Maldonado v. Federal Express Corporation

Opposition to Motion re MOTION Defendant's Motion to Exclude Testimony and Expert Report of Lisa Fontes

D.V.I.May 31, 2019

LEE J. ROHN AND ASSOCIATES, LLC 1101 King Street Christiansted VI 00820-4933 Tel: 340.778.8855 Fax: 340.773.2954 lee@rohnlaw.com IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX NATACHA MALDONADO, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant. CIVIL NO. 2017/39 ACTION FOR DAMAGES JURY TRIAL DEMANDED OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE TESTIMONY AND EXPERT REPORT OF LISA FONTES Plaintiff, Natacha Maldonado, by and through undersigned counsel, hereby files her Opposition to Defendant, Federal Express Corporation’s (“FedEx”) Motion to Exclude the testimony and expert report of Plaintiff’s Expert Witness, Dr. Lisa Aronson Fontes, Ph.D. INTRODUCTION This case centers around the sexual abuse, harassment, and hostile work environment that Plaintiff, Natacha Maldonado, suffered at Defendant, Federal Express Corporation’s St. Croix station, under her Manager/Supervisor Dean Camacho from September 2012 to July 2016, over three and a half years. (Exhibit 1, Complaint). When Ms. Maldonado tried to stop the sexual abuse and harassment, by telling Camacho to stop bothering her at work and cease making sexual advances, Camacho blocked Plaintiff’s calls to his work phone on July 14, 2016, thereby preventing her from doing her job. (RSOF ¶ 57)1. Plaintiff, in the midst of an emotional breakdown, responded by shouting at Camacho and throwing her cell phone at a wall. (Id.). Plaintiff then sent an email to Human Resources asking the H.R. Advisor to contact her. (RSOF ¶ 14). In retaliation, Dean 1 In the interest of space and convenience, Plaintiff references her Response to Federal Express’s Statement of Undisputed Facts (RSOF). Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 1 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 2 Camacho terminated Plaintiff that same afternoon of July 14, 2016. (Id.). Plaintiff complained about Camacho’s sexual harassment and her wrongful termination to Federal Express’s Human Resources Department on July 15, 2019, July 18, 2019, and again July 27, 2019. Federal Express responded to Ms. Maldonado, a ten-year employee, by suspending her on July 27, 2016 (backdating it to July 15, 2016), and then on August 26, 2016, Defendant ratified Camacho’s termination of Ms. Maldonado, by phone. (RSOF ¶ 5). Federal Express claimed that Plaintiff had willfully and intentionally committed acts of workplace violence against her sexual harasser, Mr. Camacho. (RSOF ¶ 4). Plaintiff filed this lawsuit asserting claims under VI. law for sexual harassment, hostile work environment, retaliation, wrongful discharge and breach of duty of good faith and fair dealing by Federal Express. (Ex. 1, Complaint). In order to assess the history and context of the three and a half years of sexually violent conduct by Dean Camacho, Plaintiff retained expert witness, Dr. Lisa Aronson Fontes, Ph.D. Dr. Fontes is an expert on sexual violence and harassment against women and has forged a clear academic and public understanding of the concept of “coercive control” in situations of sexual violence in a range of settings. (Exhibit 2, Dr. Fontes Depo at 83). Dr. Fontes is also an expert on interviewing victims of sexual violence and harassment and the proper techniques for such interviews. Dr. Fontes is amply qualified to testify on the sexual harassment and hostile work environment that occurred at FedEx’s St. Croix station due to her education, training and specialized knowledge, and qualified to testify about Federal Express’s disingenuous interviews of Plaintiff after she complained of sexual harassment. (Exhibit 4, Dr. Fontes CV). Her testimony will assist a jury in understanding the context and Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 2 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 3 history of the sexual violence2 Plaintiff suffered under the coercive control of her Manager and supervisor, and how it affected Plaintiff psychologically and emotionally, which are key issues in this case. (Exhibit 1, Complaint; Exhibit 3, Dr. Fontes’s Expert Report). LEGAL DISCUSSION I. STANDARD OF REVIEW Federal Rules of Evidence 702 and 704 govern the admissibility of expert testimony. Under Rule 702, if scientific, technical, or other specialized knowledge will assist the jury to “understand the evidence” or to “determine a fact in issue” a qualified expert may testify in the form of an opinion if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the case. See FED. R. EVID. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 and n.10 (1993); In re TMI Litig.193 F.3d 613, 664 (3d Cir. 1999); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir.1994). Thus, Rule 702 embodies “a trilogy of restrictions on expert testimony: qualification, reliability and fit.” See Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); Rutigliano v. Valley Business Forms, 929 F. Supp. 779, 783 (D.N.J. 1996). If a Daubert motion turns on factual issues, a court ordinarily must conduct an evidentiary hearing before granting the motion, even if the proponent of the witness does 2 The World Health Organization (WHO) defines sexual violence as: ‘Any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.” (Exhibit 5, WHO, Understanding and addressing violence against women). https://apps.who.int/iris/bitstream/handle/10665/77434/WHO_RHR_12.37_eng.pdf;jsessionid=B76CFFA3C5 2CBE086381D175FBA870AB?sequence=1. Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 3 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 4 not request one. See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417-18 (3d Cir. 1999). This is especially true if the court believes that the expert’s opinions are “insufficiently explained” or “inadequately and perhaps confusingly explicated.” See id. Such a situation, the court should hold a Daubert hearing to “assess the admissibility of the report” and give the “plaintiff the opportunity to respond to the court’s concerns.” See id. II. DR. FONTES IS QUALIFIED TO TESTIFY AS AN EXPERT ON ISSUES OF SEXUAL HARASSMENT AND ITS EFFECTS ON PLAINTIFF Preliminary questions about the qualifications of a person to be a witness or the admissibility of evidence shall be determined by the court. See FED. R. EVID. 104. The standard for admissibility is a liberal one and embodies a preference for admitting evidence that will assist the jury. See Bennington Foods, L.L.C. v. St. Croix Renaissance Group, L.L.P., No. 06-154, 2009 U.S. Dist. LEXIS 115414, at *3 (D.V.I. Dec. 9, 2009). The Court of Appeals for the Third Circuit has “eschewed imposing overly rigorous requirements of expertise and [has] been satisfied with more general qualifications.” Tyler v. Pirate Duck Adventure, LLC, No. 3:11-CV-00018, 2013 U.S. Dist. LEXIS 144839, 2-3 (D.V.I. Oct. 1, 2013)(quoting Paoli, 35 F.3d at 741). “Rule 702's liberal policy of admissibility extends to the substantive as well as the formal qualification of experts.” Id. Thus, an expert can qualify based on a broad range of knowledge, skills, training and experience. Schneider, 320 F.3d at 404. Indeed, the inquiry into an expert's reliability may focus upon his personal knowledge or experience. Kumho Tire, 526 U.S. at 150. Dr. Lisa Aronson Fontes has a doctorate in Counseling Psychology and is an internationally recognized expert on sexual violence against women and children. (Exhibit Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 4 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 5 3, Expert Report at p. 3; see also Exhibit 4, Fontes CV). She was a Fulbright Scholar, where she worked and studied in Argentina for three months. (Ex. 4, CV, at p. 8). She has been a fulltime professor and researcher on these topics since 1992 at the University of Massachusetts, Amherst, (“UMass”), which is a considered a Research One University and one of the most reputable universities in the nation, (Ex. 4, CV; see also Ex. 2, Fontes Depo at 11-12). Dr. Fontes is the author of the second book written on coercive control, Invisible Chains: Overcoming Coercive Control in Your Intimate Relationship. (Guilford Press, 2015) based on her years of research and teachings in her field. (Ex. 4, CV at p. 3). Dr. Fontes is an expert on interviewing and writing reports based on interviews. She authored the book, Interviewing Clients Across Cultures: A Practitioner’s Guide (Guilford Press, 2009), and has authored or co-authored several other peer-reviewed publications concerning interviewing practice, ethics, qualitative research, and violence against women research. (Ex. 4, CV at p. 3; Ex. 2, Fontes Depo at 57). She has also taught courses at the Master’s and Doctoral level on qualitative research. (Ex. 4, CV at p. 1). Dr. Fontes has taught workshops and written dozens of scholarly articles and book chapters on topics related to violence against women and children, and interviewing practices related to same. (Ex. 4, CV at 3-6; Ex. 2, Depo at 43, 57, 82). Dr. Fontes “has train[ed] people all over the world from, police officers to psychologists, to physicians, to graduate students, to researchers, to social workers about how to conduct interviews.” (Ex. 2, Fontes Depo at 213). Dr. Fontes trains professional audiences including judges, attorneys, social workers, psychologists, physicians and police on topics related to coercive control and violence Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 5 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 6 against women and children. (Ex. 4 at p. 7). She does most of these trainings in the U.S., and also regularly conducts trainings in Latin America, Europe, Canada, Australia, and Asia. (Ex. 4 at pp. 2, 7). This case is the fifth legal case in which Dr. Fontes has rendered an expert opinion on coercive control. (Ex. 2, Fontes Depo at 81-82). She has testified once on coercive control in court (Ex. 2 at 69). She has never been found to be unqualified as an expert and in no case has her expert report or testimony been excluded by the court. Dr. Fontes is familiar with Caribbean cultures, having done work professionally in Guyana and Puerto Rico, and among Caribbean populations in the U.S. (Ex. 4 at p. 2). Defendant claims in its Motion to Exclude Dr. Fontes that her “real” interest is in child sexual abuse (CSA). Dr. Fontes testified that she has had “two threads” in her career since the beginning; “violence against children and violence against women.” (Ex. 2 at 80-81). She began her work on interpersonal violence when she wrote her doctoral dissertation on a particular subset of interpersonal violence, Child Sexual Abuse, and her first book, published in 1995, was also on child sexual abuse. (Ex. 4 at 4). However, in the twenty- seven years since writing that dissertation, Dr. Fontes has published dozens of scholarly articles, and book chapters, engaged in trainings, networked with colleagues, and authored three other books on topics that focused on other areas of interpersonal violence, specifically, sexual violence against women. (Ex. 2 at 81; Ex. 4, CV). Dr. Fontes is an expert in workplace sexual harassment because, she is an expert on sexual violence against women in most environments including at home, work, or school. (Ex. 2 Fontes depo at 82). Dr. Fontes’ studies, research, and publications on sexual violence, including Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 6 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 7 harassment, is coherent and well-respected. She has worked as a psychotherapist in a variety of settings from 1989-1992 and graduated from an APA-accredited applied clinical program in Counseling Psychology with a 4.0 average. (Ex. 4). Defendant’s claim that Dr. Fontes is not qualified because she is not a licensed clinician, mistakes her area of expertise. Dr. Fontes testified that she does not need to sit for any psychologist licensing exams because she is not a clinician, but rather a professor and researcher. (Ex. 2 at 47-50). A clinical license is required for psychologists who want to receive insurance reimbursement for providing clinical services. (Id.). Defendant’s argument that Dr. Fontes is not qualified because she never worked as a counselor or a clinical psychologist or treated patients is irrelevant here. Dr. Fontes’ background and area of expertise is in researching, collecting data, and understanding the overall phenomenon of sexual violence against women in various settings, not in treating victims. (Ex. 2 at 49-50). None of her opinions or testimony pertain to counseling victims of sexual violence and harassment. (Id.). Defendant’s claim that Dr. Fontes is “only relying on her reading of the literature regarding coercive control,” is incorrect in the context of her work. Dr. Fontes has a postgraduate doctoral degree and twenty-seven (27) years of experience and relying on her reading of the literature on a topic is a critical part of my work. (Ex. 2 at 120-122). Additionally, she has interviewed hundreds of women and men about their experiences with coercive control. (Ex. 2 at 121; Ex. 3 at p. 4). Defendant argues that Dr. Fontes’s books were not peer-reviewed, even after Dr. Fontes explained to defense counsel that books are not peer-reviewed, scholarly articles in Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 7 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 8 journals are peer-reviewed. (Ex. 2, Fontes Depo at 54). Dr. Fontes also explained that her book manuscripts were peer-reviewed prior to publication and her peers gave feedback to her and her editor and revisions were made based on their reviews. (Ex. 2 at 54). Dr. Fontes’s expertise as applied in this case, is to explain to a jury how sexual violence develops from a coercive control situation, and how the sexual violence affects women, in this case, Ms. Maldonado, regardless of whether it occurs in the workplace or home. (Ex. 3, Expert Report; Ex. 2, Depo at 85, 161, 179). Dr. Fontes opined that coercive control: can begin subtly or it can begin forcefully.·So, it begins with a power imbalance and it begins with pushing another person to do something that they'd rather not. And often it looks like nothing in the beginning, it looks very, very small; it's a small·surrendering of one's own will. (Ex. 2, Fontes Depo at 179). In this case, FedEx’s Manager, Dean Camacho’s, actions of sexual harassment against Ms. Maldonado extended beyond the workplace and into Ms. Maldonado’s off-duty hours. (Ex. 2 at 161). The Court should admit Dr. Fontes because her resume (Ex. 4), demonstrates that she has extensive knowledge and experience on the issues of interpersonal violence including, sexual harassment, and has the education relevant to the matters at hand and has published on the issues of sexual violence relevant to this case. Thus, she has relevant knowledge, skill, training and experience to testify. See Young v. Pleasant Valley Sch. Dist., 267 F.R.D. 163, 166 (M.D. Pa. 2010). In Young, the Court recognized that a Doctor of Education who had education and knowledge of educational policy and who “provided services and seminars for numerous schools and agencies related to ‘student supervision, Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 8 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 9 employee hiring, supervision and dismissal, special education, school evaluation in custody matters, sexual harassment, civil rights and other issues,’ was qualified to opine on “the existence of harassment” in a hostile learning environment case, “provided that opinion is grounded in the facts of the case.” See Young, 267 F.R.D. at 167. The Court refused to find that a scholar’s related areas of research and knowledge limited him to opining on only one specific area of his training and skills. Id.; see also Shrout v. Black Clawson Co., 689 F. Supp. 774, 777 (S.D. Ohio 1988) (admitting testimony from a “consultant qualified as an expert on corporate policy and procedure concerning sexual harassment.”). “In considering a witness's practical experience and educational background as criteria for qualification, the only matter the court should be concerned with is whether the expert's knowledge of the subject is such that his opinion will likely assist the trier of fact in arriving at the truth.” See Valentin v. New York City, No. 94 CV 3911 (CLP), 1997 WL 33323099, at *14 (E.D.N.Y. Sept. 9, 1997)(citing United States v. Barker, 553 F.2d 1013, 1024 (6th Cir.1977) (an expert need not have certificates of training nor memberships in professional organizations, nor be an outstanding practitioner in the field in which he professes expertise); Mannino v. Int'l Mfg. Co., 650 F.2d 846, 850 (8th Cir.1981) (an expert need not have complete knowledge about the field in question, nor be certain) (citing 3 Weinstein's Evidence, Jack B. Weinstein & Margaret A. Berger, at 702–10 (1980)). “Formal education may also suffice to qualify a witness as an expert in a particular field, and the lack of extensive practical experience directly on point does not necessarily preclude the expert from testifying.” See Valentin v. New York City, No. 94 CV 3911 (CLP), 1997 WL 33323099, at *15. The Tenth Circuit explained, “[w]here an expert has the education or background to permit him to analyze a given set of circumstances, he can Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 9 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 10 through reading, calculations, and reasoning process from known scientific principles make himself very much expert in the particular product even though he has not had actual practical experience in its manufacture.” See Gardner v. General Motors Corp., 507 F.2d 525, 528 (10th Cir.1974) (engineering professors were admitted to opine about design defects in truck exhaust system even though they had no actual practical experience in the systems); Baumholser v. Amax Coal Co., 630 F.2d 550 (7th Cir.1980) (geologist with expertise in shock waves permitted to testify even though he had little actual experience in the study of blasts from coal mining operations). Here, Defendant’s claim that Dr. Fontes is not qualified because she is not an expert on “workplace violence” is unfounded. In an attempt to focus the case solely on its own predetermined narrative, Defendant argues Dr. Fontes should be excluded because she is not an expert on Defendant’s limited definition of “workplace violence,” which Defendant describes as a “shooting.” (Ex 2 at 89). However, Dr. Fontes explained repeatedly to Defendant’s counsel that sexual harassment is a subset of workplace violence, and that her training and expertise is in sexual violence, which falls under workplace violence. (Ex. 2, Fontes Depo at 88-90). In other words, the workplace violence that Dr. Fontes is testifying about relates to the coercive control and sexual violence committed by FedEx’s manager, Camacho, against Plaintiff. (Ex. 2, Fontes Depo at 84-85). It also explains Plaintiff’s tossing a phone at a wall and swearing after she told Camacho she would no longer tolerate his sexual harassment and he tried to get her fired by blocking her calls to work. Defendant followed up with asking Dr. Fontes if her work on drafting policies for the Title IX committee at the University of Massachusetts, Amherst, included drafting any workplace violence policies. (Ex. 2 at 89). Dr. Fontes explained that since Title IX policies Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 10 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 11 concern sexual assault, intimate partner violence, and sexual harassment, that could occur to students and employees at the university, the policies by definition included workplace violence. (Ex. 2, Fontes Depo at 89). Dr. Fontes testified she is also the Bullying Investigator for the university and had training in bullying in the workplace (Ex. 2 at 85), and Defendant asked if bullying was a subset of workplace violence or of sexual harassment. (Ex. 2 at 91). Dr. Fontes explained bullying is a subset of workplace violence. (Ex. 2 at 91). Defendant’s improper separation of sexual harassment from workplace violence demonstrates Defendant’s own difficulty in understanding that workplace violence encompasses sexual harassment and that sexual harassment is sexual violence. Thus, it is clear Dr. Fontes is a much-needed expert witness to explain the facts to a jury. Further, Defendant is proceeding as if Camacho’s admitted sexual harassment of Plaintiff3 never occurred, and therefore, Dr. Fontes should not be opining on sexual harassment at all, when the exact opposite is true as that is the crux of Plaintiff’s case. (Exhibit 4, Complaint). Dr. Fontes is testifying on the issues of whether Plaintiff was subjected to sexual harassment by her manager through an ongoing pattern of coercive control and how it affected her work life. Construing Dr. Fontes’s background narrowly will defeat the purpose of this liberal admissibility rule. See, e.g., United States v. Brown, 776 F.2d 397, 400 (2d Cir.1985) (noting that “[t]he words ‘qualified as an expert by knowledge, skill, experience, training, or education’ must be read in light of the liberalizing purpose of the Rule”), cert. denied, 475 U.S. 1141, 106 S. Ct. 1793, 90 L.Ed.2d 339 (1986); see also Bethea v. Merchants Commercial Bank, No. CV 11-51, 2014 WL 1924740 (D.V.I. May 14, 2014) (the court declined to construe the qualification requirement so narrowly and held that the 3 See RSOF ¶¶ 60, 62. Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 11 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 12 expert’s curriculum vitae and deposition testimony established him as having sufficient expertise in the areas of banking and risk management to testify as an expert). The Bethea Court overruled the Defendants' objection and stated that the Defendants may cross- examine the expert about his qualifications. Id. In Holbrook v. Lykes Bros. Steamship Co., Inc., 80 F.3d 777 (3d Cir. 1996), the Third Circuit reversed the district court's exclusion of plaintiff's treating physician's diagnosis of mesothelioma. The district court excluded the testimony on the grounds that the physician was not an "oncologist or a specialist in … 'definitive cancer diagnosis.'" Id. at 781. The Third Circuit held that the district court had construed the qualifications requirement too narrowly, reasoning that the issue was ripe for exploration on cross- examination, but not for Daubert exclusion. Id.; see also Crowley v. Chait, 322 F. Supp. 2d 530, 538-539 (D.N.J. 2004). The same reasoning should be applied here where Dr. Fontes is clearly qualified to testify on issues related to sexual harassment in this case. III. DR. FONTES REPORT IS RELIABLY BASED ON HER SPECIALIZED KNOWLEDGE AND EXPERIENCE IN SEXUAL VIOLENCE AND HARASSMENT AGAINST WOMEN The proponent of an expert does not need to prove that his or her opinions are correct, only that the expert’s testimony is reliable. See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999); Paoli, 35 F.3d at 743. The Supreme Court and the Third Circuit have established eight criteria to determine the reliability of expert testimony: (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 Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 12 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 13 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. See Paoli, 35 F.3d at 742 n.8. These factors do not constitute a "definitive checklist or test." Kumho Tire, 526 U.S. at 150 (quoting U.S. v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). According to the Supreme Court, “Daubert's list of specific factors neither necessarily nor exclusively applies to all experts.” Id. Their relevance depends “on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Id. at 150. “The inquiry into methodology is designed to ensure that an expert's opinions are based upon “‘methods and procedures of science’ rather than on subjective belief or unsupported speculation; the expert must have ‘good grounds’ for his or his belief.” Paoli, 35 F.3d at 742. When an expert’s testimony is not strictly scientific, but rather based on training and experience, it is appropriate to ask whether the expert’s methods are consistent with the standards of his field. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999). Expert opinions that are based on accepted standards and supported by evidence are typically found to be reliable. See Kumho Tire Co., 526 U.S. at 151. In Bethea, the District Court held, “Experts are not permitted to engage in a ‘haphazard, intuitive inquiry,’ but must explain the research and methodology they employed in sufficient detail in order to allow the other party's expert to test that hypothesis” through cross-examination or competing expert testimony. See Bethea, 2014 WL 1924740 (citing Hartle v. FirstEnergy Generation Corp., Civ. Nos. 08–1019, 08–1025, 08–1030, 2014 WL 1317702, at * 2-3 (W.D.Pa. Mar. 31, 2014). In Bethea, Mr. McConnell, described that he relied on his experience of the banking industry vis-àvis the national economy during the Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 13 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 14 relevant time period, and used bank reports from the FDIC’s web site to conduct peer- review and assess how the defendant bank compared. Id. The Court found McConnell's methodology to be sufficiently reliable and clarified that the defendant may challenge it at trial. Bethea, 2014 WL 1924740 (D.V.I. May 14, 2014). In this case, Dr. Fontes listed the approximately fifty-seven (57) documents, including deposition testimonies, interviews with the Plaintiff and Camacho, FedEx employee interviews she relied on to comprehend and assess the facts of this case. (Ex. 3, Exp Rep. at pp. 2-3). She began her report with explaining the types of “sexual harassment,” how sexual harassment affects its victims, and their coping styles, how sexual harassment causes deterioration in the work environment, and how coercive control is used in the workplace by employees in power over a subordinate target. (Ex. 3 at 4-6). Dr. Fontes explains the legal and scientific understanding of coercive control. (Ex. 3 at 7-8). Dr. Fontes used the voluminous documents and interviews to describe, “The Evolution of Camacho’s Sexual Harassment” and place his actions and abusive conduct in a context and history of events that form an overall pattern of behavior. (Ex. 3 at 9-19). Dr. Fontes opined: This case paints a picture of Dean Camacho as a serial sexual harasser, who took advantage of his position of authority over his women FedEx subordinates to press them for time alone and sexual favors. FedEx had notice of Camacho’s sexually harassing behavior by 2012 [Mitchell’s Complaint].” FedEx “took no significant action to stem his abuse or increase surveillance of him as a potential abuser.” (Exhibit 3, Dr. Fontes Expert Report at 9). Dr. Fontes explained concepts of harassment such as “grooming” “sexualizing the workplace” “sexual coercion” and “exploitation” and how Camacho’s actions fit these Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 14 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 15 identifying signs of harassment. (Ex. 3 at 9-19). Dr. Fontes described how Camacho’s silent treatment of Plaintiff at work, his constant monitoring of her through surveillance cameras, his refusal to allow her to wear the uniform she wanted and insistence on her wearing clothes too big for her to cover her shape, his refusal to let her work the front desk so she would not interact with male customers, and his constant accusations that she was improperly seeking male attention at work, interfered with her work environment. (Ex. 3 at 13-15). Dr. Fontes opined that FedEx should have been aware of the situation and “should have made it their business to be aware of what was happening at this [St. Croix] outpost.” (Ex. 2, Dr. Fontes Depo at 230). Defendant argues that Plaintiff was not raped by Mr. Camacho on October 11, 2012 as she claims. Dr. Fontes considered all of the information from the depositions and FedEx interviews, and her own interviews with Plaintiff and opined that Plaintiff’s description of the October 11, 2012 incident is of a rape. (Ex. 2 at 172). With regard to Defendant’s claim that Plaintiff consented to the sexual advances of her manager because she did not report it for years, Dr. Fontes testified that based on her extensive experience, research and knowledge, most victims of sexual assault do not report it to the police. (Ex. 2 at 167, 190). Dr. Fontes’s also opined on “The Effects of the Abuse,” and broke the effects down into Physical, Social and Career, Psychological, and loss of identity. (Ex. 3, Expert Report at 19-22). She concluded: [T]he materials from our interviews and the extensive accompanying documentation strongly support Ms. Maldonado’s contention that she was sexually harassed at work, and that workplace relationship extended into a relationship of coercive control after working hours. When she tried to end the relationship and report the long- term Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 15 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 16 harassment and abuse, FedEx terminated her. (Ex. 3 at 22). Dr. Fontes’s Report included all of the peer-reviewed material and articles she relied upon to research and form her opinions about the facts of this case. (Ex. 3 at 23-25). She explains the legal and scientific recognition of coercive control. (Ex. 3 at 7-8). It is undisputed that Dr. Fontes’s opinions are based on her extensive knowledge, education and experience in her field of and her opinions are not based on subjective belief or unsupported speculation. That alone is enough to establish reliability. See Bethea, 2014 WL 1924740. Since 2015 alone, more than 4,000 scholarly articles discuss coercive control in interpersonal abuse. Scholarly and activist conferences have been held that are solely dedicated to the topic of coercive control, and Dr. Fontes has been retained as a presenter at many of them. (Ex. 2, Fontes Depo at 41-44). Defendant alleges that “Fontes used no control methodology in her two interviews with Plaintiff that would allow her to convert the information into quantitative measures…..” But Defendant has not presented any information that its suggested methodology is relevant for understanding Plaintiff’s responses to Dr. Fontes’s questions, nor has Defendant presented an expert to critique Dr. Fontes’s methodology. Dr. Fontes is an expert in the methodology used to evaluate the evidence in this case. For thirty years she has been researching, writing about, and training others on violence against women in university settings, conferences, books, articles, and giving her opinions on violence against women in legal settings such as this to assist a lay person to understand what sexual violence is and challenge societal myths about it. (Ex. 3 at 7-8). Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 16 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 17 For example, many people do not recognize that sexual harassment is sexual violence. Her widely used book, Interviewing Clients Across Cultures: A Practitioner’s Guide, which discusses at length how to interview people, review documents, analyze the findings, and assemble the same into reports, establishes her as an expert on her methodology used in this case. (Ex. 2 at 216; Ex. 3 at 4). This Court recently held that because the “evidentiary requirement of reliability is lower than the merits standard of correctness,” Pineda, 520 F.3d at 241, “once an expert has made a sufficient showing that his or her methodology is reliable, the proper venue for the opposing party to attack that expert's assumptions, inferences, and conclusions is at trial via cross-examination.” See Lee v. Kmart Corp., No. CV 2014-0079, 2017 WL 3083412, at *4 (D.V.I. July 18, 2017)(citing General Elec. Co. v. Joiner, 522 U.S. 136, 154 (1997) (“Daubert quite clearly forbids trial judges to assess the validity or strength of an expert's scientific conclusions, which is a matter for the jury.”) “Rule 705, together with Rule 703, places the burden of exploring the facts and assumptions underlying the testimony of an expert witness on opposing counsel during cross-examination.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002). Defendant’s attempts to focus the case and the Court on issues related to its policies on anti-harassment or its obligations under the law is irrelevant to the issues Dr. Fontes opined on. Plaintiff’s Complaint has not attacked Defendant’s policies or its claims that they have appropriate written policies. (Ex. 1). The issue regarding FedEx’s “policies” is that FedEx did not follow its own policies in addressing Plaintiff’s sexual harassment claims in 2016, or prior to that by investigating Camacho when he was reported by FedEx employee Joseph Bass in 2014 and 2015. (Ex. 3, Exp Rep. at 10). Dr. Fontes opined, Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 17 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 18 “[E]ven when a company has avenues available, if they don’t communicate to workers that they’re serious about eliminating sexual harassment, then workers don’t take advantage of those avenues.” (Ex. 2 at 164-165). She further opined that Hulett’s investigation was disrespectful and only about victim blaming, and the throwing of the cell phone. (Ex. 2 at 208, 211). Dr. Fontes noted, “I am aware of an employer’s obligations to maintain a work environment free of sexual violence including sexual harassment for the safety of its employees.” (Ex. 2 at ¶ 45). Because of her expertise and work on sexual harassment, she was appointed the Bullying Investigator at the University of Massachusetts, Amherst in the Spring of 2018, and on the Title IX Revision Committee in the Fall of 2018. Title IX addresses discrimination based on sex, including sexual violence and harassment at universities receiving federal funds and includes workplace harassment. See 20 U.S.C.A. § 1681. Dr. Fontes’s expertise and methodology in forming her opinions in this case are undisputed. IV. DR. FONTES’S OPINION IS HELPFUL TO A JURY The third requirement for admitting an expert opinion is that the expert testimony fit the issues in the case. In other words, the expert’s testimony must be relevant for the purposes of the case and must assist the jury. See Schneider, 320 F.3d at 404. The Federal Rules of Evidence “embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact.” Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997); Lee v. Kmart Corp., No. CV 2014-0079, 2017 WL 3083412, at *7 (D.V.I. July 18, 2017). “‘Fit’ requires that the proffered testimony must in fact assist the jury, by providing it with relevant information, necessary to a reasoned decision Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 18 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 19 of the case.” Tyler v. Pirate Duck Adventure, 2013 U.S. Dist. LEXIS 144839 (internal citations omitted). Dr. Fontes explained the importance of having an expert opinion on sexual harassment in this case where Camacho’s coercive control of Plaintiff was prevalent and the facts fit that situation. She warns: courts may draw inferences that are prejudicial to victims based on myths about the abuse experience. Such myths include the erroneous notion that if a relationship is long-standing, the abuse was not that bad; or if outsiders did not notice, the abuse did not occur; or that a victim is “free” to resist or report her abuser. Without an understanding of the dynamics of coercive control, a finder-of-fact may mistakenly conclude that a victim’s actions or lack of specific actions are chosen freely than rather than produced by the difficult circumstances with which she copes daily. The abuser establishes these circumstances to maintain control over the victim. (Ex. 3 at 8). Dr. Fontes’s expertise will assist the jurors in challenging the myths surrounding sexual harassment and help them understand the facts so they may apply the law to the facts. The Court in Lee, found that “Dr. Williams' testimony regarding causation and Plaintiff's prognosis is relevant for the purposes of this case and would assist the trier of fact, and therefore satisfies the ‘fit’ requirement of Fed. R. Evid. 702 and Daubert.” Lee v. Kmart Corp., 2017 WL 3083412, at *7. “Kmart remains free to challenge what it perceives as an insufficiently probing diagnosis of Plaintiff's condition on cross-examination.” See id. The same is true here. FedEx is free to challenge Dr. Fontes’s testimony and opinions during cross examination. Further, FedEx has proffered no expert of its own. Therefore, there is no expert testimony that refutes the methodology or conclusions of Dr. Fontes. Despite earning over $65 billion in revenue in 2018, FedEx was unable to retain a credible expert who could review the facts of this case and render an opinion that supports FedEx’s Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 19 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 20 positions/defenses to Plaintiff’s claims of sexual harassment and wrongful discharge. Dr. Fontes makes no legal conclusions. She is a necessary expert witness who will provide the jury with information to help them understand the facts. RESPECTFULLY SUBMITTED LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Plaintiff DATED: May 31, 2019 BY: /s/ Lee J. Rohn Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 lee@rohnlaw.com Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 20 of 21 Maldonado, Natacha v. Federal Express Corporation, CIVIL NO. 2017/39 Opposition to Motion to Exclude Testimony and Expert Report of Lisa Fontes Page 21 CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on May 31, 2019, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Charles E. Engeman, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, LLC The Tunick Building 1336 Beltjen Road, Suite 201 St. Thomas, VI 00802 Email Address: charles.engeman@ogletreedeakins.com Attorney For: Federal Express Corporation Frederick L. Douglas, Esq. Patrick Daniel Riederer, Esq. Robbin W. Hutton, Esq. Brandie N. Smith, Esq. Federal Express Corporation 3620 Hacks Cross Road Building B, Second Floor Memphis, TN 38125 Email Address: robbin.hutton@fedex.com Attorney For: Federal Express Corporation BY: /s/ Lee J. Rohn (rl) Case: 1:17-cv-00039-WAL-GWC Document #: 140 Filed: 05/31/19 Page 21 of 21