United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY, (2)
GRANTING DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY,
(3) GRANTING IN PART AND DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT, AND (4) GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION TO AMEND
D. SMITH, SENIOR JUDGE
are Plaintiff's Motion to Exclude Testimony and Opinions
of Defendant's Expert Susan Willower (Doc. #106),
Defendant's Motion to Exclude Testimony and Opinions of
Dr. Monica Biernat (Doc. #109), Defendant's Motion for
Summary Judgment (Doc. #111), and Plaintiff's Motion to
Amend Complaint (Doc. #133). For the following reasons,
Plaintiff's motion to exclude expert testimony is granted
in part and denied in part, Defendant's motion to exclude
expert testimony is granted, Defendant's motion for
summary judgment is granted in part and denied in part, and
Plaintiff's motion to amend his complaint is granted in
part and denied in part.
September 2013, Plaintiff Demetrice Jackson began working as
a sports anchor/multi-media journalist and reporter for
KSHB-TV 41, a television station in Kansas City, Missouri.
The station is owned by Defendant Scripps Media, Inc. In this
lawsuit, Plaintiff, who identifies as African-American,
alleges he was denied promotions based on his race and in
retaliation for filing of charge of discrimination in
violation of the Missouri Human Rights Act (the
“MHRA”) and 42 U.S.C. § 1981.
MOTIONS TO EXCLUDE EXPERT TESTIMONY
702 of the Federal Rules of Evidence governs the admission of
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The district court must make a
“preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology can be applied
to the facts in issue.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 592-93 (1993). The Court
uses a three-part test when determining the admissibility of
First, evidence based on scientific, technical, or other
specialized knowledge must be useful to the finder of fact in
deciding the ultimate issue of fact. This is the basic rule
of relevancy. Second, the proposed witness must be qualified
to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides
the assistance the finder of fact requires.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir. 2001) (internal quotations and citations omitted).
“Courts should resolve doubts regarding usefulness of
an expert's testimony in favor of admissibility.”
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758
(8th Cir. 2006) (citations omitted).
Plaintiff's Motion to Exclude Expert
expert, Susan Willower, proposes to offer opinions on
television news industry standards and practices. Doc.
#107-1. According to her report, Willower will testify at
trial to the following opinions:
• “Based on my experience, it would be highly
unusual and not consistent with industry practice for a News
Director to promise any applicant a promotion, let alone that
someone hired into the lowest position in a department would
jump over someone else to the highest position in the
• “Mr. Jackson should not have been surprised that
Mr. Boal was promoted to Sports Director after Mr. Boal told
him he was going to talk to Ms. Hofmann about the position.
In fact, when Mr. Jackson was asked if he had complained
about Mr. Boal receiving the Sports Director position Jackson
acknowledged that…I didn't push it in that
• “Nothing indicates that race was a factor in the
• “Utilization of [the application and hiring
process] would not be consistent if Ms. Hofmann was basing
her decision on race. If that were the case, she could have
just interviewed the candidates herself and made the decision
unilaterally.” • “I found no evidence that
Ms. Hofmann treated the applicants differently or applied
different definitions of merit to them in the selection
• “There was no evidence provided to substantiate
that race bias played a role in the failure to promote Mr.
• “There was no basis in the materials reviewed to
confirm [Hofmann made a statement about “passing over
the old white guy” other than the allegation of Mr.
Jackson. Even if Ms. Hofmann made this statement, it is very
vague and does not directly indicate that she considered Mr.
Jackson's race when she made the decision to promote Mr.
#107-1, at 3-11. Plaintiff moves to exclude Willower's
testimony because (1) she is not qualified; (2) her testimony
is irrelevant; (3) her testimony invades the province of the
jury; and (4) her testimony provides speculative conclusions
and credibility assessments. Doc. #106.
well-established that an expert's specialized knowledge
based on experience in the field at issue suffices to show
the expert is qualified to testify. Fed.R.Evid. 702. Willower
is a consultant in human resources (“HR”) with
thirty-four years of HR experience. Doc. #107-1, at
She has experience relevant to the TV news industry as the
former Vice President of HR for Raycom Media and Regional
Vice President of HR for Comcast. Id. Now, Willower
has her own HR consulting company. Id.
argues Willower is not qualified to testify about TV news
industry standards and practices. Doc. #107, at 1-4. In
support, Plaintiff cites the “Top Skills”
identified in Willower's LinkedIn profile. Id.
Defendant maintains “Willower's experience is
highly relevant to explore the industry standards and
policies of the highly specialized TV news industry at issue
in this lawsuit.” Doc. #119, at 6.
Court disagrees with Plaintiff's argument. The
information Willower chooses to include in her LinkedIn
profile is irrelevant in determining whether she is qualified
to testify as an expert. Plaintiff's argument ignores
Willower's extensive TV news industry experience detailed
in her report. Plaintiff makes no further attempt to show
Willower lacks qualifications. Based upon the record, the
Court finds Willower possesses the requisite experience and
knowledge to qualify as an expert on TV news industry
standards and practices. Accordingly, Plaintiff's request
to exclude Willower's expert testimony based on her
qualifications is denied.
Relevance and Invading the ...