United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE OR
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Waste Management
of Washington, Inc.'s (“Waste Management”)
motion to strike or exclude experts. Dkt. 14. The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion for the reasons stated herein.
March 19, 2018, Plaintiff Kerrie Carter
(“Carter”) filed a complaint against Waste
Management in Kitsap County Superior Court for the State of
Washington. Dkt. 1-1. Carter asserts one claim for violation
of the Washington Law Against Discrimination
(“WLAD”) based on allegations of harassment,
discrimination, and retaliation. Id. On May 10,
2018, Waste Management removed the matter to this Court. Dkt.
deadline for expert reports, Carter submitted two expert
reports. First, Carter submitted the preliminary report of
Judith Parker, M.Ed., CDMS (“Parker”), a
vocational rehabilitation counselor and case manager. Dkt.
13-4. Parker's report is based on her review of Waste
Management's earnings statements and tax records.
Id. at 1. Although Parker provides an explanation of
what she can accomplish in a vocational assessment, she fails
to provide any opinion on Carter's lost wages because the
“report is to be considered as preliminary in nature
and will be supplemented with future analysis.”
Id. at 3.
Carter submitted the “narrative” of Steven
Randolph Cureton, Ph.D (“Cureton”). This
narrative is based on a review of Carter's deposition and
conversations with Carter. Dkt. 13-2 at 2. Cureton opines
that Carter's “occupational tenure was
disproportionately affected by practices and behaviors that
are indicative of macro and micro level discrimination”
and that the “result has been that [Carter] has dealt
with inequitable economic disparity due primarily to
discretionary racially biased practices, which is more than
just unfair in that it encroaches unlawful
discrimination.” Id. at 6.
April 24, 2019, Waste Management filed the instant motion
requesting that the Court either strike or exclude the
proposed expert testimony of Cureton and Parker. Dkt. 14. On
May 6, 2019, Carter responded. Dkt. 17. On May 10, 2019,
Waste Management replied. Dkt. 19.
Management moves to strike or exclude Cureton and Parker for
both procedural and substantive reasons. Regarding the
procedural reasons, Carter admits that he failed to comply
with the disclosure requirements of Fed. R. Civ. P 26(a)(2).
Dkt. 17 at 3-4. Carter provides no explanation for this
failure to comply with the rules and instead attempts to
correct his failures through his opposition to Waste
Management's motion. Id. In order to overcome
his failure to properly disclose his experts, Carter must
establish that “the failure was substantially justified
or is harmless.” Fed.R.Civ.P. 37(c)(1). Carter has done
neither. While his response could be interpreted as an
implicit argument in support of a finding of harmlessness,
the Court declines to construe the argument in such a manner,
especially when Carter fails to even cite the appropriate
rule or standard. Thus, the Court grants Waste
Management's motion on the procedural deficiencies.
the substantive reasons, Waste Management argues that
Carter's experts fail to meet the basic requirements of
Fed.R.Evid. 702. Dkt. 14 at 5-11. The Court agrees. While
Parker appears capable of being qualified as an expert on the
issue of lost wages, her report utterly fails to provide any
information that would assist a juror on any relevant issue
in this case. Carter admits this failure as follows:
“The report provides the manner in which the
calculations will be accomplished (the formula), it is just
missing the data, which is in the possession of the
defendant. The report will be supplemented with the data as
soon as Waste Management provides the data.” Dkt. 17 at
11. Carter provides no authority for the proposition that the
expert disclosure deadline only requires disclosure of the
expert and her formulas, which will be subsequently
supplemented with data and opinions. The rule requires timely
disclosure of “a complete statement of all opinions the
witness will express and the basis and reasons for
them” as well as “the facts or data considered by
the witness in forming them.” Fed.R.Civ.P. 26(2)(B).
Carter failed to meet this requirement and even fails to
request an extension of time to meet this requirement. As
such, Carter “is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial . . . .” Fed.R.Civ.P. 37(a)(1).
Cureton's opinions, Carter fails to establish that the
opinions are based on sufficient facts or data or that they
will assist the trier of fact on any issue in this case.
First, Cureton states that his opinion is only based on
Carter's deposition and conversations with Carter.
“[P]ersonal opinion testimony is inadmissible as a
matter of law under Rule 702, and speculative testimony is
inherently unreliable.” Ollier v. Sweetwater Union
High Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014)
(internal citations omitted). Cureton's opinions are
nothing more than his personal opinions that Carter
“dealt with inequitable economic disparity” and
is purely speculative as to whether Carter's supervisors
discriminated against Carter.
Carter has failed to establish that the “micro”
and “macro” level of inequality supports a
violation of the WLAD. In fact, Cureton does not even cite
the WLAD in his opinion and instead cites Title VII of the
Civil Rights Act of 1964 (“Title VII”). Dkt. 13-2
at 1. While the Court recognizes that Title VII and the WLAD
overlap in some respects, in other respects the standards are
completely different. See, e.g., Univ. of Texas
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342 (2013).
Carter fails to address this issue in his brief and otherwise
fails to establish that Cureton's opinions would assist
the jury in any relevant manner. Thus, Cureton shall be
excluded from trial and on any subsequent motion.
it is hereby ORDERED that Waste
Management's motion to strike or exclude ...