When the Supreme Court replaced the relatively simple Frye test with the relatively complicated Daubert test for determining the admissibility of expert opinion testimony, many critics (correctly) groused that science-starved judges would not be able to rise to the task of serving as gatekeepers. See e.g., Susan Haack, An Epistemologist in the Bramble-Bush: At the Supreme Court with Mr. Joiner, 26 J. Health Pol. Pol’y & L. 217 (2001). The recent opinion of the First Circuit in Chadwick v. Wellpoint, Inc., 2009 WL 782822 (1st Cir. 2009), however, seems not to be an example of judge cum scientist flubbing a science project but an example of judges making Flubber out of Supreme Court precedent.
Laurie Chadwick brought a claim of sex discrimination under Title VII, 42 U.S.C. 42 U.S.C. § § 2000e et seq., against Wellpoint, Inc. and Anthem Health Plans of Maine…after she was denied a promotion. She alleged that her employer failed to promote her because of a sex-based stereotype that women who are mothers, particularly of young children, neglect their jobs in favor of their presumed childcare responsibilities.
Specifically, Chadwick’s lawsuit was supported by several alleged comments made by Nancy Miller, the decisionmaker on the promotion, and Linda Brink, Chadwick’s former supervisor, who was also involved in the promotion decision. According to Chadwick,
-two months before the decision was reached, Miller…found out that Chadwick had three six-year-old children (in addition to an eleven-year-old son). Miller sent an email to Chadwick stating, “Oh my-I did not know you had triplets. Bless you!”
-during Chadwick’s interview with Brink,..she was asked how she would respond if an associate did not complete a project on time. Unhappy with Chadwick’s answer, Brink replied, “Laurie, you are a mother [.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?”
-when Miller informed Chadwick that she did not get the promotion, Miller explained: It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.
-During that same conversation, Miller said that, “if [the three interviewers] were in your position, they would feel overwhelmed.”
-During that same conversation, Miller also told Chadwick that, “there would be something better down the road,”and that Chadwick would look back and say”it’s a good thing that that opportunity didn’t work out because I’m happier with this down the road.
The Unites States District Court for the District of Maine granted summary judgment in favor of the defendants, but the First Circuit reversed. The First Circuit did, however, affirm one part of the district court’s opinion: the portion excluding the proposed expert testimony of Dr. Mary Still, a Ph.D. in Sociology and a post-doctoral research fellow at Cornell University, with expertise in employment discrimination and sex-based stereotypes in the workplace.
In her deposition, Dr. Still offered her opinion on the prevalence and taxonomy of sex-stereotype employment discrimination. She also opined on how the comments and behaviors of the WellPoint supervisors were consistent with larger societal patterns and concluded that certain comments were likely based on sex stereotyping about the roles of men and women.
The First Circuit noted that “[t]he district court excluded Dr. Still’s testimony because ‘[t]he expert, whatever her professional credentials, is not competent to testify about what these supervisors meant, consciously or unconsciously, in using certain words.'” The First Circuit found this conclusion was not an abuse of discretion because
[i]n effect, the district court believed that there was a mismatch between the expert’s knowledge and qualifications and her ability to helpfully opine on the specifics of this case….The court below emphasized particularly that Dr. Still’s apparent lack of familiarity with the details of this case rendered her testimony unhelpful to a trier of fact.
In reaching this decision, the First Circuit attempted to distinguish the Supreme Court’s landmark sex-stereotyping opinion, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the plaintiff claimed that she was denied partnership based upon her gender and claimed, inter alia, that comments by her superiors were examples of sex-stereotyping. In finding that the evidence was sufficient to establish that sexual stereotyping played a part in evaluating the plaintiff’s candidacy, the Supreme Court relied heavily on the expert testimony of Dr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie-Mellon University, that the comments at issue were likely the product of sex stereotyping. According to the Supreme Court, this testimony was proper because
Fiske based her opinion on a review of the submitted comments, explaining that it was commonly accepted practice for social psychologists to reach this kind of conclusion without having met any of the people involved in the decisionmaking process.
Immediately after quoting this passage from Price Waterhouse, the First Circuit concluded:
In the instant case, we do not take the district court’s exclusion of Dr. Still’s testimony as a repudiation of the admissibility of all sociological expert testimony in this area of the law, which would seemingly run counter to the Supreme Court’s view. Rather, we understand the district court to have concluded that Dr. Still could not offer information helpful to a trier of fact due to her particular lack of familiarity with the details of this case.
What? Price Waterhouse (as well as Dr. Fiske) seemed to pretty clearly say that expert sex-stereotype opinion testimony is properly based upon a review of the subject comments and does not require that the expert be familiar with all of the details of a particular case or the people involved. And to me, that makes perfect sense. I can’t really imagine a scenario where Miller could have explained away the comment, “It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” Would she have said that it was a (bad) joke? Would she have said that it was a misguided attempt to be comforting? It seems to me that Dr. Still’s testimony was based upon a proper factual predicate and that despite the First Circuit’s attempts at explication, it was (improperly) repudiating the Supreme Court’s opinion in Price Waterhouse.
Really interesting post Colin – thanks!