CASTAGNA v. WEST MIFFLIN AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

DANIEL R. CASTAGNA,

) Civil Action No. 2:18-cv-00894

)

Plaintiff,

) Magistrate Judge Lisa Pupo Lenihan

)

v.

) ECF No. 171

)

WEST MIFFLIN AREA SCHOOL

)

DISTRICT

)

)

Defendant

)

MEMORANDUM OPINION AND ORDER

ON PLAINTIFF’S MOTION TO STRIKE EXPERT REPORT

I. Procedural History

Currently before the Court is the Motion to Strike Defendant’s Expert Report

prepared by Ira Weiss (“Weiss”), of the law firm Weiss Burkardt Kramer LLC, on

August 28, 2020 (the “Weiss Report”). ECF No. 171. Defendant states that the Weiss

Report “addresses two topics: 1) the process and procedures followed by the District

when it suspended Plaintiff . . . with and without pay and terminated his employment

(“Process and Procedure Opinion”); and 2) the potential impact of Plaintiff’s own

conduct on his ability to remain employed as a Superintendent in the Commonwealth

of Pennsylvania (“Employability Opinion”).” ECF No. 174 at 1. And it concludes that

(1) “[t]he manner in which the District’s” investigation, hearing, voting and other

processes and procedures were conducted “was consistent with what is required in

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Pennsylvania”; and (2) “[i]t is unlikely Plaintiff could remain employed in the

Commonwealth as a Superintendent in light of his DUI arrests, irrespective of”

Defendant’s public disclosures or termination of his employment. Id. at 1-2. Plaintiff’s

assertions that the Report should be stricken include that it impermissibly offers legal

conclusions, the opinions rendered will not assist the jury, and it would be unduly

prejudicial. Defendant defends the submission of the Report as meeting the

requirements of Federal Rule of Evidence 702, otherwise proper and helpful to the jury,

and appropriate in response to Plaintiff’s claims.

II. Discussion

Federal Rule of Evidence 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact 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, if (1)

the testimony is based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702.

The Third Circuit has described the requirements of the Federal Rules of

Evidence as a “trilogy of restrictions on expert testimony: qualification, reliability, and

fit.” Calhoun v. Yamaha Motor Corp., 350 F.3d 316 (3d Cir. 2003). “Qualification”, a

requirement liberally interpreted by courts, refers to the specialized expertise of the

expert. In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 741-743 (3d Cir. 1994).

“Reliability” requires that a proffered expert’s testimony “must be based on the

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methods and procedures of science rather than on subjective belief or unsupported

speculation.” Id. The “ultimate touchstone is helpfulness to the trier of fact, and with

regard to reliability, helpfulness turns on whether the expert’s technique or principle

[is] sufficiently reliable so that it will aid the jury in reaching accurate results.” Id. at 745.

“Fit” means that the expert testimony must fit the issues in the case by being relevant

and assisting the trier of fact. Id.

Determination of the admissibility of expert testimony on a particular issue is left

to the discretion of the trial court. First Nat'l State Bank of New Jersey v. Reliance Elec. Co.,

668 F.2d 725, 731 (3d Cir. 1981). In considering whether to permit particular expert

testimony, a District Court must limit said testimony as appropriate to prevent the

expert’s offering an opinion on “what the law required” or “testify[ing] as to the

governing law.” United States v. Leo, 941 F.2d 181, 196-97 (3d Cir. 1991). Indeed, as our

Sister Court for the Southern District of New York has explained: “The rule prohibiting

experts from providing their legal opinions or conclusions is so well established that it

is often deemed a basic premise or assumption of evidence law - a kind of axiomatic

principle. . . . [E]very circuit has explicitly held that experts may not invade the court's

province by testifying on issues of law.” In re Initial Public Offering Lit., 174 F.Supp.2d

61, 64 (S.D.N.Y. 2001) (internal quotations omitted) (collecting cases). See also Berkeley

Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006) (“[T]he District Court must

ensure that an expert does not testify as to the governing law of the case.”). See generally

Coregis Ins. Co. v. City of Harrisburg, CIV.A. 1:03-CV-920, 2005 WL 2990694, at *1–2 (M.D.

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Pa. Nov. 8, 2005) (striking expert report which, rather than providing “objective analysis

of purely factual issues” was “awash in legal conclusions” and “filled with legal

argument”).1

In considering the Weiss Report, the Court finds Peters v. Baltimore City Bd. of Sch.

Comm'rs, CIV. WMN-13-3114, 2014 WL 4187307 (D. Md. Aug. 21, 2014) highly

informative. In Peters, Defendant obtained the expert report of Ms. Haag–Hatterer, an

attorney who was also qualified and employed as a human resource professional.2

Haag–Hatterer had “expertise in formulating, adopting and consistently applying

federal and state regulations and best practices” and her report provided “an overview

of the law and relevant statutes regarding [the] dispute.” After noting that Haag–

Hatterer failed to explain how she reached her conclusions that defendant “violated the

1 Here, as in Coregis, the Court concludes that the Weiss Report includes “inappropriate

legal conclusions” about the proper legal interpretation of facts in issue. It “strays from

offering expert opinion of factual issues into an impermissible effort to advise this Court

about pure legal questions regarding the application of Pennsylvania law . . . .” Here

also, as in Coregis, portions of the proffered expert report containing legal analysis

would be more appropriately placed in Defendant’s briefs by Defendant’s counsel. See

Coregis, 2005 WL at *5. See discussion, infra.

2 The Court notes that its review of the case law suggests it is more usual to employ

someone who holds an institutional personnel role, such as Haag-Hatterer – rather

than an “Education & Municipal” legal practitioner, such as Weiss - as an expert to

assist the jury in understanding the factual process and procedures of employment

decisions in a particular institutional context. Well-qualified legal practitioners are

more generally added to civil rights employment litigation as counsel.

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statutes at issue” or how they were specifically informed by her experience,3 the Court

went on to conclude that:

Even assuming that her opinion was sufficiently reliable, however, the

majority of her testimony, as set forth through her expert report, would

nonetheless be inadmissible. Under Federal Rule of Evidence 704, expert

testimony as to legal conclusions is generally inadmissible. See, e.g., Sun

Yung Lee v. Clarendon, 453 F. App'x 270, 278 (4th Cir. 2011) (“While expert

witnesses may testify as to the ultimate matter at issue, Fed.R.Evid. 704(a),

this refers to testimony on ultimate facts; testimony on ultimate questions

of law, i.e., legal opinions or conclusions, is not favored.” (quoting

Anderson v. Suiters, 499 F.3d 1228, 1237 (10th Cir. 2007))); United States v.

McIver, 470 F.3d 550, 562 (4th Cir. 2006) (“[O]pinion testimony that states a

legal standard or draws a legal conclusion by applying law to the facts is

generally inadmissible.”).

2014 WL 4187307, at *7.

The Peters Court observed that, assuming it would mirror her report, Haag–

Hatterer's proposed testimony “impermissibly invade[d] the province of both the judge

and the jury” by “tell[ing] the jury what result to reach, in her capacity as an attorney

and human resources professional, and as a result of her purported expertise in

applying the aforementioned statutes.” Id. (citing United States v. Chapman, 209 F. App'x

3 “In short, her opinion largely asks the Court and the jury to take her word for the

conclusions that she reaches.” Id.

The Court makes the same observations with regard to the Weiss Report. It concurs

with Plaintiff’s assertion that the Report fails to provide much meaningful support –

through, e.g., specificity of experiential information – for its conclusions. The Court also

notes that Weiss’ C.V. suggests more specialization in his “decades of experience with

collective bargaining for school districts” or “training professional educators” than the

matter at hand; and although his qualification is largely undisputed (cf. ECF No. 172 at

10 regarding qualifications to speak to job search), his experienced-based expert

opinions must of course be substantiated.

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253, 269 (4th Cir. 2006) (“Generally, the use of expert testimony is not permitted if it will

usurp either the role of the trial judge in instructing the jury as to the applicable law or

the role of the jury in applying that law to the facts before it. When an expert

undertakes to tell the jury what result to reach, this does not aid the jury in making a

decision, but rather attempts to substitute the expert's judgment for the jury's.”)

(quoting United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)).

The Court concluded, however, that “although Haag–Hatterer's report

contain[ed] multiple” unreliable assertions and/or impermissible legal conclusions,

some portions might be admissible. It thus found it “premature, as Haag–Hatterer

ha[d] not yet been deposed, to strike her opinion in its entirety.” The Court determined

to grant the Motion to Strike in part, holding that:

Haag–Hatterer will not be permitted to testify regarding her ‘overview’ of

the relevant statutes or the state of the law, nor will she be permitted to

offer any legal conclusions, as those are impermissible because they are

unreliable and invade the province of the jury. To that extent, her expert

report will be stricken. More generalized testimony regarding factual—not

legal—conclusions related to her human resources experience, however,

may be admissible. Plaintiff is cautioned, however, that the Court is

reserving its determination as to the admissibility of Haag–Hatterer's

factual conclusions, that the bulk of her expert report is troublesome, and

that, should her deposition testimony offer the same type of analysis as

discussed above, her testimony is likely to be stricken in its entirety. Thus,

pending Haag–Hatterer's deposition testimony, it may be appropriate to

revisit this issue as a trial date nears.

2014 WL 4187307, at *8.

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This Court is largely in accord with the holding in Peters for reasons set forth

therein. 4 It will, however, be more lenient in its exercise of discretion, and deems it

appropriate to permit testimony both of (a) a supported factual overview of the usual

processes and procedures drawn from/related to Weiss’ identified experience in school

district/school board suspension and termination procedures, and (2) a general

statement of the relevant unambiguous and undisputed-as-a-matter-of-law statutory

provisions and law related to the processes and procedures applicable to the present

4 The Court observes that, Defendant’s assertions to the contrary notwithstanding, it

finds Siring v. Or. State Bd. of Higher Educ., importantly distinguishable from the case at

hand. In Siring, the expert permitted to testify “in the tenure-review, evaluation, and

termination processes and policies of the Oregon State University System” was a

member of faculty and personnel committees in the same Oregon State University

System, held professional appointments on educational policy and management, and

had extensive scholarly activities/publications in relevant research areas, all of which

qualified her to opine about tenure-track faculty evaluation and review policies and

procedures. That is, she was not a legal practitioner substantially opining on the law.

Cf. ECF No. 174 at 10-12 (discussing Siring v. Or. State Bd. of Higher Educ., 927 F.Supp.2d

1069 (D. Or. June 11, 2013).

The Siring Court also pointedly observed that the expert report included “numerous

examples of her personal observations and experience with how tenure-track reviews

are actually conducted”, and noted the expert’s reliance on extensive personal

experiences in all aspects of the tenure policies, evaluations, recommendations,

decisions, grievances, and appeals, in reaching her conclusions – in support of Plaintiff’s

discrimination claims - that the defendant had failed to follow the Systems’ standards.

In concluding that the expert did not “displace the court’s role of explaining the law to

the jury”, the Court emphasized that, although relying “in part on [an] understanding

of [and referring to] state law”, the report “discusse[d] her personal experience serving

on the University of Oregon's personnel committees and advising other universities on

personnel issues [and the expert] then compares how [defendant’s] treatment of Siring

differs from her personal experiences. “ 927 F.Supp.2d at 1075–76. In other words, the

expert’s qualifications, experience and proffered opinion were grounded in and an

expression of her accumulation of factual information and derivative opinions

regarding the usual tenure practices and procedures of her own University System.

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case.5 The Court will permit limited testimony as to the latter as it concludes such

statement will be informative of matters beyond the common knowledge of the average

layperson. It will therefore be helpful to the jury’s understanding in advance of the jury

instructions to be issued at the close of trial.

In closing, the Court notes that a significant portion of the Weiss Report is

comprised not only of impermissible legal testimony, but recitations and/or

characterizations of other evidence that are unnecessary to his expert opinion testimony

and inappropriate. See, e.g., Weiss Report, Section III, Discipline of a Superintendent;

Section IV, Compliance with School Code. It also notes that a qualified opinion on the

continuing Commonwealth employability of a supervisor with a particular criminal

record, limited to factual statements and opinions of relevant considerations and

outcomes and substantiated from specialized knowledge/experience, is not precluded

by Federal Rule of Evidence 404(a)(1) (as character evidence) and is pertinent to

Plaintiff’s damages claim. Cf. ECF No. 174 at 15-18. And finally, it finds that the Weiss

Report, properly limited, will not be precluded by Federal Rule of Evidence 403, as one

in which the “probative value is substantially outweighed by the danger of unfair

prejudice.” Id. at 18.

5 Statements or summations of the law of “Teacher Tenure”, for example, are

distinguished. See Weiss Report, Section III, Discipline of a Superintendent.

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III. ORDER

For the reasons set forth above, the Court enters the following Order:

IT IS ORDERED this 23rd day of November, 2020, that Plaintiff’s Motion to

Strike the Weiss Report be GRANTED IN PART in that, to the extent the Weiss Report

(a) analyzes or interprets the law, or offers legal opinions or conclusions; or (b) recites,

summarizes or characterizes other evidence beyond that integral to its statement of

qualified expert opinion, it is STRICKEN and Weiss will not be permitted to testify as

to those issues. The Court reserves further particularized determinations at this time,

and pending Weiss’ deposition testimony, further review of the admissibility of Weiss’

evidence may be made as warranted on a date closer to trial.

By the Court:

/s/Lisa Pupo Lenihan___

Lisa Pupo Lenihan

United States Magistrate Judge

cc: Counsel of record

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