(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)
Mr. Black’s Opinions Will Assist the Trier of Fact and Therefore Are Relevant and Admissible.
Finally, defendants argue that Mr. Black’s opinions as to the City’s violations of its internal policies and procedures are not relevant to any of the issues in this case, and that testimony about those opinions might confuse or mislead the jury. On the contrary, defendants failure to follow its own policies and procedures, with respect to the prevention of sexual harassment and their response to complaints of sexual harassment, are evidence which tend to prove the prior notice element of plaintiffs’ sexual harassment cause of action. It also proves their failure to prevent sexual harassment itself (including the mandate to conduct an investigation) and retaliation. See, e.g., Kotla v. Regents of the Univ. of Calif. (2004) 115 Cal.App.4th 283, 294 n. 6 [opinion testimony by a qualified expert that an employer significantly deviated from its ordinary personnel procedures in the aggrieved employee’s retaliation case might well assist the jury in its factfinding];
Silva v. Lucky Food Stores, Inc. (1998) 65 Cal.App.4th 256, 263 [grant of summary judgment against plaintiff employee in wrongful termination case upheld in part because plaintiff had not presented any expert witness testimony regarding whether the employer conducted an appropriate investigation of underlying sexual harassment claim].
Even if some of the jurors have some familiarity with them, the elements of an effective intervention and prevention program for workplace sexual harassment are not commonly known by a typical juror. Accordingly, courts in California and other jurisdictions are finding that expert witness testimony is appropriate to establish whether the employer acted reasonably to prevent harassment and to respond to reports of alleged harassment. See, e.g., Kotla v. Regents of the Univ. of Calif., supra, 115 Cal.App.4th at 294 n. 6; Holly D. v. Calif. Inst. of Tech. (9th Cir. 2003) 339, F3d. 1158, 1177; Shrout v. Black Clawson Co. (S.D. Ohio 1988) 689 F.Supp. 774, 777-778; Kimzey v. Walmart Stores, Inc. (8th Cir. 1997) 107 F.3d 568, 571.
Mr. Black’s expertise in equal employment opportunity requirements, including the prevention of sexual harassment, will add to their common fund of information. His expert opinion testimony on that subject is therefore admissible, and its probative value is not outweighed by a substantial danger of undue prejudice.
For the foregoing reasons, plaintiffs respectfully request that this Court deny defendants’ Motion in Limine No. 12 To Exclude Evidence, Testimony and Argument Regarding the Expert Opinion Testimony of Plaintiffs’ Expert Michael Black. Plaintiffs request that they be permitted to put on evidence of Mr. Black’s expert opinions regarding their sexual harassment causes of action. This should include defendants’ prior notice of the harassing conduct by non-employees, failure to prevent sexual harassment (including the failure to conduct a prompt investigation), and the retaliation against plaintiffs.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.