Commercial Litigation and Arbitration

Experts — The Helpfulness Threshold of Rule 702 Is Low — The District Court, Not the Court of Appeals, Is the Primary Gatekeeper

EEOC v. Boh Bros. Constr. Co., LLC, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013):

Footnote 14.   The EEOC presented testimony by Dr. Liza Gold--a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment--regarding the nature of same-sex harassment from a psychological perspective. Boh Brothers sought to exclude Dr. Gold's testimony in a pre-trial Daubert motion, which the district court granted in part. Specifically, the district court held that Dr. Gold could testify regarding sexual harassment studies from a psychological perspective but could not offer any opinions regarding the specific facts of the case. Boh Brothers contends that, despite this limitation, Dr. Gold's testimony served as "a means to instruct the jury on the EEOC's view of how the law of same-sex harassment should be interpreted." As a result, Boh Brothers moved for a new trial. The district court carefully considered the issue, and ultimately denied the motion. "We will reverse the trial court's denial of a motion for new trial only when there is a clear showing of an abuse of discretion." Carr v. Wal-Mart Stores, Inc., 312 F.3d 667, 670 (5th Cir. 2002);   see Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013) (citation and quotation marks omitted) ("In rulings on the admissibility of expert opinion evidence the trial court has broad discretion and its rulings must be sustained unless manifestly erroneous."). Having carefully reviewed the record, we conclude that Dr. Gold's limited testimony was well within the bounds of admissible evidence. Accordingly, we discern no manifest error or abuse of discretion in the district court's rulings.

Despite our deferential standard of review and the district court's careful limitation of the Dr. Gold's testimony, Judge Jones's dissent would reverse the jury verdict on the basis that Dr. Gold's testimony may have been unhelpful and confusing to the jurors.    First, it cites Federal Rule of Evidence 702, which provides that expert testimony must "help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702(a). We note, however, that the helpfulness threshold is low: it is "principally . . . a matter of relevance. Expert testimony which does not relate to any issue in the case is not relevant, and ergo, non-helpful." Roman v. W. Mfg., Inc., 691 F.3d 686, 694 (5th Cir. 2012)  (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 591, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)); see United States v. Posado, 57 F.3d 428, 433 (5th Cir.1995). Here, we cannot agree that Dr. Gold's testimony regarding the nature of same-sex harassment was so unhelpful as to have been not only inadmissible, but also reversible error.

Second, Judge Jones's dissent asserts that Dr. Gold's testimony may have conflated the "sociological" and the legal perspective of sexual harassment. But Dr. Gold's testimony specifically and repeatedly distinguished between the two, emphasizing that "harassment in the social scientist's eyes . . . may not constitute legal sexual harassment . . . [and] is not limited to the legal concept of sexual harassment." Even if Dr. Gold's testimony had some bearing on the ultimate issue, the Federal Rules of Evidence allow for such testimony. See Fed. R. Evid. 704 (indicating that, regarding expert testimony, "an opinion is not objectionable just because it embraces an ultimate issue"). Moreover, the district court--present for Dr. Gold's testimony and closest to the jurors--heard and rejected precisely the position that Judge Jones's dissent articulates. The district court instructed the jurors:  "It is your duty to follow the law as I give it to you" and "you are not required to accept [an expert's] opinion . . . it's up to you to decide whether to reply upon it." In denying Boh Brothers's motion for new trial, the district court concluded: "It's not even approaching a miscarriage of justice to allow an expert to give definitions and examples of to highlight those examples, and never did she refer to this particular case until [Boh Brothers's] cross examination when [it] asked her about those particular areas." Considering the district court's thorough consideration of Dr. Gold's testimony and the high standard that applies to appellate review of motions for new trial, we decline to step into the district court's gatekeeping shoes.   In re MBS Mgmt. Servs., Inc., 690 F.3d 352, 357 (5th Cir. 2012) (noting that "the trial judge serves as a gatekeeper to ensure the reliability and relevance of expert testimony" (emphasis added)); Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000) ("We reverse judgments for improper evidentiary rulings only where the challenged ruling affects a substantial right of a party. The burden of proving substantial prejudice lies with the party   asserting error." (internal quotation marks and citations omitted)).


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