Richard B. McNamara, Presiding Justice.
The Defendants have moved to exclude the testimony of the Plaintiffs expert Julie Moore. The Plaintiff objects. For the reasons stated in this Order, the motion is GRANTED in part and DENIED in part.
The Plaintiffs have asserted that Ms. Moore will testify that in her opinion, (l) the Defendants failed to adopt and/or follow reasonable investigative practices in responding to Ms. Pepin's allegations of gender and pregnancy discrimination, both before and at the time of layoff and (2) the Defendants failed to follow reasonable practices and procedures in conducting Ms. Pepin's layoff. The Defendants assert that such testimony is inadmissible because the testimony is irrelevant, and it improperly invades the province of the jury and because Ms. Moore does not qualify as an expert.
" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.H. R. Ev. 401.
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." N.H. R. Ev. 702. The language of Rule 702 is identical to the federal rule and the N.H. Supreme Court has generally held that the analysis of the United States Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) is helpful for trial judges in determining whether or not expert testimony should be admitted. Baker Valley Lumber Co. v. Ingersoll Rand Corp.. 148 N.H. 609 (2003). Such testimony is admissible if the expert is qualified, if the testimony is based on sufficient facts or data, if the testimony is the product of reliable principles and methods and if the witness has applied the principles and methods reliable to the facts of the case. See Baker Valley. 148 N.H. 609 (2003). The party seeking the admission of expert testimony bears the burden of establishing it is admissible. Cook v. CTC Communications. 2007 WL 3028415 *2 (Oct. 15, 2007).
Ms. Moore's expert report established that she is experienced in employment law and has experience in conducting investigations. She also has familiarity with conducting investigations regarding discrimination. Defendants contend that her testimony regarding investigations should be excluded because it is not based upon generally accepted principles and methods. It is unnecessary to decide this issue, because the Defendants' investigation practices and polices are not relevant to any issue in this case.
The Defendants also claim that Ms. Moore's testimony regarding the Defendants' investigation policies and practices is irrelevant to the Plaintiffs claims because there is no law setting out a legally accepted procedure and policy for conducting investigations into allegations of discrimination. Further, the Defendants assert, the Plaintiffs claims do not require a showing that her employers failed to investigate. In support of her assertion that Ms. Moore's testimony is relevant to her claims of discrimination and retaliation, the Plaintiff cites Madeja v. MPB Corp. d/b/a Split Ballbearing. 149 N.H. 371 (2003) for the precedent that a trial court may instruct a jury as to employer liability if the employer knew or should have known of the discriminatory behavior. Plf s Obj. to Def. Motion in Limine to Exclude Report and Testimony of Plf s Expert Julie A. Moore, at 5. However, Madeja applies specifically to circumstances in which an employer may reasonably claim that it was unaware of any discrimination or retaliation, such as when a coworker discriminates or harasses another coworker. In Madeja. the Court specifically held that an employer may be held liable for a coworker's retaliatory harassment in a case if the employer knew or should have known of the harassment or retaliation. Madeja 140, N.H. at 381.
In the present case, if the jury were to accept the Plaintiffs factual allegations, there is no question that the employer maybe held liable because it, through the Plaintiffs supervisors, is the acting party. The United States Supreme Court has recognized that an employer may be vicariously liable for employee discrimination or harassment if it failed to "prevent and correct promptly" any illegal behavior. Faragher v. City of Boca Raton. 524 U.S. 775, 807 (1998). However, the Supreme Court also said that the issue of whether the employer had instituted anti harassment policies was only relevant to an employer's affirmative defense, which is unavailable when there was a tangible adverse employment action. Id. at 808. Whether the Defendants failed to investigate has no bearing on whether they discriminated or retaliated against the Plaintiff and a jury can decide her claims without information regarding ideal policies and procedures.
The Defendants also claim that Ms. Moore's testimony would invade the province of the jury. The Plaintiff also assert that Ms. Moore's testimony regarding investigation and layoff practices should be admitted because the jury is most likely ignorant of employment discrimination practices, and that Ms. Moore's testimony would support their understanding of reasonable actions for employers to take after complaints are made. There is no doubt that, in appropriate circumstances, N.H. R. Ev. 704 would allow testimony regarding the ultimate issue on a case to be admitted. But courts generally do not allow experts to testify on the issue of whether or not discrimination or retaliation has taken place, because this is a matter within the common understanding of a juror. Expert testimony is supposed to provide jurors with evidence about matters which "are beyond the understanding of the average lay person." U.S. v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties could say in their closing arguments. Frazier. 387 F.3d at 1262-1263; Parton v. UPS. 2005 WL 5974445 (N.D.Ga. 2005); Leavitt v. N.H. State Banking Department. Merrimack County Superior Court No. 04-C-379 (July 19, 2006) (McHugh, J.) Testimony, for example, that the defendant violated its own policies, is not so complex as to require explanation. Parton, 2005 WL 5974445 at*6.
Ms. Moore proposes to testify about whether the actions taken by the Defendants were reasonable or amounted to discrimination. The Court's decision in Tuli v. BrighamWomen's Hospital, 592 F.Supp.2d 208 (D. Mass. 2009) is applicable here:
[Her] testimony amounts to nothing more than [a] well-credentialed [practitioner] saying: Take my word for it; in my judgment, based on solely the cold record and not the testimony of witnesses, this is not discrimination (Dr. Britt), or this is a sham peer review (Dr. Huntoon). Whether the facts prove discrimination or sham peer review in this case depend on more than the cold record. It depends upon jurors evaluating the credibility of witnesses and drawing complex inferences from the facts they find. It depends upon the application of discrimination law and pretext analysis, both of which have a specialized meaning in the law. In short, these opinions are not at all helpful to a jury in rendering a judgment; moreover, simply telling jurors what the outcome should be could well prejudice them. Both witnesses' reports resonate as a lawyer's closing argument rather than an expert analysis.
Tuli v. Brigham & Women's Hospital. Inc.. 592 F.Supp.2d 208, 211 (D. Mass. 2009). Ms. Moore's testimony merely broadcasts the Plaintiffs desired result to the jury. This is improper. "Thus while educating a jury as to the proper procedures with respect to [terminating an employee] might be helpful, it would be improper for the defendants'] expert to in effect usurp the function of the jury by trumpeting the reasonableness of all the defendants'] actions in this case." Leavitt v. NH State Banking Dept, Merrimack County Superior Court, No. 04-C- 379 (July 19, 2006) (Order, McHugh) at 3. Seealso Davidson v. LittletonHospital, et al.. Grafton County Superior Court, No. 05-C-103 (Oct. 9, 2005) (Order Burling, J.) at 3 ("Ms. Moore shall not testify as to the reasonableness or wrongfulness of Defendants"). The Court finds that if Ms. Moore testifies to her opinions of the reasonableness of the Defendants' actions, she will, in fact prejudice the jury, who is more than capable of determining whether the Defendants' actions were reasonable. However, the Court finds no invasion on the jury's duties if Ms. Moore testifies about general layoff practices while withholding her personal opinion about the facts specific to the case. While testimony about best employment practices may help the jury understand the facts and circumstances of this case, such testimony cannot include Ms. Moore's opinion as to whether ...