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Elat v. Ngoubene

United States District Court, D. Maryland, Southern Division

January 21, 2014

CORINE ELAT, Plaintiff,
v.
CAROLINE RAISSA EMANDOP NGOUBENE, et al., Defendants

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For Corine Elat, Plaintiff: Daniel George Starck, Kimberly Ann Murphy, Stephen Michael Ng, PRO HAC VICE, Erik Thomas Koons, Martha S Thomsen, Baker Botts LLP, Washington, DC; Jonathan R Mureen, Russell William Fusco, Van H Beckwith, PRO HAC VICE, Baker Botts LLP, Dallas, TX.

For Caroline Raissa Emandop Ngoubene, Defendant: Hina Z Hussain, Joseph M Creed, Timothy Francis Maloney, Joseph Greenwald and Laake PA, Greenbelt, MD.

For Roxane Marie-Francoise Ngoubene, Dany Estelle Ngoubene, Defendants: Hina Z Hussain, Joseph M Creed, Joseph Greenwald and Laake PA, Greenbelt, MD.

OPINION

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MEMORANDUM OPINION

Paul W. Grimm, United States District Judge.

This Memorandum Opinion addresses the Motion for Summary Judgment and Memorandum in Support that Defendants Caroline Raï ssa Emandop Ngoubene, Roxane Marie-Franç oise Ngoubene, and Dany Estelle Ngoubene filed (" Summ. J. Mot." and " Mem." ), ECF No. 158; Plaintiff Corine Elat's Opposition (" Opp'n to Summ. J." ), ECF No. 155, which I construe to incorporate a Motion to Amend, as discussed in Part III below; and Defendants' Reply (" Summ. J. Reply" ), ECF No. 160. It also addresses Defendants' Motion in Limine to Exclude Plaintiff's Expert Witness

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(" Mot. in Limine" ), ECF No. 159; Plaintiff's Opposition (" Opp'n to Mot. in Limine" ), ECF No. 156; and Defendants' Reply (" Mot. in Limine Reply" ), ECF No. 161.[1] Having reviewed the filings, I find that a hearing is unnecessary. See Loc. R. 105.6. For the reasons stated below, Defendants' Motion in Limine is GRANTED IN PART and DENIED IN PART; Plaintiff's Motion to Amend is DENIED; and Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND[2]

In January 2006, while Plaintiff was in her early twenties and living in her homeland of Cameroon, Plaintiff's aunt and uncle, Marie-Thé rèse and Franç ois Ngoubene, invited her to the United States to live with them and their children, including three of their daughters, who are Defendants in this case.[3] Elat Dep. 20:10-20, 150:3 - 154:1, Feb. 8, 2013 (" Elat Dep." ), Pl.'s Opp'n to Summ. J. Ex. H.[4] Although Plaintiff's allegations are far broader than the evidentiary support she provides, the essence of her supported allegations regarding the beginning of her alleged servitude is that she met with her uncle, Franç ois Ngoubene, after her mother spoke with her aunt, Marie-Thé rèse Ngoubene, and he had her sign documents with the understanding that she might have the opportunity to live and work in the United States. Plaintiff alleges that she did not know that she signed a contract to work as a domestic servant for the Ngoubenes. Second Am. Compl. ¶ ¶ 16-18, ECF No. 44. In support, Plaintiff offers her own deposition testimony, which is unrebutted, as neither Marie-Thé rèse or Franç ois Ngoubene was deposed.

Plaintiff's testimony portrays a culture in Cameroon in which children are subservient to and do not question adult authority figures, even after reaching adulthood themselves. She testified that " the grown-ups" would talk amongst themselves to make decisions pertaining to their children. Elat Dep. 154:6 - 155:9. For example, Plaintiff met Bertin Minosa, who is now her husband, when she was about seventeen or eighteen years old, see id. at 128:1-3, and at some point thereafter, became pregnant with his child and moved in with him, id. at 136:14-137:2. After the baby was born, Plaintiff and Mr. Minosa continued their relationship, but Plaintiff moved back in with her mother " just because [their] parents suggest[ed] things and [they] agreed on it." Id. at 141:21 - 143:18. Additionally, before coming to the United States, Plaintiff had planned to

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work at whatever job " [her] mom would help [her] find." Id. at 147:21 - 148:1.

In her deposition testimony, Plaintiff described a day in which her mother told her to meet with her uncle, Franç ois Ngoubene, she went to her uncle's house in Cameroon, and they hurriedly went for a ride in his car. Elat Dep. 58:19 - 60:16; 150:3 - 152:6. During the ride, Mr. Ngoubene mentioned that he was not sure whether Plaintiff or an aunt of hers, Nicole, would be going to the United States with him. Id. at 152:16 - 154:1. They stopped at a " copy stand," but she did not " really know what he wanted to do at the copy stand" and did not " know what he told [the men at the stand] exactly" ; Plaintiff signed some " folded-up papers" that were written in English, a language she did not speak then; and they went to the Cameroonian Ministry of Foreign Affairs, where Plaintiff " was just standing there" and " didn't know why [she] was there." Id. at 152:5-15; 156:3 - 161:9. Throughout the visit, Plaintiff never asked what was happening. Id. at 151:13 - 161:9. Nor did she ask her uncle what the documents were that she signed, " because [she] trusted him." Id. at 168:15-18. Plaintiff testified that, a couple of days later, her aunt told her she would have a job, but she did not " ask anything about the job." Id. at 169:14 - 170:9.

Plaintiff attached to her Second Amended Complaint the document that she signed the day that she met with her uncle, Franç ois Ngoubene, in Cameroon. Contract, Second Am. Compl. Ex. A, ECF No. 44-1. The document, titled " Contract of Employment," is between Franç ois Ngoubene as " Employer" and Corine Elat as " Employee." Contract 1. The Contract states that Plaintiff " is hired to perform as a domestic worker" and " shall be remunerated on the basis of $9.38 an hour per 40 hours a week," with " no deduction for food and lodging." Id. art. 2 & 3. The Contract is dated January 16, 2006.[5] Id. at 2.

Plaintiff obtained an identification card to leave Cameroon. Elat Dep. 161:15-20. Although she was aware that her card listed her occupation as " housekeeper," she believed " there was confusion or mistake on that card." Id. at 163:15 - 165:19. She did not try to correct the identification card " because it was a struggle to get the card" in the first place. Id. at 166:2-5.

Plaintiff began living with the Ngoubenes in College Park, Maryland in April 2006. Pl.'s Opp'n to Summ. J. 3; Defs.' Mem. 14. She returned to Cameroon with the Ngoubene family in the summer of 2007 for two months, and then brought her daughter, J., with her when she returned to the Ngoubene home in the United States. Elat Dep. 37:14-17, 104:21 - 105:7; 107:9-21; 115:13 - 116:8. At the Ngoubene home, Plaintiff worked long days " doing household chores." Id. at 241:6 - 242:4. Specifically, she prepared breakfast and cooked meals for the family, id. at 208:13 - 211:18, 224:5-6, 225:9-10; washed dishes, id. at 213:17-19, 214:2-13; " did the guests' laundry," id. at 246:20; cleaned the house and shopped for groceries, id. at 241:6 - 242:4; washed cars, id. at 245:13-20; and braided Defendants' hair, Elat Dep. 497:17 - 499:4, May 10, 2013 (" Elat Dep. II" ), Pl.'s Opp'n to Summ. J. Ex. L. However, the remaining Defendants were not the ones who made her do housework, id. at 207:19 - 208:8, and although Plaintiff testified that she " was asked to" braid hair, Elat Dep. II 498:2-3, she did not identify who asked her.

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Plaintiff claims that her access to food while working for the Ngoubenes was limited, Elat Dep. 229:22 - 231:3, and that, despite the contract language stating that she was to be paid an hourly rate of $9.38, she received no payment, other than small monetary gifts and $2,500 in 2008, which Plaintiff did not know why she received, id. at 190:9 - 191:11, 196:1. Indeed, Defendants provided no evidence of payment to Plaintiff other than occasional gratuitous payments. See id. Marie-Thé rèse Ngoubene told Plaintiff not to leave the home unaccompanied, and although it was not the Ngoubene daughters' rule and they did not enforce it, they would " tell on" Plaintiff to their parents if she " didn't follow the rule." Id. at 271:3-21. Defendants told Plaintiff not to talk to strangers and told her that they, also, did not speak to strangers. Id. at 272:15 - 273:18, 380:5 - 382:11. Dany Ngoubene, in Plaintiff's opinion, " was really mean" to her by calling her a " bitch," telling her that she " didn't like kids in general," and " count[ing] the chocolate [wrappers] that [J.] had eaten," which made J. " sad." Id. at 257:1 - 258:1, 280:9 - 281:4. Plaintiff and her daughter had to live in an addition of the house that " didn't have [a] heating or cooling system" and, although Marie-Thé rèse Ngoubene bought a space heater, it " wasn't working properly," and Mrs. Ngoubene did not replace it. Id. at 425:16 - 432:5.

Once, in October 2006, Plaintiff told Marie-Thé rèse Ngoubene that she " wanted to leave," but that was " the only day" she asked to leave. Elat Dep. 101:6-17, 107:4-11, 110:22 - 111:1. Plaintiff testified that, after she " told Marie-Therese that [she] wanted to leave, . . . Caroline said, well, [you] can't leave the house because [you] don't have papers," and " Caroline used the term 'deported.'" Id. at 108:6-17, 109:1; see id. at 110:20 - 111:6 (same). Plaintiff acknowledged that the October 2006 conversation was the only time Caroline Ngoubene mentioned deportation, and that Roxane Ngoubene and Dany Ngoubene never mentioned deportation. Id. at 109:14-19.

In May 2008, Plaintiff left the Ngoubene household. Pl.'s Opp'n to Summ. J. 5; Defs.' Mem. 63-64. The day she left, her uncle, Mr. Ngoubene asked her for her passport and Roxane Ngoubene searched Plaintiff's bags for the passport. Elat Dep. 274:15-22. However, Plaintiff already had given her passport to her husband, who had moved to the United States, for safekeeping. Id. at 275:19 - 276:1.

One month later, Plaintiff's attorney mailed a letter to Mr. Ngoubene, stating that Plaintiff " worked as an employee at [Mr. Ngoubene's] home for two years" without " receiv[ing] compensation," and asking Mr. Ngoubene to have his attorney contact Plaintiff's attorney. June 3, 2008 Ltr., Pl.'s Opp'n to Summ. J. Ex. O. After that, events began to happen that, in Plaintiff's view, were attempts by the Ngoubenes to dissuade her from filing her lawsuit. Pl.'s Opp'n to Summ. J. 6. In October 2010, Plaintiff's mother " started calling [her] regularly, which she didn't do before," insisting that Plaintiff " ha[d] to leave the state." Elat Dep. 320:9-12. Plaintiff testified that she learned through her mother that her aunt, Marie-Thé rèse Ngoubene, was calling Plaintiff's mother regularly and threatening that the " embassy police" were " looking after [ sic ]" Plaintiff " [t]o deport her." Id. at 321:13 - 324:1.

Also, when Plaintiff, her husband, and a lawyer who was friends with Plaintiff's husband went to the Cameroonian embassy and the lawyer told the ambassador that Plaintiff was " a victim of slavery or forced labor," the ambassador " got very angry . . . at everybody in the room." Id. at 297:12 - 299:18. Plaintiff claims that Defendants'

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uncle, Guy Patrick Ewounkem, physically assaulted Plaintiff and her husband. Pl.'s Opp'n to Summ. J. 5-6. Another of Defendants' uncles, Lucien Epah, after learning that Plaintiff planned to sue the Ngoubenes, " almost scream[ed]" at Plaintiff in a manner that she found threatening and told her that she had " to apologize to Mrs. Ngoubene." Elat Dep. 89:7 - 91:9. However, Plaintiff acknowledged that she had no evidence that either uncle acted on behalf of the Ngoubenes; she simply " believe[d] so . . . [b]ecause they were still in contact with the Ngoubenes." Id. at 91:17 - 92:19. Additionally, Plaintiff " had [her] car vandalized" and " someone tried to break in[to] [her] apartment," and in her view, " this always happened, every time [she] took a step forward with this procedure [her claim for unpaid wages]." Id. at 308:12-21. Once again, Plaintiff identified no direct evidence linking these events to her uncles, the Ngoubenes, or Defendants in particular. Id. at 310:5-311:14. Plaintiff claims that, because of these actions, she did not have the " courage to file her claims" until October 2011. Pl.'s Opp'n to Summ. J. 6.

After leaving the Ngoubene household, Plaintiff applied for and received, on January 20, 2010, a T visa.[6] Notice of Action, Pl.'s Opp'n to Summ. J. Ex. B. Once Plaintiff secured the visa, she " believe[d] [she had] protection" from being deported. Elat Dep. 320:9 -321:12, 323:5 - 325:9; Elat Dep. II 475:1-9.

On October 13, 2011, Plaintiff filed an eighteen-count Complaint against her uncle, Franç ois Ngoubene, her aunt, Marie Thé rèse Ngoubene, and her cousins, Caroline Ngoubene, Roxane Nbougene, and Dany Ngoubene, as well as their brother, Collins Rene Ngoussomo, alleging, inter alia, violations of the Federal Trafficking Victims Protection Reauthorization Act 18 U.S.C. § § 1589, 1595 (" TVPRA" ), and Maryland common law. Compl., ECF No. 1. Subsequently, Defendants filed a Motion to Dismiss, ECF No. 24, asserting diplomatic immunity, which the Court granted as to Defendants Franç ois Ngoubene, Marie-Thé rèse Ngoubene, and Collins Ngoussomo, ECF No. 43, permitting Plaintiff the opportunity to file a second amended complaint against those defendants not entitled to diplomatic immunity, Caroline, Roxane, and Dany Ngoubene.

On June 4, 2012, Plaintiff filed a second amended complaint against Defendants Caroline, Roxane, and Dany Ngoubene, asserting five claims: violations of the TVPRA (Count I), false imprisonment and conspiracy to commit false imprisonment (Count II), quantum meruit (Count III), unjust enrichment (Count IV), and replevin (Count V). Plaintiff contends that Defendants are equitably estopped from raising an affirmative defense of statute of limitations with respect to her state claims, because Defendants purportedly used physical violence and threats of physical violence against Plaintiff and her family to dissuade her from filing suit. Second Am. Compl. ¶ 93.

Plaintiff asserts that " every professional who has reviewed her case has agreed that Ms. Elat is a victim of human trafficking, including the counselors and psychologists who examined and assisted Ms. Elat after her escape from the Ngoubene family, and the U.S. Department of Homeland Security, that awarded Ms. Elat a special visa for victims of human trafficking." Pl.'s Opp'n to Summ. J. 2. The two individuals who purportedly " examined and assisted" Ms. Elat were psychotherapist Kathleen Toellner, Psy.D. and human trafficking expert

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Florence Burke. See K. Toellner Ltr., Pl.'s Opp'n to Summ. J. Ex. A; Burke Report, Pl.'s Opp'n to Summ. J. Ex. C. This evidence is discussed in Part II, below.

II. EVIDENCE CONSIDERED ON SUMMARY JUDGMENT

In reviewing a motion for summary judgment, I consider " particular parts of materials in the record" to which the parties have cited, unless a party " object[s] that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence," in which case I consider the merits of the objection and only consider such facts if I conclude that they are supported by facts that could be " presented in a form that would be admissible in evidence" and overrule the objection. Fed.R.Civ.P. 56(c)(1)(A), (2). Here, Defendants have objected to the admissibility of Ms. Burke's testimony, with regard to which they filed a Motion in Limine; the T visa; and Ms. Toellner's letter. See Defs.' Summ. J. Reply 4-5.

A. Motion in Limine as to Ms. Burke's Testimony

Plaintiff designated Florence Burke as an expert witness. Pl.'s Opp'n to Summ. J. 2 n.3. Ms. Burke has a master's degree in clinical psychology and began but never completed a Ph.D. program in clinical psychology. Burke Curriculum Vitae, Pl.'s Opp'n to Mot. in Limine Ex. C, ECF No. 156-3. She has worked with and interviewed approximately 300 human trafficking victims over the course of fifteen years and provided training and lectures on human trafficking to a wide range of audiences. Burke Report 7-9, Defs.' Mot. in Limine Ex. 2, ECF No. 159-2.

In her Expert Report, Ms. Burke expressed the opinion that " Ms. Elat was a victim of human trafficking" who " was brought to the United States under false pretenses and compelled to perform domestic services against her will," while " [c]oercion and threats were used to maintain control over [her]." Burke Report 1. Ms. Burke expressed the opinion that " the defendants collaborated with their parents to prevent Ms. Elat from forming outside relationships," although she did not identify any facts to support this opinion. Id. at 4. In Ms. Burke's opinion, " the climate of fear established by the Ngoubene family was effective in keeping Ms. Elat in their household," and " the Ngoubene family engaged in . . . manipulation" typical of traffickers " to keep the worker from escaping or asking to leave." Id. at 5. Additionally, Ms. Burke opined that " Ms. Elat suffered and continues to suffer ongoing emotional distress from the isolation, loss of certain freedoms, lack of social and familial support and control over her life and work." Id. at 1.

Ms. Burke stated that she will testify generally about " the effect of this type of social isolation on a young woman" ; " the patterns of coercion and threats that are typically present in situations involving the exploitation of foreign workers" ; " the effects that lack of familiarity with United States laws, customs, and norms, little or no access to information or support outside the employer's family, and physical isolation have on the behavior of migrant workers" ; and " how it is common for traffickers to exert control and foster dependency in a variety of ways that are both subtle and overt." Id. at 4-5. She also stated that she will testify about the effects that Plaintiff's living and working conditions had on her specifically and " how the allegations of Ms. Elat fit within similar profiles of worker exploitation and human trafficking cases." Id.

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Defendants challenge Ms. Burke's conclusion that Plaintiff was a victim of human trafficking and seek " to preclude Plaintiff's expert witness, Florence R. Burke, from testifying at trial." Defs.' Mot. in Limine 1; see Defs.' Summ. J. Reply 4 & n.15. Defendants particularly ask the Court to exclude Ms. Burke's testimony that " Plaintiff was the victim of human trafficking as defined by 18 U.S.C. § 1589(a)" and her " opinions regarding mental and emotional harm that [Plaintiff] allegedly suffered as a result of being the victim of human trafficking." Defs.' Mot. in Limine 1. Yet, in their Reply, Defendants broaden their objection to Ms. Burke's testimony, arguing that it " should be excluded in its entirety." Defs.' Reply to Mot. in Limine 9. In their view, Ms. Burke's " individual opinions are directly related to Ms. Burke's general opinion that Plaintiff 'was a victim of human trafficking'" and that " Plaintiff has suffered emotional distress and [that her victimization was] the cause of the alleged emotional distress." Id. at 10.

Defendants challenge the admissibility of Ms. Burke's opinion that Plaintiff was a victim of human trafficking on the bases that it is a legal conclusion and an improper credibility determination, and that it is based on insufficient facts. Defs.' Mot. in Limine 3-10. They challenge the admissibility of her opinion that Plaintiff suffered emotional distress on the grounds that Ms. Burke lacked specialized knowledge; her opinion would not be helpful to the jury; and her opinion is inadmissible as lay testimony. Id. at 10-13.

1. 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Additionally, " [a]n opinion is not objectionable just because it embraces an ultimate opinion." Fed.R.Evid. 704(a).

2. Opinion about Plaintiff as a victim of human trafficking

a. Basis of opinion

Defendants argue that " Ms. Burke's opinion lacks a sufficient factual basis" for her to testify about whether Plaintiff was a victim of human trafficking because Ms. Burke " made no attempt to verify any of Plaintiff's allegations or to even consider any contradictory evidence." Defs.' Mot. in Limine 9. Defendants contend that Ms. Burke based her conclusions " primarily on [a December 2012] interview" she conducted of Plaintiff, without " investigat[ing] the accuracy of any of the statements Plaintiff made to her during their interview," such as by " question[ing] any other individuals involved in the case." Id. at 2. They maintain that " Ms. Burke's understanding of the 'facts[]'. . . is based almost entirely on . . . her complete acceptance of every factual allegation made by Plaintiff, and her rejection of every factual allegation made by the Defendants." Id. at 6. Acknowledging that Ms. Burke reviewed Caroline Ngoubene's deposition transcript, they argue that Ms. Burke " simply discounted it." Id. at 9.

According to Defendants, Ms. Burke testified that she " relied" only on Plaintiff's complaint " for factual information in

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formulating her opinions." Defs.' Reply 4. Indeed, Ms. Burke testified that, while she " review[ed]" relevant documents beyond the Complaint, the factual information she reviewed that " supports or is a basis for [her] opinion that [Plaintiff] is a victim of human trafficking in terms of the facts of what happened in this case" was limited to Plaintiff's interview and her Complaint. Burke Dep. 203:19 - 207:18. Defendants insist that 'there is a critical distinction between [Ms. Burke] having reviewed certain materials and her having relied on those materials in reaching her opinions." Id.

Plaintiff insists that Ms. Burke

thorough[ly] review[ed] . . . materials, including: court filings from Ms. Elat and from Defendants; the records from Break the Chain Campaign, which provided services to Ms. Elat after her escape from the Ngoubenes; the records of Dr. Kathleen Toellner, who provided counseling to Ms. Elat after her escape from the Ngoubenes; over one hundred e-mails; dozens of photographs provided by Defendants; the depositions of Ms. Elat and of Defendant Caroline Ngoubene; and a five and one-half hour in person interview with Ms. Elat.

Pl.'s Opp'n to Mot. in Limine 3. She contends that Ms. Burke " reliably applied" her review of the facts " through the lens of fifteen years' experience with human trafficking and thirty years' experience with psychological counseling." Id. at 4. In Plaintiff's view, " the quality of material reviewed may be fodder for cross-examination but is not a reason for excluding the expert's testimony." Id. at 5-6. Plaintiff also contends that " [r]eliable application merely requires that the witness articulate why her specialized knowledge, training, or experience leads to the conclusion reached." Id. at 6. She asserts that Ms. Burke formed her conclusions by " eliciting information based on decades of work with trauma and human trafficking victims" and " comparing that information to her wealth of experience in the field." Id.

Ms. Burke stated in her Expert Report that she considered Plaintiff's Second Amended Complaint, the filings regarding Defendants' Motion to Dismiss, Defendants' responses to Plaintiff's interrogatories and document production requests, her interview of Plaintiff, more than 200 pages of documents produced in discovery, and various publications about human trafficking to reach the opinions she gave in her Expert Report. Burke Report 10-11. Additionally, in her First Supplement to Expert Report, she stated that she reviewed more than 100 documents and the deposition transcripts of Plaintiff and Caroline Ngoubene. Burke Report Supp. 1, Pl.'s Opp'n to Mot. in Limine Ex. E, ECF No. 156-5; see also Burke Dep. 298:1-17 (testifying that she " considered" Caroline Ngoubene's deposition testimony). Ms. Burke concluded that " these documents are consistent with and support the findings stated in [her] Expert Report." Burke Report Supp. 1. In sum, it appears that there are few, if any, documents in this case that Ms. Burke has not considered. Accordingly, Ms. Burke's testimony is " based on sufficient facts or data." Fed.R.Evid. 702(b).

b. Legal conclusions

According to Defendants, " Ms. Burke's opinion that Plaintiff was the victim of 'human trafficking' . . . . is purely a legal conclusion" because it " amounts to nothing more than her own assessment of the evidence and determination that it fits the elements of the statute at issue." Defs.' Mot in Limine 5. In their view, although an opinion on an " 'ultimate issue'" may be admissible, Ms. Burke's opinion is not admissible because it will not " 'help the trier of fact to understand the evidence or to determine a fact in issue.'"

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Id. at 3 (quoting Fed. R. Evid 704(a); Fed.R.Evid. 702(a)). They insist that " Ms. Burke's definition of 'human trafficking' tracks the elements of [18 U.S.C. § 1589(a)]." Id. at 5.

Noting that " '[a]n opinion is not objectionable just because it embraces an ultimate issue,'" Plaintiff counters that Ms. Burke's expert testimony uses a term, human trafficking, that " has the same meaning in the law as in the vernacular," and therefore is helpful to the jury. Pl.'s Opp'n to Mot. in Limine 8 (quoting Fed.R.Evid. 704(a)). On this basis, she contends that Ms. Burke's testimony is not " an improper legal conclusion" and is admissible because her " expert testimony on the phenomena [of human trafficking] will only assist the jury to understand it." Id. at 7-8.

As a starting point, " [t]estimony that 'states a legal standard or draws a legal conclusion[]' . . . is inadmissible." In re Titanium Dioxide Antitrust Litig., No. RDB-10-318, 2013 WL 1855980, at *3 (D. Md. May 1, 2013) (quoting United States v. McIver, 470 F.3d 550, 561-62 (4th Cir. 2006)). Put another way, " 'opinions which would merely tell the jury what result to reach' are inadmissible." [WL] at *4 (quoting Fed.R.Evid. 704 advisory committee's note); see Offill, 666 F.3d at 175 (such testimony " does not help the jury . . . because it 'supplies the jury with no information other than the witness's view of how the verdict should read'" (quoting Weinstein's Federal Evidence § 704.04[2][a] (2d ed. 2003))); United States v. Chapman, 209 F.Appx. 253, 269 (4th Cir. 2006) (" 'Generally, the use of expert testimony is not permitted if it will usurp either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it. When an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert's judgment for the jury's.'" (quoting United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (citations and internal quotation marks omitted))).

Nonetheless, " [a]n opinion is not objectionable just because it embraces an ultimate issue." Fed.R.Evid. 704(a). Thus, an expert witness's opinion testimony may concern " 'questions of fact that are committed to resolution by the jury.'" In re Titanium Dioxide Antitrust Litig., No. RDB-10-318, 2013 WL 1855980, at *3 (D. Md. May 1, 2013) (quoting United States v. McIver, 470 F.3d 550, 561 (4th Cir. 2006)). As a result, " [t]he line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern." McIver, 470 F.3d at 562. The Fourth Circuit explained:

We identify improper legal conclusions by determining whether " the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular." For example, courts have held inadmissible testimony that a defendant's actions constituted " extortion," that a dog bite constituted " deadly force," that defendants held a " fiduciary" relationship to plaintiffs, and that a product was " unreasonably dangerous."

Id. (citations omitted); see In re Titanium Dioxide Antitrust Litig., 2013 WL 1855980, at *3 (quoting McIver ). Testimony that " involves the use of terms with considerable legal baggage . . . nearly always invades the province of the jury." United States v. Perkins, 470 F.3d 150, 158 (4th Cir. 2006). When a witness provides legal conclusions in response to counsel's questioning, the court also considers whether the question itself " calls for an improper legal conclusion," by " consider[ing]

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first whether the question tracks the language of the legal principle at issue or of the applicable statute, and second, whether any terms employed have specialized legal meaning." United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002). Central to the inquiry of whether an expert witness's opinion testimony on the ultimate issue is admissible is whether it will be helpful to the jury. Perkins, 470 F.3d at 157 (" The touchstone of admissibility of testimony that goes to the ultimate issue . . . is helpfulness to the jury." ); see United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011) (" The touchstone of the rule is whether the testimony will assist the jury." ); Fed.R.Evid. 702(a).

Here, nothing in the submissions filed by Plaintiff or the Defendants, nor my own research, suggests that " human trafficking" has a meaning other than its colloquial meaning, and therefore Ms. Burke's testimony is not necessarily an " improper legal conclusion." See McIver, 470 F.3d at 562. Yet, Defendants also argue that Ms. Burke's opinion is not admissible under Rule 702, even if it is otherwise admissible under Rule 704 as an opinion on the ultimate issue, because it is " an improper determination of credibility." Defs.' Mot. in Limine 6. Defendants contend that Ms. Burke testified that " she is able to make credibility assessments" and " she was able to determine that Plaintiff's allegations are truthful." Id.

Plaintiff counters that " Ms. Burke's opinion is not an impermissible comment on credibility because it does more than simply attack or bolster credibility." Pl.'s Opp'n to Mot. in Limine 9. In Plaintiff's view, Mr. Burke's " testimony is offered to assist the jury in understanding how Ms. Elat's case is consistent with the patterns of trafficking she has studied and observed over the last fifteen years." Id.

United States v. Allen, 716 F.3d 98 (4th Cir. 2013), although factually inapposite, is informative nonetheless. There, the defendant " moved to call a criminal defense expert to help explain the potential significance of all of the indicted codefendants reaching plea agreements with the government," and the district court denied his motion in limine. Id. at 101. Reasoning that the defendant " wanted to introduce expert testimony solely for the purpose of undermining the credibility of the codefendant witnesses," the Fourth Circuit affirmed. Id. at 105-06. The appellate court stated: " This is not the function of an expert," as " 'expert opinions that constitute evaluations of witness credibility, even when such evaluations are rooted in scientific or technical expertise, are inadmissible under Rule 702.'" Id. (quoting Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005)). Additionally, the Fourth Circuit said that the subject matter of the proffered testimony was " not an issue of fact that would be better explained by an expert." Id.

Here, Ms. Burke testified that she is " a good interviewer" who " know[s] by and large when a story holds together, and when it does not," and that she " use[s] every bit of knowledge and experience [she has] in trying to get at the essence of what someone is telling [her] and the truthfulness of it or not." Burke Dep. 100:3-10. She said that she was " able to determine if [Plaintiff was] telling [her] the truth about what she says happened to her" based on her " knowledge of the issue, the way [she] ask[s] questions, [and] the way [she] elicit[s] information." Id. at 337:8-16. Ms. Burke admitted that she " believed what Ms. Elat told [her] about th[e] events, and [she] did not believe what . . . Caroline had said about those events." Id. at ...


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