The opinion of the court was delivered by: ILLSTON
On July 9, 1997, the Court heard argument on defendant's motions to exclude testimony by Dr. Gentile, Professor Fiske, Professor Bielby, and Dr. Hoffman pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Having considered the arguments of counsel and the papers submitted, the Court hereby DENIES defendant's motions.
This class action arises under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act, Government Code §§ 12940 et seq. (FEHA). Plaintiffs -- female employees and applicants throughout Home Depot's West Coast Division -- allege gender discrimination by Home Depot in job assignments, transfers, training, promotions, and compensation. Plaintiffs allege that discrimination has occurred in the form of intentional discrimination and neutral employment practices which disparately impact female employees.
Home Depot has filed a motion to exclude the testimony of four of plaintiffs' expert witnesses at trial, pursuant to the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). At issue in this motion is the testimony of the following witnesses:
(1) Dr. Mary Gentile, plaintiffs' designated expert in the fields of organizational diversity program design and implementation, who is prepared to testify as to how corporations can look for and correct diversity problems within their workforces and the extent to which Home Depot has failed to take such steps in implementing its diversity initiative;
(2) Professor Susan Fiske, plaintiffs' designated expert in the fields of social psychology, social relations, and stereotyping, who is prepared to testify as to the role of gender stereotyping in Home Depot's hiring, placement, and promotion patterns and the organizational means by which gender stereotyping may be controlled;
(3) Dr. William Bielby, plaintiffs' designated expert in the fields of sociology, social psychology, and organizational behavior, who is prepared to testify as to the following alleged features of Home Depot's personnel system -- (a) a male-dominated culture that defines separate and unequal roles for women and men, (b) arbitrary and subjective criteria for hiring, assignment, training, assessment of qualifications, and promotion which give free play to the influence of gender stereotypes and biases held by predominantly male management teams, and (c) management's failure to utilize factors that could control the effects of stereotyping and biased decision-making; and
(4) Dr. Carl Hoffman, plaintiffs' designated expert in statistics, survey research, and job interests, who is prepared to testify as to the proper means of assessing the job interests of Home Depot's female applicants and employees, the inadequacies of the informal methods used by Home Depot, and the adverse impact that Home Depot's weightlifting requirement may have on women.
Home Depot argues that the testimony of these witnesses is unreliable as a matter of science and irrelevant to the issues at hand.
Federal Rule of Evidence 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Fed. R. Evid. 702. The trial court maintains a "gatekeeping responsibility" to determine, as a preliminary matter, whether expert scientific testimony is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993) ("Daubert I "). Specifically, the trial judge must determine whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue. 509 U.S. at 592-93. Among the factors which a court may consider are (1) whether the expert's theory or technique can be and has been empirically tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) whether the known or potential rate of error is acceptable, and (4) whether the theory or technique is generally accepted by the scientific community. Id. at 593-94. These factors are illustrative, rather than exhaustive, and need not be applied in every case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316-1317 (9th Cir.) ("Daubert II "), cert. denied, 516 U.S. 869, 116 S. Ct. 189, 133 L. Ed. 2d 126 (1995).
Ultimately, the proponent of the expert testimony bears the burden of establishing the testimony's admissibility by a preponderance of the evidence. Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996). In making its preliminary evaluation of expert testimony, the trial court has broad discretion and will be reversed only for an abuse of discretion. Daubert II, 43 F.3d at 1315.
Plaintiffs offer the testimony of Dr. Gentile to show that at the time this suit was filed, the diversity management programs at Home Depot lacked features that would make a significant and consistent impact on the organization and failed to accomplish Home Depot's own stated goals on its own stated timetable. Home Depot seeks to exclude this testimony on the grounds that: (1) Dr. Gentile is not an expert in diversity management, (2) her conclusions are not based upon a reliable, scientific methodology, and (3) her opinions are irrelevant or otherwise subject to exclusion under Federal Rule of Evidence 403.
As a preliminary matter, the Court must determine whether Dr. Gentile is qualified as an expert. See Fed. R. Evid. 104(a) ("Preliminary questions concerning the qualifications of a person to be a witness ... shall be determined by the court, subject to the provisions of subdivision (b)."). Home Depot challenges the educational credentials, research background, and practical experience of Dr. Gentile, arguing that she is not qualified to testify as an expert in the area of diversity management. In support of its motion, Home Depot notes that Dr. Gentile received a doctorate in Film and Literature, not diversity management, that Dr. Gentile's research has been limited to interviewing company executives in the course of developing diversity teaching case studies, and that Dr. Gentile has provided consulting services to only three businesses.
However, Dr. Gentile has been employed by Harvard Business School as a researcher, administrator, and lecturer. Gentile Report at P 2. She has researched and written numerous case studies based on diversity-related challenges in business organizations and has taught a Harvard Business School course on "Differences That Work: Managerial Effectiveness Through Diversity." Id. In addition, she has authored two textbooks,
and her research has served as the foundation for an award-winning interactive, multi-media CD-ROM, "Managing Across Difference", which has served as a corporate training tool. Id. at P 3. Moreover, Dr. Gentile has served as an independent consultant and author on the subject of diversity in the workplace for clients including Harvard University, Bentley College, Simmons Graduate School of Management, Pfizer, Inc., ...