Human-Resources Expertise Insufficient For FRE 702 Sex-Stereotyping Issue

Plaintiff failed to make a sufficient showing in her disparate-treatment gender discrimination suit that her expert witness had sufficient expertise in the "particular field" of sex stereotyping based on conclusory arguments on her expertise and the proffered witness's business doctorate and record of work in human-resource management lacked any special knowledge, research, writing on the issue, in Conroy v. Vilsack, __ F.3d __ (10th Cir. Feb. 11, 2013) (No. 11-4091)

A critical issue in applying FRE 702 is precisely what type of expertise is necessary for a witness to opine in any particular field. While Daubert and its progeny indicate a number of factors should be examined to determine the level of necessary expertise, this still leaves open just how broad or narrow a witness's expertise must be. The Tenth Circuit recently examined this issue in terms of expert testimony on sex stereotyping in an employment discrimination case.

In the case, plaintiff Conroy sued her employer, the U.S. Forest Service, under Title VII (42 U.S.C. §§ 2000e to 2000e-17) for failing to promote her because of her sex. She sought administrative remedies, but failing to achieve any success in this, she filed in federal court. Her complaint alleged that the adverse decisions on her application for advancement to an open position at the agency was based on sex discrimination. After discovery concluded in the case, the defendant sought summary judgment. The trial judge granted the motion, having decided to exclude two experts proffered by the plaintiff.

With one of the proffered plaintiff's expert, the trial judge found that despite her background in human resource management and organization, she "was not qualified to testify on sex stereotyping, because it was beyond the reasonable confines of her expertise." The was despite evidence of the witness's:

Ph.D. in business and [had] work[ed] in the areas of human-resource management and organizational behavior for twenty-five years. She also had previously testified as an expert in cases involving age discrimination, sexual harassment, and wrongful termination. In this case, [proffered expert] Dr. Dodd would have testified regarding sex stereotyping in the workplace, explaining how it manifested itself [in the plaintiff's particular case].
Conroy, __ F.3d at __.

The Tenth Circuit agreed that the proffered expert should be excluded from testifying as she was not "qualified 'by knowledge, skill, experience, training, or education' to render an opinion," in the case. Conroy, __ F.3d at __. What was specifically lacking in this witness was:

[T]hat Dr. Dodd had never researched or written about sex stereotyping; that she became familiar with the topic only after being retained for this case; and that she could not recall articles or relevant cases supporting the application of sex-stereotyping research to disparate-treatment claims [as involved in the plaintiff's case]. Due to this lack of specialization, the court correctly looked to whether sex stereotyping was "within the reasonable confines" of Dr. Dodd's expertise. Ms. Conroy failed to articulate any meaningful argument in support of that proposition, only asserting in conclusory fashion that sex stereotyping was "clearly" within the reasonable confines of Dr. Dodd's experience and expertise. The district court would not "connect the proverbial dots" for Ms. Conroy and found that she had failed to carry her burden to show that Dr. Dodd was qualified to opine on sex stereotyping.
Conroy, __ F.3d at __ (footnote omitted)(citing Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001) (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1520 (10th Cir. 1996)) (internal quotation marks omitted)).

In Ralston, the circuit seemed to isolate the plaintiff's failure to make a full Daubert presentation as the problem. The matter was not that the expert was clearly unqualified, nor clearly qualified. Whatever the expert may have been, the plaintiff failed to present anything outside of assuming she was qualified. The case record lacked extensive evidence one way or the other on the witness's qualifications, so the trial court's discretion would prevail in this matter.


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