Industrial Psychologist Expert Witness Testimony Allowed

Plaintiffs filed a proposed class action against defendant for a claim of discrimination.  Defendant hired an industrial psychologist expert witness to provide testimony.  Plaintiffs filed a motion to exclude, which was denied by the court.

Facts:  This case (Kassman v. KPMG LLP – United States District Court – Southern District of New York – November 30th, 2018) involves a proposed class action claim by over 10,000 females employed by the defendant.  The plaintiffs claim that the defendant discriminates against thousands of employees in their pay and promotions and have filed suit under Title VII of the Civil Rights Act of 1964.  The defendant has hired industrial psychologist expert witness Dr. Cristina Banks to provide testimony.  The plaintiff has filed a motion to exclude Dr. Banks from testifying.

Discussion:  The plaintiffs argue that Dr. Banks’ report is not reliable because she did not perform a standard job analysis.  The allege that she performed an individualized job analysis, which Dr. Banks developed for the purpose of defeating collective and class certification.  The plaintiffs argue that the individualized job analysis also lacks peer review.  The court opines that it does not agree with the plaintiffs as Dr. Banks did not develop her theories for the purpose of this specific litigation.

The court opines that Dr. Banks was an expert in the field of industrial psychology before this litigation and her methodology has gained acceptance in the field.  She has been awarded the Presidential Citation for Innovative Practice by the American Psychological Association in 2009 for her theories and methodologies in job analysis.  In addition, the court notes that Dr. banks has published peer-reviewed works and has given peer-reviewed master tutorials on her individual job analysis methodology.  Also, the court states that Dr. Banks’s methodology has never been disqualified, even though she has testified in over 83 cases.

The plaintiff’s also argue that Dr, Banks’s report should be excluded as unhelpful for two reasons.  First, they state that Dr, Banks did not conduct any analysis of the interview responses, only reviewed the information provided by the interviewees and reported it to the court.  Second, they state that if Dr. Banks did perform any qualitative analysis, she did not do so based on any specialized knowledge or expertise, but on a reasonable person standard.

The court disagrees by opining that both arguments mischaracterize Dr. Banks’s report and her testimony.   The court opines that Dr. Bank’s report describes her methodology in detail.  In addition, she explains how she used her expertise to build a study sample, devise the interview questions, conduct interviews and code the responses.  In addition, the court notes that Dr. Banks did not say that she used a reasonable person standard when she conducted her study.

Conclusion:  The motion to exclude the expert witness testimony of Dr. Cristina Banks is denied.