmissible, the proponent of the opinion may 20 disclose them to the jury only if their probative value in helping the jury evaluate the opinion 21 substantially outweighs their prejudicial effect.” Fed. R. Evid. 703. 22 First, defendant argues that Dr. Armstrong’s opinions should be precluded because they 23 are based on plaintiff’s factual allegations concerning events outside the scope of plaintiff’s 24 claims, including plaintiff’s assertion that in December 2024 defendant wrongfully terminated her 25 from her new position, and that in September 2024 defendant posted graphic photos of plaintiff’s 26 injury. Doc. 78 at 2. Plaintiff does not dispute that evidence of the September and December 27 2024 events are outside the scope of her claims at trial. Rather, plaintiff argues that Dr. 28 Armstrong’s opinion that plaintiff suffers emotional distress is admissible because the evidence 1 shows that plaintiff’s emotional distress arose, in substantial part, based on the events that are the 2 subject of this litigation. See Doc. 102. 3 While defendant argues that Dr. Armstrong relies insufficiently on the relevant period in 4 reaching her expert opinions, that is incorrect. Dr. Armstrong’s report refers at length to 5 plaintiff’s account of her circumstances from her injury in November 2022 to her re-hiring by 6 defendant in March 2024. See Doc. 77-1 at 45–46. To the extent defendant argues that Dr. 7 Armstrong’s report does not adequately differentiate the sources of plaintiff’s emotional distress 8 between events occurring before March 2024 and those occurring thereafter, that argument goes 9 to the weight of Dr. Armstrong’s testimony, not its admissibility, and may be subject to cross 10 examination. See Feindt, 2024 WL 1514021, at *7 (psychiatrist’s alleged disregard of other 11 possible sources of trauma and failure to review all medical records went to the weight rather than 12 admissibility of expert testimony). 13 Defendant objects that Dr. Armstrong does not apportion the cause of emotional distress 14 between the pre-March 2024 incidents and events occurring after March 2024, but, as plaintiff 15 points out, the appropriate inquiry is whether the pre-March 2024 events were a substantial cause 16 of plaintiff’s damages, not whether they were the sole cause. The Ninth Circuit does “not require 17 experts to eliminate all other possible causes of a condition for the expert’s testimony to be 18 reliable.” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1237 (9th Cir. 2017) (quoting 19 Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1199 (9th Cir. 2014)). “It is enough that the 20 proposed cause ‘be a substantial causative factor,’” id., and that is sufficiently shown on the 21 present record to provide a basis for Dr. Armstrong’s testimony. Defendant may contest Dr. 22 Armstrong’s testimony through “[v]igorous cross-examination” or the “presentation of contrary 23 evidence,” but they fail to show a basis to exclude it entirely. See Daubert, 509 U.S. at 595; see 24 also Primiano, 598 F.3d at 564 (“Shaky but admissible evidence is to be attacked by cross 25 examination, contrary evidence, and attention to the burden of proof, not exclusion.”).2 26 2 Plaintiff argues that defendant failed to plead as an affirmative defense that there was a 27 “superseding cause” of plaintiff’s psychological harm, and that plaintiff therefore cannot raise such a defense to Dr. Armstrong’s testimony. A superseding cause is an affirmative defense that 28 is waived if not alleged in the answer. Green v. Healthcare Servs., Inc., 68 Cal. App. 5th 407, 1 Second, defendant also objects that Dr. Armstrong’s opinion relies solely on her 2 experience and her interview and testing of plaintiff and not on medical or employment records. 3 Doc. 77 at 6–9. This argument likewise goes to the weight of Dr. Armstrong’s testimony, not to 4 its admissibility. See Feindt, 2024 WL 1514021, at *7. Dr. Armstrong explains that her opinion 5 is based largely on her clinical interview of plaintiff, during which Dr. Armstrong administrated 6 the Structured Inventory of Malingered Symptoms (SIMS) and Millon Clinical Multiaxial 7 Inventory-IV (MCMI-IV) tests. Doc. 77-1 at 36–37. Defendant does not establish, or even 8 argue, that Dr. Armstrong’s clinical interview of plaintiff was an unacceptable methodological 9 approach. See Doc. 77; Doe (C.L.F.) v. G6 Hosp., LLC, No. 1:23-CV-00303-MJT-CLS, 2025 10 WL 2825773, at *5 (E.D. Tex. Aug. 20, 2025) (“MCMI-IV remains ‘generally accepted in the 11 relevant scientific community.’”); Vicente v. Barnett, 415 F. App’x 767, 770 (9th Cir. 2011) 12 (clinical interviews where a doctor observes a person’s affect and gathers data on the person’s life 13 history, level of function prior to the relevant event, and function after the relevant was not a 14 clearly invalid reasoning and methodology). 15 Third, defendant seeks to preclude Dr. Armstrong from offering opinions regarding the 16 causation of plaintiff’s emotional distress damages. Dr. Armstrong was not plaintiff’s treating 17 provider and did not review plaintiff’s contemporaneous medical records, and she did not observe 18 plaintiff’s emotional state or symptoms during the period from 2022 to March 2024. 19 Additionally, as plaintiff acknowledged at the hearing, Dr. Armstrong may not testify specifically 20 to the plaintiff’s credibility regarding plaintiff’s claimed adverse workplace experiences. See 21 United States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995) (quoting United States v. 22 Candoli, 870 F.2d 496, 506 (9th Cir.1989) (“[an] expert witness is not permitted to testify 23 specifically to a witness’ credibility or to testify in such a manner as to improperly buttress a 24 witness’ credibility.”). 25 But Dr. Armstrong may testify to her observations of plaintiff’s emotional distress 26 415 (2021). But defendant is not seeking to assert this issue as an affirmative defense. Rather, 27 defendant is identifying an issue that is clearly raised by Dr. Armstrong’s report, which notes that plaintiff attributed her emotional distress to both pre- and post-March 2024 events. Given this, 28 defendant is not precluded from questioning plaintiff and/or Dr. Armstrong on this issue at trial. 1 || symptoms and disorder when she evaluated plaintiff in July 2025, and the extent to which 2 | plaintiffs account of her alleged adverse workplace experiences from her 2022 injury to her 3 || rehiring in March 2024, if true, could substantially contribute to such ongoing emotional distress 4 | symptoms. See Villareal v. City of San Jose, No. 22-CV-09152-VKD, 2026 WL 976071, at *3 5 || (N.D. Cal. Apr. 10, 2026) (expert’s opinions regarding whether plaintiffs version of events, if 6 || true, could cause someone to experience post-traumatic stress disorder was admissible 7 || testimony); Cleveland v. Behemoth, No. 3:19-CV-00672-RBM-BGS, 2022 WL 5314770, at *3 8 | (S.D. Cal. Oct. 6, 2022) (expert testimony admissible where such testimony could “be helpful to 9 || the trier of fact in determining whether and to what extent Plaintiff suffered emotional distress 10 | and whether such distress was caused by Defendant.”),; see also Reed v. Lieurance, 863 F.3d 11 | 1196, 1209 (9th Cir. 2017) (“While [a]n expert witness is not permitted to testify specifically to a 12 || witness'[s] credibility, we know of no rule barring expert testimony because it might indirectly 13 || impeach the credibility of an opposing party's testimony.” (internal quotation marks and citations 14 | omitted)); Doe v. Bridges to Recovery, LLC, No. 2:20-CV-348-SVW, 2021 WL 4690830, at *4—-5 15 | (C.D. Cal. May 19, 2021) (precluding expert from opining as to credibility generally or veracity 16 | of allegations but not excluding expert’s opinions relating to his diagnosis of plaintiff). 17 | IV. CONCLUSION 18 Defendant’s motions in limine to preclude testimony of Dr. Joseph Penbera, Doc. 75, and 19 | Dr. Julie Armstrong, Doc. 77, are granted in part and denied in part, as set forth above. 20 91 | ITIS SO ORDERED. _ 22 Dated: _ June 21, 2026 4h 33 UNITED STATES DISTRICT JUDGE

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