United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Lawrence Leonard United States Magistrate Judge
the Court are Defendant Newport News Industrial
Corporation's ("Shipyard" or
"Defendant") Motion to Strike Plaintiffs'
Untimely Expert Report ("Motion to Strike"), ECF
No. 194, and Motion to Preclude Testimony of Dr. Mark R.
Killingsworth ("Motion to Preclude Killingsworth"),
ECF No. 229, as well as Plaintiffs' Motion to Extend and
to Compel, or in the Alternative, to Strike ("Motion in
the Alternative"), ECF No. 272, and Motion to Exclude
Anderson Testimony ("Motion to Exclude Anderson"),
ECF No. 285. A hearing was held on these matters on April 13,
2017, at which Rebecca Houlding appeared on behalf of the
Plaintiffs and Nicole Howell and Steven Moore appeared on
behalf of the Defendant. ECF No. 289. The matter therefore is
now ripe for disposition. For the following reasons,
Defendant's Motion to Preclude, ECF No. 229, is GRANTED,
Defendant's Motion to Strike, ECF No. 194, is DENIED AS
MOOT, Plaintiffs' Motion to Exclude, ECF No. 285, is
GRANTED, and Plaintiffs' Motion in the Alternative, ECF
No. 272, is GRANTED IN PART.
PROCEDURAL AND FACTUAL BACKGROUND
case involves thirty-seven plaintiff Shipyard
workers-welders, fitters and laborers-alleging various
individual employment-related claims including discrimination
and retaliation against Defendant Newport News Industrial
Corporation. Included among the Plaintiffs are permanent
employees of the Shipyard, temporary employees who performed
work at the Shipyard through temporary staffing agencies, and
employees who at one time were temporary but later became
permanent. The Shipyard maintained two data systems,
denominated "Legacy" and "Navision, " to
keep track of, inter alia, the job titles and pay of
the employees. Employment and pay information for permanent
employees was tracked though Legacy, and such information for
temporary employees was tracked through Navision.
Importantly, each of these systems had shortcomings in being
able to reflect precisely which employees held what job
titles at what specific point in time and at what specific
parties' four motions all involve efforts to disqualify each
other's labor economist expert witness. The labor
economists each performed a regression analysis of data
provided by the Shipyard to determine whether a statistically
significant pay disparity existed among black and white
Shipyard workers. Plaintiffs retained as an expert Mark R.
Killingsworth, D.Phil., a labor economist, and disclosed his
report on October 19, 2016. Dr. Killingsworth performed a
statistical analysis of data regarding the pay of all workers
at the Shipyard. This raw data was produced by the Shipyard
in discovery, but was not broken down by or otherwise limited
to workers in the same three trades as the Plaintiffs. Dr.
Killingsworth's analysis purported to demonstrate
statistically significant pay disparities between all black
and white workers at the Newport News Shipyard. On October
21, 2016, Defendant filed a Motion to Strike Plaintiffs'
Untimely Expert Report and an accompanying memorandum, ECF
Nos. 194-195, arguing that Plaintiffs did not serve their
expert report for Dr. Killingsworth until two months after
the Court's expert report deadline of August 13, 2016.
ECF No. 98 at 2. Plaintiffs filed a Memorandum in Opposition
on November 4, 2016, ECF No. 216, in which they justified
their late disclosure by claiming that the Shipyard did not
provide them with the necessary data to complete the report
until September 22, 2016, and arbitrarily demanded the report
be completed on September 28, 2016, id at 2.
Defendant timely filed a Reply on November 9, 2016, ECF No.
217, and on December 5, 2016, the Court granted Plaintiffs
leave to file a Sur-Reply, ECF No, 227, so Plaintiffs could
contest Defendant's mention in one sentence in its Reply
that Dr. Killingsworth's report was not only untimely,
but also deficient, ECF No. 228.
hearing, Ms. Howell argued on behalf of the Shipyard that it
experienced prejudice from Plaintiffs' late filing of the
report by disrupting the discovery schedule laid out by the
Court and the briefing for the summary judgment motions,
although she stated that Defendant was able to address the
issues pertinent to summary judgment without the report. Ms.
Houlding responded that Defendant was not prejudiced because
the delay did not impact the trial date and Defendant could
have moved for an extension to file its summary judgment
motions until it received the report, but chose not to.
filed a Motion to Preclude the Testimony of Dr. Killingsworth
on December 12, 2016, and an accompanying memorandum. ECF
Nos. 229-230. The Shipyard's motion was predicated on the
contention that Dr. Killingsworth's analysis was
irrelevant and unreliable under Federal Rule of Evidence 702
and Daubert v. Merrill Dow Pharmaceuticals, 509 U.S.
579 (1993) and Kumho Tire Co. v. Carmichael, 526
U.S. 137 (1999) and their progeny. As a part of its motion,
Defendant attached the expert report of G. Edward Anderson,
Ph.D., a labor economist who performed a statistical analysis
of his own. In his report Dr. Anderson criticized Dr.
Killingsworth's analysis because it did not limit the
data analyzed to the pay of workers in the same trades as
Plaintiffs, Then, relying on adjustments to the
provided by Scott Jones, a Shipyard management official, Dr.
Anderson performed his own analysis of the newly refined data
which purported to show that, among all workers in the same
trades as Plaintiffs, no disparity existed between the pay of
black and white welders, fitters and laborers at the
Shipyard-Based on Dr. Anderson's statistical analysis
limited to the relevant trades, Defendant argued that Dr.
Killingsworth should be precluded from testifying in this
case because, in relying on racial disparities in pay among
all Shipyard employees and not just employees in the
Plaintiffs' specific trades, his testimony is unreliable
and irrelevant. ECF No. 230 at 14-23. Plaintiff responded on
January 11, 2017 and, after noting that Defendant failed to
produce in discovery the information they claim Dr.
Killingsworth should have considered, argued that Dr.
Anderson's criticisms go to the weight of the evidence a
jury should attach to Dr. Killingsworth's opinions, not
their admissibility, and in any event, testimony regarding
pay disparities among all of Defendant's employees should
be admissible as evidence of discriminatory intent or
pretext. ECF No. 280. On January 20, 2017,
Defendant timely replied and reiterated that Dr.
Killingsworth's opinions remain inadmissible because he
compared the salaries of all black employees to all white
employees, instead of comparing white welders, fitters, and
laborers, to black welders, fitters, and laborers. ECF No.
hearing, Mr. Moore argued on behalf of Defendant that broad
statistical evidence of the type offered by Dr.
Killingsworth's testimony can only be used in a case
alleging "pattern or practice" discrimination,
which is not the case here. This is especially true,
Defendant argued, when analysis which is limited to the
relevant comparable trades demonstrates no statistically
significant difference between pay rates of black and white
employees in those specific relevant trades. In response, Ms.
Houlding claimed that Dr. Killingsworth's analysis could
be used to show the Shipyard's intent to discriminate in
its pay of Plaintiffs because it demonstrates that managers
and supervisors, who alone decide whether employees received
a raise or are promoted, act in a discriminatory manner
towards all employees.
December 16, 2016, Plaintiffs filed a Motion to Extend and to
Compel, or in the Alternative, to Strike, ECF No. 272, and an
accompanying memorandum, ECF No. 271. Plaintiffs sought an
extension of time or permission to serve their rebuttal
report as well as to compel FRCP 26 disclosures and complete
responses to their requests for production Nos. 59 and 60
regarding the data reviewed and relied upon by
Defendant's experts. Id. Plaintiffs also sought
permission to depose Scott Jones and other individuals
mentioned in Dr. Anderson's expert report, or in the
alternative to strike Defendant's report because all of
the Scott Jones data on which Dr. Anderson relied was not
provided to Plaintiffs in discovery. Defendant filed its
Memorandum in Opposition on January 5, 2017, ECF No. 276, to
which Plaintiffs replied on January 19, 2017, ECF No. 283.
hearing, Ms. Houlding advised that Plaintiffs served a
preliminary rebuttal report upon Defendant after Defendant
withdrew its objection, but that she wanted to reserve the
right to serve a more complete rebuttal report at a later
date if necessary. Ms. Houlding also noted that the Shipyard
did not supplement its discovery responses with the data
Scott Jones relied upon in preparing his chart which he
provided to Dr. Anderson, and Plaintiffs were denied the
opportunity to depose Jones regarding this information. Ms.
Howell advised no data exists on which Jones relied to
prepare his chart, and that instead he relied on his own
memory to fill in gaps in Defendant's employment data to
determine which employees served in which specific jobs and
at which specific times. Ms. Howell argued on behalf of
Defendant that the Jones data was provided to Dr. Anderson to
"fill in the gaps" of the Legacy and Navision data,
and that Plaintiffs had the opportunity to depose Jones as a
corporate designee witness but failed to ask him questions in
on January 20, 2017, Plaintiffs filed a Motion to Exclude Dr.
Anderson's Testimony, and an accompanying memorandum, ECF
Nos. 285-286, in which they argued his testimony should be
precluded under FRE 702(b) and Daubert. Relying on
FRE 703, Plaintiffs contended that no expert in the field of
labor economics would reasonably rely on the kinds of facts
or data that Jones provided via his chart simply from memory.
Consequently, they argued, Dr. Anderson's reliance on the
Jones data rendered his opinions unreliable and thus
inadmissible. Moreover, Plaintiffs contended that the
Shipyard "refused to produce Jones for deposition, and
effectively the mystery employees who helped him and the
documents on which they relied (if any)." ECF No. 286 at
7. Plaintiffs also claimed that "[t]he data
represent-allegedly-job titles for 350 temporary and
permanent employees (in 794 data points) during the period
2008 to 2016" and that Defendant "never produced
evidence for majority of the job titles during discovery, in
any form", id. at 3, despite the fact that
Plaintiffs in their First Set of Interrogatories asked
Defendant "[f]or each Production worker working at
Employer, directly or through a staffing agency, from 2001 to
the present, list: Name...position at hire", "wage
at hire", "wage changes including dates of
changes", "promotion(s)/demotion(s) including
date", 'termination(s)", "rehire(s)",
"Regular hours worked per year" and "Overtime
hours worked per year." Id., attach. 6 at 3-5.
responded on February 3, 2017 that Plaintiffs were aware of
the shortcomings in the electronic data systems but chose not
to "fill in the blanks" left by it while discovery
was still open. ECF No. 287 at 2. Defendant explained that it
maintained two databases, Legacy and Navision, to store a
record of its employees' job titles. Id. at 4.
Defendant advised that while Navision was more detailed than
Legacy, "historical changes in 'actual job
titles' were not stored in Navision and, consequently,
were not maintained in any electronic format."
Id. Defendant stated that "Dr. Anderson
determined that Scott Jones, NNI Operations Manager, would be
a reliable source to answer some of the questions presented
in the data, including what positions were held by the
workers at various points" so Dr. Anderson used the
Jones data to respond to Dr. Killingsworth's report.
Id. at 8. Plaintiffs timely filed a Reply on
February 9, 2017, claiming that if Dr. Anderson's
testimony hinges on the Jones data at the least the Defendant
should be compelled to turn over the material relied upon by
Jones to compile it. ECF No. 288.
hearing, Ms. Houlding argued that Dr. Anderson should have
verified the Jones data to ensure it was not fabricated or
did not contradict evidence in the record, and that the data
itself should be excluded because it cannot be verified or
replicated and was created late in the litigation.
Additionally, Ms. Houlding claimed that Plaintiffs asked for
the Jones data for Dr. Killingsworth's expert opinion,
but that Defendant did not provide it until after Dr.
Killingsworth's opinion was submitted. Mr. Moore said in
response that it is customary for Dr. Anderson to contact the
company when he has questions about the data and that the
company officials themselves are often a better source then
their records for information such as this. He also stated
that Dr. Anderson's report is merely a rebuttal report to
Dr. Killingsworth, so Plaintiffs* motion to exclude Dr.
Anderson would become moot if the Court grants either of
Defendant's instant motions and strikes Dr.
Killingsworth's report on either basis sought.