Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

Plaintiff Terrence T. Batiste II has initiated legal action against Defendant Titan Medical Group LLC, asserting claims of wrongful termination and employment discrimination. These claims stem from allegations that Batiste, a homosexual black man who had explicitly communicated his identity during pre-employment interviews, experienced pay disparities and unequal treatment. He contends that his base salary was $15,000.00 lower than that of fellow managers and that he was excluded from receiving quarterly performance bonuses, resulting in a substantial income discrepancy. The case also revolves around a contentious exchange that transpired on July 17, 2020, involving Batiste and another corporate employee, Tammy Corwin, regarding the scheduling of a meeting with Titan Medical’s CEO. This exchange was documented through text messages and a recorded phone call. Subsequently, after an internal investigation, Titan Medical Group terminated Batiste’s employment on August 3, 2020. The lawsuit invokes Title VII of the Civil Rights Act of 1964 and the Nebraska Fair Employment Practices Act as legal bases for the allegations, asserting violations of these statutes in relation to employment discrimination based on race and sexual orientation. The action was removed from the District Court of Douglas County, Nebraska under 28 U.S.C. §1446 to the United States District Court for the District of Nebraska. 

Equal Opportunity Expert Witness 

Defendant, Titan Medical Group LLC offered the report and testimony of Timothy D. Loudon. Timothy D. Loudon is a retired attorney. Loudon spent the beginning of his career as a Nebraska Equal Opportunity Commission investigator, investigating charges of discrimination. He later represented employers and employees in private practice for 34 years. In that capacity, he advised and trained companies and management on employment practices and has drafted and reviewed personnel policies and employee handbooks, including policies addressing discrimination and harassment, affirmative action, performance evaluations, and progressive discipline. He has been identified as an expert to testify as an expert witness in human resources, performance management, performance management system and processes, employment law and policies, employment investigations, human resources training and expertise, workplace harassment/discrimination and workplace harassment/discrimination complaints. 

Plaintiff has filed a motion to strike the testimony and report of Defendant’s expert Loudon. 

Discussion by the Court 

In his report, Timothy D. Loudon opined about Titan’s alleged failure to utilize progressive discipline or to conduct an annual performance evaluation for the plaintiff; the adequacy of the Titan’s investigation of the plaintiff’s complaint of racial discrimination; and Batiste’s allegation of retaliation, specifically, whether he engaged in protected activity. 

He concluded that Titan might have failed to utilize progressive discipline but the purpose was served anyhow when Titan gave Batiste adequate notice of his performance deficiencies and that Plaintiff’s annual performance evaluation was overlooked due to rising COVID-19 cases and also financially benefited Batiste. Loudon opined that Batiste’s supervisors Jennifer Lyman, COO (hereinafter “Lyman”) as well as Carrie Miller, CFO (hereinafter “Miller”) had done an adequate job of conducting a full investigation when they ruled out the possibility of Batiste’s race being a possible factor in his altercation with Corwin. 

Loudon further opined that Batiste must show that he engaged in “protected activity” (complained of discrimination); suffered an “adverse action” (termination); and prove a causal connection between his complaint and his subsequent termination. “Temporal proximity” (closeness in time) between the protected activity and the adverse action could be used to create an inference of retaliation and concluded that Batiste cannot meet the threshold showing that he engaged in protected activity based on these factors. 

Batiste in turn alleged that since Loudon did not back up his claims with statistical analysis or other empirical testing or explanations of what comprises common practices in the industry without applying industry standards to the facts of the case, he had invaded the province of the Court since his opinions amounted to legal conclusions. 

Batiste also stated that Loudon doesn’t demonstrate considerable experience when it comes to cases dealing with racism in the workplace which is crucial to evaluate the validity of Batiste’s discrimination and retaliation claims. 

Loudon’s conclusions are not based on a reliable methodology because he has failed to cite common industry standards, customs, or practices in the report or any peer reviewed literature on the topics. 

Batiste also argued that Loudon had given greater weight to irrelevant facts and mischaracterized testimony from witnesses in hopes of persuading the jury that the testimony meant something else than what it actually did. 

The Court found Loudon qualified based on his education and experience but maintained that it would refrain from allowing Loudon to provide testimony regarding issues that invaded the province of the Court or the jury. The Court denied the Plaintiff’s motion to strike the testimony and report of Loudon, without prejudice to objections raised at trial contending that the Plaintiff’s objections concerned the weight instead of the admissibility of Loudon’s testimony. The Court was unable at that juncture to assess the expert’s testimony in the context of objections to be interposed at trial. The testimony might be subject to such objections as foundation, relevance, and unfair prejudice. 

Since the proceedings are ongoing, the outcome of the case remains to be decided. 

Held 

The Court denied Batiste’s motion to strike the testimony and report of Defendant’s expert Loudon without prejudice to objections raised at trial. Since the issues remain unresolved, the outcome of the case is yet to be seen. 

Key Takeaways:

1.General vs. Specialized Expertise: The Plaintiff alleged that Loudon lacked the required experience to opine on wrongful termination cases involving racial discrimination claims but the Court admitted his testimony anyway since the topic was sufficiently within the confines of his expertise. 

2.Weight vs. Admissibility: When the Plaintiff alleged that Loudon’s testimony was of little assistance to the trier of fact and was likely to confuse and mislead the jury because it was grounded on unreliable methodology, the Court held that these arguments called into question the weight instead of the admissibility of Loudon’s testimony. Since Plaintiff was yet to prove grounds warranting exclusion of expert Loudon, the Court found it more appropriate to assess the substance of Loudon’s testimony in light of objections raised at trial by the Plaintiff. 

3.Experts cannot invade the province of the Court or the jury: In this case, Loudon breached the province of the Court and the jury and drew legal conclusions on their behalf when he opined that the Plaintiff cannot prove that he did engage in protected activity considering whether an activity is protected under the statute for purposes of a retaliation claim is a question of law as was held in Morris V. City of Chillicothe .