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Banks v. Bosch Rexroth Corporation

United States District Court, E.D. Kentucky, Central Division, Lexington

April 7, 2014



DANNY C. REEVES, District Judge.

Defendants Bosch Rexroth Corporation ("Bosch"), Dan Reynolds, Geoff O'Nan, and Valenda Allen have moved the Court to exclude the opinion and testimony of the plaintiff's proposed expert witness, Scott R. Bauries, J.D., Ph.D. [Record No. 37] They argue that Bauries is not qualified as an expert and that his testimony is irrelevant, unreliable and includes inadmissible legal conclusions. For the reasons set forth below, the motion will be denied, in part, and granted, in part.


Plaintiff LaShaunna Banks was fired after working as an assembler for Defendant Bosch for approximately eight years. [Record No. 20, p. 2 ¶ 5] The individual Defendants were employees of Bosch during the time relevant to Banks' claims. [ Id. ¶¶ 3, 4] Banks alleges that she suffers from migraines that occasionally required her to leave her work station and miss work. [Record No. 20, p. 2 ¶ 7] Banks requested and was granted intermittent leave under the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601. [ Id. p. 3 ¶ 10] She claims that all of the defendants denied and impeded access to her work station, did not accommodate her disability, and discriminated against her because of her disability. [ Id. ¶ 11] Banks made formal complaints to the Equal Employment Opportunity Commission, the Lexington-Fayette Urban County Human Rights Commission, and her union about the defendants' alleged behavior and issues surrounding the calculation of her FMLA hours. [ Id. ¶ 12; Record No. 27, p. 4]

On July 10, 2012, Banks left Bosch. [Record No. 20, p. 3 ¶ 13] The parties dispute whether she was placed on paid suspension or was terminated on that date; however, it is undisputed that Banks was eventually terminated. [Record No. 51, p. 4] She alleges that her termination was a result of her reports and the exercise of her FMLA rights, and that she was on approved FMLA leave when terminated. [ Id. ¶¶ 14, 15]

Banks filed an Amended Complaint, asserting claims against Defendant Allen based on his deposition testimony. [Record Nos. 15, 19] The Amended Complaint alleges: (i) FMLA interference under 29 U.S.C. § 2615(a)(1); (ii) FMLA retaliation under 29 U.S.C. § 2615(a)(2); (iii) disability discrimination in violation of the Kentucky Civil Rights Act ("KCRA") under KRS § 344.040; (iv) failure to accommodate under KRS § 344.040; (v) unlawful retaliation under KRS § 344.0280; (vi) negligence, negligent hiring, negligent training, negligent supervision, and negligent retention; and (viii) outrage and intentional infliction of emotional distress ("IIED"). [Record No. 20, pp. 3-8] The Court dismissed the KCRA claims of discrimination and failure to accommodate against the individual Defendants and the negligence, IIED, and punitive damages claims in their entirety. [Record No. 53]

Because Banks claims FMLA interference, an accurate calculation of her right to leave under the FMLA is required. Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 613 (6th Cir. 2013). As a result, Banks hired Bauries to calculate the actual amount of FMLA leave she had accumulated when she was allegedly terminated. According to Bauries, Banks had 186.93 hours of FMLA leave at the time she left Bosch. [Record No. 39-11, p. 1] He also indicates that Bosch failed to inform Banks of the exhaustion of her leave time and concludes that these actions, in light of her subsequent termination, constitutes a breach of the FMLA. [ Id. ] The defendants seek to exclude Bauries' testimony, arguing that he is not qualified as an expert in the area of FMLA and that his opinions either are not reliable or are irrelevant. [Record No. 37]


Under Rule 702 of the Federal Rules of Evidence, an expert's opinion must satisfy three requirements to be admissible. First, the witness must be qualified by knowledge, skill, experience, training, or education. Second, the testimony must be relevant, meaning that it will assist the trier of fact to understand the evidence or to determine a fact in issue. Third, the testimony must be reliable. In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 529-30 (6th Cir. 2006). The Court assumes the role of a gatekeeper to determine that the testimony is reliable and relevant when a party's expert witness is challenged. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993).

If qualified, an expert may testify if his knowledge will aid the trier of fact and where his opinions are based on sufficient data, reliable methods, and the facts of the case. Id. Rejection of expert testimony under Daubert is the exception rather than the rule. In re Scrap Metal, 527 F.3d at 530 (quoting Fed.R.Evid. 702 advisory committee notes); see also Andler v. Clear Channel Broadcasting, Inc., 670 F.3d 717, 729 (6th Cir. 2012) (reversing district court in excluding an economic expert as unreliable, noting that the testimony would be helpful to the jury and the weaknesses in the expert's testimony would be subject to vigorous crossexamination); Dilts v. United Group Servs., LLC, 500 F.Appx. 400, 444 (reversing the district court's exclusion of an accident reconstruction expert's testimony as unreliable where the expert performed calculations and relied on methods generally employed in accident reconstruction); Palatka v. Savage Arms, Inc., 535 F.Appx. 448, 455 (6th Cir. 2013) (reversing a district court's exclusion of expert testimony as unhelpful, noting that factors he failed to consider in his opinion could be highlighted on cross-examination).

A. Qualification

The defendants argue that the plaintiff has not shown that Bauries is an FMLA expert. [Record No. 37-1, p. 5] Banks claims that Bauries' Curriculum Vitae ("CV") demonstrates that he has sufficient expertise to be considered qualified as an FMLA expert. [Record No. 39, p. 6] She points out that Bauries teaches a course on employment law, has consulted on past FMLA calculations, has practiced in the employment law field, and has given presentations on FMLA and employment law. [ Id. ] Thus, Banks contends that this combination of education, knowledge, training and experience qualifies him to offer expert testimony concerning FMLA calculations. [ Id. ] When determining the admissibility of expert testimony, a court must first find that the expert is qualified. Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 293 (6th Cir. 2007). An expert is qualified by "knowledge, skill, experience, or education." Fed. R. Evi. 702. Defendants rely on this Court's opinion in United States v. Gallion, 257 F.R.D. 141, 145 (E.D. Ky. 2009), for the proposition that an attorney, even with several decades of experience, may not qualify as an expert. But the defendants' reliance on that opinion is misplaced. In that matter, the party seeking admission had not offered evidence that the proposed expert had "ever written or spoken professionally on any of the issues that he seeks to offer opinions." Id. "Without these or other differentiating factors there is nothing to set apart [the proposed attorney expert witness] from any other lawyer with experience as an advocate in a particular area of law." Id.

Something more than experience in practice is needed to qualify an attorney as an expert in a given specialty. Cicero v. Borg-Warner Automotive, Inc., 163 F.Supp.2d 743, 749 n.7 (E.D. Mich. 2001). Here, Bauries' knowledge, experience and education separates him from other lawyers with experience in a particular area of the law. Bauries has written, spoken academically and professionally, and taught classes regarding employment law and the FMLA, and has been qualified previously as an FMLA expert witness. [ See Record No. 39-9] This distinguishes Bauries from other attorneys who have solely practice experience in the area on which they are seeking to be considered an expert witness.

In short, when determining whether a witness is qualified to offer expert opinions, the court should not rely on labels, but upon a finding of competence that the particular witness would bring to the issues and whether it would assist the trier of fact. Kingsley Associates, Inc. v. Del-Met, Inc., 918 F.2d 1277, 1286 (6th Cir. 1990) (citing Mannino v. Int'l Mfg. Co., 650 F.2d 846, 850 (6th Cir. 1981). Banks identifies a combination of experience, skill, knowledge, and education demonstrating that Bauries is qualified to offer opinions concerning employment law and the FMLA. The combined sum of Bauries' expertise shows that he is qualified. Additionally, any concern ...

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