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A big verdict against Lawrence Livermore National Laboratory for firing a longtime employee after testifying against the agency in a sexual harassment case was gutted Wednesday when key expert testimony was thrown out on appeal. San Francisco’s First District Court of Appeal ruled that testimony by industrial psychologist Jay Finkelman on behalf of 14-year employee Dee Kotla was inadmissible under state evidence codes because he provided information that didn’t require an expert opinion. “It improperly invaded the province of the jury to draw conclusions from the evidence,” Justice Sandra Margulies wrote, “and it lacked any reliable foundation in Dr. Finkelman’s professional experience and expertise.” Justices William Stein and Douglas Swager concurred. Kotla, a computer support technician, sued the University of California regents, who manage the lab, after being fired in 1997. She claimed she was the victim of retaliation for testifying for Kim Norman, a secretary she supervised, in a sexual harassment suit against the lab and a male manager named Charlie Brown. Finkelman was brought in to testify that several facts — including negative comments about Kotla by in-house counsel Gabriela Odell — were “indicators” of the lab’s retaliatory intent. Alameda County Superior Court Judge Yolanda Northridge hesitantly allowed the testimony to be admitted. Jurors later found that the lab had violated the anti-retaliation provisions of the state’s Fair Employment and Housing Act, and they awarded Kotla $1 million in damages. Northridge later reduced the amount to $745,000. In Wednesday’s ruling, the appeal court said Finkelman’s testimony didn’t help the jurors. “Instead,” it held, “that testimony created an unacceptable risk that the jury paid unwarranted deference to Dr. Finkelman’s purported expertise when in reality he was in no better position than they were to evaluate the evidence concerning retaliation.” The court even questioned whether Finkelman, “however experienced,” had ever encountered a situation so similar as to give him any special insight. “We find no basis in the record for believing that Dr. Finkelman possessed any special expertise for weighing the evidence of motive in a wrongful termination case,” Justice Margulies wrote. “That is the jury’s function, assisted by the trial court’s instructions and the arguments of counsel.” It was also likely, she held, that the lab would have prevailed at trial if Finkelman’s testimony had been kept out. “Although there was evidence from which retaliation could be inferred, there was also evidence of a plausible, non-retaliatory reason for the employer’s decision to discharge Kotla,” the court ruled. “Kotla admitted that she misused a government computer, and admitted to returning to the lab after hours to erase computer files that provided evidence of her misuse. “As a government contractor performing highly classified work,” the court continued, “the lab has a heightened need to ensure the loyalty and integrity of its employees.” The case now goes back to Alameda County for a new trial. Henry Lederman, the partner in Littler Mendelson’s Walnut Creek office who argued the lab’s appeal, said the firm and its client were delighted. “We think it was the correct decision and an important decision, particularly in employment litigation,” he said, “because employers frequently are faced with the type of testimony that the court of appeal ruled inadmissible and prejudicial to our client. “It’s the first decision of its kind in California,” he added, “so it’s a good day for California employers.” Kotla’s lawyer, Gwilliam, Ivary, Chiosso, Cavalli & Brewer partner J. Gary Gwilliam, said he wasn’t concerned by the decision. “It means we go back and try it again,” he said. “This is justice delayed, not justice denied. Bring ‘em on. We’re ready for trial.” Gwilliam also said the ruling doesn’t mean that Finkelman can’t testify. “The new trial judge, and there will be a new trial judge, needs to look at what he has to say and what evidence is relevant,” he said. “[The justices] don’t exclude all human resources evidence.” The ruling is Kotla v. The Regents of the University of California, 04 C.D.O.S. 759.

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