Expert Witness Blog
Summary: Forensic Accounting Expert Witness testimony is not excluded even though the defendant argued that the expert made assumptions that the plaintiff would work to a specific age.
Facts: This case (Kinney v. IBM – United States District Court – Western District of Texas – July 8th, 2022) involves a claim of age discrimination. The plaintiffs allege that IBM’s senior executives created a scheme to replace older employees with a younger workforce and then attempted to conceal it. The plaintiff alleges that IBM put in place rolling layoffs which included older employees and gave them negative reviews to justify terminating them. Kinney sued under the Age Discrimination in Employment Act (“ADEA”) and other state statutes. The plaintiff hired Forensic Accounting Expert Witness Mark Rambin to provide expert testimony. IBM filed a motion to exclude this expert from testifying, alleging that his opinion is not based on reliable methodology, is not factually supported, and is based on incorrect assumptions.
Discussion: First, IBM argues that Rambin made assumptions that the plaintiffs would work a specific age and that it was based upon an improper work-life expectancy and their own statements. In addition, IBM notes that Rambin did not include possible mitigation of damages via other employment. The court concludes that any issues with Rambin’s front pay calculations will be the court when the time is relevant. The court also states that if the plaintiffs win at trial, IBM will be free to challenge the front pay calculations and methodology used to determine an amount. In addition, the court states that this issue is best discussed during cross-examination and not at the admissibility stage.
Regarding IBM’s assertion about plaintiff’s statements that they would work until they are 70 years of age, the court states that the defendant did not point to any relevant caselaw, which would show that Rambin’s calculation using plaintiff’s statements, is inadmissible. The court states that this issue is best to be discussed at trial.
IBM also argues that Rambin’s expert witness testimony should be excluded because he used an outdated discount rate. The court notes that Rambin updated his report to use a new discounted rate and, thus, this argument is determined to be moot.
In addition, IBM argues that Rambin’s report about fringe benefits is not reliable and does not have a factual basis. The court again states that any discussion about fringe benefits goes to the weight of the testimony, not the admissibility.
Conclusion: The motion to exclude the expert witness testimony of Mark Rambin is denied.