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An industrial psychologist may not testify as to the reasonableness of a terminated employee’s job search or how long it should have taken for him to find comparable work or establish a consulting practice, a federal judge in New York ruled August 21 ( George P. Roniger v. H. Carl McCall, et al., No. 97-8009 [RWS], S.D. N.Y.). However, the court said, the psychologist may testify generally about the efforts undertaken by plaintiff George P. Roniger to find employment following his termination from the Office of the State Deputy Controller for the City of New York (OSDC), a division of the Office of the State Comptroller. Roniger alleged in a suit filed in the U.S. District Court for the Southern District of New York that he was terminated because of politically embarrassing statements he made in deposition testimony concerning a June 29, 1993, letter sent by State Comptroller H. Carl McCall to then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating. McCall and co-defendant Rosemary Scanlon, the state deputy controller, sought to introduce the testimony of Dr. Charles L. Sodikoff, an industrial/organizational psychologist, on the issue of mitigation of damages, specifically, his efforts to find suitable employment following his termination. Roniger moved to exclude the testimony, arguing that it is not reliable, would not assist the jury and would invade the jury’s province of decision-making. MOTION PARTIALLY GRANTED Partially granting the motion, U.S. Judge Robert W. Sweet held that Sodikoff’s proposed testimony on when Roniger should have found comparable work or established a profitable consulting practice is not reliable. Sodikoff stated that Roniger should have found employment “within a year, with the most likely range between 6 to 10 months,” basing his opinion on his own experience and statistical data. However, Judge Sweet said, Sodikoff failed to explain the theory or method used to arrive at his opinion and the data on which he relied “is too general to render his opinion reliable.” On the issue of when Roniger should have established a consulting practice, Judge Sweet said that Sodikoff failed to identify a basis for his opinion that Roniger could have established such a practice within two years of his termination. SEARCH FOR EMPLOYMENT Regarding Roniger’s search for employment, Judge Sweet said it would not be proper for Sodikoff to render an opinion regarding the reasonableness of Roniger’s efforts “because this is an ultimate question in this case which is for the jury to decide based on all the evidence and this Court’s instructions.” However, the judge said, Sodikoff may testify generally about Roniger’s job search efforts “to the extent that his testimony offers information that is relevant to the issue of Roniger’s mitigation and that lies outside the knowledge of a layperson.” For example, the judge said, Sodikoff “may testify regarding matters such as: the nature and degree of efforts which typify an average or successful job search, the effect one would expect Roniger’s age to have on his search, the resources available to a person in Roniger’s position, the number of interviews one might expect to see generated based on certain search efforts, what makes for effective networking and how Roniger’s efforts compare to what are typical — or successful — efforts.” Roniger is represented by John A. Berenbaum of Berenbaum Menken Ben-Asher & Fishel in New York. Defense counsel are Debo P. Adegbile, Robert S. Smith and Maria H. Keane of Paul, Weiss, Rifkind, Wharton & Garrison in New York. � Copyright 2000 Mealey Publications, Inc.

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