Maldonado v. Federal Express Corporation

REPLY to Opposition to Motion re Opposition to Motion

D.V.I.June 13, 2019

1 IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX NATACHA MALDONADO, ) Plaintiff, ) v. ) Case. No. 1:17-CV-39 ) FEDERAL EXPRESS CORPORATION, ) Defendant. ) ) DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND EXPERT REPORT OF LISA FONTES Defendant Federal Express Corporation (“FedEx”), pursuant to LR 7.1, submits this reply in response to Plaintiff’s opposition [Doc. No. 140] to its motion to exclude the testimony and expert report of Lisa Fontes, Ph.D [Doc. No. 125]. Plaintiff’s purported “expert” started having an “interest” in coercive control theory after Plaintiff and Dean Camacho started their consensual relationship. Plaintiff’s “expert” testimony and report is an attempt to subvert the role of the jury and rule of law, and impose the opinions of Lisa Fontes, Ph.D. (Fontes), who admittedly lacks the qualifications and reliability of a true expert. Her report and testimony lack any relevance to the dispute that would assist the jury. Despite Plaintiff’s attempt to mischaracterize the nature of this case, it does not alter the facts or the fundamental issues before the court, which is whether FedEx, an employer, was in conformity with the Wrongful Discharge Act, when Plaintiff’s employment was terminated for her admitted acts of workplace violence, which violated FedEx Policy. See Doc. 118 (Motion and Memorandum), Doc. 119 (Material Statement of Facts). Also, before the Court is whether Plaintiff was subject to a hostile work environment, when she engaged in a voluntary consensual relationship with her manager. Id., see also, Doc. 1 (Complaint). Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 1 of 10 2 LAW AND ARGUMENT A. Overview of Rule 702 and Daubert requirements. Contrary to the assertions of Plaintiff and her repetitive comment on FedEx’s decision not to retain an expert witness, it is not a retained competing expert, but the district court, who makes the preliminary determination as to whether an expert witness is qualified and whether the testimony is admissible under Rule 702 of the Federal Rules of Evidence. Kintzel v. Kleeman, 166 F. Supp. 3d 523, 527 (M.D. Pa. 2016); Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 781 (3d Cir.1996) (citing Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). “The court acts as a gatekeeper to exclude unreliable expert testimony, whose methods are untrustworthy or whose expertise is irrelevant to the issue at hand." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). See also, Eaton Corp. v. Parker-Hannifin Corp., 292 F.Supp.2d 555. (D. Del.2003). Here, Fontes’ testimony and her report do not meet the trilogy of restrictions placed by Rule 702 on expert testimony: qualification, reliability, and assistance to the jury. For these reasons both her testimony and report should be excluded. See, In re Catalyst Litig., No. SX-05-CV-799, 2010 WL 4721333, at *2 (V.I. Super. July 2, 2010) citing, Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003). B. The expert report, testimony and opinions of Fontes fail to meet the requirements mandated by Fed. R. Evid. Rule 702 and Daubert. The testimony and expert report of Fontes fails to meet the three major requirements: (1) witness must be an expert; (2) the procedures and methods used must be reliable; and (3) the testimony must fit the factual dispute at issue so that it will assist the jury. Anders v. Puerto Rican Cars, Inc., No. CIV.A. 04-0036, 2009 WL 3007367, at *3–4 (D.V.I. Sept. 15, 2009), aff'd, 409 F. App'x 539 Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 2 of 10 3 (3d Cir. 2011), citing Daubert, 509 U.S. at 591; United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985). The party offering the expert must prove each of these requirements by a preponderance of the evidence. Mahmood v. Narciso, 549 F. App'x 99, 102 (3d Cir. 2013), In re TMI Litig., 193 F.3d 613, 663 (3d Cir.1999). 1. Fontes lacks the qualifications to be considered an expert under Rule 702 and Daubert. Proffered experts should at a minimum, possess skill or knowledge greater than the average layman. Gov't of V.I. v. Sampson, 94 F. Supp. 2d 639, 646 (D.V.I. 2000). Fontes does not possess specialized knowledge and lacks even the minimum qualifications to testify as an expert. Plaintiff’s brief takes liberty with Fontes’ formal education, training, and current work. Fontes asserts that her formal education should qualify as an expert witness and allow her to testify and relies upon the decision in Valentin v. New York City, No. 94. CV 3911 (CLP, 1997 WL 33323099, at *15. However, Plaintiff’s reliance is misplaced, in Valentin, unlike this case, the experts were utilizing scientific principles such as engineering and manufacturing to opine about design defects. Id Here, Fontes’ formal education some thirty years ago was in journalism and psychology. Doc. 126, (Defendant Memorandum in Support of Motion to Exclude Testimony and Report of Lisa Fontes, Ph. D.), SOF ¶¶.1 Only since 2015, Fontes has focused on coercive control, which admittedly she has self-taught herself, by her reading about the subject. Doc. 126, SOF ¶¶ 10, 17- 18. Her supposed expertise was being developed after Plaintiff and Camacho started their relationship. Having an interest is far different from having expertise. Fontes admittedly has conducted no research of her own or developed any quantitative data, since she does not do that 1 Defendant relies upon the Statement of Fact (SOF) filed in Doc. 126, Memorandum in Support of Motion to Exclude Testimony and Report of Lisa Fontes Ph.D. Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 3 of 10 4 type of research. Doc. 126, SOF ¶ 19. Publishing a book on coercive control which is not peer reviewed does not rise to the same level as scholarly journal articles that are subject to peer review. For the past 9.5 years, Fontes’ teaching experience has not related to her “expertise”. Doc. 126, SOF ¶¶ 7, 9. Fontes’ teaching experience was always limited to adult classes at the University without Walls, which is for adults returning to school, where she teaches two classes framework of understanding and writing about experiences as well as providing advice to the students in the adult degree program. Id. Teaching on unrelated topics and doing research on a subject area are entirely different. Fontes admittedly has no scholarly peer reviewed material regarding coercive control. Doc. 126, SOF ¶ 7. Likewise, she has not published or conducted any training regarding sexual harassment or workplace violence in the corporate or even a business setting. Doc. 126, SOF ¶¶ 7, 25. Fontes now declares herself an expert on sexual harassment because she believes she is an expert on sexual violence against women in most environments and because of her experience on issues of interpersonal violence. Doc. 140, (Plaintiff’s Response in Opposition), pp. 6, 8. Fontes admits she does not know the employer standards for sexual harassment in the workplace. Doc. 126, SOF ¶ 20. Sexual harassment in the workplace differs vastly from sexual violence at home, in interpersonal relationships, or sexual violence that occurs in public. Fontes relies upon other studies and reports regarding sexual harassment. Fontes herself lacks any experience and specialized knowledge in regard to sexual harassment in the workplace and an employer’s obligations regarding allegations of sexual harassment in the workplace. FedEx does not have a predetermined narrative regarding workplace violence, to the contrary, workplace violence is a fundamental issue to this case, since it is this policy that was violated by Plaintiff that resulted in the termination of her employment. Fontes admits that Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 4 of 10 5 workplace violence is not the center of her expertise, as it relates to threats at work or disruptive behavior. SOF ¶ 26 (emphasis added). This is exactly what the facts in this case relate to regarding the termination of Plaintiff’s employment. Regardless of the training on interpersonal violence, sexual violence against women, Fontes provided no training to a corporation or business regarding workplace violence, nor has she participated in any investigations regarding workplace violence. SOF ¶ 25. Her experience is totally lacking in this area. Fontes’ curriculum vitae and her testimony show evidence of her lack of any specialized knowledge or training regarding coercive control, sexual harassment, and workplace violence that exceeds what a layperson would know. Fontes should not be deemed an expert and both her testimony and report should be excluded, since she lacks the minimum qualifications. 2. Fontes’ report lacks reliability in reaching her conclusions. Plaintiff asserts in her brief that FedEx’s failure to proffer an expert results in no testimony to refute the methodology and conclusions of Fontes; however, again, Plaintiff misses the mark. It is the district court that must consider whether the process or technique used by the expert in formulating the opinion at issue is reliable. Daubert, 509 U.S. at 592. Several factors should be considered in evaluating reliability such as the testability of the expert's hypothesis, whether the methodology has been subjected to peer review and publication, the frequency by which the methodology leads to erroneous results, the existence and maintenance of standards controlling the technique's operation, and whether the methodology has been generally accepted in the scientific community. Daubert, 509 U.S. at 592-594; see also United States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985). The reliability requirement of Daubert “means that the expert's opinion must 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.” In re Paoli Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 5 of 10 6 R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir.1994) (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). A court "must examine the expert's conclusions in order to determine whether they could reliably flow from the facts known to the expert and the methodology used." Heller v. Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir. 1999). "A court may conclude that there is simply too great a gap between the data and the opinion proffered. General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). In examining the reliability of Fontes’ testimony and report, Plaintiff’s brief asserts Fontes relies solely on the fifty-seven (57) documents provided by Plaintiff to formulate her opinions. Doc. 140, at p. 14. What Plaintiff omits in her response is the testimony of Fontes spending less than two hours total time talking with Plaintiff and reviewed at least some of the documents provided by Plaintiff’s counsel before rendering her opinion. SOF ¶ 22. Fontes’ opinions and report are void of any meaningful information and data. Fontes admittedly did not talk with anyone from FedEx; did not review the anti-harassment policy; was not familiar with FedEx’s Workplace Violence Policy; did not talk with any of Plaintiff’s family members; and was not interested in any information regarding family dynamics or Plaintiff’s counseling for aggression that occurred during her relationship with Dean Camacho. Doc. 126, SOF ¶¶ 24, 26, 38-39. Plaintiff fails to account or address the gap in Fontes’ testimony and her report from the information regarding the facts and the opinion offered by Fontes. Fontes performed no research and utilized no methodology in reaching her opinions. Doc. 126, SOF ¶¶ 17, 19, 23. She admittedly does not do that “kind of research” where she reduces facts and findings to quantitative data. Doc. 126, SOF ¶ 19. Fontes’ report does not identify or describe any methodology or specifics of how she reached her conclusions except her own speculation and the limited communication with Plaintiff and whatever documents she reviewed. Fontes’ reasoning and methodology Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 6 of 10 7 underlying her testimony and her report is not scientifically valid or sufficiently reliable, since Fontes did not rely or assert reliance upon any valid methodology. Fontes derives her opinions from reading and speculation. The lack of reliability and methodology in the expert material is evidenced by Fontes’ lack of knowledge regarding FedEx policies, and admittedly lacks expertise regarding workplace violence. Doc. 126, SOF ¶ 26. Fontes failed to consider the criteria relied upon in sexual harassment investigations, such as prompt investigation, prompt remedial action, and investigation by nonbiased parties. Doc. 126, SOF ¶¶ 32, 35, 41. Fontes was not even aware there were two separate investigations. Doc. 126, SOF ¶. Fontes has conducted no workplace investigations or sexual harassment investigations or training. Doc. 126, SOF ¶ 25. Fontes would not even consider the admitted consensual nature of the relationship Plaintiff had with Dean Camacho, the alleged harasser, for four years. Doc. 126, SOF ¶ 33. Fontes discounted the possibility that Plaintiff’s relationship with Dean Camacho, was a relationship that went bad, that Plaintiff may be the aggressor, and Plaintiff knew of FedEx’s policies and had availed herself of them before. Doc. 126, SOF ¶ 36. Fontes completely discounted alternative possibilities and factors in rendering her opinion. Even if Fontes could show some type of methodology used in forming her opinions, which she cannot, her reasoning underlying her testimony is not sufficiently reliable, since Fontes did not rely upon any valid methodology or reasoning in reaching her opinions. 3. Fontes’ report and testimony does not assist the jury and invades the province of the jury and her opinions and testimony are only guesses and speculation. Expert testimony that usurps either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it by definition does not aid the jury in deciding; rather, it undertakes to tell the jury what result to reach, and Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 7 of 10 8 attempts to substitute the expert's judgment for the jury's. Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005). Expert testimony, which draws a legal conclusion is not admissible. See, Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir.2006). A district court must ensure that an expert does not testify as to the governing law of the case. In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prod. Liab. Litig., 181 F. Supp. 3d 278, 294 (E.D. Pa. 2016). District court should not admit expert testimony directed solely to lay matters that jury can understand and deciding without expert's help. See Rieger v. Orlor, Inc., 427 F.Supp.2d 99 ( D.Conn.2006). Plaintiff’s brief asserts that Fontes will assist the jurors in challenging the myths surrounding sexual harassment. Doc. 140, Response at p. 19. However, this case is not about myths. The case is about the facts regarding workplace violence and workplace sexual harassment. Plaintiff’s brief and Fontes’ report clearly reflects Fontes’ lack of expertise and reliability, and that her report and testimony invade the province of the jury because Fontes makes speculative conclusions and credibility determinations clearly reserved for the jury. Plaintiff relies upon opinions from Fontes’ report, which are in reality going to witness’ credibility and motives. A jury is charged with determining credibility and motive not Fontes. Further, her opinion is not helpful to a jury because her opinion is nothing more than argument attacking the credibility of Ms. Hulett. Fontes’ opinions have no basis in fact and she failed to consider the criteria relied upon in sexual harassment investigations, such as prompt investigation, prompt remedial action, and investigation by nonbiased parties. Doc. 126, SOF ¶¶ 32, 35, 41. Likewise, she disregards Plaintiff’s repeated admissions that she engaged in a consensual relationship with Dean Camacho. Doc. 126, SOF ¶ 33. Fontes disagreed with the focus of the FedEx investigation, which initially started with the workplace violence and then moved to sexual harassment investigation after, Plaintiff raised allegations of harassment. Doc. 126, SOF ¶ 37. Fontes places weight on her belief Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 8 of 10 9 that the investigation was flawed because of the interview conducted by HR Advisor Vanessa Hulett. Doc. 126, SOF ¶ 41. A jury can determine credibility and motives without Fontes’ “expert” opinions on the adequacy of implementing its policy and investigation. I. CONCLUSION As detailed hereinabove and in Defendant FedEx’s previously submitted motion and memorandum, Fontes’ testimony and opinions do not meet the three major admissibility requirements: (1) the witness must be an expert; (2) the procedures and methods used must be reliable; and (3) the testimony must fit the factual dispute at issue so that it will assist the jury and both should be excluded. See, Anders v. Puerto Rican Cars, Inc., No. CIV.A. 04-0036, 2009 WL 3007367, at *3–4 (D.V.I. Sept. 15, 2009), aff'd, 409 F. App'x 539 (3d Cir. 2011), citing Daubert, 509 U.S. at 591; United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985). WHEREFORE, for the reasons articulated herein FedEx requests that the Court exclude the expert report and testimony of Lisa Fontes, Ph.D. Dated this 13th day of June 2019. Respectfully submitted, By: s/Charles E. Engeman Charles E. Engeman (V.I. Bar No. 498) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The Tunick Building, Suite 201 1336 Beltjen Road St. Thomas, VI 00802-4701 Telephone: (340) 714-1235 charles.engeman@ogletreedeakins.com AND Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 9 of 10 10 s/ Frederick L. Douglas Frederick L. Douglas (admitted pro hac vice) s/ Robbin W. Hutton Robbin W. Hutton (admitted pro hac vice) s/ Brandie N. Smith Brandie N. Smith (admitted pro hac vice) Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, TN 38125 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that I have served via ECF a true and correct copy of FedEx Corporation’s Memorandum of Law in Support of Motion to Exclude Testimony of Lisa Fontes this 13th day of June 2019. Lee J. Rohn, Esq. Mary Faith Carpenter, Esq. Lee J. Rohn and Associates, LLC 1101 King Street Christiansted, St. Croix, VI 00820-4933 By: s/Charles E. Engeman__________ Counsel for Defendant Case: 1:17-cv-00039-WAL-GWC Document #: 142 Filed: 06/13/19 Page 10 of 10