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Douglas v. City of Lincoln

United States District Court, D. Nebraska

October 2, 2017




         Plaintiff, who was 65 years old at the relevant time, sues her former employer under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101 to 48-1125, claiming constructive discharge, retaliation, and discrimination based on her age. In her former employment with Defendant, Plaintiff served as the Corporate Communications Coordinator. One of Plaintiff's factual allegations is that, in the course of discussing revisions that should be made to Defendant's annual report, Plaintiff's 35-year-old supervisor told Plaintiff that she “was using [her] reptilian brain and while [the supervisor] could show [Plaintiff] the requested revisions, [Plaintiff] would not be able to comprehend them.” (Filing No. 1 at CM/ECF p. 2.)

         Plaintiff moves to exclude (Filing No. 23) the opinion testimony of Defendant's expert, clinical psychologist Robert Arias, Ph.D., that “the term ‘Reptilian brain' is not age-related or age specific. Use of the ‘reptilian brain' or reliance on ‘reptilian brain' thinking is not a trait identifiable to any specific age group.” (Filing No. 25 at CM/ECF p. 2.)

         Dr. Arias's Testimony

         Dr. Arias bases his opinion on his “education, training and experience and Plaintiff's written complaint submitted to the Lincoln Electric System Ethics Hotline, ” as well as the “commonly understood usage of neuropsychological terms.” (Filing No. 25 at CM/ECF p. 2). In support of his opinion, Dr. Arias includes his curriculum vitae (“CV”) and a list of deposition and courtroom testimony he has given since 2011.

         Dr. Arias's CV indicates that he holds a B.A. in psychology, M.S. in Education, M.A. in clinical psychology, and Ph.D. in clinical psychology. He also completed a one-year clinical psychology/neuropsychology internship and a postdoctoral fellowship in neuropsychology. He now practices clinical psychology and neuropsychology “with additional emphasis on pain psychology, ” treating “patients ranging from children to geriatrics.” (Filing No. 25 at CM/ECF pp. 3-4.) Dr. Arias is an author of various articles about adult residual ADD, memory, and remote telepsychiatric evaluation and has given presentations on dementia, PTSD, TBI, conversion disorder, chronic pain, substance abuse and brain functioning, capacitance evaluation, Parkinson's disease, and multiple sclerosis. (Filing No. 25 at CM/ECF p. 6.)

         Plaintiff argues that Dr. Arias's opinion testimony should be excluded under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), because Arias has never met or examined Plaintiff; Arias's opinion is based on “his random personal opinion” instead of empirical evidence or studies; Arias is not a medical doctor and is not qualified to “describe parts of the brain and how they function”; “general psychology experience does not qualify a witness to define a meaning for ‘reptilian brain'”; “Dr. Arias provides two conclusory sentences without citations to any documents or evidence . . . regarding his alleged analysis”; and Arias's opinion would not be helpful to the jury. In short, Plaintiff argues that “Dr. Arias offers nothing more than an unsupported conclusion, based on no particular expertise or other specialized knowledge that would distinguish him from any other lay witness in this case.” (Filing No. 24, Pl.'s Br. Supp. Mot. to Exclude Expert Test.; Filing No. 32, Pl.'s Reply Br.)

         Defendant asserts that it will use “Dr. Arias' testimony explaining the meaning of a technical term used in his field” “to show that in the field (neuroscience) where the term ‘reptilian brain' is used most frequently that the term does not have a relation to a particular age group and that in fact, a reptilian brain is essentially an aspect of human brain anatomy.” (Filing No. 26, Br. Opp'n Pl.'s Mot. Exclude Expert Test. at CM/ECF pp. 2 & 4.)


         “The proponent of the expert testimony bears the burden to prove its admissibility.” Menz v. New Holland North America, Inc., 507 F.3d 1107, 1114 (8th Cir. 2007). Federal Rule of Evidence 702 governs the admissibility of expert testimony:

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 ...

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