Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANDREW BROWN,

Plaintiff,

v. Case No. 8:24-cv-2777-VMC-LSG

CSX TRANSPORTATION, INC.,

Defendant.

/

ORDER

This matter is before the Court on consideration of

Defendant CSX Transportation, Inc.’s Motion to Exclude

Opinions and Testimony of Plaintiff’s Expert Beth De Lima

(Doc. # 175), filed on October 14, 2025. Plaintiff Andrew

Brown responded on November 12, 2025. (Doc. # 181). CSX

replied on December 4, 2025. (Doc. # 187). The Motion is

granted in part and denied in part.

I. Background

Mr. Brown initiated this action after he was terminated

from his employment with CSX, asserting claims of FMLA

interference and FMLA retaliation. (Doc. # 149). In the

amended complaint, Mr. Brown alleges that CSX violated his

rights under the FMLA by subjecting him to CSX’s attendance

policy and by suspending and ultimately terminating him for

taking FMLA leave. (Doc. # 149 at ¶¶ 48, 51). The Court has

since dismissed Mr. Brown’s claims related to the attendance

policy and granted CSX summary judgment on the FMLA

interference claim. (Doc. ## 153, 161, 193). Thus, only Mr.

Brown’s FMLA retaliation claim remains.

The case then proceeded through discovery. Mr. Brown

hired Beth De Lima, a “Human Resource / Vocational

Rehabilitation consultant,” to offer an expert opinion on

whether CSX “met Human Resources Industry Standards of Care

regarding the implementation of FMLA.” (Doc. # 175-2 at ¶¶ 1,

6). Ms. De Lima has various human resources (HR)

certifications and has been working in HR management for more

than 30 years. (Id. at ¶¶ 2-3). Ms. De Lima’s report states

as follows. “[T]here are recognized and generally accepted

Human Resources practices, along with ethical and

professional standards, set forth by the Society for Human

Resource Management (SHRM).” (Id. at ¶ 5). The FMLA sets forth

steps an employer must take if it finds an employee’s

certification of his or her need for FMLA leave incomplete or

insufficient. (Id. at ¶ 35). The FMLA requires the employer

to give the employee an opportunity to cure the deficiency.

(Id.). “Once the employee is notified of the need to cure a

medical certificate, it is the employee’s responsibility to

work with their medical provider to furnish a complete and

sufficient medical certificate or provide authorization to

the medical office to release a medical certification to the

employer to confirm the eligibility of the FMLA request.”

(Id. at ¶ 37). “If the employer still believes the medical

certificate is inadequate to justify the pattern of FMLA

usage, the next step would be a Second and Third . . . medical

opinion from a Qualified Medical Examiner, not an employee at

CSX.” (Id.).

Ms. De Lima opines that “[t]here is no justification

under the FMLA or HR Industry Standards of Care that supports

bypassing the Curing and Second or Third opinion process and

puts the decision in the hands of untrained HR personnel,

biased company specific investigators, an ignorant Benefits

Manager, and / or a FMLA internal consultant - to make a

decision whether an employee is abusing FMLA.” (Id. at ¶ 47).

The statements of Sky Shepherd, Jolanda Johnson’s “HR

assistant,” that recertification “‘has nothing to do with’”

investigating whether an employee dishonestly used FMLA leave

for an approved serious health condition “highlight an

overall ignorance and lack of understanding by CSX and HR on

how to resolve perceived fraudulent and misuse patterns of

FMLA usage for employees with ongoing, as needed FMLA medical

leave certificates.” (Id. at ¶ 50). Ms. De Lima opines that

CSX’s policy regarding FMLA usage on holidays “flies in the

face of FMLA and the Curing process FMLA established as well

as HR Industry Standards of Care.” (Id. at ¶ 52). Finally,

Ms. De Lima opines that CSX’s directive “to curb and

discourage and interfere with an employee’s usage of FMLA”

led “to mass layoffs of seasoned, tenured, decade long

employees” “as a result of the organization[’]s failure to

ensure they implement HR Industry Standards of Care for a

federally protected employee leave benefit known as the

[FMLA].” (Id. at ¶ 54).

Now, CSX moves to exclude the opinions and testimony of

Ms. De Lima. (Doc. # 175). Mr. Brown has responded (Doc. #

181), and CSX has replied. (Doc. # 187). The Motion is ripe

for review.

II. Legal Standard

Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or

education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is

based on sufficient facts or data; (c) the

testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied

the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Implementing Rule 702, Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993), requires district courts to ensure

that any scientific testimony or evidence admitted is both

relevant and reliable. See Id. at 589–90. District courts

must conduct this gatekeeping function “to ensure that

speculative, unreliable expert testimony does not reach the

jury under the mantle of reliability that accompanies the

appellation ‘expert testimony.’” Rink v. Cheminova, Inc., 400

F.3d 1286, 1291 (11th Cir. 2005).

The Eleventh Circuit “requires trial courts acting as

gatekeepers to engage in a ‘rigorous three-part inquiry.’”

Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th

Cir. 2010). The district court must assess whether:

(1) the expert is qualified to testify competently

regarding the matters he intends to address; (2)

the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3)

the testimony assists the trier of fact, through

the application of scientific, technical, or

specialized expertise, to understand the evidence

or to determine a fact in issue.

Id. The proponent of the expert testimony must show, by a

preponderance of the evidence, that the testimony satisfies

each requirement. Id.

III. Analysis

CSX challenges the reliability of Ms. De Lima’s

testimony and opinions, as well as their helpfulness to the

trier of fact. CSX also argues that Ms. De Lima’s testimony

should be excluded pursuant to Rule 403. The Court addresses

each contention in turn.

A. Opinions Unrelated to Whether CSX Had a Good Faith

Belief that Mr. Brown Dishonestly Used FMLA Leave

During the 2017-2018 Holidays

As an initial matter, the Court notes that Ms. De Lima’s

report includes opinions on matters that were never at issue

or are no longer at issue in this case, including CSX’s

attendance policy and the ADA. (Doc. # 175-2 at ¶¶ 9-10, 14-

15, 21, 25-26, 29, 33, 36, 40, 42, 45-47, 49, 52-53, 55). CSX

argues that these opinions should be excluded as the Court

has “dismissed the attendance policy claims” and as “there is

no ADA claim in this case.” (Doc. # 175 at 7). CSX also argues

that Ms. De Lima’s testimony on the “implications of CSX’s

policies regarding misuse of FMLA leave on weekends and to

extend time off” should be excluded as they are irrelevant to

the issue in this case – whether CSX had a good-faith belief

that Brown dishonestly used FMLA leave over Christmas 2017

and New Year’s 2018.” (Id.).

The Court agrees that Ms. De Lima’s opinions regarding

the attendance policy and the ADA should be excluded. As there

are no claims regarding the attendance policy or the ADA, Ms.

De Lima’s opinions about those issues are excluded as

irrelevant and unhelpful to the jury.

However, the Court does not agree that Ms. De Lima’s

testimony about CSX’s policies regarding FMLA leave on

weekends and to extend time off are irrelevant. Although Mr.

Brown was terminated because of FMLA misuse over the 2017-

2018 end-of-year holidays, CSX’s decision to charge Mr. Brown

with FMLA misuse during that period was partially based on

the fact that CSX previously had warned Mr. Brown that he was

improperly using FMLA leave either before or after his rest

days and on weekends. (Doc. # 174-8 at 22:6-12, 32:30-33).

Under the circumstances, it cannot be said that Ms. De Lima’s

testimony about the implications of CSX’s policies regarding

FMLA use on weekends and to extend time off would not

logically advance a material aspect of Mr. Brown’s case.

Indeed, this evidence is probative of whether CSX had a good

faith belief that Mr. Brown dishonestly used FMLA leave over

the 2017-2018 holidays. See Allison v. McGhan, 184 F.3d 1300,

1312 (11th Cir. 1999) (explaining that expert testimony must

“logically advance[] a material aspect of the proposing

party’s case.” (internal quotation marks omitted)).

The Motion is granted to the extent Ms. De Lima’s

opinions unrelated to the remaining issue in this case are

excluded.

B. Reliability

CSX argues that Ms. De Lima’s opinions and testimony are

not reliable because: (1) Ms. De Lima does not cite specific

sources of the “HR Industry Standards” she purports to apply,

(2) her testimony is not based on sufficient facts or data,

(3) she makes broad conclusions from unrepresentative

samples, and (4) her report contains many errors and

mischaracterizes the record. (Doc. # 175 at 15-23). The Court

is not persuaded.

“Exactly how reliability is evaluated may vary from case

to case, but what remains constant is the requirement that

the trial judge evaluate the reliability of the testimony

before allowing its admission at trial.” United States v.

Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (citing Fed. R.

Evid. 702 advisory committee’s note to 2000 amendment). There

are four recognized, yet non-exhaustive, factors a district

court may consider in evaluating reliability:

(1) whether the expert’s methodology has been

tested or is capable of being tested; (2) whether

the technique has been subjected to peer review and

publication; (3) the known and potential error rate

of the methodology; and (4) whether the technique

has been generally accepted in the proper

scientific community.

Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.

2016) (citations omitted). A district court can take other

relevant factors into account as well. Id. (citations

omitted).

“If the [expert] witness is relying solely or primarily

on experience, then,” in establishing reliability, “the

witness must explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis

for the opinion, and how that experience is reliably applied

to the facts.” Frazier, 387 F.3d at 1261 (citation and

internal quotation marks omitted). The Court’s analysis as to

reliability “focus[es] ‘solely on principles and methodology,

not on the conclusions that they generate.’” Seamon, 813 F.3d

at 988 (citation omitted).

Contrary to CSX’s contention, Ms. De Lima identifies the

standards set forth by SHRM as the source of the “HR Industry

Standards” on which she relies. (Doc. # 175-2 at ¶¶ 5-6).

“[A]n expert may opine as to whether one party or another

acted in compliance with industry standards.” Sec. & Exch.

Comm’n v. Bankatlantic Bancorp, Inc., No. 12-60082-CIV, 2013

WL 12009694, at *4 (S.D. Fla. Nov. 14, 2013) (internal

quotation mars omitted). Accordingly, this is not a basis for

finding Ms. De Lima’s methodology unreliable. See Doe v.

Willis, No. 8:21-cv-1576-VMC-CPT, 2023 WL 2799747, at *8

(M.D. Fla. Apr. 5, 2023) (“Mr. Millwee’s methodology is

reliable. Mr. Millwee used his training and experience with

security industry standards to determine whether Swift

complied with those standards with respect to its treatment

of Willis. He relied on industry standards compiled by ASIS,

the Society for Human Resource Management (‘SHRM’), and the

American National Standards Institute (‘ANSI’).” (internal

citation omitted)).

CSX further argues that to the extent Ms. De Lima “claims

she relied on her experience to develop these supposed

standards, her testimony and opinions are unreliable because

she failed to explain ‘how that experience leads to the

conclusion reached, why that experience is a sufficient basis

for the opinion, and how that experience is reliably applied

to the facts.’” (Doc. # 175 at 17) (quoting Frazier, 387 F.3d

at 1262). The Court disagrees.

Ms. De Lima explained in her report that she applied

generally accepted HR standards as set forth by SHRM, “an

organization founded in 1948” that “has over 285,000 members

across more than 165 countries and more than 575 chapters in

the United States.” (Doc. # 175-2 at ¶¶ 5-6). Ms. De Lima

stated that these standards “are further supported by other

leading organizations in the Human Resources industry, such

as the United States Chamber of Commerce, National Employment

Law Institute (NELI), Equal Employment Opportunity Commission

(EEOC), U.S. Department of Labor (DOL), American Bar

Association, and numerous white papers and blogs by prominent

legal firms.” (Id. at ¶ 5). Ms. De Lima stated that she has

“served in the Human Resource management profession for over

30 years and [has] been working with both the American with

Disabilities Act (ADA) and Family Medical Leave Act (FMLA)

regulations throughout that period.” (Id. at ¶ 3). Ms. De

Lima further stated that, as a “Human Resource Management

Consultant, [she] provide[s] training workshops and webinars

regarding HR Industry Standards for implementing FMLA, ADA

and related personnel management regulations to the [SHRM]

chapters, the International Public Management Association for

Human Resources (IPMA), private, non-profit and public

companies, as well as trainings for other industry

professionals.” (Id. at ¶ 4). Ms. De Lima, therefore,

explained “how” her experience “leads to the conclusion

reached, why that experience is a sufficient basis for the

opinion . . . [and] how that experience in reliably applied

to the facts.” Frazier, 387 F.3d at 1261; see Mueller v.

Daugherty Sys., Inc. d/b/a Daugherty Bus. Sols., No. 1:18-

cv-3358-MLB, 2021 WL 3754582, at *5 (N.D. Ga. June 14, 2021)

(finding an HR expert’s methodology to be sufficiently

reliable where she explained that she applied generally

accepted relevant industry standards and described how she

knew those standards were generally accepted).

Next, CSX argues that Ms. De Lima’s testimony is not

based on sufficient facts or data. (Doc. # 175 at 17-18). CSX

notes that Ms. De Lima “asserts that there was a ‘clear

directive by management . . . to curb and discourage and

interfere with an employee’s usage of FMLA,’ and claims that

this is supported by ‘[Ms.] Johnson’s and [Tremaylen]

Anderson’s own testimony,’ but does not cite anything

specific.” (Id.) (quoting Doc. # 175-2 at ¶ 54). However, CSX

does not claim that Ms. De Lima has misrepresented Ms. Johnson

and Ms. Anderson’s testimony or that this portion of the

report is an impermissible characterization of the evidence.

CSX also argues that Ms. De Lima “makes other unsupported

assertions that certain documents implicitly or explicitly

embody nefarious principles they plainly do not, including

that ‘verbiage in the employee’s FMLA eligibility and

notification letter’ was ‘specifically designed to restrict

the days employees can take mandatory FMLA leave,’ and that

CSX’s disciplinary policy . . . ‘explicitly punish[es]

employees for taking lawful, mandatory FMLA leave.’” (Id. at

18) (quoting Doc. # 175-2 at ¶¶ 12, 14). Although CSX may

disagree with Ms. De Lima’s interpretation of the letter and

the disciplinary policy, CSX has not demonstrated that it is

unreliable.

CSX further argues that Ms. De Lima’s opinions and

testimony are unreliable as “there is simply too great an

analytical gap between the data and the opinion proffered.”

(Id. at 19) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136,

146 (1997)). Specifically, CSX argues that Ms. De Lima “draws

sweeping conclusions about CSX’s handling of discipline and

leave administration for [Mr.] Brown based on isolated and

dissimilar episodes involving other CSX employees.” (Id.).

Although Ms. De Lima references CSX’s handling of discipline

of two other employees, (Doc. # 175-2 at ¶¶ 28, 53), a review

of Ms. De Lima’s report demonstrates that she did not base

her opinions on CSX’s handling of the other cases. Ms. De

Lima’s opinion that CSX failed to comply with “HR Industry

Standards of Care” by failing to comply with the FMLA “Curing

Process” and by allowing “untrained HR personnel, biased

company specific investigators, an ignorant Benefits Manager,

and / or a FMLA internal consultant . . . to make a decision

whether an employee is abusing FMLA” is not dependent on CSX’s

treatment of the other two employees. (Id. at ¶ 47).

Therefore, CSX has not demonstrated that there “is too great

an analytical gap between the data and the opinion proffered.”

Joiner, 522 U.S. at 146.

Finally, CSX argues that Ms. De Lima’s testimony and

opinions are unreliable because her report is replete with

errors and mischaracterizes the record. (Doc. # 175 at 21-

23). CSX claims that the report inaccurately states that

“CSX’s FMLA policy says that ‘if FMLA is utilized in a manner

[CSX] deems to impact the staffing of the organization’ then

the ‘approved use of FMLA leave will be documented as negative

attendance’” under CSX’s attendance policy. (Id. at 21)

(quoting Doc. # 175-2 at ¶ 9). As the Court has determined

that Ms. De Lima’s testimony about the attendance policy will

be excluded, this issue is moot.

CSX identifies three other alleged factual inaccuracies

or mischaracterizations in Ms. De Lima’s report. First, CSX

states that Ms. De Lima grossly mischaracterized the record

when she asserted that, “in 2016, CSX’s HR Department informed

employees that ‘utilizing FMLA leave would be reported as

misuse’” (Doc. # 175 at 21) (quoting Doc. # 175-2 at ¶ 16),

as the letter actually stated that “[u]sing FMLA leave to

avoid certain work assignments, to extend time off . . . , to

be off on a holiday, the weekend, or to avoid working overtime

is considered not only misuse, but fraudulent use of this

federally required benefit.” (Doc. # 174-11 at 13).

Second, CSX contends Ms. De Lima’s statement that “CSX

made no ‘effort to determine if the FMLA use was consistent

with the already approved medical certificates for the

impacted employees’ and never requested documentation from

employees ‘to clarify the validity of the FMLA usage’”

conflicts with Ms. Johnson’s testimony that, “before charging

employees, [Ms.] Johnson reviewed the medical reasons for

leave to determine whether they clearly explained a need for

leave over the holidays.” (Doc. # 175 at 21-22) (quoting Doc.

# 175-2 at ¶ 20). CSX further notes that the disciplinary

hearings “were employees’ opportunity to explain the need for

FMLA over the holidays, including by presenting medical

documentation if they so desired.” (Id. at 22).

Third, CSX challenges Ms. De Lima’s statement that

“‘[a]s an alternative to complying with [the] FMLA process

for curing, [CSX] is simply ignoring the need to determine if

the need for FMLA leave can be confirmed by curing the medical

certificate and just moves on with the termination.’” (Id.)

(quoting Doc. # 175-2 at ¶ 23). The portion of Ms. De Lima’s

report immediately preceding the challenged language

discusses a CSX internal email explaining a hearing officer’s

options if an employee offers medical documentation in his or

her defense at a hearing: (1) “[a]sk the union if they would

like a postponement . . . to allow Ms. Johnson and the Medical

Department to review the documentation,” or (2) “[p]roceed

with the investigation, and recall Ms. Johnson to state on

the record that she and Medical will review and make a

determination about the documentation after the hearing.”

(Doc. # 175-2 at ¶ 23).

None of the alleged factual discrepancies or

mischaracterizations warrant excluding Ms. De Lima’s opinions

and testimony. “As a general rule, the factual basis of an

expert opinion goes to the credibility of the testimony, not

the admissibility, and it is up to the opposing party to

examine the factual basis for the opinion in cross-

examination.” Coquina Invs. v. Rothstein, No. 10-60786-CIV,

2011 WL 4949191, at *8 (S.D. Fla. Oct. 18, 2011) (quoting

Synergetics, Inc. v. Hurst, 477 F.3d 949, 955–56 (8th Cir.

2007)). Accordingly, to the extent the challenged portions of

Ms. De Lima’s report conflict with the record evidence, this

goes to the weight rather than the admissibility of her

testimony.

The Court finds Ms. De Lima’s methodology sufficiently

reliable. The alleged flaws in Ms. De Lima’s methodology

raised by CSX should be addressed during cross-examination.

See Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001)

(“Vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are

the traditional and appropriate means of attacking

[debatable] but admissible evidence.” (citations and internal

quotation marks omitted)). Thus, the Motion is denied as to

reliability.

C. Assistance to the Trier of Fact

Next, CSX argues that Ms. De Lima’s “opinions – off-base

critiques of whether CSX engaged in a ‘curing process,’

adequately trained its managers, and abided by ‘HR Industry

Standards’” – are not relevant to the question of whether Mr.

Brown was subject to unlawful retaliation. (Doc. # 175 at 6).

CSX also argues that Ms. De Lima’s testimony should be

excluded because she “offers improper legal conclusions

dressed up as expert opinions” and “usurps the role of the

jury by attempting to substitute her own perception of

evidence” (Id. at 7, 13).

Expert testimony must also assist the trier of fact.

Fed. R. Evid. 702. “By this requirement, expert testimony is

admissible if it concerns matters that are beyond the

understanding of the average lay person.” Frazier, 387 F.3d

at 1262 (citation omitted). “[T]he court must ensure that the

proposed expert testimony is relevant to the task at hand, .

. . i.e. , that it logically advances a material aspect of

the proposing party’s case.” Allison, 184 F.3d at 1312

(internal quotation marks omitted). “Proffered expert

testimony generally will not help the trier of fact when it

offers nothing more than what lawyers for the parties can

argue in closing arguments.” Frazier, 387 F.3d at 1262-63

(citation omitted).

To succeed on an FMLA retaliation claim, “an employee

must demonstrate that his employer intentionally

discriminated against him in the form of an adverse employment

action for having exercised an FMLA right.” Strickland v.

Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199,

1207 (11th Cir. 2001). Here, the primary issue for the jury

to determine is whether CSX terminated Mr. Brown based on its

good faith belief that he dishonestly took FMLA leave or

whether, as Mr. Brown contends, CSX retaliated against him

for taking FMLA leave on days when the company had high FMLA

usage. Mr. Brown asserts that Ms. De Lima’s “opinions

regarding HR Industry Standards are relevant because they

help the trier of fact understand industry norms for

investigating FMLA leave abuse.” (Doc. # 181 at 9). Mr. Brown

contends that Ms. De Lima’s testimony “provides a backdrop

that will help the jury understand what is typical practice

which may inform their finding as to whether CSX’s divergence

from these norms is evidence of bad faith and dishonest

belief.” (Id. at 9-10). The Court agrees with Mr. Brown.

From Ms. De Lima’s testimony that CSX’s investigation

fell below HR industry standards, a jury could infer that CSX

did not have a good faith belief that Mr. Brown dishonestly

took FMLA leave over the 2017-2018 end-of-year holidays and

that CSX terminated Mr. Brown in retaliation for taking FMLA

leave during that period. Accordingly. Ms. De Lima’s opinion

on whether CSX complied with industry standards in

investigating suspected FMLA misuse would be helpful to the

jury. See Mueller, 2021 WL 3754582, at *1, 8 (finding that an

HR expert’s testimony that the employer’s internal

investigation into plaintiff’s claims of discrimination fell

below industry standards would be helpful to the jury in

determining whether the employer’s stated reasons for

terminating plaintiff were legitimate or pretextual);

Humphreys v. Regents of Univ. of California, No. C 04-03808

SI, 2006 WL 1867713, at *2 (N.D. Cal. July 6, 2006) (finding

that expert’s “proposed testimony about the University’s

deviation from good human resources practices is proper

expert testimony under Rule 702” as the “University’s failure

to follow such practices is relevant to plaintiff’s

contention that the layoff was a pretext for gender

discrimination or retaliation, and [the expert’s] testimony

will assist the jury because the average juror is unlikely to

be familiar with human resources management policies and

practices”). CSX may address the alleged flaws in Ms. De

Lima’s opinions on cross-examination.

However, CSX is correct that “[n]o witness may offer

legal conclusions or testify to the legal implications of

conduct.” Dudash v. S.-Owners Ins. Co., No. 8:16-cv-290-JDM-

AEP, 2017 WL 1969671, at *2 (M.D. Fla. May 12, 2017); see

also Santos v. Experian Info. Sols., Inc., No. 19-23084-CIV,

2021 WL 6144643, at *5 (S.D. Fla. Nov. 30, 2021) (holding

that expert may testify as to “whether Experian’s procedures

match industry standards” but “may not testify about whether

Experian’s existing procedures or conduct were unreasonable,

reckless, inadequate, or offer any other legal conclusion.”

(internal quotation marks omitted)); Zabriskie v. Fed. Nat’l

Mortg. Ass’n, No. CV-13-02260-PHX-SRB, 2016 WL 3653512, at *2

(D. Ariz. Apr. 22, 2016) (finding that expert may opine that

“Fannie Mae has implemented ‘unreasonable’ procedures that

‘disregard[] well-known industry standards for characterizing

and reporting consumer credit data’” but may not opine “as to

whether these procedures should be considered ‘unreasonable’

under the FCRA, because this is an ultimate issue that will

be decided by the jury”). But the Eleventh Circuit has

acknowledged that “the distinction between whether challenged

testimony is either an admissible factual opinion or an

inadmissible legal conclusion is not always easy to

perceive.” Hanson v. Waller, 888 F.2d 806, 811 (11th Cir.

1989).

Here, Ms. De Lima’s report contains many legal

conclusions. Ms. De Lima frequently opines or implies that

CSX’s policies and procedures regarding suspected FMLA misuse

violate the FMLA. (Doc. # 175-2 at ¶¶ 28, 32, 36, 40, 42, 44,

46-47, 51). Ms. De Lima also offers her interpretation of an

employer’s obligations under the FMLA. (Id. at ¶¶ 31-38). The

Court agrees with CSX that it would be improper to allow Ms.

De Lima to testify about these issues at trial as they are

legal conclusions. See United States Sec. & Exch. Comm’n v.

Spartan Sec. Grp., Ltd, No. 8:19-cv-448-VMC-CPT, 2020 WL

7024885, at *7 (M.D. Fla. Nov. 30, 2020) (“The Court agrees

that Mr. Harmon’s statement improperly interprets transfer

agents’ obligations and requirements under state and federal

law.”); United States v. Gay, 576 F.2d 1134, 1137 (5th Cir.

1978) (“In addition, expert testimony offered by the defense

concerning the requirements of [26 U.S.C. § 7512] was properly

excluded. Gay’s legal obligations in the circumstances were

a matter for instructions from the trial court and not

properly a subject for testimony by an expert witness.”). Ms.

De Lima may still opine that CSX did not comply with industry

standards in investigating suspected FMLA misuse as that is

not a legal conclusion.

Finally, CSX argues that Ms. De Lima’s opinions and

testimony should be excluded because Ms. De Lima “usurps the

role of the jury by attempting to substitute her own

perception of evidence.” (Doc. # 175 at 13). CSX contends

that Ms. De Lima’s “conclusions that CSX’s investigators were

biased and/or did not receive training on how to conduct a

fair and impartial investigation under the FMLA” are

“improper opinions on issues within the sole province of the

jury.” (Id. at 14) (citing Doc. # 175-2 at ¶¶ 24, 32(d),

35(a), 42). CSX also challenges Ms. De Lima’s statement that

the “focus in the . . . Investigations seems to be the impact

of the employee’s FMLA leave on the operations of the

railroad’s workforce availability when employees are

utilizing FMLA.” (Id. at 15) (quoting Doc. # 175-2 at ¶ 19).

The Court is not persuaded.

“‘[A]n expert may testify as to his opinion on an

ultimate issue of fact,’ provided that he does not ‘merely

tell the jury what result to reach’ or ‘testify to the legal

implications of conduct.’” United States v. Grzybowicz, 747

F.3d 1296, 1310 (11th Cir. 2014) (quoting Montgomery v. Aetna

Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)). Here,

the challenged portions of Ms. De Lima’s report may factor

into the jury’s determination on whether CSX had a good faith

belief that Mr. Brown misused FMLA leave, but they do not

merely tell the jury what result to reach. Accordingly, this

is not a basis for excluding Ms. De Lima’s opinions and

testimony. See United States v. Duldulao, 87 F.4th 1239, 1269

(11th Cir. 2023) (“There is a difference between opining on

an ultimate issue and impermissibly directing the jury to a

result.”).

D. Rule 403

In the alternative, CSX argues that Ms. De Lima’s

testimony should be excluded pursuant to Rule 403 because it

is unfairly prejudicial, confuses the issues, and would

mislead the jury. (Doc. # 175 at 23-25). CSX contends that

Ms. De Lima’s report contains language that is “inflammatory”

and “over-the-top.” (Id. at 23-24). CSX further argues that

Ms. De Lima’s “confused report” is not relevant as it

“misunderstands both the applicable regulation and the issues

in this case.” (Id. at 24). However, as Ms. De Lima is

expected to testify at trial (Doc. # 199 at Ex C at 2),

her “opinions will be presented via [her] sworn testimony,

and [her] report may be used to refresh [her] recollection or

for impeachment, but the report itself is hearsay and

is not admissible.” Johnston v. Borders, No.6:15-cv-936-PGB-

DCI, 2018 WL 4215027, at *1 (M.D. Fla. Sept. 4, 2018).

Therefore, this is not grounds to exclude Ms. De Lima’s

testimony at trial. Any Rule 403 issues that arise due to Ms.

De Lima’s testimony can be addressed at trial.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Defendant CSX Transportation, Inc.’s Motion to Exclude

Opinions and Testimony of Plaintiff’s Expert Beth De

Lima (Doc. # 175) is GRANTED in part and DENIED in part.

(2) Ms. De Lima may not offer opinions on topics no longer

at issue in this case, including CSX’s attendance policy

and the ADA. Additionally, Ms. De Lima may not offer

legal conclusions during her testimony.

DONE and ORDERED in Chambers in Tampa, Florida, this

24th day of February, 2026.

VIR TA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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