United States District Court, D. Nevada
ORDER GRANTING IN PART AND DENYING IN PART THE
DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY
(ECF NO. 149)
P. GORDON UNITED STATES DISTRICT JUDGE
American Postal Workers Union, AFL-CIO (APWU) moves to
exclude plaintiff Rosemary Garity's two experts, Dr.
Gregory Brown and Patricia Barnes. APWU argues, the proposed
expert testimony is not relevant to any of Garity's
remaining claims. APWU also argues the testimony is not
reliable because the experts rely primarily on Garity's
version of events with no independent investigation. Finally,
APWU contends that even if relevant, the evidence should be
excluded under Federal Rule of Evidence 403.
responds that the experts are relevant to the emotional
distress she suffered due to APWU's conduct. Garity
disputes that the experts relied solely on her statements.
For example, she notes that Dr. Brown reviewed medical
records and other evidence, conducted interviews, and j
performed a psychological test. Garity contends Barnes is
qualified as an expert in bullying and ''
will be able to explain to the jury the effect that the acts
of her supervisors, local union members, and the national
APWU had on her.
Rule of Evidence 702 permits testimony based on
"scientific, technical, or other specialized
knowledge" by experts qualified by "knowledge,
skill, experience, training, or education” if the
testimony is both relevant and reliable. The judge acts as a
"gatekeeper" to exclude expert testimony that is
not both relevant and reliable. Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999). Whether to admit
expert testimony, as well as deciding how to determine the
testimony is reliable, lies within the trial judge's
discretion. Id. at 152; United States v.
Calderon-Segura, 512 F.3d 1104, 1109 (9th Cir. 2008).
The party offering the expert testimony bears the burden of
establishing its admissibility. Lust By & Through
Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th
is relevant if it will "help the trier of fact to
understand the evidence or to determine a fact in
issue." Fed.R.Evid. 702(a); see also Daubert v.
Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir.
1995) (stating testimony is relevant if it "logically
advances a material aspect of the proposing party's
case"). To be helpful to the jury, the testimony must be
"tied to the facts" of the particular case.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
591 (1993) (quotation omitted).
testimony is reliable if it is "based on sufficient
facts or data, " is "the product of reliable
principles and methods, " and the expert "has
reliably applied the principles and methods to the facts of
the case." Fed.R.Evid. 702(b)-(d). In Daubert,
the United States Supreme Court set forth a non-exclusive
list of factors that may guide a court in assessing the
reliability of offered testimony: (1) whether a scientific
theory or technique "can be (and has been) tested,
" (2) whether the theory or technique "has been
subjected to peer review and publication, " (3) the
known or potential rate of error and "the existence and
maintenance of standards controlling the technique's
operation, " and (4) whether the technique is generally
accepted. 509 U.S. at 592-93. Depending on the type of expert
testimony offered, these factors may not be appropriate to
assess reliability. United States v.
Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 2006). The
Daubert factors may have little application to
expert testimony based on personal knowledge or experience.
Id. In such circumstances, the trial court should
not apply the Daubert factors in an unduly
restrictive manner. Id. The trial court should be
mindful that "[t]he test for reliability . . . is not
the correctness of the expert's conclusions but the
soundness of his methodology." Stilwell v.
Smith & Nephew, Inc., 482 F.3d 1187, 1192-92
(9th Cir. 2007) (quotation omitted.. The trial
court should ensure the expert "employs in the courtroom
the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field." Cooper
v. Brown, 510 F.3d 870, 942 (9th Cir. 2007).
a plaintiff is usually not required to provide expert
testimony to prove emotional distress, "such testimony
is not irrelevant." Bailey v. Runyon, 220 F.3d
879, 881 (8th Cir. 2000). "To the contrary, [courts]
recently have noted the probative value of expert
psychological proof regarding causation of the claimant's
depression and emotional distress." Id.
(quotation omitted); see also U.S. E.E.O.C. v. Consol.
Resorts, Inc., No. 2:06-cv-01104-LDG-GWF, 2008 WL
942289, at *9 (D. Nev. Apr. 7, 2008) ("When emotional
distress is unusually severe or alleged in clinical terms, or
when another party intends to offer expert testimony about
the distress, the testimony of an expert would help the trier
of fact understand the nature, severity, and characteristics
of the emotional distress." (quotation omitted)). Dr.
Brown's anticipated testimony therefore is relevant.
also sufficiently tied to the facts of the case to be helpful
to the jury. Dr. Brown opines that Garity had no history of
psychological illness until she worked at the post office.
ECF No. 149-2 at 12. She thereafter was treated by multiple
providers for depressive disorder and anxiety and was taking
antidepressants and anti-anxiety medications. Id. at
13. Dr. Brown noted that each provider documented that
work-related stress was contributing to Garity's
condition. Id. Additionally, her condition worsened
over the course of her employment but then improved when she
stopped working there. Id. at 7, 13.
argues that Dr. Brown refers only to "workplace
stress" and not specifically to APWU's alleged acts
of discrimination and retaliation. However, Dr. Brown refers
to the fact that Garity's problems were "compounded
by the lack of support provided by the Union, who she deeply
perceives as having colluded with management, which increased
her stress level markedly throughout her experience."
Id. at 13. Dr. Brown notes that in Garity's
view, she made complaints to APWU but received little
response. Id. at 5. Dr. Brown opined that
"[g]iven the time of onset of the depressive and anxiety
symptoms combined with descriptions of her workplace
environment and supported by the progress notes and objective
psychological testing conducted by multiple outpatient
providers, it is reasonable to conclude that both the
depression and the anxiety is a direct result of stress
within the workplace environment, linked both to management
and by lack of union support." Id. at 13. It
remains an open question whether APWU is liable for the local
union's actions. See ECF Nos. 76 at 20-21; 182
at 15-20. Consequently, the overall stressful work
environment, as allegedly exacerbated by union officials'
conduct at both the local and national levels, is tied to
Garity's remaining claims.
Brown's anticipated testimony is the product of reliable
principles and methods under Rule 702. Dr. Brown conducted
three different interviews with Garity, each for an hour or
longer. ECF No. 149-2 at 3. He also interviewed Garity's
husband, reviewed Garity's records from numerous other
providers, and reviewed some evidence from the lawsuit.
Id. He administered the Minnesota Multiphasic
Personality Inventory 2 (MMPI 2) diagnostic test to Garity
and diagnosed a form of chronic low grade level depression.
ECF No. 149-2 at 12.
types of diagnostic techniques are part of a valid
methodology for psychological evaluation. See, e.g..
United States v. Finley, 301 F.3d 1000, 1009 (9th Cir.
2002) (finding "proper psychological methodology and
reasoning" where the expert "relied on accepted
psychological tests, from which he drew sound inferences, and
he took a thorough patient history, including meeting with
Finley's wife and observing Finley's behavior").
Dr. Brown's opinions are not based solely on Garity's
statements. "[R]ather, he used his many years of
experience and training, " as well diagnostic testing,
"to diagnose [Garity's] mental condition."
I have no basis to conclude at this stage of the proceedings
that Dr. Brown's testimony should be excluded under Rule
403. I therefore deny the motion to exclude Dr. Brown.