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Statistical evidence that corporate layoffs impacted older workers survives the Daubert inquiry and will be permitted in an age discrimination action against Dow Jones & Co., a federal judge held Dec. 6 ( Janice Flebotte, et al. v. Dow Jones & Co., No. 97-30117-FHF, D. Mass.). Senior U.S. Judge Frank Freedman of the District of Massachusetts denied defense and plaintiff motions to exclude experts. Plaintiffs Janice Flebotte, Patricia Jez, Robert Miklasiewicz and Gloria Gay were full-time customer service representatives in Dow Jones’ “intensive Care Unit,” which handled repeat consumer complaints. In November 1994, the company eliminated the department and its full-time employees as part of a nationwide reduction aimed at balancing its budget. The plaintiffs sued, alleging they were unfairly targeted because of their age. NONDISCRIMINATORY EXPLANATION Dow Jones moved to exclude the testimony of statisticians Dr. Craig L. Moore and Dr. George W. Cobb on the grounds that the statistical data did not take account of the company’s nondiscriminatory explanation for eliminating the department, the experts did not compare similarly situated employees, the court already rejected the statistical expert evidence as not probative of age discrimination and the prejudicial effect of the evidence outweighs its probative value. Further, Dow Jones argued that the evidence was inadmissible because statistical data has little probative value in disparate treatment cases. The plaintiff experts concluded only that the department’s elimination had a disparate impact on older workers, while only the disparate treatment claims remain, the company argued. Moore tested a pool of 128 employees, including full and part-time employees, supervisors and non-supervisors. He concluded that older workers were adversely impacted by the termination decisions. Cobb compared 112 Dow employees and concluded that “the chance is less than 1 in 100 that an age-blind decision about terminations would produce a difference as large as the one that actually resulted from the decision at Dow Jones.” The judge noted that, in general, statistical expert evidence suitably designed to address a material issue will be held admissible under the Federal Rules of Evidence. Further, statistical analyses need not include all measurable variables to be admissible. Dow Jones did not challenge the reliability of the tests performed by the experts. Instead, it questioned the relevance of the analyses used to the specific facts at issue in the case and argued that the tests were executed so poorly that they were unreliable. PROBATIVE VALUE vs. ADMISSIBILITY The judge, however, concluded that the statistical evidence survives the Daubert inquiry. While the disputed analyses may be subject to the flaws outlined by Dow Jones, such imperfections affect their probative value, rather than their admissibility, the judge said. Dow Jones’ argument that the evidence failed to include its nondiscriminatory explanation presented a close question, the judge said. The argument that the inclusion of employees whose positions were unaffected by the layoffs rendered the analyses unreliable is persuasive, the judge said, noting courts that have considered the precise question are divided. “Based upon the First Circuit’s instruction that statistical studies are admissible unless they are so incomplete as to be irrelevant, however, the Court concludes that the failure to account for the defendant’s nondiscriminatory explanation for the terminations does not affect the admissibility of the proposed statistical evidence,” the judge said. The judge also rejected Dow Jones’ argument that the comparison of employees who were not similarly situated rendered the analyses unreliable. The differences, the judge said, do not provide a sufficient distinction to warrant exclusion. Again, the judge noted, the issues related to statistical reliability go to the weight, not the admissibility of the evidence. PRIOR RULING Regarding the prior rejection of statistical expert evidence, the judge said he concluded neither that the evidence was entitled to zero weight nor that it was inadmissible on the ground of relevance. The judge previously denied Dow Jones summary judgment because all of the evidence considered together established a genuine issue of material fact with respect to pretext. The judge also said that the limited but important role of the statistical evidence at trial prevented him from ruling at this time that such evidence will be unduly prejudicial to Dow Jones. Also without merit is Dow Jones’ argument that the statistical data has little probative value in disparate treatment cases, the judge said. Turning to the plaintiffs’ motion to exclude Dow Jones’ statistical experts, the judge made similar holdings. Dr. David S. Evans and Dr. Christopher Erath concluded that the company made a decision to eliminate a unit and all full-time employees within it, therefore, statistics can play no role in assessing adverse impact by age, because all such employees were terminated. As a secondary conclusion, the experts said that if statistical analyses were conducted despite the elimination of the department, such analyses do not support the contention that older workers were adversely impacted. DEFENSE EXPERTS The plaintiffs argued that the experts violated federal rules by conducting tests not submitted with their report, Evans failed to personally prepare his report, Erath’s statistical analysis relied upon incorrect factual assumptions, and the experts lack credentials in statistics. The judge found the interpretation of Rule 26(a)(2)(B) was strained. Neither the plain language of the rule, nor its purpose compels disclosure of every calculation or test conducted by the expert while forming the report, the judge said. Regarding Evan’s preparation of his report, the judge found no problem with his reviewing the draft and signing the final report. In analyzing the reliability of the statistical report under Daubert, the judge rejected the plaintiffs’ argument that the report compares employees who are not similarly situated, specifically, customer service employees who used the telephone in their usual responsibilities with those who did not. The judge noted that the plaintiffs’ argument did not address the reliability of Dow Jones’ primary conclusion, and the differences in positions are so slight that they affect only the weight of the data. Finally, the judge found the defense experts qualified because they had previously been qualified in sex and age discrimination cases, even though their education was in economics. Counsel to the plaintiffs is Michael O’Shea. Donna Porter of Nixon Peabody in Boston represents Dow Jones. �; Copyright 2001 Mealey Publications, Inc.

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