Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02324-JLK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02324-JLK-MEH CHARLES T. GREEN, et al. Plaintiffs, v. SEARS, ROEBUCK & CO. Defendant.

SEARS' REPLY BRIEF IN SUPPORT OF MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS

Defendant Sears, Roebuck & Company ("Sears") respectfully replies to Plaintiffs Green, Wentland, and Breithaupt's Response to Sears' Motion to Exclude Plaintiffs' Expert Witness. INTRODUCTION Sears brought this motion (1) to exclude the testimony of Plaintiffs' economist, Jane Lillydahl, regarding any opinions about Plaintiffs' efforts to mitigate their damages, and (2) to exclude Lillydahl's testimony because it lacks a legitimate factual basis and is thus unreliable and unhelpful to the fact finder in this case. Plaintiffs' Response candidly confirms that Lillydahl is unqualified to render a vocational opinion or any opinions regarding Plaintiffs' mitigation efforts. Thus, Plaintiffs have conceded that Lillydahl cannot properly opine as to Plaintiffs' vocational capabilities, the availability of comparable jobs in the labor market, or the reasonableness of Plaintiffs' mitigation efforts. In the same breath, however, Plaintiffs assert that Lillydahl will be offering a critique of Sears'

Case 1:01-cv-02324-JLK-MEH

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expert reports regarding their mitigation efforts (or lack thereof), and therefore opining on the exact subject matter in which Lillydahl testified she had no expertise. Plaintiffs cannot have it both ways. If Plaintiffs want to offer opinion evidence rebutting Sears' evidence regarding Plaintiffs' failure to mitigate, they must do so through a qualified expert in that field, not through an economist who simply did a math problem to come up with Plaintiffs' "damages." All of Plaintiffs' arguments lack merit. Plaintiffs cannot save their expert from exclusion by arguing that a proper expert would be too expensive, by failing to meet their affirmative duty to mitigate their damages, or by substituting cross-examination as the remedy for inherently unreliable and excludable expert testimony. Because Plaintiffs have conceded that Lillydahl is unqualified to offer her opinions, her testimony should be excluded. DISCUSSION I. Plaintiffs concede that Lillydahl is not qualified to offer opinions on Plaintiffs' vocational capabilities or mitigation efforts. For an expert's opinion to be admissible, the expert must possess such "skill, experience, or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for the truth." Lifewise Master Funding v. Telebank, 374 F.3d 917 (10th Cir. 2004). In their Response, Plaintiffs concede that Lillydahl is a mathematician and economist, not someone who is qualified to opine regarding what jobs Plaintiffs were qualified to perform, the availability of such jobs, or Plaintiffs' efforts to obtain them. (Response at 9.) Because Plaintiffs cannot argue that Lillydahl is qualified to render a vocational or mitigation analysis, any testimony on those subjects must be excluded from evidence.

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Here, Lillydahl admitted that she was not qualified to render an opinion regarding Plaintiffs' vocational capabilities or mitigation efforts and that she had not been retained to do so. Yet, in her deposition, Lillydahl attempted to do just that by offering opinions critiquing the vocational and mitigation analyses conducted by Sears' expert, and Plaintiffs insist that Lillydahl will still offer these opinions, but from an "economic perspective" (whatever that means). (Id. at 10.) Because she admits that she is unqualified to give these opinions, however, they should be excluded, regardless of the "perspective" from which they are offered. II. Because she is unqualified to offer any opinions about mitigation of damages, Lillydahl's economic opinions are unreliable and unhelpful. Lillydahl's testimony should be excluded because it is based on faulty factual foundations and thus is unreliable and unhelpful. In their Response, Plaintiffs assert that Lillydahl's analysis, whether missing critical factual predicates or not, should not be excluded because (1) it is cost prohibitive for Plaintiffs to conduct a proper analysis that includes the vocational and mitigation components, (2) Sears is attempting to shift its burden to show failure to mitigate to Plaintiffs, and (3) any problems with Lillydahl's testimony may be cured by cross-examination. Plaintiffs are wrong on all counts. A. The expense of a proper expert does not justify allowing Lillydahl's opinions on mitigation and vocational analysis.

Plaintiffs argue that despite Lillydahl's inability to testify about the availability of other jobs, Plaintiffs' qualifications for those jobs, and Plaintiffs' efforts to attain such jobs, Lillydahl should be permitted to render an opinion regarding Plaintiffs' "economic damages." The obvious problem with Plaintiffs' position is that, as a matter of law, Plaintiffs are required to mitigate their damages by making reasonable efforts to attain comparable employment. West v.

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Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003) (ADEA plaintiff has a duty to mitigate damages, and must use reasonable diligence to obtain "substantially equivalent employment"). Thus, any expert opinion which purports to quantify Plaintiffs' economic damages but fails to take into account Plaintiffs' mitigation obligation is missing a fundamental factual predicate and should be excluded as unreliable. See Elcock v. Kmart Corp., 233 F.3d 734, 754 (3rd Cir. 2000) (excluding economic expert testimony as unreliable where it failed to account for various employability factors such as job limitations and preexisting injuries). Plaintiffs assert that despite their inability to provide a proper factual foundation, their economist should be permitted to opine on Plaintiffs' damages for lost wages because it would be cost prohibitive for them to hire both a vocational expert and an economist. (Response at 56.) Plaintiffs offer no legal authority for this novel proposition. The reliability requirements of

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), however, do not contain an exception for unreliable expert testimony that costs less. If Plaintiffs wanted to rebut Sears' affirmative expert testimony that Plaintiffs failed to mitigate their damages, they should have hired a proper expert to do so. Relying on an economist who admits she is unqualified to do so is not enough. B. Sears is not shifting its burden of proof to Plaintiffs.

Plaintiffs' next argument -- that Sears is improperly shifting its burden of proof regarding mitigation of damages -- is a red herring. Sears agrees that it bears the burden of establishing that Plaintiffs failed to properly mitigate their damages by failing to attain comparable employment after separating from Sears, and will meet this burden through the expert testimony of Bonnie Ruth, Ph.D., to which Plaintiffs have raised no objection. Despite

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this, Plaintiffs have an affirmative legal duty to mitigate their damages. Nabors, 330 F.3d at 393. Accordingly, Plaintiffs still bear the burden to show that they properly mitigated their damages in the face of Sears' evidence to the contrary. They cannot, however, rebut Sears' evidence through an unreliable and admittedly unqualified economist. Thus, Plaintiffs' arguments concerning the burden of proof are irrelevant. C. Cross-examination cannot cure inherently unreliable testimony.

Finally, Plaintiffs argue that even if their expert relies on fundamentally flawed factual assumptions, the cure for these errors is cross-examination of their expert, not exclusion of the expert's testimony. In so arguing, Plaintiffs ignore the Court's gate-keeping function, which is designed to exclude unreliable and unhelpful testimony rather than waste judicial resources and risk confusion by requiring the trier of fact to sort out the reliable from the unreliable testimony. Indeed, under Daubert's gate-keeping function, "a district court must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact" before such testimony may be admitted in evidence. United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006). By requiring the trier of fact to cull through unreliable testimony, Plaintiffs are simply asking the Court to ignore the requirements that expert testimony be reliable, relevant, and helpful. Daubert, 509 U.S. at 593, n. 10. CONCLUSION For these reasons, Sears respectfully asks that the Court (1) exclude Lillydahl's testimony to the extent she seeks to opine about vocational issues and Plaintiffs' mitigation efforts, and (2) exclude Lillydahl's economic opinions as unreliable and unhelpful because those opinions rely on improper factual assumptions concerning Plaintiffs' efforts to mitigate their damages.

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Dated: November 28, 2006. HALE FRIESEN, LLP By: s/Shannon M. Henderson Shannon M. Henderson 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 [email protected] Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on the 28th day of November, 2006, I electronically filed the foregoing SEARS' REPLY BRIEF IN SUPPORT OF MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS with the Clerk of Court using the CM/ECF system. Diane S. King KING & GREISEN, LLP Email: [email protected]

s/Patricia Foos Patricia Foos HALE FRIESEN, LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Fax: (720) 904-6006 E-mail: [email protected]

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