535 F. App'x 825
11th Cir.2013Background
- Plaintiffs Audrey Broussard and Darlene Harbin brought a putative class action under RICO claiming Maples Industries hired many undocumented workers and falsified I-9s to depress hourly wages and increase profits.
- Plaintiffs offered two expert reports: Edward Mallon (immigration estimates) and economist George J. Borjas (causation — concluded Maples’ hiring depressed real hourly wages by 2.3%).
- Defendants moved to exclude the experts under Rule 702/Daubert; the district court struck Borjas’ report entirely and parts of Mallon’s report as unreliable.
- The district court granted summary judgment for defendants, concluding plaintiffs lacked causation/proximate cause without Borjas’ opinion, citing Anza’s RICO causation requirement.
- Plaintiffs appealed, arguing the district court abused its discretion by (1) excluding Borjas without prior notice/opportunity to cure and (2) applying Rule 702 rather than Rule 703 to Borjas’ reliance on Hispanic school enrollment data as a proxy for local immigrant labor supply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Borjas’ methodology (use of Hispanic school enrollment as proxy for immigrant workforce) | Borjas’ proxy is reasonable; district should have admitted under Rule 702 (or at least allowed cure). | Proxy was novel, untested, and unreliable for measuring firm-level effects; exclusion proper under Rule 702 gatekeeping. | Affirmed exclusion: district did not abuse discretion in excluding Borjas based on unreliable proxy use. |
| Notice / opportunity to respond before exclusion | Court abused discretion by not giving specific prior notice or a Daubert hearing to let plaintiffs cure perceived defects. | Proponent bore burden to establish reliability; court not required to hold a Daubert hearing; plaintiffs had notice of concerns. | No abuse: plaintiffs were aware of the court’s concerns and district courts need not hold a hearing under these circumstances. |
| Applicability of Rule 703 vs Rule 702 to secondary data reliance | Rule 703 permits reliance on types of data economists use; thus Borjas’ use should be judged under Rule 703. | Rule 703 does not replace Rule 702’s overarching reliability inquiry; sufficiency of basis for inference is governed by Rule 702. | Rule 702 governs admissibility; applying Rule 702 to evaluate the sufficiency of Borjas’ proxy was correct. |
| Effect of exclusion on summary judgment (causation in RICO claim) | Even if some exclusion, other evidence could support causation. | Borjas was sole evidence of causation; without him plaintiffs cannot show but-for or proximate causation. | Summary judgment affirmed because plaintiffs conceded they cannot survive without Borjas’ opinion. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (expert admissibility gatekeeping under Rule 702)
- Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (civil RICO requires but‑for and proximate causation)
- United States v. Frazier, 387 F.3d 1244 (11th Cir. en banc) (district court’s Rule 702 decisions reviewed for abuse of discretion)
- Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092 (11th Cir. 2005) (proponent bears burden to lay foundation for expert testimony)
- United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) (Rule 702 controls expert admission)
- United States v. Steed, 548 F.3d 961 (11th Cir. 2008) (Rule 703 reasonable‑reliance inquiry)
- United States v. Cameron, 907 F.2d 1051 (11th Cir. 1990) (harmless‑error principle for evidentiary rulings)