OPINION AND ORDER
In this lawsuit alleging employment discrimination based on age and disability, Defendant Oregon State Board of Higher Education moves to exclude the expert report and testimony of Jean Stockard, Ph.D., Plaintiffs expert relating to the tenure-track review, evaluation, and termination processes and procedures in the Oregon University System and the process and procedure used in Defendant’s decision to deny tenure to Plaintiff and terminate her employment. Dkt. 56. For the following reasons, Defendant’s motion is granted in part and denied in part.
STANDARDS
Federal Rule of Evidence (“FRE”) 702 establishes that expert opinion evidence is admissible if (1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied these principles and methods. Fed.R.Evid. 702. Under Daubert
“The trial court must assure that the expert testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’ ” Id. at 564 (quoting Daubert,
The test of reliability is flexible. Primiano,
BACKGROUND
Plaintiff Rosemary Siring was a tenured professor at the University of Montana when she took a position as a tenure-track professor at Eastern Oregon University (“EOU”) in 2006.
Plaintiffs proffered expert, Jean Stockard, Ph.D., has worked at the University of Oregon for nearly 40 years. She is a faculty member and served on and chaired the elected personnel committees of the College of Arts and Sciences and the University. Those committees review personnel cases, including tenure and promotion decisions, and make recommendations as to their disposition. During her career, Dr. Stockard has: (1) served as Department Head and Associate Head at the University of Oregon; (2) served as an external reviewer for other universities, where she provided independent reviews of candidates for promotion and tenure; (3) served three terms as President of the University of Oregon chapter of the American Association of University Professors (“AAUP”) and one term as President of the state of Oregon chapter of the AAUP; (4) served as chair of the AAUP committees charged with addressing issues related to academic freedom and discrimination based on gender; (5) served as a grievance counselor, assisting individuals navigating the University’s grievance process; (6) served on appeal committees, reviewing appealed decisions and making recommendations as to their proper disposition; (7) developed tenure processes for the University of Oregon in compliance with the Oregon Administrative Rules (“OARs”); (8) reviewed tenure processes for compliance with the OARs; and (9) engaged in scholarly research on the ways in which institu
Dr. Stockard was provided with more than 5,500 pages of documents from this case, including more than 3,000 pages produced by Defendant. Dr. Stockard carefully reviewed the deposition transcripts of Siring, Dean Lauritzen, Provost Jaeger, Dr. McNerney, Dr. Costi, and Dr. Evans. Among the exhibits and discovery documents that Dr. Stockard received and reviewed were e-mail communications, written reports, and the EOU Promotion and Tenure Handbook. Dr. Stockard prepared a written opinion and, in response to Defendant’s Motion in Limine, a supplemental opinion, in which she opines about the Oregon University System’s tenure review process generally and EOU’s tenure review process specifically with respect to Siring (“Stockard Report”) and (“Stockard Supplemental Report”). Dkts. 37 and 60, respectively. Dr. Stockard concludes, among other things, that there were significant deficiencies in the tenure review process with respect to Siring and that there was “no scholarly reason for Siring’s dismissal” that was apparent from the materials reviewed by Dr. Stockard. Dkt. 37 at 8.
DISCUSSION
Defendant argues that the Stockard Report is not admissible under FRE 702 because (1) it is based on an inaccurate and incomplete version of the facts; (2) it is not the product of reliable methods that have been reliably applied to the facts of the case; and (3) it will not help a jury understand the evidence or determine a fact at issue in this case. Defendant also argues that Dr. Stockard’s opinions are not relevant and that, under FRE 403, any probative value of the Stockard Report is outweighed by the danger that it will confuse the jury and unfairly prejudice EOU. Defendant moves to exclude the Stockard Report and any testimony at trial by Dr. Stockard.
A. Factual Basis of the Stockard Report
The Stockard Report sets out the facts on which it is based. Defendant asserts that the facts relied upon by Dr. Stockard are incorrect. The facts that Defendant asserts are “incorrect” are facts that are in dispute in this case, such as whether EOU gave Siring sufficiently clear and appropriate written expectations of what performance was required for her to receive tenure, specific recommendations for improvement, specific criticisms or identified shortcomings, and appropriate mentoring. Dr. Stockard responded to Defendant’s argument in the Stockard Supplemental Report, reiterating her interpretation of the facts and the evidence in the record that she believes supports her interpretation of the facts. Dkt. 60.
It is for the jury to decide what the facts are in this case, and if the jury disagrees with Dr. Stockard’s interpretation of the facts, that goes to the weight and impeach-ability of Dr. Stockard’s testimony, not its admissibility. See, e.g., Primiano,
Defendant also argues that the Stockard Report and testimony should be excluded because Dr. Stockard bases her opinions on Siring’s version of the facts. Defendant relies on Arjangrad v. JPMorgan Chase Bank, N.A. No 3:10-ev-01157-PK,
Here, Dr. Stockard reviewed the deposition transcripts of Defendant’s witnesses, their email communications, documents produced in discovery, and Defendant’s written reports relating to Siring. The information reviewed and relied on by Dr. Stockard was not limited only to documents supporting Plaintiffs theory of the case. To the extent Defendant believes the Stockard Report and testimony construes the information erroneously in Plaintiffs favor, that is an issue for cross examination. See, e.g., Hangarter,
B. Reliability of the Stockard Report
An expert may be qualified by “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. “[T]he text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” Fed.R.Evid. 702 advisory committee notes, 2000 amendments.
The Court finds that Dr. Stockard’s substantial experience in the Oregon University System as a faculty member and member of personnel committees, many professional appointments relating to educational policy and management, and extensive scholarly activities and publications in relevant research areas qualify Dr. Stockard to opine about tenure-track faculty evaluation and review policies and procedures in general and the specific evaluation and review of Siring.
Defendant argues, however, that Dr. Stockard’s testimony is not reliable because she does not explain how her specialized knowledge and experience leads to her conclusions and how her experience has led her to understand and define what constitutes “usual practice.” Defs Br. at 9-10. The Court disagrees.
Dr. Stockard has significant knowledge and experience in the Oregon University System and in implementing the OARs in the context of tenure reviews, evaluations, appeals, and grievances. The Stockard Report repeatedly references Dr. Stockard’s personal experience in the Oregon University System and Dr. Stockard’s understanding of and experience in implementing the OARs relating to university faculty evaluations and tenure-track processes in explaining Dr. Stockard’s assessment of what constitutes normal practices and her conclusions. Additionally, the Court conducted voir dire of Dr. Stockard, further ascertaining her background, experience, knowledge, and how she applied that experience and knowledge to reach her opinions in the Stockard Report.
Defendant relies heavily on Arjangrad to argue that Dr. Stockard is essentially opining that the usual tenure practice is what she says it is, and thus her testimony should be excluded. In Arjangrad, the Court found that
[The expert] never explains how his experience performing discrimination investigations or his expertise advising employers and HR professionals led him to understand and define generally accepted standards of HR investigation practices. Instead, his report merely asserts that “[e]mployers and lawyers who advise employers have broadly recognized that sound HR practice dictates” companies conduct prompt, thorough, and impartial investigations of discrimination complaints, just as case law requires them to do with harassment complaints. This is circular reasoning — generally accepted HR practice requires certain investigation practices because [the expert] asserts that employers and advisors (like himself) believe it to be so. [The expert], however, does not offer any personal observations or data gathered from his experience demonstrating that large companies actually adhere to these standards.
Arjangrad,
Here, Dr. Stockard includes in her report numerous examples of her personal observations and experience with how tenure-track reviews are actually conducted and how the OARs are applied. Dr. Stockard also explained in her voir dire testimony during the hearing on Defendant’s Motion in Limine (“hearing testimony”) that she relied on her personal experiences in participating in annual and third-year reviews, making tenure evaluation recommendations, evaluating tenure appeals, assisting faculty members with tenure-related grievances, drafting and reviewing tenure policies to ensure they comply with the OARs, serving on AAUP committees, advising outside universities on tenure decisions, implementing the OARs, and speaking with others regarding tenure policies and procedures over her 40 years of experience in academia in reaching her conclusions in this case. She also testified that in her experience, tenure review policies do not largely differ in their structure, format, and procedures between institutions; but that the differences between institutions usually include only the weight given to certain factors considered
The Court finds that Dr. Stockard’s experience, training, and education provide a sufficient foundation of reliability. See Hangarter,
C. Assisting the Trier of Fact
Expert opinion must have “substance such that it would be helpful to the jury.” Alaska Rent-A-Car,
Defendant argues that the Stockard Report (1) will not aid a jury in making a decision but merely substitutes Dr. Stockard’s judgment for the jury’s because the subject matter of the Stockard Report is within the common knowledge of the average layperson; and (2) contains legal conclusions and interpretations of Oregon law that usurp the court’s role in explaining the law to the jury. Defs Br. at 12. Defendant’s arguments are unavailing.
1. The subject matter of the Stockard Report is not within the knowledge of the average layperson
The particularized and specialized evaluation and review practices, policies, and procedures relevant to a tenure-track professor are not within the common knowledge of the average layperson. How tenure-track professors are evaluated, reviewed, and promoted in the Oregon University System is not necessarily similar to how a layperson may be evaluated, reviewed, or promoted at his or her job. It is both specialized and specifically governed in the Oregon University System by numerous administrative rules. See Or. Admin. R. 580-021-0100 through 580-021-0140. Professorial tenure is a unique system, and the Court finds that as an expert in the field of tenure-track evaluation, review, and promotion, Dr. Stockard’s opinion addresses issues beyond the common knowledge of the average layperson and will aid a jury in making its determination. Accordingly, Dr. Stockard may testify regarding the Oregon University System standards and practices for tenure-track review, evaluation, promotion, and termination and whether EOU complied with those standards in its decisions relating to Siring. See, e.g., Hangarter,
2. The Stockard Report does not usurp the Court’s role
Defendant also argues that Dr. Stockard’s report is not helpful to the jury because it merely reflects Dr. Stockard’s understanding of the law and is improper because an expert cannot displace the court’s role of explaining the law to the jury. Dr. Stockard’s report includes more
Further, an expert’s opinion that relies in part on the expert’s understanding of state law does not improperly usurp the court’s role. Hangarter,
3. Dr. Stockard may not opine as to EOU’s intent, motive, or state of mind
Courts routinely exclude as impermissible expert testimony as to intent, motive, or state of mind. See, e.g., DePaepe v. Gen. Motors Corp.,
Expert testimony as to intent, motive, or state of mind offers no more than the drawing of an inference from the facts of the case. The jury is sufficiently capable of drawing its own inferences regarding intent, motive, or state of mind from the evidence, and permitting expert testimony on this subject would be merely substituting the expert’s judgment for the jury’s and would not be helpful to the jury. See, e.g., United States v. Benson,
The Court holds that Dr. Stoekard may not opine about the intent, motive, or state of mind of the EOU decisionmakers, the unexpressed reasons for their decisions, or what they may have been thinking. Thus, Dr. Stockard’s conclusions in the Stoekard Report that “it does appear quite plausible that the reason for the dismissal was the allegation of alcoholism” and that “[i]t appears very likely that these actions of the Program Director were significant in promoting the negative decision,” and any similar testimony, are excluded. Dkt. 37 at 8 (Stoekard Report at 6).
D. Relevancy and Unfair Prejudice
Defendant also argues that the Stoekard Report and any testimony should be excluded because they are irrelevant and unfairly prejudicial.
1. Relevance
Defendant asserts that the Stoekard Report merely opines that EOU’s procedures did not comply with “usual” practices in the Oregon University System. Thus, Defendant argues, the Stoekard Report is not relevant because it does not opine that EOU treated Siring differently than any other professor at EOU and, therefore, does not support an inference of discrimination.
Expert testimony is relevant if it will help the jury understand a fact at issue. See, e.g., Cooper v. Brown,
Siring proffers Dr. Stoekard as an expert in the usual policies and procedures for tenure review and evaluation in the Oregon University System and to opine on the ways in which EOU failed to follow those policies and procedures with regard to its evaluation of Siring. Although Dr. Stoekard does not compare how EOU treated Siring with how EOU treated any other employee, which might more directly support an implication of discrimination, such a direct link is not required to render Dr. Stockard’s opinion relevant. Siring is allowed to proffer circumstantial evidence to the jury to assist the jury in determining whether EOU based its employment decision relating to Siring on legitimate, nondiscriminatory reasons or whether EOU made its decision with an improper discriminatory or retaliatory motive. See, e.g., Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30,
Dr. Stockard’s testimony that EOU failed to follow the usual and customary procedures and policies of the Oregon University System in EOU’s tenure evaluation and review of Siring is information that would be helpful for a jury in determining the propriety of EOU’s employment decisions with regards to Siring. See, e.g., Dukes v. Wal-Mart, Inc.,
2. Unfair prejudice and confusion
Defendant also argues that the Stockard Report should be excluded under FRE 403 because it is unfairly prejudicial and confusing to the jury. Def s Br. at 15. Relevant testimony may be excluded under FRE 403 if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury.
The first reason articulated by Defendant for excluding Dr. Stockard’s testimony under FRE 403 is that criticism of EOU’s tenure-track review policies will confuse the jury because it will distract the jury from the essential question of determining whether there was discriminatory intent with regard to the employment decisions relating to Siring. As noted above, however, testimony that an employer failed to follow industry standards is relevant evidence for a jury to consider when determining motive and intent. Thus, it is relevant and helpful for the jury in making its determination whether EOU acted with discriminatory intent and the risk, if any, of confusing the jury does not substantially outweigh the probative value of this evidence.
The second reason advanced by Defendant for excluding Dr. Stockard’s testimony is that she is cloaked in an “aura of authority,” which might induce the jury to overemphasize her testimony and significantly prejudice Defendant. All experts, however, are cloaked in an “aura of authority,” and they attempt to offer testimony that is helpful to one party and not
The gatekeeping function of the trial court in making a determination of relevance and reliability is designed to exclude “unreliable nonsense opinions.” Alaska Rent-A-Car,
CONCLUSION
The Court finds Dr. Jean Stockard to be a qualified expert. Defendant’s motion in limine to exclude Dr. Stockard’s expert testimony is GRANTED IN PART AND DENIED IN PART. Dr. Stockard’s testimony as to the intent, motive, or state of mind of Eastern Oregon University and its personnel is EXCLUDED, but her remaining testimony is relevant and reliable and will be ADMITTED. To the extent that Dr. Stockard’s reports would be cumulative of her testimony, the reports will not be admitted.
IT IS SO ORDERED.
Notes
. Daubert v. Merrell Dow Pharm.,
. Defendant Oregon State Board of Higher Education is the statutory governing board of the Oregon University System and its seven universities, one of which is EOU. The other six universities in the Oregon University System are (1) Oregon Institute of Technology; (2) Oregon State University; (3) Portland State University; (4) Southern Oregon University; (5) University of Oregon; and (6) Western Oregon University. Additionally, Oregon Health Sciences University is an affiliated institution.
. Information regarding Dr. Stockard's knowledge and experience was obtained from her curriculum vitae, her written report in this case, her supplemental written report, and her hearing testimony.
. Although the advisory committee notes are not binding on the Court, they are "of weight” in interpreting the rules. Torres v. Oakland Scavenger Co.,
. To the extent, however, that Dr. Stockard is permitted to testify about matters contained within her report and supplemental report, the reports themselves would be cumulative and not necessarily admissible in addition to the trial testimony.
. As stated previously, however, Dr. Stockard's opinions as to EOU's motive, intent, or state of mind are not helpful to the jury and are excluded.
. The other potential dangers addressed in FRE 403 are not at issue in this case.
. The Court notes, however, that to the extent the testimony of Dr. Stockard may confuse the jury or cause prejudice for Defendant regarding the fact that Siring is suing EOU for discrimination and retaliation and not for any violation of the OARs or breach of contract for failing properly to implement the EOU Promotion and Tenure Handbook, clarifying jury instructions may be appropriate.