Economics Expert Allowed to Testify Despite Not Considering Job Tenure

Plaintiffs Donrudy Loiseau, Quinton L. Hebron, and Dwayne Small (together, “the Plaintiffs”), brought an individual and class action suit against their former employer, Bozzuto’s Inc., alleging discrimination against black employees with respect to promotions, warehouse position assignments, pay, workplace discipline, and terminations.

Plaintiffs retained Dr. David M. Lang “to analyze employment data provided by Bozzuto’s Inc. to determine whether there were racial disparities between White and Black employees, especially in pay, job roles, promotions, and terminations (but also in discipline), and if so, the extent of those disparities and whether they are statistically significant.”

Defendants filed a Daubert motion to exclude the opinions of Lang.

Economics Expert Witness

Dr. David M. Lang is a Full Professor and Chair of the Economics Department at California State University, Sacramento (CSUS). He routinely teaches courses at the University of California, Davis, across the Economics, Statistics, and Mathematics Departments, with a particular focus on labor economics and econometrics.

Lang has published eight research papers and presented his work at more than 30 academic conferences. He earned his B.A. in Economics from Stanford University and both his M.A. and Ph.D. in Economics from Washington University in St. Louis.

Discover more cases with David Lang as an expert witness by ordering his comprehensive Expert Witness Profile report.

Discussion by the Court

Defendants challenged the Lang Reports on two grounds: that Lang’s analyses failed to consider major non-discriminatory factors, rendering his conclusions unreliable and Lang’s analyses cannot be tested or reproduced because Lang has not produced the data underlying his opinions.

Lang’s Analysis is Unreliable Because it Failed to Account for Major Non-Discriminatory Factors

Defendants first alleged that Lang’s analysis is unreliable because it failed to account for major non-discriminatory factors: job type and tenure, employee qualifications, and whether an employee applied for a position or sought a promotion. Defendants urged that not only is Lang’s analysis so flawed as to lack any probative value, but that the alleged lack of consideration of certain non-discriminatory factors is fatal to its admissibility altogether.

Lang’s analysis controlled for several variables, including job title, race, and
base pay. Other factors Lang employed included corrective reviews, voluntary termination rates, and involuntary termination rates. Therefore, the Court held that the Defendants’ characterization of Lang’s analysis as aggregated and obfuscatory is inaccurate and ignored the disaggregated data Lang included across his two reports.

Moreover, Lang’s decision not to consider certain factors (such as job tenure) is within his discretion and implicates, at most, the probative weight of his conclusions. Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure. Moreover, Lang explained that certain other variables, such as “experience” are not amenable to review based on the data Bozzuto’s supplied. The assessment of Lang’s conclusions, in light of those factors he did and did not include within his analysis, rests with the factfinder in assessing their ultimate credibility.

Lang Failed to Provide the Data Underlying his Opinions, Preventing Reproduction or Testing of his Analysis

Defendants argued that “Lang’s testimony is unreliable and should be excluded because he has not produced the data underlying his opinions, and thus his analyses cannot be recreated.”

Defendants claimed that Lang “prevented anyone from recreating or testing the accuracy of his work by purposefully conducting his work in a manner to leave no trail or evidence of his analysis.”

However, Lang did supply the materials underlying his reports. Plaintiffs sent
Defendants Lang’s expert materials on September 13, 2024, something Defendants acknowledged in their January 30, 2025 correspondence with Plaintiffs’ Counsel.

Defendants tempered their initial assertion that Lang did not supply any of the materials underlying his reports by stating instead that the information supplied has not allowed the Defendants’ expert to replicate his results. As described above, this demonstrates a misunderstanding of the requirements of Rule 702 with respect to replication. Admissibility under Daubert does not demand that dueling experts supply one another with step-by-step instructions on how to replicate their results.

Held

The Court denied the Defendants’ Daubert motion to exclude the opinions of David M. Lang.

Key Takeaway:

As a general matter, variables excluded from a regression analysis impact the probative weight, not the admissibility, of expert evidence. Moreover, which variables to include in a regression analysis are within the professional judgment of the expert where certain variables may be tainted by discrimination.

In this case, Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure.

Case Details:

Case Caption:	Loiseau V. Bozzuto’s Inc
Docket Number:	3:22cv1485
Court Name:	United States District Court, Connecticut
Order Date:	August 27, 2025