Rullo v. Univ. of Pittsburgh – of the Commonwealth Sys. of Higher Educ.

• Decision Date: 18 February 2021
• Docket Number: Civil Action No. 17-1380
• Citation: 520 F.Supp.3d 685
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: Hannah RULLO, Plaintiff, v. UNIVERSITY OF PITTSBURGH – OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, a Commonwealth of Pennsylvania Non-Profit Corporation, Defendant.

520 F.Supp.3d 685

Hannah RULLO, Plaintiff,

v.UNIVERSITY OF PITTSBURGH – OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, a Commonwealth of Pennsylvania Non-Profit Corporation, Defendant.

Civil Action No. 17-1380

United States District Court, W.D. Pennsylvania.

Signed February 18, 2021

Christian Bagin, Wienand & Bagin, Pittsburgh, PA, Neil L. Henrichsen, Pro Hac Vice, Henrichsen Siegel, P.L.L.C., Jacksonville, FL, for Plaintiff.

Mariah L. Passarelli, Tiffany A. Jenca, Cozen O'Connor, Shannon H. Paliotta, University of Pittsburgh Office of University Counsel, Pittsburgh, PA, for Defendant.

Re: ECF No. 106

MEMORANDUM ORDER

MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

Presently before the Court is the Motion in Limine to Preclude Evidence Regarding Plaintiff's Potential Earnings as a Healthcare Attorney ("Motion to Preclude Evidence of Potential Healthcare Attorney Earnings") filed by Defendant University of Pittsburgh (the "University").ECF No. 106.PlaintiffHannah Rullo("Rullo") opposes the motion.ECF No. 120.

I.BACKGROUND

A. Rullo's claims

The instant action was brought by Rullo, a former law student at the University, alleging that the University violated her rights to be free of gender bias, retaliation, and hostile environment under Title IX,20 U.S.C. § 1681(a).Rullo's claims arise out of the University's alleged mishandling of her Title IX complaint and her allegations of assault and battery against Leonel Mendieta("Mendieta"), a fellow law student.Following ruling on the University's Motion for Summary Judgment, the case is scheduled for trial relative to Rullo's Title IX claims of gender discrimination (Count I), hostile environment (Count II), and retaliation (Count III).ECF No. 78.

B.Alleged Damages

In the Statement of Damages section of her Pretrial Statement, Rullo states that she will seek four categories of damages at time of trial.

1.Lost educational opportunities due to leaving the University prematurely and the University's treatment of Rullo causing her to complete law school one year later than anticipated at a less competitive institution, Florida Coastal School of Law ("Florida Coastal"), which caused her to suffer loss of future earnings and earnings capacity.

2.Compensatory and other non-economic damages caused by the behavior of the University and lack of adequate investigation of Rullo's Title IX complaint, including emotional distress, damage to reputation, fear, anxiety and trauma.

3.Equitable relief in the form of correction of Rullo's scholastic record at the University to reflect no Title IX violation by Rullo.

4.Attorneys’ fees and costs.

ECF No. 92at 7.

C.Dr. Mason

Rullo retained Dr. Paul Mason to testify regarding economic losses related to the first category of damages: her lost educational and career opportunities due to the delayed completion of her law degree and attending a less competitive law school, Florida Coastal.Id.Dr. Mason is a Dean and Professor of Economics at the Johnson School of Business at McMurry University, and he holds a Masters degree from the University of Delaware and a Doctorate degree in Economics from the University of Texas.ECF No. 104-4at 6, 14-27.He also served as Acting Dean, Department Chair and as an Endowed Professor of Economics at the University of North Florida.Id. at 15.

1.Expert report dated May 20, 2019

Dr. Mason issued his original expert report on May 20, 2019.ECF No. 104-4.In his report, he opined as to Rullo's anticipated lost wages as a result of (1) the difference in her earning potential caused by attending Florida Coastal instead of the University for both public and private sector employment; and (2) the difference in her earning potential as a result of her diminished ability to become a healthcare attorney, also based on her attendance at Florida Coastal rather than the University.

As to the first category, Dr. Mason relied upon earnings data from ILRG.com ("ILRG"), which purports to provide median salaries of new attorneys based on the law schools they attended.Id. at 7.With respect to the second category, Dr. Mason relied upon salary data for healthcare attorneys available on payscale.com ("PayScale").Id.In estimating Rullo's anticipated future lost income, Dr. Mason assumed a flat two percent annual growth in wages, based on the 2019 earnings growth rate for hourly workers as reported by the U.S. Bureau of Labor Statistics.ECF No. 119-2at 19-20.

2.Supplemental Reports

On June 12, 2020, Rullo provided an updated expert report from Dr. Mason.ECFNo. 86-2.At the University's request, ECF No. 86, the Court conducted a telephonic status conference with counsel for the parties on June 17, 2020 to address the University's concerns regarding this report.ECF No. 89.The University indicated that, after the close of business on Friday, with the deposition of Rullo's expert scheduled for Monday, Rullo's counsel provided defense counsel with a new damages calculation prepared by Dr. Mason.Id.¶ 3.Although Dr. Mason previously relied upon data from PayScale and ILRG to support his opinion, it became clear during the course of his June 15, 2020 deposition that he instead relied upon data from U.S. News and World Report in this "updated" report.Id.

Upon hearing from counsel for both parties, the Court concluded that the "updated" report was based on a complete change in the foundational basis for Dr. Mason's opinion.Therefore, the report was not an "update," but a new report provided out of time.The Court indicated that Rullo was bound by Dr. Mason's original expert report dated May 20, 2019.However, when ILRG and/or PayScale released their expected annual data update within the next week, Dr. Mason was permitted to provide a supplemental report based on updated data from these two original sources.The Court permitted defense counsel to complete Dr. Mason's deposition after receiving the supplemental report, and it also permitted the University's expert, Mr. Bummer, to file a supplemental responsive report within a reasonable period of time.Upon issuance of the updated ILRG and PayScale data, the Court directed the parties to meet and confer to submit a joint proposed scheduling order to complete the depositions, in the event they could not be completed by the July 1, 2020 deadline for completing expert depositions.The Court further instructed that Dr. Mason was not permitted to newly rely upon any data that was already available to him as of May 2019.Id.¶ 5.

On July 1, 2020, the parties submitted a Joint Motion for Extension of Time for Expert Depositions, which the Court granted.ECF Nos. 90 and 91.In accordance with the revised scheduling order, Dr. Mason submitted a second supplemental expert report, ECF No. 104-5, and his deposition continued on July 9, 2020, ECF No. 104-2.

During his July 9, 2020 deposition, counsel for the University questioned Dr. Mason regarding the salary data he used to prepare his second supplemental report.Dr. Mason testified that he used data from ILRG.Id. at 4.With respect to the healthcare attorney portion of his analysis, he testified that he relied upon PayScale data, as reported in a Hofstra University publication.Id. at 112.Dr. Mason did not consult the PayScale website directly to supplement his prior analysis.Id.

II.MOTION TO PRECLUDE EVIDENCE OF POTENTIAL HEALTHCARE ATTORNEY EARNINGS

In the instant Motion, the University seeks to preclude any testimony or evidence by Dr. Mason regarding Rullo's potential earnings as a healthcare law attorney pursuant to Federal Rules of Evidence 702 and 403.ECF Nos. 106 and 107.The University asserts three arguments in support of this Motion: (1) Dr. Mason violated the Court's instruction regarding appropriate sources when compiling the healthcare law analysis in his report; (2) the information that Dr. Mason relies upon for the "healthcare law" portion of his analysis is unreliable; and (3) allowing such evidence would mislead the jury and unfairly prejudice the University.ECF No. 106at 1.

The University also filed a separate motion seeking to preclude Dr. Mason's testimony in its entirety, ECF No. 104, and it indicates that it seeks the relief requested here in the alternative.Id. at 1 n. 1.

III.DISCUSSION

In support of its Motion, the University raises substantially the same arguments that it presents in its Motion in Limine to Preclude Dr. Mason from Testifying as an Expert Witness, ECF No. 104.In particular, the University argues that Dr. Mason did not confirm the accuracy of his two sources, ILRG and PayScale, and there is nothing in the record indicating that these sources are, in fact, reliable.ECF No. 106at 2.The University also argues that Dr. Mason's opinion is not informed by any experience with legal earnings.Id. at 3.In addition, the University argues, Dr. Mason has improperly relied upon salary information contained in a Hofstra University publication, instead of referring to PayScale directly.It argues that this violates the Court's directive, ECF No. 89, regarding permissible sources for Dr. Mason's supplemental report, and it wrongfully inflates Rullo's estimated damages, because the Hofstra University publication does not reflect the current PayScale figures.ECF No. 107at 3-4.Finally, the University argues that the portion of Dr. Mason's report regarding potential earnings for healthcare attorneys is divorced from the facts of this case because Rullo is just as likely to become a healthcare attorney having graduated from Florida Coastal.Id.The University asserts that Dr. Mason could not recall the basis for this assumption at his deposition, and he implied that it may have been guided by Rullo's counsel.Id. at 4.Based on this, the University argues that Dr. Mason's opinion with respect to potential lost earnings relative to healthcare attorneys is unreliable and unfairly prejudicial.

In Response, Rullo argues that Dr. Mason holds advanced degrees in economics; has been a professor of statistics,...