Court Precludes Expert Testimony on Emotional Distress in Race Discrimination Case

In Matthews v. Hewlett-Packard Company, 15-cv-3922, 2017 WL 6804075 (S.D.N.Y. Dec. 22, 2017), a race discrimination/hostile work environment/retaliation case, the court explained and applied the principles applicable to the admissibility of expert testimony – under FRE 702/Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – as to emotional distress damages.

In sum, the court granted defendant’s motion in limine to preclude plaintiff from offering the expert testimony of Dr. Gerald J. Bryant, Ph.D.

Here, Dr. Bryant apparently concluded that defendant’s workplace caused plaintiff to suffer Major Depressive Disorder (MDD). Defendant asserted that Dr. Bryant’s report was unreliable under FRE 702/Daubert “because (1) it does not rule out possible alternative causes of Plaintiff’s psychological condition, and (2) Dr. Bryant relied solely on his interview with Plaintiff to reach his conclusion, without reviewing Plaintiff’s medical records or performing additional psychological testing.”

The court agreed.

It set forth the applicable legal standard as follows:

Under the Federal Rules of Evidence Rule 702, a witness qualified as an expert may provide testimony only if the proposed testimony is not only relevant, but reliable. … [T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied. … Daubert enumerated a list of factors that, while not constituting a definitive checklist or test, a district court might consider in evaluating whether a proffered expert opinion has the required indicia of scientific reliability: whether a theory or technique had been and could be tested, whether it had been subjected to peer review, what its error rate was, and whether scientific standards existed to govern the theory or technique’s application or operation. … Reliability also requires a sufficiently rigorous analytical connection between that methodology and the expert’s conclusions. … Indeed, to the extent that an expert’s opinion touches upon the cause of a party’s condition, it will satisfy Daubert’s prerequisites for reliability only if the doctor conducted a meaningful ‘differential diagnosis’ ruling out other possible contributing factors. … While an expert need not rule out every potential cause in order to satisfy Daubert, the expert’s testimony must at least address obvious alternative causes and provide a reasonable explanation for dismissing specific alternate factors identified by the defendant. [Paragraphing altered, emphasis added, internal quotation marks and citations omitted.]

Applying the law, the court held that Dr. Bryant’s report was insufficiently reliable, and excluded it. It noted the following facts:

  • Dr. Bryant “concluded that Defendant’s workplace caused Plaintiff’s MDD without performing a differential diagnosis or other analysis to rule out potential alternative factors” (including a “number of stressful life events that presumably could have also contributed to his MDD”, such as several deaths in the family);
  • The report was “largely silent as to the methodology upon which Dr. Bryant relied to form his opinion on causation”;
  • Dr. Bryant was not plaintiff’s treating physician;
  • Dr. Bryant “did not review either Plaintiff’s medical records or relevant psychological literature before forming his opinion”; and
  • The report largely “consists of a simple recitation of facts about Plaintiff’s personal history, which cannot, in and of itself, lend any support to Dr. Bryant’s ultimate conclusion on causation.”

The court rejected plaintiff’s argument that the identified deficiencies went to the weight, rather than the admissibility, of this evidence.

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