Written by Aaron V. Burrell from Dickinson Wright on November 18, 2024
In employment discrimination cases, the parties often retain experts to opine about various aspects of the case. An expert may provide, for example, insight as to job performance issues or, in many instances, determine the nature and scope of an employee’s alleged damages. But can an expert determine if the employer’s conduct constituted “discrimination”? The court in Tudor v. Macomb County, unpublished opinion per curiam of the Michigan Court of Appeals, issued Sep. 19, 2024 (Docket No. 362691), answered that question with a resounding “no.”
In Tudor, the plaintiff worked for the defendant employer as a pretrial specialist. During her time there, she worked for a supervisor who was eleven years younger. The supervisor would routinely ask younger, less experienced individuals to assist with tasks instead of the plaintiff. The supervisor would also reject plaintiff’s suggestions during staff meetings and accept those of younger staff members instead. The supervisor issued discipline to the plaintiff on numerous occasions and placed her on several performance improvement plans. When the plaintiff and another individual complained about the supervisor’s treatment of them, the supervisor placed the plaintiff on administrative leave. The plaintiff, feeling she had no other choice, resigned and filed suit, alleging the employer discriminated against her because of her age, retaliated against her when she reported the incident, and constructively discharged her.
At trial, the employer produced an expert witness to “testify about her opinion of [the plaintiff’s] age discrimination and retaliation claims as the former director of human resources and labor relations” for the defendant employer. Id at *4. During the testimony, counsel repeatedly asked the “expert” whether certain actions constituted discrimination:
Q: And I think I asked this with regard to claims of, [when an] employee claims that another employee has been treated differently. Does that in and of itself create evidence of discrimination?
A: No.
Q: The fact that [the plaintiff] may have been much older . . . 11 years older than [the supervisor] does the fact that [the supervisor] made a decision to, for example, discipline [the employee]. Is that evidence of age discrimination?
A: No.
Although the plaintiff’s counsel objected, the trial court allowed the testimony. Not surprisingly, the jury found in favor of the employer.
The Court of Appeals reversed. In finding the testimony impermissible, the court held that the “expert” gave “testimony about whether certain alleged exchanges between [the plaintiff] and [the supervisor] constituted discrimination, and this testimony was repeatedly offered in the form of a legal conclusion.” Id. at *5. The court found that the “expert’s” conclusions “required her to interpret the same facts that the jury was tasked with determining, i.e., whether [the plaintiff’s] claims of specific instances of disparate treatment constituted age discrimination.” Id.
The testimony was not harmless. Instead, the court held that the testimony “not only influenced the potential weight that the jury placed on her testimony but also affected the jury’s perspective on the facts of the case. . .” Id. at *8. Accordingly, the court remanded the case for a new trial.
Takeaways:
- Experts may opine on a host of matters and can be very helpful to advance your case in litigation. They may even discuss the primary facts and circumstances at issue. Indeed, “[t]testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” MRE 704. Thus, experts can opine on standards of performance, technical issues, and damages, for example.
- But it is “important that the expert witness not be permitted to testify about the requirements of law which apply to the particular facts in the case or to phrase his opinion in terms of a legal conclusion.” Tudor, at *5.
- When retaining experts, be sure to work with them to limit their testimony only to factual issues. The goal is to help them steer clear of the province of legal conclusions.gation, labor and employment law, appellate law, and minority business enterprises.
