McReynolds v. Sodexho Marriott Services, Inc.

• Decision Date: 20 December 2004
• Docket Number: No. CIV.A.01-0510 ESH.,CIV.A.01-0510 ESH.
• Citation: 349 F.Supp.2d 30
• Parties: Cynthia Carter MCREYNOLDS, et al., Plaintiffs, v. SODEXHO MARRIOTT SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Columbia

349 F.Supp.2d 30

Cynthia Carter MCREYNOLDS, et al., Plaintiffs, v. SODEXHO MARRIOTT SERVICES, INC., Defendant.

No. CIV.A.01-0510 ESH.

United States District Court, District of Columbia.

December 20, 2004.

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Kerry Alan Scanlon, David Laurent Cousineau, Karen Rae Robinson, Nicole Jelani Becton, Kaye Scholer LLP, Washington, DC, for Plaintiffs.

Barbara Louise Johnson, Paul, Hastings, Janofsky & Walker, LLP, David R. Warner, Venable, LLP, Washington, DC, George W. Johnston, Todd J. Horn, Venable, Baetjer & Howard, L.L.P., Baltimore, MD, Nancy E. Rafuse, Ashe & Rafuse, LLP, William B. Hill, Jr., Paul Hastings Janofsky & Walker, LLP, Atlanta, GA, for Defendant.

MEMORANDUM OPINION

HUVELLE, District Judge.

Before the Court is defendant's motion to exclude the testimony of plaintiffs' statistical expert pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Sodexho contends that Dr. Bernard Siskin's reports are both structurally flawed and "riddled with errors," he knows too little about defendant's operations to analyze them competently, he failed to control for major factors in performing his analyses,¹ he destroyed documents underlying his analyses that should have been disclosed to defendant, he lacked the competence to perform certain work, and his segregation analysis is not reliable. More generally, defendant's criticism is that Siskin is untrustworthy and so careless that, regardless of his extensive experience and his impressive credentials, his reports are unreliable.

In essence, the parties invite this Court to become enmeshed in a classic "battle of the experts," but courts are well advised to avoid such a role, absent a showing that the challenged evidence will prove either unreliable or unhelpful to the trier of fact. See, e.g., Dukes v. Wal-Mart, Inc., 222 F.R.D. 189, 191 (N.D.Cal.2004). While the Court has considered each of defendant's claims, it concludes that the parties have each hired competent, well-paid professional experts who have used similar methodologies, but have reached different results regarding the rate of promotions of African Americans at Sodexho. Although other statisticians might well differ with the parties' experts over various details of their analyses, in the end the Court concludes that Dr. Siskin's work does not fail the test set forth in Daubert.

ANALYSIS

I. Legal Standard

Daubert made clear that expert testimony should not be considered in a case unless the expert has genuine expertise and the testimony will assist the trier of fact to understand or determine a fact in issue. 509 U.S. at 592, 113 S.Ct. 2786. The twin requirements for expert testimony are relevance and reliability. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In determining whether the testimony is based on the expert's "scientific knowledge," the Court must "focus on `principles and methodology, not on the conclusions that they generate.'" Meister v. Med. Eng'g Co., 267 F.3d 1123, 1126-27 (D.C.Cir.2001) (quoting Daubert, 509 U.S. at 595, 113 S.Ct. 2786).

If the Court finds Siskin's opinions to be clearly unreliable, it may disregard his reports in deciding whether plaintiffs have created a genuine issue of material fact. Munoz v. Orr, 200 F.3d 291, 301 (5th Cir.2000). The Court thus exercises a "gatekeeping function" by examining the expert's qualifications, the methodologies used, and the relevance of the final results to the issues confronting the jury. Adams v. Ameritech Servs., Inc., 231 F.3d 414, 423 (7th Cir.2000).

However, "the question before [the Court] is not whether the reports proffered by plaintiffs prove the entire case; it is whether they were prepared in a reliable and statistically sound way, such that they contained relevant evidence that a trier of fact would have been entitled to consider." Id. at 425. "No one piece of evidence has to prove every element of the plaintiffs' case; it need only make the existence of `any fact that is of consequence' more or less probable." Id. (citing Fed.R.Evid. 401). Thus, it may be the case that although the expert's analysis is admissible, it is nonetheless insufficient to establish a prima facie case of discrimination. See, e.g., Scales v. George Wash. Univ., No. 89-0796, 1993 WL 304016, at *6 (D.D.C. July 27, 1993) (while expert's testimony and exhibits were "admitted for what they are worth," they probably did not constitute reliable evidence sufficient to establish a prima facie case of discrimination).

The party offering the expert's testimony must establish by a preponderance of the evidence that the expert testimony is admissible and that the expert is qualified. See Meister, 267 F.3d at 1127 n. 9 (citing Fed.R.Evid. 104(a) and Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786); see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.1999) ("[T]he proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable."). On the other hand, in making the preponderance-of-the-evidence reliability determination, the question is "not whether [the Court] find[s] one set of expert reports more persuasive than another. It is whether, taking the facts in the light most favorable to the plaintiffs, a trier of fact should be permitted to make that choice." Adams, 231 F.3d at 425 (citations omitted) (emphasis added). Thus, the question before the Court is not which of the parties' experts is "right," but rather whether defendant's criticisms of Siskin's analysis affect its admissibility, or only its "probativeness" or weight. Id. (quoting Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)). If the latter, then "our adversary system provides the necessary tools for challenging reliable, albeit debatable, expert testimony." Perkins v. Origin Medsystems, Inc., 299 F.Supp.2d 45, 54 (D.Conn.2004) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir.2002)) (internal quotation marks omitted).

II. Defendant's Criticisms of Siskin and His Work

A. Siskin's Qualifications to Testify About the Analyses of Data

Defendant claims that Siskin's "unhesitating acceptance" of the data provided to him and the analyses done by his staff "violate[] the principles of the scientific method," and on that basis, he must be excluded as lacking the requisite level of reliability. (Def.'s Mot. at 9.) Specifically, defendant argues:

1. Siskin is not an expert in computer programming (see id. at 5 (citing Def.'s Ex. A1 [Siskin dep.] at 134)), and he allegedly "cannot review any computer program language for accuracy." (Def.'s Reply at 5.) Instead, upon receiving the electronic data from Sodexho, "someone other than Siskin created and ran computer programs, which in turn generated printouts for Siskin to review." (Def.'s Mot. at 7.) "Shockingly," Siskin relied on an online discussion in deciding how to structure part of an analysis using the STATA statistical program, and allegedly no one on his team is sufficiently familiar with STATA, the program used to analyze the stratified sample data in the logistic regressions. (Id. at 9; Def.'s Reply at 7 & n. 5.)

2. Siskin did not determine whether the programmers conducted the analyses he requested and cannot attest to the accuracy of the computer output upon which he relied in drafting his reports. (Def's Mot. at 7-8 (citing his testimony that "hopefully his staff did it correctly," and "the other side will ... make all the corrections and pick up any errors that occur.")) Moreover, he relied on analyses generated by "unidentified programmers." (Id. at 9.)

Essentially, defendant argues that Siskin's reports lack foundation and are unreliable. But defendant's protestations amount to disputed factual issues, which are insufficient as a matter of law to warrant his exclusion. For instance, Siskin testified that, although he is not familiar with STATA programming, he is familiar with the techniques used in structuring an analysis for the program, and the results were always reviewed for errors after running a program. (Def.'s Ex. A1 [Siskin dep.] at 134-36.) As plaintiffs point out, many senior statisticians design tests, but for various reasons — including costs to the client — do not personally run them, but instead rely on their assistants to do so, reviewing their output to ensure that the test was properly conducted. (Pls.' Opp. at 10.) (See also Pls.' Ex. F (Haworth dep. at 16 in Bryant v. George Wash. Univ., No. 94-5522 (D.D.C. Mar. 21, 1995)) ("A: [U]sually I will work with one of the three senior economists to help get the work done in a reasonable cost effective way. Q: Do you have people to do programming for you? A: Yes."); Pls.' Ex. H (Haworth dep. in instant case at 56 ("It probably would be more efficient to have someone else [check back-up data] because it's been a long time since I programmed.")); see generally Pls.' Exs. G & H (naming various programmers and assistants on whom Haworth relies).)

As a Ph. D. statistician, past chairman of the Temple University Department of Statistics, and an expert with decades of experience performing analyses such as those at issue in the instant case (see Pls.' Ex. A(2) at ¶ 1), Siskin need not personally be an expert in STATA in order to be a qualified expert under Daubert. Rather, pursuant to Fed.R.Evid. 703, an expert may rely on any facts or data "of a type reasonably relied upon by experts in the particular field," including facts, data, and opinions that are otherwise inadmissible. This includes relying on one's assistants to carry out analyses that the expert designed. See Astra Aktiebolag v. Andrx Pharmaceuticals, Inc., 222 F.Supp.2d 423, 492 (S.D.N.Y.2002) (there is no requirement that an expert must run his own tests); see also Dura...