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Crawford v. Newport News Industrial Corp.

United States District Court, E.D. Virginia, Newport News Division

July 28, 2017

JAMESINA CRAWFORD, et al., Plaintiffs,


          Lawrence Leonard United States Magistrate Judge

         Before 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.


         This 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 pay rate.[1]

         The parties' four motions[2] 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.

         At the 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.

         Defendant 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 data[3] 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.[4] 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. 284.

         At the 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.

         On 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.

         At the 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 this regard.

         Lastly, 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.

         Defendant 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.

         At the 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.

         II. ...

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