Civil No. 3:03-CV-1175-H.
July 13, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff's Motion to Exclude Portions of Expert Testimony and Report, filed May 12, 2004; Defendant's Response to Plaintiff's Motion to Exclude and Defendant's Motion to Exclude Plaintiff's Expert Report and Testimony, filed June 2, 2004; Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Exclude, filed June 17, 2004; Plaintiff's Response to Defendant's Motion to Exclude Plaintiff's Expert Report, filed June 22, 2004; and Defendant's Reply in Support of its Motion to Exclude, filed July 7, 2004. Also before the Court are Plaintiff's Motion to Strike Defendant's Motion to Exclude, filed June 14, 2004, and Defendant's Response to Plaintiff's Motion to Strike, filed July 6, 2004. Plaintiff moves to exclude portions of the testimony and report of William E. Avera ("Avera"), Defendant's expert witness. Defendant moves to exclude the testimony and report of J. Herbert Burkman ("Burkman"), Plaintiff's expert witness. Additionally, Plaintiff moves to strike Defendant's motion to exclude Burkman's testimony and report as untimely and not in compliance with the local rules. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Plaintiff's Motion to Exclude should be DENIED, that Defendant's Motion to Exclude should be DENIED, and that Plaintiff's Motion to Strike should be DENIED.
Plaintiff Larry Florer ("Florer"), a white male over the age of forty, is a former employee of Defendant Electronic Data Systems Corporation ("EDS"). From March 1991 to July 2002, Florer was employed as a salesperson with EDS. Florer filed the instant case against EDS after he was terminated in July 2002. In his Complaint, Florer claims that although he was "the most senior [salesperson], with the most experience, and was the only [salesperson] recognized as a top performer," EDS fired him and gave his accounts to younger salespersons. Florer asserts a claim for age discrimination pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA").
On May 12, 2004, Plaintiff filed a motion to exclude Avera, Defendant's expert witness. In its response to Plaintiff's motion, Defendant moved to exclude Burkman, Plaintiff's expert witness. Before he responded to Defendant's motion to exclude, Plaintiff moved to strike Defendant's Motion to exclude because it was filed after the time for such motions designated in the Court's Scheduling Order of April 7, 2004, and because it did not include a Certificate of Conference as required by the Court's local rules. The Court will address the Motion to Strike first.
II. MOTION TO STRIKE
Plaintiff moves to strike Defendant's Motion to Exclude because of its untimely filing in violation of the Court's Scheduling Order of April 7, 2004, and because of Defendant's failure to confer on the motion in violation of Local Rule 7.1(h). Defendant admits that it filed its motion to exclude outside of the time limits set in the Scheduling Order of April 7, 2004, and that it failed to confer, but argues that because there is no prejudice to Plaintiff, and because it will not delay or disrupt the case, the Court should excuse the untimely filing. The Court agrees with Defendant.
"Under Federal Rule of Civil Procedure 6(b), the district court is granted broad discretion to expand filing deadlines." Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995). Although it would have been more proper for Defendant to request leave to file its untimely motion to exclude, the Court finds that Plaintiff was not prejudiced by Defendant's late filing; both parties have been able to respond fully to all motions before the Court. The Court notes that Defendant has met all other deadlines in the instant case. Additionally, the Court finds that the failure to confer on this type of motion is excusable, as the opposing party can be expected to object to the exclusion of its expert witness. Because the Court concludes that Plaintiff was not prejudiced by the late filing of Defendant's motion to exclude, the Court DENIES Plaintiff's Motion to Strike.
III. MOTIONS TO EXCLUDE
Both Plaintiff and Defendant move to exclude the opposing party's expert witness pursuant to Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceutical, Inc., 509 U.S. 579 (1993). Federal Rule of Evidence 702 lays out the standards for testimony by expert witnesses. It reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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 facts of the case.
FED. R. EVID. 702. The Advisory Committee Note to the 2000 Amendments to Rule 702 clarify that the Court must act as a gatekeeper to all expert testimony to exclude unreliable expert testimony. FED. R. EVID. 702 advisory committee's note (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)). "The proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence." Id. (citing Bourjaily v. United States, 483 U.S. 171 (1987)). In evaluating the evidence, the Court should look to five factors:
1) whether the expert's technique or theory can be or has been tested — that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; 2) whether the technique or theory has been subject to peer review and publication; 3) the known or potential rate of error of the technique or theory when applied; 4) the existence and maintenance of standards and controls; and 5) whether the technique or theory has been generally accepted in the scientific community.Id. (citing Daubert, 509 U.S. at 593-94). Not all factors will apply in every case.
In the instant case, Plaintiff argues that Avera's report and testimony should be excluded because "there is simply too great of an analytical gap between the general history of the telecommunications industry and the facts of this case." (Pl.'s Br. at 6.) Plaintiff argues that Avera's report is unreliable because Avera did not examine the specific sales history and relationships Florer had with his customers or how the industry related to Florer's position or sales. ( Id.) Plaintiff also argues that Avera's report will not be helpful to the jury, that Avera has no specialized knowledge of the telecommunications industry or the business of EDS.
Defendant contends that Avera's report is reliable because he reviewed relevant and reliable economic data and pertinent documents. (Def.'s Br. at 7.) Defendant also contends that "the use of industry trends to calculate lost earnings is a reliable method that had been specifically endorsed by courts in this circuit." ( Id. at 8.) See Masinter v. Tenneco Oil Co., 867 F.2d 892, 894 (5th Cir. 1989) (citing Book v. Nordrill, Inc., 826 F.2d 1457 (5th Cir. 1987)). Defendant argues that the reliability of Avera's report is not contingent on his tying industry trends to Florer's specific customers and that Avera's report ties his analysis of industry trends to the specific product Florer sold. (Def.'s Br. at 9-11.)
Defendant moves the Court to exclude the report and testimony of Burkman, Plaintiff's expert witness. Defendant argues that Burkman's report is unreliable because he misunderstands the nature of Florer's duties at EDS. Defendant also argues that the report is unreliable because Burkman bases his projections of Florer's future income on Florer's projections and does not take into account events that have occurred in the telecommunications industry.
Plaintiff responds that the Court should only consider the principles and methodology, not the conclusions they generate, when deciding a Daubert motion. Plaintiff also argues that the report is reliable because evidence support Burkman's characterization of Florer's job duties and because Burkman did take into account the state of the telecommunications industry when making his projections.
After reviewing the parties' arguments in support of their respective motions to exclude, the Court concludes that the experts' reports meet the requirements of Rule 702. The Court DENIES Plaintiff's and Defendant's respective motions to exclude.
For the reasons stated above, Plaintiff's Motion to Exclude is DENIED, Defendant's Motion to Exclude is DENIED, and Plaintiff's Motion to Strike is DENIED.