The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court are the motions in limine to exclude the expert testimony of Eric Posner (Court File No. 411), George Borjas (Court File No. 412), and Michael Cutler (Court File No. 413) by defendants Tyson Foods, Inc. et al. ("Defendants"). In ruling on Defendants' motions, the Court has considered responses from plaintiffs Birda Trollinger et al. ("Plaintiffs") (Court File Nos. 437, 436, 435, respectively), and the arguments and testimony at the Daubert hearing on November 7 and 8, and December 13, 2007 (Court File Nos. 465, 466, 469, 472, 473). Before this Court is also Defendant's motion to exclude supplemental materials submitted to correct George Borjas' analysis (Court File No. 436), and the subsequent response and reply (Court File Nos. 438, 439).
For the following reasons, the Court will GRANT Defendants' motion to exclude the expert opinion of Eric Posner (Court File No. 411); will DENY Defendants' motion to exclude the expert testimony of Michael Cutler concerning English proficiency (Court File No. 413);*fn1 will DENY Defendants' motion to exclude George Borjas' supplemental material (Court File No. 436); will GRANT IN PART Defendants' motion to exclude George Borjas' testimony as it pertains specifically to the amount of damages suffered by Plaintiffs; and, will DENY IN PART Defendants' motion to exclude George Borjas' testimony as it pertains to the general effects of the employment of illegal immigrants on the wages of authorized employees, and to Tyson's market power (Court File No. 412).
This case has a lengthy history with this Court. A complete recitation of the allegations in this case is set out in the Court's Memorandum of May 29, 2007 accompanying its order denying Defendants' motion to dismiss (Court File No. 309).
In summary, Plaintiffs allege Defendants were willfully blind to the hiring of illegal immigrants, in violation of the Immigration Reform and Control Act ("IRCA") and the Immigration and Nationality Act, 8 U.S.C. § 1324(a) (Court File No. 115, pp. 5-9). Plaintiffs also allege Defendants knowingly hired illegal immigrants and harbored them, in violation of 8 U.S.C. § 1324(a)(3)(A), and utilized a criminal conspiracy in doing so, violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961(1)(F) (Court File No. 115, pp. 9-15).
This litigation and the theories espoused by Plaintiffs are novel uses of RICO. Plaintiffs, citizens of the United States or otherwise authorized to work in the United States, allege Defendants were involved in a scheme to knowingly hire illegal aliens to work at their facilities. According to Plaintiffs, Defendants broke the law and assisted illegal aliens in breaking the law to increase their profits. Allegedly, because Defendants hired and harbored illegal aliens, Defendants were able to pay less than the going market wage, and thus decrease their costs. Plaintiffs, as legal employees of Tyson, allege this depressed their wages. Plaintiffs indicate that no other case on this theory has yet reached trial. Because of the novelty of this litigation, many of Plaintiffs' theories are untested in law.
With the trial date now approaching, the parties have exchanged discovery and prospective witness lists. Defendants challenged the admissibility of testimony from Plaintiffs' three experts, Eric Posner ("Posner") (Court File No. 411), Michael Cutler ("Cutler") (Court File No. 413), and George Borjas ("Borjas") (Court File No. 412). The parties agreed the admissibility of Eric Posner's testimony could be decided solely upon the documents submitted to the Court (Court File No. 418). A Daubert hearing was held to determine the admissibility of the testimony of Michael Cutler and George Borjas on November 7 and 8, 2007, and December 13, 2007 (Court File Nos. 465, 466, 469).
In determining whether to allow expert testimony, a court must analyze the testimony under a two-prong test. First, a court must determine whether the principles and methodology, as well as the input or facts used by that methodology, are reliable. Federal Rule of Evidence ("Fed. R. Evid.") 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993). Second, a court must determine whether the expert testimony is relevant. Fed. R. Evid. 403; Daubert, 509 U.S. at 595. A trial court has substantial leeway in making these determinations. Kumho Tire Co., LTD. v. Carmichael, 526 U.S. 137, 138, 141 (1999).
The reliability of an expert's testimony is a question of whether the principles, methodology, and underlying factual bases are scientifically valid, i.e. conform to the principles of scientific inquiry, discussed below. Daubert, 509 U.S. at 595. Reliability is not based upon whether the conclusions drawn by the expert ultimately turn out to be correct. Id. at 595.
There are three components of any expert testimony a court must determine are sufficiently reliable to allow the testimony.*fn2 First, the principles and methodology must be reliable. Second, the input or facts used by the methodology to formulate a conclusion must be reliable. Third, the expert must have properly applied the methodology to the case's facts to arrive at a conclusion. See id. at 593-595. For example, a statistician's testimony would only be reliable if (1) the mathematical formulas and computer programs used to synthesize the data were reliable, (2) the data itself was collected in a reliable manner or taken from a reliable source, and (3) the data was analyzed by the computer programs in a reliable way, e.g. the computer technicians double-checked their work, and the statistician's conclusions were reliably based upon the results.
In making these determinations, case law has provided a non-exclusive list of factors to consider. Not every factor will be relevant in every situation, and courts are free to consider other factors relevant in determining the reliability of the expert testimony in any given case. Id. These non-exclusive factors are as follows:
1. The theory or method can be tested, potentially falsified, or refuted. Id. at 593.
2. The theory or method has been subjected to peer review and publication. New theories can still be admissible, but where there has been an opportunity for comment from the scientific community, flaws in the methodology are more likely to be exposed. Id.
3. A court should consider the known or potential error rate, and existence or maintenance of standards controlling the technique's operation. Id. at 594.
4. Methodology which has gained widespread acceptance in the relevant scientific community is likely to be more credible than methodology which is not generally accepted. Id.
5. A court should consider more carefully testimony based upon procedures or methodology which was developed expressly for the purposes of litigation. Testimony prepared expressly for litigation is more likely to contain bias than testimony which grows out of independent research. Fed. R. Evid. 702 advisory committee's note (2000); Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 430 (6th Cir. 2007). "If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on "scientifically valid principles." Johnson, 484 F.3d at 430, citing Daubert v. Merrell Dow Pharm. ("Daubert II"), 43 F.3d 1311, 1318 (9th Cir. 1995).
6. A court should consider whether the "analytical gap between the evidence presented and the inferences to be drawn on the ultimate issue" is "too wide." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), citing Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349, 1360 (6th Cir. 1992), cert. denied, 506 U.S. 826 (1992). A court must consider whether the expert is justified in extrapolating from an accepted premise to an unfounded conclusion. Fed. R. Evid. 702 advisory committee's note (2000). Even where the methods are acceptable in the abstract, a court must determine whether they have been applied to the specifics of the case in an acceptable way.
7. The expert must adequately account for obvious alternative explanations. Fed. R. Evid. 702 advisory committee's note (2000); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); Claar v. Burlington N.R.R., 29 F.3d 499, 502 (9th Cir. 1994). An expert need only consider the most obvious and potentially influential alternatives; he need not consider every potential minor or speculative cause. Ambrosini v. Labarraque, 101 F.3d 129, 140-41 (D.C. Cir. 1996).
8. The expert must conduct himself in the courtroom with the same level of intellectual rigor used by an expert in the relevant field outside of litigation. Kumho, ...