Judge Upinder S. Kalra, Case BC568101 2023-02-09 Tentative Ruling

Plaintiff proposes to call Expert witness Jan Duffy, Esq.to offer the following opinions:

1. Defendants “failed to take the required usual and reasonable steps to prevent and/or correct potential harassment, retaliation and discrimination.” (Plaintiff’s Opposition to Defendants’ Motion in Limine No. 9 at p. 6 (“Opposition”).)

2. “Despite the characterization of the termination as a layoff, Cartie McDonald’s failed to engage in the requisite appropriate processes to lay off employees.” (Opposition at p. 7.)

Defendants move to exclude Duffy’s testimony contending that the proposed expert testimony invades the province of the jury by reaching conclusions on the law and, as such, “offer nothing to aid the jury. . .”(Defendants’ Motion in Limine No. 9 at pp. 9, 11.)

“Generally, the opinion of an expert is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....’ [Citations.] Also, ‘[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ [Citation.] However, ‘ “Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.” ’ ” (PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.) If expert testimony “add[s] nothing at all to the jury’s common fund of information, i.e., when ‘the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness,’ ” ' ” it shall be excluded. (Summers v A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1169.)

Both parties rely upon Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283 (Kotla) in support of their respective positions. In Kotla, plaintiff brought a wrongful discharge claim based upon retaliation. (Id. at pp. 286-289.) Plaintiff proffered expert testimony on “indicators” of defendant’s retaliatory motive. Defendant sought to exclude the expert’s testimony contending that the testimony would not assist the jury but would instead “supplant the jury’s role as fact finder.” (Id. at p. 290.) The trial court overruled the objection and allowed the expert to testify. The Court of Appeal reversed, finding that it was improper for the expert to have been allowed to offer opinion regarding indicators of retaliatory reasons because it “did not assist the jury in its factfinding process.” (Id. at p. 293.) Of particular significance, the Kotla panel found that the expert’s “testimony created an unacceptable risk that the jury paid unwarranted deference to [the expert’s] purported expertise when in reality he was in no better position than they were to evaluate the evidence concerning retaliation. Absent unusual facts, it must be presumed that jurors are capable of deciding a party's motive for themselves without being told by an expert which finding on that issue the evidence supports.” (Ibid.)

The complaint here alleges a single act of age discrimination resulting in wrongful discharge, which constitutes both causes of action. It is undisputed that Plaintiff was discharged on October 3, 2014. The disputed issue is the reason for the discharge. Was it because of her age, as Plaintiff alleges, or was it for economic reasons, as Defendants claim? As such, Plaintiff was required to point to unusual facts requiring the assistance for expert testimony to resolve the question of intent. Plaintiff fails to explain how expert testimony would assist the fact finder in determining whether Defendants had an improper motive or intent when discharging Plaintiff.

Moreover, the proffered reasons also do not demonstrate a need for expert testimony. First, there are no causes of action for harassment, retaliation, or failure to prevent harassment. Yet, Plaintiff proposes to offer expert testimony on Defendants’ failure “to take the required usual and reasonable steps to prevent and/or correct potential harassment, retaliation and discrimination.” Second, Plaintiff’s proffer that the expert could undermine Defendants’ “characterization of the termination as a layoff, [because] Cartie McDonald’s failed to engage in the requisite appropriate processes to lay off employees,” fails to satisfy this burden. Whether Plaintiff was laid off or fired, Plaintiff was still discharged, which is all that is needed to satisfy a necessary element for both causes of action. In any event, specialized knowledge of layoff processes is unnecessary to determine whether this proffered explanation of Defendant Jason Cartie is believable. It is unchallenged that Plaintiff was the only employee laid off, or even contemplated for lay off, of the approximately 450 corporate employees of Defendants. Stated otherwise, Plaintiff fails to explain why a fact finder would need assistance of an expert in evaluating the credibility of the proffered explanation of Defendant Jason Cartie. Fundamentally, every juror is qualified to make credibility decisions without the assistance of an expert.

Plaintiff’s reliance on federal authority is misplaced. In Freitag v. Ayers (2006) 468 F.3d 528, the Plaintiff alleged a hostile work environment at Pelican Bay State Prison. It was alleged the California Department of Corrections and Rehabilitation (CDCR) failed to take prompt, corrective, and reasonable action to address the issue of inmate sexual misconduct in front of staff. The 9^th Circuit agreed that expert testimony was needed to assist the fact finder in determining whether CDCR took reasonable corrective action to stop the workplace harassment. (Id. at p. 540.) As indicated above, the facts here neither involve workplace harassment nor require the fact finder to determine the reasonableness of any corrective action to deter harassment. Similarly, Hingson v. Pacific Southwest Airlines (1984) 743 F.2d 1408 (Hingson) provides no assistance to Plaintiff’s argument. In Hingson, there was no question expert testimony was probative on whether the airline violated its own policy on seating disabled passengers. The trial court simply excluded Plaintiff’s choice of expert because the expert was employed by the Defendant, as the airline’s Director for Planning and Control for Flight Operations.

In sum, the fact finder here must determine the intent of Defendants when they discharged Plaintiff. No specialized knowledge is needed to assist or guide the jurors in resolving these credibility issues, absent unusual circumstances. (Kotla, supra, 115 Cal.App.4^th at p. 293.) No such unusual circumstances are present here.[1]

Defendants’ Motion to Exclude testimony of Plaintiff’s Expert Jan Duffy, Esq. is GRANTED.

[1]The Court has reviewed portions of the expert’s deposition testimony. It is clear to the Court that the proposed testimony is in large part argument in the guise of expert opinion that has the potential to distract, confuse and mislead the jury. Accordingly, to the extent that the expert’s testimony may have any marginal probative value, the risk for undue prejudice substantially outweighs the negligible probative value.