The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER: (1) DENYING DEFENDANT'S EX PARTE MOTION TO STRIKE; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE PLAINTIFFS' EXPERT; AND (3) DENYING PLAINTIFFS' MOTION TO EXCLUDE DEFENDANT'S EXPERT [Docs. 290, 301, 302]
Pending before the Court are: (1) Defendant's motion to exclude Plaintiffs' statistician expert, Dr. James Lackritz, (2) Defendant's ex parte motion to strike Dr. Lackritz' third report and declaration, and (3) Plaintiffs' motion to exclude Defendant's expert witness, Dr. Benjamin Shippen. For the reasons set forth below, Defendant's ex parte motion is denied, Defendant's motion to exclude Plaintiffs' expert is granted in part and denied in part, and Plaintiffs' motion to exclude Defendant's expert is denied.
This case arises out of Plaintiffs' claims that Steven New, a former Administrative Law Judge for the Social Security Administration ("ALJ New"), was biased against social security claimants. On August 21, 2006, the matter was certified as a class action, with the class defined as "all claimants for Title II Social Security Disability Insurance Benefits or Title XIV Supplemental Security Income whose claims had been assigned to ALJ New and have had their claims denied or dismissed by ALJ New, with the exception of claimants whose claims are time barred under 42 U.S.C. § 405(g)." (Doc. 65, Order Granting Class Cert. at 9-10.)
Plaintiffs retained James R. Lackritz, Ph.D., to analyze certain data and provide statistical evidence of ALJ New's bias. Dr. Lackritz made the following conclusions: (1) that ALJ New handled significantly fewer cases than national and San Diego norms; and (2) that ALJ New allowed significantly fewer claims than national norms. (Schweinner Dec., Ex. 2 at 5-6.)
Defendant sought an expert opinion from Dr. Benjamin S. Shippen, Jr. Dr. Shippen made the following conclusions: (1) Dr. Lackritz' productivity opinion contains flaws in both data and analysis; (2) Dr. Lackritz' allowance opinion is flawed because ALJ New should have been compared to other California ALJs, rather than to a national benchmark; (3) Dr. Lackritz used an inappropriate statistical test to arrive at his allowance opinion; and (4) ALJ New's allowance rate is not statistically significant when compared to California ALJs. (Manbeck Dec., Ex. B at 13.)
At issue are three reports prepared by Dr. Lackritz, and two reports prepared by Dr. Shippen. Dr. Lackritz' initial report ("Lackritz 1"), dated August 12, 2009, compared ALJ New's calendar year figures against fiscal year nationwide data to arrive at a productivity opinion. (Schweinner Dec., Ex. 1; Lackritz Dep. 78:6-16.) Dr. Lackritz' second report ("Lackritz 2") revises the analysis to reflect fiscal year data. (Schweinner Dec., Ex. 2.) Lackritz 2 was provided to Defendant at Dr. Lackritz' deposition on September 22, 2009. During the deposition, Dr. Lackritz discovered that figures he used to arrive at his allowance opinion were incorrect. (Lackritz Dep., 72:9-74:17.) He revised those figures and provided an amended report following his deposition ("Lackritz 3"). (Manbeck Dec., Ex. P.) His conclusions are the same in each report.
Dr. Shippen's initial report ("Shippen 1") is dated September 20, 2009. (Manbeck Dec., Ex. A). Following Dr. Lackritz' deposition and second report, Dr. Shippen provided a revised report, dated October 5, 2009 ("Shippen 2"), which reached the same conclusions as his initial opinion. (Manbeck Dec., Ex. B.)
On October 9, 2009, Defendant filed a motion to exclude Dr. Lackritz' expert opinion under Rule 702 of the Federal Rules of Evidence. (Doc. 290). Plaintiffs filed an opposition, and Defendant filed a reply.*fn1 (Docs. 298 & 300). Defendant also filed an ex parte motion to strike evidence that Plaintiffs submitted with their opposition. (Doc. 301.) These motions are addressed below.
Plaintiffs filed Lackritz 3 and a declaration of Dr. Lackritz with their opposition to Defendant's motion to exclude. Defendant moves to strike this evidence as untimely and in violation of an order issued by Magistrate Judge Brooks.
Lackritz 1 originally was provided after the deadline set in the Rule 16 scheduling order. Because of this discovery violation, Defendant filed a motion with the Magistrate Judge to exclude Plaintiffs' expert witness testimony. (Doc. 217.) Magistrate Judge Brooks declined to exclude Dr. Lackritz' testimony, but precluded Plaintiffs from supplementing the report. (Doc. 255, September 1, 2009 Order, p. 4.) Nevertheless, Plaintiffs submitted Lackritz 2, which is now the subject of Defendant's motion to exclude.
During Dr. Lackritz' deposition, he discovered an error in his report. In reaching his conclusion that ALJ New allowed significantly fewer claims than national norms, Dr. Lackritz utilized figures from a report entitled Key Workload Indicators, Hearings-Appeals-Civil Actions-Attorney Fees, Second Quarter Fiscal Year 2008 ("KWI"). (Schweinner Dec., Ex. 7.) That report provides the national disposition rates of unfavorable, favorable, partially favorable, and dismissed cases for fiscal years 1999-2007. (KWI at 4). The chart column for favorable rates includes both favorable and partially favorable rates. Partially favorable rates are also listed separately. Thus, when adding the percentages of unfavorable, favorable, partially favorable, and dismissed decisions, the total is more than 100% because the partially favorable rates are ...