Economics expert opinionThe case before U.S. Magistrate Judge Cam Ferenbach in the District of Nevada involved the Equal Employment Opportunity Commission’s (EEOC) age discrimination action against the defendant employer. In support of its motion for summary judgment, Defendant cited to the testimony of its rebuttal expert. The EEOC moved to strike Defendant’s expert testimony, claiming that the expert opinion satisfies none of the requirements necessary to give an expert opinion according to Federal Rule of Evidence 702.

The parties presented numerous issues, among them were claims as to the expert’s qualifications; whether his specialized knowledge would assist the trier of fact; the reliability of his data and methodology; and whether the testimony was beyond the scope of rebuttal expert testimony.

First, Judge Ferenbach held that the expert was qualified to render the proffered opinion, in light of his Bachelor’s degree in Ecology and Business, his MBA, and his ongoing pursuit of a PhD in business. The expert had ten years of private consulting experience, specializing in forensic accounting, economics, finance, and statistical counseling. He regularly provided economic forecasts and business economic damage calculations, all of which sufficiently qualified him as an expert regarding Defendant’s employment practices.

In addition, the judge said that the expert’s opinion will assist the trier of facts on a particular question or subject if the expert’s opinion provides “appreciable help” to the trier of facts. The expert opinion here would assist the trier of facts in determining possible non-discriminatory explanations for Defendant’s allegedly discriminatory employment practices. Judge Ferenbach noted that the expert analysis condensed vast amounts of employment data into a form that could easily be grasped by a lay person. This was the type of “appreciable help” that demonstrated the expert’s opinion would assist the trier of facts.

The EEOC’s contention that the expert opinion wouldn’t assist the trier of facts because it was based on data outside of the time period of Defendant’s alleged discrimination was misplaced, the judge held. This argument wasn’t that the expert opinion failed to assist the trier of facts, but rather that the data the expert based his opinion on was unreliable, which goes to weight of the evidence, not the admissibility of the opinion.

Judge Ferenbach wrote that an expert’s opinion is supported by sufficient facts and data if there is some factual support for the expert’s opinion. Here, the expert opinion was based on sufficient facts and data, as he used Defendant’s Applicant Data. The EEOC’s expert based her opinion on U.S. Bureau of the Census data from 2006 to 2010. While neither expert had access to Defendant’s employment data during the time period of the Defendant’s allegedly discriminatory employment practices, they both extrapolated from their respective data sets and reached opposite conclusions about Defendant’s employment practices between 2007 and 2011. The mere fact that the expert relied on a different data set than the opposing party’s expert, the judge held, didn’t demonstrate that the expert opinion was based on insufficient facts or data.

The EEOC also contended that the expert’s data was “unreliable,” and explained several alleged deficiencies with the expert data. Nonetheless, Judge Ferenbach held that the EEOC’s reliability argument should be reserved for discrediting the expert at trial. This didn’t justify excluding the expert opinion. Also, the judge found the expert’s methodology to be reliable. His expert report summarized the data analysis techniques he used to reach his conclusion and stated that his conclusions were based on relevant employment data, which was Defendant’s available employment information.

Judge Ferenbach cited to district court precedent which held that “Rebuttal expert testimony is restricted to subjects which are ‘intended solely to contradict or rebut evidence on the same subject matter identified by another party,'” and that rebuttal expert reports are proper if they contradict or rebut the subject matter of the original expert report. However, the judge noted that they are not “the proper place for presenting new arguments.” Here the expert opinion was a proper rebuttal expert opinion, as his report addressed every facet of the EEOC’s expert report and provided an alternate explanation for Defendant’s conduct during the period of alleged discrimination.

Also, the expert didn’t opine on the ultimate issue of whether Defendant did discriminate against its older employees. As such, the expert did not, as the EEOC suggested, usurp the role of the court to instruct the jury on the legal requirements necessary to find that the employer discriminated against its older employees.

In light of this reasoning, the EEOC’s Motion to Strike Defendant Defendant’s Rebuttal Expert’s Testimony was denied.


U.S. Equal Employment Opportunity Commission, V. Mattress Firm, Inc., 2:13-cv-1745-GMN-VCF, 2016 U.S. Dist. LEXIS 17048 (D.Nev. February 11, 2016).


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