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Ictsi Oregon, Inc. v. International Longshore and Warehouse Union

United States District Court, D. Oregon

April 9, 2019

ICTSI OREGON, INC., Plaintiff,


          Michael H. Simon United States District Judge

         ICTSI Oregon, Inc. (“ICTSI”) brings the sole remaining claim in this case against International Longshore and Warehouse Union (“ILWU”) and International Longshore and Warehouse Union Local 8 (“Local 8”) (collectively, “ILWU Entities”).[1] ICTSI alleges that the ILWU Entities engaged in illegal secondary boycott activities, violating § 303 of the Labor-Management Relations Act, 29 U.S.C. § 187. Specifically, ICTSI alleges that the ILWU Entities engaged in work stoppages, slowdowns, safety gimmicks, and other coercive actions with an object of forcing and compelling ICTSI to pressure the Port of Portland (the “Port”) to reassign or relinquish control to ICTSI over jobs at Terminal 6 of the Port that involve the plugging, unplugging, and monitoring of refrigerated containers. This Opinion and Order addresses the parties' pretrial motions challenging the admissibility of expert testimony. For the reasons discussed below, ICTSI's motion to exclude the testimony of William Finlay is denied as moot, the ILWU Entities' motion to exclude the opinion of Nolan Gimpel is granted in part, the ILWU Entities' motion to exclude the opinion of Samuel Estreicher is denied as moot, and the Court will hold a Rule 104 hearing to discuss the ILWU Entities' motion to exclude the opinion of Jay Sickler.

         1. Standards

         The United States Court of Appeals for the Ninth Circuit has discussed the standard under which a district court should consider the admissibility of expert testimony. See City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036 (9th Cir. 2014). As explained by the Ninth Circuit:

Rule 702 of the Federal Rules of Evidence provides that expert opinion evidence is admissible if: (1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case. Fed.R.Evid. 702.
Under Daubert and its progeny, including Daubert II [Daubert v. Merrell Dow Pharms, Inc., 43 F.3d 1311 (9th Cir. 1995)], a district court's inquiry into admissibility is a flexible one. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). In evaluating proffered expert testimony, the trial court is “a gatekeeper, not a fact finder.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (citation and quotation marks omitted).
“[T]he trial court must assure that the expert testimony ‘both rests on a reliable foundation and is relevant to the task at hand.'” Id. at 564 (quoting Daubert, 509 U.S. at 597). “Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.” Id. at 565 (citation and internal quotation marks omitted). “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Id. at 564 (citation omitted). The judge is “supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.” Alaska Rent-A-Car, 738 F.3d at 969. Simply put, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” Id. at 969-70.
The test of reliability is flexible. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (en banc). The court must assess the expert's reasoning or methodology, using as appropriate criteria such as testability, publication in peer-reviewed literature, known or potential error rate, and general acceptance. Id.; see also Primiano, 598 F.3d at 564. But these factors are “meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.” Primiano, 598 F.3d at 564 (citations and quotation marks omitted); see also Barabin, 740 F.3d at 463. The test “is not the correctness of the expert's conclusions but the soundness of his methodology, ” and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony. Primiano, 598 F.3d at 564-65. Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.

Id. at 1043-44 (case citation alterations added, remaining alterations in original).

         “It is the proponent of the expert who has the burden of proving admissibility.” Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). Admissibility of the expert's proposed testimony must be established by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). The party presenting the expert must demonstrate that the expert's findings are based on sound principles and that they are capable of independent validation. Daubert II, 43 F.3d at 1316.

         2. ICTSI's Motion to Exclude Expert William Finlay

         ICTSI moves to exclude the expert opinion and testimony of Dr. William Finlay (“Finlay”) or, in the alternative, for a Rule 104 hearing. Dr. Finlay is a sociologist, who has spent time studying the ILWU and has generally researched rude, dismissive, and aggressive (“RDA”) behavior in the workplace. ICTSI argues that Dr. Finlay's testimony regarding RDA at ICTSI, safety issues at Terminal 6, and productivity at Terminal 6 should be excluded for three reasons: (1) Dr. Finlay's testimony is not helpful to the jury because it is irrelevant, offers nothing more than a closing argument characterizing the testimony of others, and improperly vouches for the testimony of others; (2) Dr. Finlay is not qualified to opine about port productivity; and (3) Dr. Finlay's opinions are unreliable because they are based on incomplete and skewed information and are not based on any discernable methodology or reasonably connected to his experience and expertise.

         At oral argument, the ILWU Entities amended the proposed opinions to be given by Dr. Finlay. As amended, the ILWU Entities offer the following opinion testimony by Dr. Finlay: (1) based on the testimony of ICTSI employees, ICTSI engaged in RDA; (2) RDA demoralizes a workforce; and (3) a demoralized workforce is less productive. The ILWU Entities represented that Dr. Finlay will not testify that the workers at Terminal 6 were demoralized or were less productive. The only testimony specific to ICTSI is that ICTSI engaged in RDA. Based on this amended testimony, ICTSI stated that it no longer has objections to Dr. Finlay's proffered testimony. The Court agrees that this limited testimony by Dr. Finlay is admissible. Accordingly, ICTSI's motion regarding Dr. Finlay is denied as moot.

         3. The ILWU Entities' Motion Challenging Nolan Gimpel

         The ILWU Entities argue that two opinions of ICTSI's expert witness Nolan Gimpel should be excluded as speculative and inherently unreliable: (1) Terminal 6's likely market capture rate but for the labor dispute; and (2) Terminal 6's likely carrier service but for the labor dispute. ICTSI does not dispute the first point and agrees to amend its expert witness statement to delete that testimony. ICTSI, however, disputes the ILWU Entities' second challenge to Mr. Gimpel's offered testimony.

         The ILWU Entities argue that Mr. Gimpel's opinion that it is “almost certain” that another shipping carrier would have replaced Hanjin after it filed for bankruptcy but for the labor dispute is too speculative and unreliable. The ILWU Entities argue that Mr. Gimpel based this opinion on the fact that SM Lines took over Hanjin's assets and absorbed some of Hanjin's management, and as a result SM Lines likely would have called on Terminal 6, which was a profitable run for Hanjin. The ILWU Entities argue that because ICSTI never met with SM Lines, either before or after Hanjin's bankruptcy, Mr. Gimpel cannot assume without some evidence that SM Lines would have been interested in calling on Terminal 6. The ILWU Entities further argue that Mr. Gimpel ignores the testimony of ICTSI's Chief Operating Officer, who stated that carriers generally do not start calling on new ports “at the drop of a hat” and that it is a “long, tenuous process that could take years.” The ILWU Entities additionally argue that Mr. Gimpel ignores the many other reasons that carriers might not call at Terminal 6, particularly at the same volume as Hanjin, including the Port's location 100 miles up the Columbia River, the generally “awful” state of the container industry, and that ICTSI's management had alienated potential carriers by charging higher rates and providing poor service.

         ICTSI responds that this challenge is to factual underpinnings of Mr. Gimpel's opinion and as a “general rule” such challenges raise issues as “to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004). ICTSI also notes that § 187 “damages [do] not need to be proven with certainty.” Int l Longshore & Warehouse Union v. ICTSI Oregon, Inc., 2019 WL 267714, at *8 (D. Or. Jan. 17, 2019) (citing Mead v. Retail Clerks Int'l Ass'n, Local Union No. 839, AFL-CIO, 523 F.2d 1371, 1377 (9th Cir. 1975)). This is because:

while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would ...

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