A Boston federal judge on Monday blocked testimony by former Ropes & Gray associate John Ray III’s economic damages expert in his employment retaliation case against the firm on the ground that the expert’s written report was vague.
In a hearing before testimony resumed on the fifth day of trial, U.S. District Judge Richard Stearns in Boston said from the bench that he would exclude testimony by economist Craig L. Moore because he “does not appear to have supplemented” the preliminary analysis he offered during a deposition.
“On that basis, I don’t see what he has to testify,” Stearns said.
Ray claims the firm retaliated against him for complaining about racial discrimination in two ways. One, by withholding promised letters of recommendation. And two, by releasing to the Above the Law website the Equal Employment Opportunity Commission’s initial letter denying his discrimination claim. That letter contained confidential personal information about Ray.
The former associate joined Ropes in 2005 after stints at two other large firms. In December 2008, Ropes gave him six months to find a new job because he wouldn’t make partner. The EEOC ruled that Ropes hadn’t discriminated against Ray but in February 2011 concluded that Ropes had retaliated against him because of his EEOC complaint.
Ray filed a federal racial discrimination and retaliation case against the firm, 13 of its partners and its former “chief people officer” in August 2011. Only the retaliation claims against the firms and lawyers survived summary judgment.
During oral argument about on the exclusion motion, Ropes lawyer Michael Keating, litigation department chairman at Boston’s Foley Hoag, said the expert had established no clear connection between Ropes’ actions and any damages Ray suffered during post-Ropes periods of unemployment and lower-paid work.
Moore, the damages expert, was described in various witness lists as hailing either from Washington or Southwick, Mass. Keating argued that his damages estimate ranged between $275,000 and $40 million and wasn’t particularly helpful. “He throws out a range which he says is applicable to doctors, lawyers and Indian chiefs,” he said. “It’s totally, totally unacceptable.”
In a hearing outside of the jury’s presence, Ropes moved for judgment as a matter of law on the ground that damages must be based on actual losses and proved that the injury caused the losses.
Stearns said he would rule on that issue after the jury made its decision and that “the whole issue of causation is taking a prominent part in the jury instructions I’m proposing.”
As Ray took the stand for the second day, Keating grilled him about whether letters he’d written to Harvard Law School and bar organizations complaining of his treatment by the firm before the Above the Law’s article appeared.
“That was the first time this was raised in a public conversation,” Keating said of Ray’s letters.
“I don’t know that that’s true,” Ray replied.
Ray denied that he intended to embarrass Ropes by asking Harvard Law’s dean to ban the firm from on-campus recruiting. “I don’t know what Ropes would take from it,” Ray said.
Keating read from one of Ray’s communiqués to Ropes partners David Mandel, who acted as the firm’s lawyer in the dispute for a time. Ray wrote that he planned to approach the dean of Yale Law School and other Boston law firms and that the next two years would be “a continuing embarrassment” for the firm.
“EEOC federal watchdogs in this area told [them] to stop. I thought it would be an embarrassment to Ropes & Gray to not listen to what a federal agency said,” Ray said.
“There was never an order from the EEOC for Ropes & Gray to stop anything,” Keating insisted.
Ray testified that Mandel threatened during the initial EEOC mediation that the firm would drag things out for four to six years.
“Have you ever testified that Mandel made that threat in the context of that mediation?” Keating asked.
“I thought mediation was confidential,” Ray answered.
Under questioning, Ray confirmed that the May 2009 draft complaint he gave to the firm with a demand for an $8.5 million settlement did not reference a “nigger” joke purportedly made by partner Randall Bodner. At that time, Ray was seeking a recommendation from Bodner.
Bodner later took the stand to deny making the racial slur. Partner Rob Skinner took the stand to deny asking Ray to be a “token black associate.”
Sheri Qualters can be contacted at email@example.com.