IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
SHORN T JOSEPH )
) CASENO ST 11 CV 419
Plaintiff )
v ) ACTION FOR DAMAGES
)
LEGISLATURE OF THE VIRGIN ISLANDS and )
the HONORABLE DONNA FRETT GREGORY )
in her official capacity as President of the 34‘h ) JURY TRIAL DEMANDED
Legislature of the Virgin Islands, )
) Cite as 2022 V I Super 83U
Defendants )
)
Shari N D’Adrade, Esq Kye Walker, Esq
Christopher Kroblin, Esq The Walker Legal Group
Kellerhals Ferguson Kroblin PLLC 220] Church Street Ste 16AB
9053 Estate Thomas Suite #101 Christiansted
St Thomas V1 00802 St Croix V1 00820
Attorneys for Plamtsz Attorneysfor Defendants
CARTY RENEE GUMBS JUDGE
MEMORANDUM OPINION
1|] THIS MATTER is before the Court upon Defendants Legislature of the Virgin Islands
and the Honorable Donna Frett Gregory 3' (“Defendant Legislature”) Daubert Motion m Lzmme
to exclude the expert testimony of Dr Gary Albrecht, an economist, pursuant to Virgin Islands
‘ At the commencement of this action, Plaintiff Shom Joseph originally named the Legislature of the Virgin
Islands and Ronald E Russell, as President of the 29th Legislature subsequently Shawn Michael Malone as President
of the 30th Legislature Neville A James as President of the 31stLegislature, Myron D Jackson as President of the
32nd Legislature and Novelle E Francis as President of the 33rd Legislature Neither Ronald E Russell Shawn
Michael Malone, nor Neville A James is still in office and the Honorable Novelle E Francis no longer serves as the
President Therefore, in accordance with V I R Civ P 25(d), this Court has automatically inserted the name of the
Honorable Donna Frett Gregory as the current successor of the presidency of the Virgin Islands Legislature
Joseph v Legislature ofthe Vtrgm Islands Cite as 2022 V I Super 83U
CaseNo ST 11 CV 419
Memorandum Opinion
Rule of Evidence 702 Defendants motion was filed on June 7, 2022, mmc pro tune to May 25,
2022 Plaintiff Shorn Joseph (‘ Plaintiff" or “Joseph ’) filed his opposition on June 27, 2022 The
Court held a Daubert hearing (the Hearing’) on July 13, 2022 For the reasons set forth herein,
the motion to exclude the testimony and expert report of Dr Albrecht will be denied
I Factual Background
1l2 Shorn Joseph was employed by the Virgin Islands Legislature as Assistant Legal Counsel
in the Office of Legal Counsel from July 2007 until February 9 2011 While working at the
Legislature, Joseph also served as First Lieutenant and Judge Advocate General in the United
States Army Reserve (“Anny Reserve”) and a member of the National Guard of the Virgin Islands
011 September 29, 2010, Joseph provided his supervisors, then Senate President Louis Patrick Hill
and Attorney Yvonne Tharpes, with written notice that he was being ordered to active military
service for training Joseph was ordered to attend training from October 23, 2010, to February 3,
2011, however, on January 19, 2011, he was informed by the Army Reserve that he was ordered
to continue training until March 22, 201 1 He notified the Defendants of this extension on J anuary
31, 2011 He received no reSponse On February 7, 2011, Joseph contacted the office of then
Senate President Ronald E Russell and was informed, by an office assistant, that he was being
terminated, effective two days later on Wednesday, February 9, 2011
II Procedural History
1[3 On September 14, 201 1, Joseph filed a six count Amended Complaint seeking relief in the
form of reinstatement, back pay, and liquidated damages He filed suit under the Uniformed
Services Employment and Reemployment Rights Act of 1994 ( USERRA ) codified at 38 U S C
§ 4311 et seq Title 23 Section 1531(a) of the Virgin Islands Code for employment
discrimination, breach of his employment contract, and other causes of action To support his
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Case No ST 11 CV 419
Memorandum Opinion
claims, Joseph retained an economic expert, Dr Gary Albrecht The Legislature did not contest
Dr Albrecht’s expert qualifications but they contested the methodology and reliability of the
expert’s report on the contention that he relied on insufficient reliable data and unverified data
deriving solely from the Plaintiff Defendants also contested the applicability of his report and
testimony to the facts of this case
1|4 In the Legislature’s motion to exclude Dr Albrecht’s opinions, they argued that Dr
Albrecht’s opinions cannot be presented to the jury since they rely on an insufficient factual record
and on statements by Plaintiff without any proper factual foundation Specifically, Defendants
challenge Dr Albrecht’s opinions as to (l ) the Plaintiff’s economic loss in back pay, and (2 ) the
Plaintiff’s future loss of earning capacity
‘gS Dr Gary Albrecht is an economist with over two decades of experience and specializes in
economic forecasting and applied econometrics He has written numerous peer reviewed
publications in legal and forensic economics journals and worked as an economics professor at
Wake Forest University for over a decade Dr Albrecht has also served as Vice President and a
member of the Board of Directors of the National Association of Forensic Economists and has
testified as an expert in employment termination cases before
16 They argued Dr Albrecht s methodology and opinions are wholly unreliable as he failed
to include a substantial amount of data regarding Plaintiff’s new business ventures and income
since the termination All of Dr Albrecht’s economic projections were conducted without income
deriving from Ideal Development, LLC, and not on foundational documentary evidence, but
instead on a non objective and unreliable single source Attorney Joseph
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Memorandum Opinion
111 Legal Standard
‘17 Virgin Islands Rule of Evidence (V I R E) 702 governs the admissibility of expert
testimony in Virgin Islands courts Rule 702 provides
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
V I R E 702
18 The Virgin Islands has relied on the analytical framework established in the United States
Supreme Court’s decision in Daubert v Merrell Dow Pharmaceutzcals Inc , 509 US 579 (1993),
for determining whether expert testimony is admissible under Rule 702 Daubert has developed a
trichotomous test See Antzlles v Lembach 2016 W L 948969 (Mar 14 2016) Three
requirements must be met 1 ) the expert must be qualified, 2 ) the expert’s opinion must derive
from a reliable process or technique, and 3 ) the testimony must assist the trier of fact, i e , it must
be applicable to the facts of the case Succinctly put, all three (3) factors qualification, reliability,
and fit must be present [d
{9 “Qualification” refers to the requirement that the witness possess specialized expertise
Expert testimony must be rooted in the expert’s scientific, technical, or other specialized
knowledge that will help the trier of fact understand the evidence or to determine a fact in issue
The qualification requirement has been applied liberally by trial courts, as most allow a “broad
range of knowledge training and skills to qualify as an expert Again, Defendants did not contest
Dr Albrecht’s qualifications and conceded that he is knowledgeable and qualified in economics
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Joseph v Legzslature ofthe Virgin Islands Cite as 2022 V I Super 83U
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Memorandum Opini0n
1[10 The second factor, reliability, is the principal factor in this Daubert challenge In
determining whether expert testimony is reliable the Court may consider several non exhaustive
factors including (1 ) whether the theory or technique can be tested, (2 ) whether the methodology
is subject to peer review and publication, (3 ) whether, and how frequent, the methodology leads
to erroneous results, (4 ) the known or potential rate of error, (5 ) whether the theory or technique
has been generally accepted in the relevant scientific field; (6) whether, and how strong, a
relationship the technique has to methods which have been established as reliable (7 ) whether the
expert witness is qualified to testify based on the methodology, and (8 ) whether, and how ofien,
the method has been put to non judicial use See Gm tofthe V I v Jackson, 47 V I 123, 126 (V I
Super Ct 2005) The testimony must be based on the methods and procedures of science rather
than on subjective belief or unsupported speculation Samuel v Umted Corp , 64 V I 512, 526
(2016) The reliability inquiry must remain flexible, however, “not every Daubert factor will be
applicable in every situation, and a court has discretion to consider other factors it deems relevant
Kumho TIre Co v Carmichael, 526 U S 137 147 59 (1999) It is within the court’s discretion to
choose among reasonable means of excluding expertise that is fausse and science that is junky Id
at 158 159 (Scalia, J concurring) However, the court cannot ‘ usurp[] the role of the jury by
substituting its own determination of weight and credibility for that of the Jury ” Brathwazte v
Xavzer 71 VI 1089 1099 (VI 2019) Here Defendants are asking this Court to run afoul of
Brathwatte
1111 Fit, the third factor, requires the expert’s testimony must be relevant for the purposes of
the case and must assist the trier of fact In re TM] thlg 193 F 3d 613 670 (3d Cir 1999)
Admissibility depends on the connection between the expert’s opinion and the disputed factual
issues of the case Id at 665 Fit is not always obvious, and scientific validity for one purpose is
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not necessarily validity for other unrelated purposes Id at 621 The party attempting to introduce
the expert’s testimony bears the burden of demonstrating the reliability of the expert’s technique
by “more than a primafacze showing ’ In re Paolz R R Yard PCB thzg , 35 F 3d 717, 743 (3d
Cir 1994) Testimony which fails to “relate to any issue in the case is not relevant and non
helpful Arizzdson v Buchar 72 V I 50 82 (V I Super Ct 2019)
1| 12 Conversely, when a trial court’s inquiry into whether an expert’s methodology is
sufficiently tied to the facts of a case, concerns relating to the persuasiveness of the evidentiary
“sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the [trier of fact 3] consideration ’ Id Here, Defendants also
challenged the expert’s fit
IV Legal Discussion
1 Whether Dr Gary Albrecht Should be Permitted to Testify
113 The crux ofthe Legislature’s challenge has to do with the notable lack of additional income
Plaintiff received from businesses that Plaintiff started afier his termination and also from other
sources, including contracts to provide legal services to senators According to Defendants, the
data used to apply the methodology to determine Joseph 5 economic loss, both front and back pay,
is unreliable Defendants moved to exclude Dr Albrecht’s testimony on the ground that Plaintiff’s
attempts to mitigate his damages were not considered in the report They argue (1 ) Dr Albrecht
relied heavily on self serving unswom statements from Joseph, which were contradicted by
Joseph s deposition testimony, (2 ) Dr Albrecht failed to consider Joseph s deposition testimony,
(3 ) he failed to consider the Economic Stability Act of 2011, which reduced salaries by 8% for
employees of the Legislature from 2011 2013, (4 ) he failed to include additional income from the
military received during termination apart from Joseph’s regular part time military income, (5 ) he
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failed to include income from Ideal Development, LLC and LTS Enterprises, LLC (6 ) Dr
Albrecht incorrectly based his conclusions on assumptions regarding purported pay increases, and
(7 ) he incorrectly used the median salary of a government employee rather than that of an attorney
To support their contentions, Defendants provided a plethora of documents detailing the different
factors Dr Albrecht did not include in his expert report, including the deposition transcript of
Joseph and different judicial filings regarding business ventures Joseph owns
T 14 Joseph is self employed and fonned two limited liability companies, Ideal Development,
LLC and LTS Enterprises LLC after his termination from the Legislature He formed Ideal
Development LLC in January 2013 and LTS Enterprises LLC in September 2015 Dr Albrecht
testified he was aware of a business venture of Joseph's but was not familiar with the name of the
company Testimony of Dr Albrecht (7/013/2022 Daubert Hearing via Zoom) He fithher stated
he did not have the financial information from one of the companies but was aware of a significant
financial loss of $5 1 , l 61 from a company Plaintiff started, nevertheless, Joseph s income from the
company was not considered when developing his report
1'15 Additionally, the Legislature posits that much of the data that was used to calculate the
back and front wages is unreliable because it is based on Plaintiff’s opinion and includes incorrect
information, including the wrong salary information in the calculations Dr Albrecht admitted he
was unaware of the effects the Economic Stability Act would have on Joseph’s wages for the years
2011 2013 had Joseph continued employment with the Legislature during this period He testified
he recently became aware of the pay back to the govemment employees, and considering Plaintiff
was terminated in the first quarter of 2011 Dr Albrecht did not consider the Economic Stability
Act as part of Plaintiff‘s duty to mitigate his damages Further, Dr Albrecht was unaware as to
whether and how much Plaintiff would have been paid by the V I Government had he continued
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Case No ST 11 CV 419
Memorandum Opinion
employment The issue is whether the economist’s opinion would have changed, and to what
extent, if he had the opportunity to review and analyze the missing financial records and considered
applicability of the Economic Stability Act The following analysis of Dr Albrecht’s methodology
shows that the testimony should be permitted
ii Methodology Used
1H6 To show his method, Dr Albrecht provided eight (8) Tables analyzing different scenarios
of Joseph’s employment, which take into consideration inflation and retirement benefits with
regard to the present and future values of Joseph's wages He used objective data from the work
expectancy charts generated by the Virgin Islands Department of Labor to detennine Joseph’s
likelihood of obtaining employment in the legal field post termination from the Legislature,
including the 2018 Virgin Islands Occupational Employment and Wage Rates (‘ OES’) for
Multiple Occupations chart He also projected Joseph’s retirement from the Virgin Islands
Government would be at 61 years old, which is the time at which Joseph would have worked for
30 years with the Legislature He further factored in objective data from the Government
Employees Retirement System Dr Albrecht also testified he used April 1, 2020, as a subjective
marker representing the date of his report This date chosen by Dr Albrecht does not alter the
overall methodology he used but does impact the calculations Irrespective of this subjective date,
the methodology of his calculations is reliable
1H7 When determining the amount Joseph would have received in wages, Dr Albrecht first
calculated Plaintiff's salary as if he had continued employment with the Legislature between
February 11 2011 to April 1 2020 (backpay) For his calculations he used Joseph s 2010 W 2
form to determine his wages were $86,000 Using the Consumer Price Index, he then factored in
what Joseph’s wages would have been if he had continued employment with the Legislature and
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concluded the wages in 2020 to be about $97,722 Table l of the report provides what Joseph
would have received in wages if he remained employed at the Legislature until April 1, 2020, and
also considers what Joseph would have received in retirement benefits and health insurance
benefits during that period Table 2 uses the same wages reported in Table l, but only shows the
present value of eamings2 to April 1, 2020, without factoring in the other benefits Therefore, as
reflected in Table 2, Joseph would have earned approximately $807,948 during that nine year
period between 201 1 and 2020 Dr Albrecht also factored in an interest rate for inflation depending
on the Consumer Price Index (“CPI ) for the given year Dr Albrecht then deducted Plaintiff‘s
actual earnings of$ 13 1,912 and subtracted it from $807 948 which resulted in a total of $676 036
However, Dr Albrecht admitted during the hearing that he did not include $71,610 40, which
represents Plaintiff’s 2018 income, and $45,932 14 which represents Plaintiff‘s 2019 income
Joseph provided no income information for 2020 Had Dr Albrecht factored in Joseph’s
unreported earnings totaling $117 542 54 the calculated backpay would be $558 493 46 Despite
the calculations being inaccurate, Dr Albrecht’s methodology of using tables for economic
forecasting and the CPI is sound and reliable
T18 Then, Dr Albrecht calculated the present value of earnings between April 1, 2020, and
December 31, 2055, the approximate date of Plaintiff’s death This represents front pay In Table
1, Dr Albrecht determined the total earnings Joseph would have expected to earn if he had
continued employment with the Legislature until retirement He used $97,722 as the wage for years
2021 through 2038 Joseph s retirement year For years 2039 through 2055 Dr Albrecht
subtracted $10,749 from the $97,222 to account for what Joseph would not be paying in retirement
The present value ofearnings is ‘ the value today of an amount ofmoney that you expect to receive in the future
considering the fact that a future payment is worth less than one received now See The Cambridge Business English
Dictionary hugs dictionary camblgidge org dictionary english/present_vgll1§
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Joseph v Legislature ofthe Virgin Islands Cite as 2022 V I Super 83U
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benefits Then, he added $6,138 each year for health insurance benefits Thus, Joseph’s front pay
had he continued employment would have been $2,951,018 This amount is the front pay loss if
Joseph was unable to obtain employment and includes a 3% interest rate for inflation Dr Albrecht
explained that the end result would be the same whether inflation was included or not
109 He further explained that to accurately determine Joseph’s front pay wages he considered
what Joseph would have received in wages had he obtained other employment in the Virgin Islands
not working as an attorney To determine this, he relied on the OBS chart provided by the Virgin
Islands Department of Labor to determine the median salary of those employed in the Virgin
Islands was $42 870 In Table 5 of Dr Albrecht 3 report he applied the $42,870 average salary to
calculate the present value of earnings ifJoseph did not continue employment with the government
from April 1 2020 to December 31 2055 for a total of $929 253 He then subtracted that amount
from what he would have earned if he continued employment with the government calculated in
Table 3 ($2 951 018) for a total of $2 021 765 Again as Dr Albrecht testified the methodology
used here is ubiquitous in the economics industry
1120 Dr Albrecht finally added the two totals the backpay ($676 036) and front pay
($2,021,765), together to find the present value of the total difference in earnings from February
1 l, 2011, to December 31, 2055, to be $2,697,801 Had he considered the unreported income, the
difference in earnings would be $2,580,258 46; however, this does not render the methodology
unsound
1|21 Yet, despite the mathematical calculations being straightforward, Defendants argue Dr
Albrecht’s report is unreliable At the hearing, Defendants produced Plaintiff’s income tax
information from 2008 to 2019 including income from LTS Enterprises, LLC Dr Albrecht
testified some of the years during that period included tax returns and not the corresponding W
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CaseNo ST 11 CV 419
Memorandum Opinion
2’s and some years only included income from the military Further, Defendants argue under a
USERRA claim, Plaintiff was required to mitigate his losses, which he clearly attempted to do by
engaging in his different business ventures However, Defendants posit Plaintiff‘s failure to
disclose his earnings from these businesses renders Dr Albrecht’s report unreliable Defendants
are correct that the lack of all the data would create a different monetary outcome Evidently, the
calculations would have changed thus the outcome would be different However, the methodology
used is widely accepted in the principles of economics and Defendants offered no evidence to
controvert the methodology The reliability of the underlying data is not a matter for which the
Court should exclude the testimony of Dr Albrecht
1122 The Legislature also asserted Dr Albrecht’s opinion is not based on foundational
documentary evidence, but based primarily on Attorney Joseph, therefore, the testimony derives
from biased, uncorroborated evidence, and therefore does not fit and is unreliable Further
compounding this problem is Dr Albrecht’s heavy reliance on Attorney Joseph rendering the
opinion unreliable due to the insufficiency of underlying data as the report did not take into
consideration a multitude of documents showing additional sources of income from two
businesses Ideal Development, LLC and LTS Enterprises, LLC , which Plaintiff failed to disclose
in his response to interrogatories, requests for production, and his deposition Despite the lapse in
data, it does not render Dr Albrecht’s methodology unreliable
iii Whether the Economic Report is a Proper Fit
1123 As it relates to fit, the Court finds that the principles of economies are applicable to the
facts of this case “The expert’s testimony must be relevant for the purposes of the cases and must
assist the trier of fact In re TM] ng 193 F 3d 613 670 (3d Cir 1999) Admissibility depends
on the connection between the expert 3 opinion and the diSputed factual issues of the case In
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Joseph v Legislature ofthe Virgin Islands Cite as 2022 V 1 Super 83U
Case No ST11CV 419
Memorandum Opinion
addition to the conversations he had with Plaintiff, Dr Albrecht reviewed a considerable amount
of exogenous materials as previously stated 3 Dr Albrecht testified that he analyzed the losses
under two scenarios 1) determined back pay from February 9, 2011, the date of termination, to
April 1, 2020, a subjective marker representing the date of his expert report, and 2) determined
front pay from April 1 2020 to December 31 2055 the approximate date of Plaintiff’s death
The calculations by Dr Albrecht are directly related to the facts of this case, and therefore the
Court finds the testimony is a proper fit
V Legal Analysis
1124 Defendants are correct when they state the Court is the gatekeeper While the Court is
cognizant of this responsibility, such responsibility is juxtaposed with the jury s absolute right to
assess whatever weight to the evidence it deems appropriate Though the Court recognizes the
salient issue of insufficiency of data, it is not for the Court to determine the weight of the evidence
Alexander v People of the VI 60 VI 486 498 (VI 2014) [W]e have generally held that
inconsistencies or discrepancies in witness testimony generally go to the weight, rather than the
admissibility of the testimony Brathwazte v Xavier,
71 VI 1089, 1098 (VI 2019) The law
irrefutany declares that the jury, and not the court, determines the credibility of witnesses in a jury
trial Alexander, at 498 ‘ [I]t is the jury’s special province to weigh conflicting testimony,
determine credibility and draw inferences ’ United States v Montoya,
827 F 2d 143, 155 (7th Cir
1987) That function is exclusively within the province of the jury It is this Court’s responsibility
to determine the admissibility of the evidence
1125 As it stands, the Court does not believe the economic expert report or testimony is
3 See Defendants Exhibit 20 Dr Albrecht 8 expert report, March 5 2020
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inadmissible because portions of the financial records, albeit maybe a significant portion, were
omitted from Dr Albrecht’s consideration Information regarding Plaintiff‘s self generated
income through his various business holdings and agreements were not included in the report This
lack of evidence should be left for trial examination, and squarely within the Jury’s determination
to decide the sufficiency of facts Neither does the Court believe that the expert testimony should
be excluded because Dr Albrecht relied heavily upon information provided by Plaintiff Afierall,
Joseph was not the only source of information Dr Albrecht relied upon exogenous materials
including the Consumer Price Index, data from the Virgin Islands Department of Labor, interest
rates as provided from the Federal Reserve, life expectancy charts, Occupational Employment and
Wage Rates charts, and information regarding retirement benefits for government employees in
the Virgin Islands He also used Joseph’s questionnaire, information gathered from conversations
with the Plaintiff, Joseph’s tax information from 2008 to 2019, and his earning statements of 201 3
and 2014 when he made his determinations
126 Additionally, he testified about the principles of economics that economists generally use
in forecasting and the corresponding data shows Dr Albrecht’s methodology was not only reliable,
but also applicable Afier compiling data, a forecast is provided upon making a comparative
analysis of pre termination and post termination, i e , what Joseph would have earned, had he not
been terminated Therefore, the Court believes Dr Albrecht’s expert testimony and opinions are
admissible
VI Conclusion
‘127 The Court finds that Dr Albrecht is well qualified, very knowledgeable, and can render his
opinion based on his expertise The Court sees no prejudice being brought against the Legislature
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Joseph v Legislature ofthe Vargm Islands Cite as 2022 V I Super 83U
Case No ST 11 CV 419
Memorandum Opinion
Accordingly, the motion at 11mm: to exclude Dr Gary Albrecht will be denied and an Order
memorializing the same follows
) )
Dated September g 2022
nuncpro tum: to 7/13/2022
/ /‘
Rehee Gumb Ca ty
/ (i 42
Judge m erior urt
of the Virgin Islands
ATTEST
Tamara Charles
Clerk of the Court
M%
W Donna Donovan
Court Clerk Supervisor f lw/flg;
14
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS & ST JOHN
****~k*
SHORN T JOSEPH )
)
Plaintiff ) CASE NO ST 11 CV 419
V )
)
LEGISLATURE OF THE VIRGIN ISLANDS and ) ACTION FOR DAMAGES
the HONORABLE DONNA FRETT GREGORY )
in her official capacity as President of the 34m ) JURY TRIAL DEMANDED
Legislature of the Virgin Islands, )
)
Defendants ) Cite as 2022 V I Super 83U
)
ORDER
The Court having issued a Memorandum Opinion on this date, it is hereby
ORDERED that Defendants Legislature of the Virgin Islands and the Honorable Donna
Frett Gregory’s Daubert motion in lzmme is DENIED, and it is further
ORDERED that a copy of this Order and the accompanying Opinion shall be directed to
Shari N D’Andrade, Esquire, Christopher Kroblin, Esquire, and Kye Walker, Esquire
Dated Septemb r & 2022
nuncpro tune to 7/13/2022
/ A ”I V
' ene @- s Carty
W é
Ju . nerior Court
of the Virgin Islands
ATTEST
Tamara Charles
Clerk of th Court
W
W Donna Donovan
Court Clerk Supervisor f) /$/%%