United States District Court, D. New Jersey
ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, P.C., Zachary A. Silverstein, Esq., David F. McComb, Esq. (pro hac vice), Philadelphia, PA, Jill Fisher, Esq., Marlton, NJ, Counsel for Plaintiff.
BALLARD SPAHR LLP, Patricia A. Smith, Esq., Cherry Hill, New Jersey, Counsel for Defendants.
JOSEPH E. IRENAS, Senior District Judge.
Plaintiff, a former employee of Defendants Grand Lux Cafe, LLC (Grand Lux) and The Cheesecake Factory, Incorporated (Cheesecake Factory),  brought this action after her alleged sexual assault at the hands of another former employee, Francis de los Hoyos.
Presently before the Court is Defendants' motion in limine to exclude the report and testimony of Plaintiff's expert Dr. Jane Gray. For the reasons explained herein, Defendants' motion is GRANTED.
The Court recites only those facts relevant to the pending motion.
A. Plaintiff's Alleged Sexual Assault
Plaintiff was hired as a server at a new Grand Lux Cafe in the Cherry Hill Mall around June 12, 2012. (Plaintiff's Opposition ("Pl.'s Opp.") at 3) Mr. de los Hoyos, who worked at the time as a cook at a Cheesecake Factory restaurant in Florida, was flown in to train other cooks at the new Grand Lux in a position known as "designated trainer" ("DT"). (Id.)
Defendants maintain a policy against DTs fraternizing with restaurant employees, such as Plaintiff. (Defendants' Motion ("Defs.' Motion") at 1) Despite that policy, on July 16, 2012, Plaintiff, accompanied by two friends who were also employees of Defendants, went out for drinks with Mr. de los Hoyos. (Pl.'s Opp. at 4) Apparently changing the group's original plan to go to a bar frequented by other DTs, Mr. de los Hoyos selected as their destination a bar at which other trainers would not be present. (Id. at 5) Plaintiff remembers having a few drinks but claims to remember little else; she believes Mr. de los Hoyos slipped drugs into her drink when she went to the bathroom. (Id.) Plaintiff woke up the next morning in Mr. de los Hoyos's hotel room. (Id.) He instructed her to leave the hotel through a side door to avoid detection and then drove her to her car. (Id.)
When Plaintiff reported to work on July 18, 2012, a coworker informed her that a picture of a naked woman who looked like Plaintiff was circulating among the staff. (Id. at 6) Plaintiff notified her supervisors, including DT Raven Adair, and, on July 21, 2012, reported the incident as a sexual assault to the Mount Laurel Police Department. (Id.)
On December 26, 2012, Plaintiff filed the present action in Camden County Superior Court, which Defendants later removed to this Court. Plaintiff's Complaint asserts two counts: (1) Defendants' creation of a hostile work environment in violation of New Jersey's Law Against Discrimination (LAD) and (2) negligent hiring, retention, training and supervision. Plaintiff alleges that Defendants are vicariously liable for Mr. de los Hoyos's conduct because of their "negligence in failing to have in place and/or enforce adequate and effective hiring policies and practices, sexual harassment and/or fraternization policies, and adequate supervision, training and monitoring of their employees and their sexual harassment and/or fraternization policies and procedures." (Compl. ¶ 30) Under the negligence count, Plaintiff alleges that Defendants breached their duty of care to keep employees such as Plaintiff safe from harm by "negligently failing to have in place adequate and effective hiring policies and negligently failing to adequately and effectively train, supervise, control or otherwise monitor Mr. de los Hoyos's activities." (Id. at ¶ 35) Plaintiff states further that this breach of Defendants' duty of care was the foreseeable direct and proximate cause of Plaintiff's injuries. (Id. at ¶¶ 35-37)
B. Dr. Gray's Report
Plaintiff retained Dr. Jane Gray in November 2013 to "review and assess materials relevant to this matter and to offer an opinion regarding the sexual harassment policies of the defendants, as well as their employee training and supervision." (Pl.'s Opp. at 7) Dr. Gray earned a Ph.D. from Ohio State University in Sociology with a focus on Criminology. (Deposition of Dr. Jane Gray ("Gray Dep.") at 16:15-20) She wrote her dissertation on sexual crime and sexual deviants, particularly individuals who go to public places for impersonal sex. (Id. at 16:21-17:3) Dr. Gray has since taught numerous criminology courses and been retained in over forty-five cases as an expert in "the field of social science research in general, and criminal behavior in particular." (Gray Expert Report ("Gray Rpt.") at 2) Thirty-eight of those cases involved "issues related to criminal acts committed in the context of premises liability or negligent hiring and retention litigation." (Id.) Dr. Gray conceded in her deposition that there is nothing in her CV that would qualify her as an expert in sexual harassment policies, but stated that her expertise in "criminal outcomes" gives her the basis for commenting on the foreseeability of misconduct in Defendants' work environment. (Gray Dep. at 39:17-40:7; 49:17-50:24)
In January 2014, Dr. Gray issued a report stating the following three opinions: (1) Defendants "lacked due care in their failure to provide an effective sexual harassment policy and program for their employees"; (2) Defendants "lacked due care in their failure to provide ongoing training to Designated Trainers who were traveling in the field"; and (3) "the sexual assault perpetrated by Francis de los Hoyos upon Stephanie Daniels on July 16, 2012 was causally related to the lack of effective training, monitoring, and supervision provided by [Defendants] to their Designated Trainers." (Gray Rpt. at 3-4) In support on these conclusions, Dr. Gray cites Defendants' "rudimentary" training of employees in sexual harassment and a "culture of permissiveness" overriding actual policies. (Id.)
Defendants, citing Dr. Gray's expertise in criminology and lack of experience in sexual harassment policies, filed the present motion in limine to exclude Dr. Gray's testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
The Court held oral argument on March 23, 2015. During oral argument, Plaintiff conceded that Dr. Gray is not an expert in sexual harassment policies and stated that she would not be qualified to offer testimony on what policies, procedures or training Defendants should have had in place. Instead, Dr. Gray's testimony would be limited to the consequences of inadequate policies, procedures, and training in Defendants' workplace. Defendants submitted further evidence of DT training regarding sexual harassment policies that Defendants produced to Plaintiff but that Plaintiff apparently did not provide to Dr. Gray. (5/23/2015 Hearing, Defs.' Ex. 2)
Under Federal Rule of Evidence 702, A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...