UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI
METROPOLITAN ST. LOUIS EQUAL
COUNCIL, et al.
Cause No. 4:98CV00837 SNL
GORDON A. GUNDAKER REAL ESTATE
BRIEF OF THE UNITED STATES AS AMICUS CURIAE OPPOSED TO THE
APPLICATION OF DAUBERT TO FAIR HOUSING TESTING EVIDENCE
- INTEREST OF THE UNITED STATES
The Fair Housing Act prohibits housing providers and others
from making housing unavailable or otherwise discriminating on
the basis of race, color, national origin, religion, sex,
handicap and familial status. The United States, through
litigation by the Attorney General and administrative enforcement
by the Department of Housing and Urban Development, has important
enforcement responsibilities under the Act, 42 U.S.C. §§ 3610,
3612 and 3614. As part of its enforcement responsibilities,
the United States administers a nationwide fair housing testing
program and has filed 60 cases alleging violations of the Fair
Housing Act based on testing evidence developed through this
program. Accordingly, the United States has a substantial
interest in ensuring that the question of whether Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), applies to fair housing testing evidence is appropriately decided.
Plaintiffs, the Metropolitan St. Louis Equal Housing
Opportunity Council (EHOC) and the City of Florissant, filed this
lawsuit on May 14, 1998 alleging that Defendant Gordan A.
Gundaker Real Estate steered homeseekers on the basis of their
race in violation of the Fair Housing Act, 42 U.S.C. § 3601 et.
Seq. The Plaintiffs rely on evidence gathered through EHOC's
fair housing testing program to show that the Defendant engaged
in unlawful discrimination. Defendant filed a Motion to Exclude
Evidence and for Summary Judgment, requesting that the Court
exclude the EHOC tests pursuant to Federal Rules of Evidence 402
and 403. In their Motion, Defendant argues that flaws in EHOC's
testing methodology and their execution of the tests render them
unreliable and irrelevant. See Defendant's Motion to Exclude
Evidence and for Summary Judgment (hereinafter "Motion to
Exclude") at p. 3. Defendant also filed a Motion to Exclude the
testimony of Plaintiff's experts under Daubert v. Merrill Dow
Pharmaceuticals, 509 U.S. 579 (1993). Although Defendant does
not seek to exclude the testing evidence under Daubert, their
Daubert Motion challenges the reliability of the testing evidence
and seeks to exclude all expert testimony based on the testing
evidence. See, e.g. Defendant's Daubert Motion at 9.
In Plaintiffs' Opposition to Defendant's Motion to Exclude
and their Memorandum Regarding the Propriety of a Preliminary
Hearing, they argue that testing evidence is admissible under
Rules 402 and 403 and that ultimately the question of whether the
testing evidence is credible is one for the factfinder. See
Plaintiffs' Opposition at 30; Plaintiffs' Memorandum Regarding
Propriety of Hearing, at 4.
On March 17, 2000, the Court issued an Order setting a
hearing on the Defendant's Daubert challenge. The Court
summarized the Defendant's arguments as follows: "Defendant
challenges the methodology by which [the fair housing] tests were
compiled and the lack of supporting data to show that the tests
may have some scientific validity." March 17, 2000 Order, at p.
1. The Court noted that the Plaintiffs cited many cases where
testing evidence had been admitted, but stated that these cases
were almost all pre-Daubert and that "there is little or no law
for this Court to follow when there has been a Daubert challenge
to the methodology of testing in alleged real estate
discrimination cases." March 17, 2000 Order, at p. 2.
The United States files this brief on the question of
whether Daubert applies to fair housing testing evidence. The
United States argues that testing evidence is fact evidence and
therefore, not governed by Fed. R. Evid. 702 or the Supreme
Court's Decision in Daubert.
The Court ordered that the Daubert hearing address the
questions of whether the fair housing tests, and the testimony of
those persons who have analyzed the tests, should be excluded.
In addition, the Court will also hear testimony supporting and
opposing the Plaintiffs' motions in limine to exclude the
testimony of Defendant's experts. The United States will not
address whether Plaintiffs' experts who analyzed the fair housing
tests should be excluded pursuant to Daubert or whether the Court
should grant Plaintiffs' motion to exclude Defendant's experts.
The question of whether testing evidence is admissible fact
evidence is separate from the question of whether the parties'
experts are qualified to offer their opinion about that fact
evidence. The United States will address only the first of these
questions, whether Daubert applies to factual testing evidence.
For the reasons set forth below, the Court should decide
that as a matter of law Daubert does not apply to fair housing
testing evidence. In Section A, we argue that the Supreme Court
clearly held that Daubert applies to expert testimony only. In
Section B, we argue that testing evidence is fact evidence, not
opinion or expert evidence, and therefore Daubert does not apply.
In Section C, we argue that EHOC's testing evidence, as opposed
to expert testimony analyzing the tests, is fact evidence. As
fact evidence, it is admissible unless to do so would violate
Fed. R. Evid. 403.
- Daubert Applies Only to Expert Opinion Evidence
Admitted Under Fed. R. Evid. 702
Rule 702 of the Federal Rules of Evidence governs the
admissibility of expert opinions. The rule provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise.
Fed. R. Evid. 702 (emphasis added). The Supreme Court's decision
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), lays out a general framework for applying Rule 702.(1)
Daubert, 509 U.S. at 589. In a subsequent case, Kumho Tire Co.
v. Carmichael, 526 U.S. 137 (1999), the Court addressed whether
Daubert applies only to scientific testimony or to all expert
testimony.(2) In concluding that Daubert applies to all experts
the Court stated: "We, like the parties, believe that it applies
to all expert testimony." Kumho Tire, 526 U.S. at 147 (emphasis
In Daubert and Kumho Tire, the Court held that the trial
judge must make a preliminary determination of whether the
expert's testimony will assist the trier of fact to understand or
determine a fact in issue. Daubert, 509 U.S. at 591. The Court
recognized that "many factors" may bear on the inquiry, but it
nevertheless highlighted four factors, relating to verification,
publication, normalization, and acceptance within the relevant
discipline, that a court may consider in evaluating the
reliability of expert scientific testimony. Daubert, 509 U.S. at
591-94. In outlining these factors the Court repeatedly stated
that this inquiry was required by Rule 702. See, e.g. 509 U.S.
at 594. In setting out the Daubert factors, the Court was
interpreting Rule 702 which applies to expert testimony only.
Rule 702 does not apply to fact evidence.
Applying Daubert to fact evidence, such as the testimony of
testers who testify about their experiences with rental or sale
agents, is inconsistent with the plain language of Rule 702, as
well as the rationale underlying Daubert. The gatekeeping
function of the court is particularly important in admitting
expert testimony because of the expert's ability to give opinion
testimony. In Daubert the Court stated:
Unlike an ordinary witness an expert is permitted wide
latitude to offer opinions, including those that are
not based on firsthand knowledge or observation.
Presumably, this relaxation of the usual requirement of
firsthand knowledge . . . is premised on an assumption
that the expert's opinion will have a reliable basis in
the knowledge and experience of his discipline.
Daubert, 509 U.S. at 592 (citations omitted). Rule 702 requires
the trial court to screen expert testimony to protect the jury
from expert opinions which do not meet threshold requirements of
relevance and reliability. As discussed in Section B below,
testers' testimony is based on their personal experiences and
knowledge of what Defendant's agents did or said during the test
in which the tester was a participant. Therefore, the gatekeeper
concerns which prompt special Daubert scrutiny do not apply.
Daubert does not give the trial court authority to exclude fact
evidence based on first hand experience and observations that is
otherwise admissible under the Rules of Evidence. Fed. R. Evid.
- Fair Housing Testing Evidence Is Fact Evidence
Fair housing testing refers to the use of individuals who,
without a bona fide intent to rent or purchase a home, apartment,
or other dwelling, pose as prospective renters or purchasers for
the purpose of gathering information which may indicate whether a
housing provider is complying with fair housing laws. Testing is
a simulation of a housing transaction for the purpose of
comparing the responses given by housing providers to different
types of homeseekers in order to determine whether unlawful
discrimination is occurring. Since it is not always obvious to
actual renters or home purchasers that they have been subjected
to a discriminatory housing practice, such as being lied to as to
the availability of housing, testing has become an important
investigative tool in the enforcement of fair housing laws.
Fair housing testing evidence can be presented to the
factfinder in many forms. Testers may testify about their
recollections of their interaction with the agent or owner.
Testing evidence can also be presented in the form of tape
recordings of the conversation between a tester and an agent or
owner, forms completed by the tester setting forth the facts of
what happened during the test, and testimony from the testing
coordinator explaining how the test was conducted. The testers
do not provide expert testimony and do not offer their opinion.
They merely provide an account of what occurred on the test and
are no different than an eyewitness testifying about what they
observed. In this respect testers are no different than an
undercover law enforcement agent or informant who poses as a
participant in a transaction and provides testimony about their
conversation and experience with a defendant. A ruling by the
Court that testing evidence is subject to the requirements of
Daubert would inappropriately apply a rule for admission of
expert testimony to fact evidence. Moreover, such a ruling would
have ramifications for law enforcement far beyond the Justice
Department's fair housing testing program.
As described above, testing evidence provides information on
how individuals of, for example, different races, are treated by
a housing provider or a real estate agent. Typically, if
allegations of discrimination are filed against a defendant based
on testing evidence, during the trial testers of different races
who contacted the sales or rental agent will testify about their
experience with the defendant. The testimony may, for example,
reveal that different information was given on the availability
of housing to testers of different races. The defendants are
free to offer evidence at trial of non-discriminatory reasons for
any differences there may be in the treatment of different
testers. These non-discriminatory reasons may include, for
example, that an apartment that one tester was told about, was
rented between the visit of the two testers and thus would
explain why different information was given to the two testers,
or the defendant may offer evidence that the testers were given
different information because they made different requests. The
factfinder ultimately has the responsibility for determining
whether there were differences in treatment, whether there is any
explanation of the differences other than race, and whether a
defendant's non-discriminatory reasons for the differences are
The use of fair housing testing evidence has been uniformly
accepted by the courts, including the Supreme Court and the
Eighth Circuit. See, e.g. Havens Realty Corp. v. Coleman, 455
U.S. 363, 373-74 (1982) (holding that black testers who were
given false information about the availability of housing have
standing to seek damages for the violation of section 804(d));
Wharton v, Knefel, 562 F.2d 550, 554 (8th Cir. 1977) (stating the
use of testers was commonplace); United States v. Balistrieri,
981 F.2d 916, 924-25, 929-30 (7th Cir. 1992) (holding that
defendant violated the Act by providing false information to
testers on the basis of their race).(3)
As testing evidence is factual evidence, it can be admitted
into evidence independently from any expert testimony. An expert
is not required to interpret testing evidence. In Fair Housing
Act litigation brought by private individuals, factfinders
routinely hear testing evidence without the assistance of any
expert testimony analyzing that evidence. See, e.g. Gresham v.
Windrush Partners, Ltd., 730 F.2d 1417, 1420-21 (11th Cir.);
Pollitt v. Bramel, 669 F. Supp. 172, 174 (S.D. Ohio 1987); Davis
v. Mansards, 597 F. Supp. 334, 338-42 (N.D. Ind. 1984); Hobson v.
George Humphreys, Inc., 563 F. Supp. 344, 348-50 (W.D. Tenn
1982).(4) Likewise, the United States has introduced testing
evidence without analysis by an expert. See, e.g., United States
v. Balistrieri, 981 F.2d 916, 928-30 (7th Cir. 1992); United
States v. Youritan Construction Co., 370 F. Supp. 643, 647, 656
(N.D. Cal 1973), aff'd as modified, 509 F.2d 623 (9th Cir. 1975).
Factfinders are fully capable, without the assistance of an
expert, to weight non-racial variations in tests in determining
whether these variations adequately explain the difference in
treatment accorded the black and white testers. For example in
Davis v. Mansards, supra, a case alleging discrimination in the
rental of apartments, the court was presented with numerous non-racial differences between the black applicants and their white
counterparts. The court stated:
At trial, the defendants desperately pounced upon every
stray fact which might distinguish these black applicants
from their white counterparts --perhaps the Davis' home
posed a problem, Henley's husband wasn't present, the
Johnsons were unsure of when they wished to move, Moore
needed a ground floor apartment, Jones visited the wrong
rental office. Even if those differences would be material
to the ultimate outcome, i.e. whether or not the apartment
seeker finally rented at the Mansards, they do not
adequately explain the differential treatment apparent prior
to the application and during the application pendency.
Davis, 597 F. Supp. at 345. If the testing evidence is
admissible under the standards governing fact evidence, its
admissibility is not affected by a party's decision to present or
not present expert testimony.(5) Similarly, a decision by the
court to exclude expert testimony does not affect the
admissibility of the underlying testing evidence.
- Fair Housing Testing Evidence Is Admissible If Relevant
and Otherwise Admissible Under the Rules of Evidence
Fair housing testing evidence is admissible if it is
relevant and it is otherwise admissible under the Federal Rules
of Evidence. The Defendant requests that this Court exclude
EHOC's testing evidence pursuant to Rules 402 and 403. The
Defendant's Motion to Exclude does not request that the Court
exclude the testing evidence under Daubert. The Defendant,
however, challenges the methodology of EHOC's testing. The
Defendant's challenge to EHOC's methodology can be understood as
requesting that the Court apply the Daubert factors to
determining the relevance and reliability of EHOC's test. As the
Court itself stated: "there is little or no law for this Court to
follow when there has been a Daubert challenge to the methodology
of testing in alleged real estate discrimination cases." March
17, 2000 Order, at p. 2. Daubert, however, does not change the
standards governing the admissibility of fact evidence.
The United States has not reviewed the testing evidence in
this case and takes no position on whether it satisfies the
requirements of Rules 402 and 403. However, below we address two
of the arguments raised in Defendant's Motion to Exclude to
clarify the standard for determining the admissibility of testing
First, Defendant challenges the methodology of EHOC's fair
housing tests arguing, in part, that the failure of EHOC to "use
a test which has been recognized as valid and reliable" renders
the test invalid and irrelevant. See Defendant's Motion to
Exclude, at p. 3, ¶10(a). Defendants argue EHOC should have used
the test methodology utilized by the plaintiffs in Hilltop
Community Congress et al. v. Hilltop Realty Inc. et al., 629 F.
Supp. 1232 (N.D. Ohio 1983), rev'd in part, 774 F.2d 135, (6th
Cir. 1985) (hereinafter "Hilltop"). See Defendant's Memorandum
in Support of Motion to Exclude, at p. 6. The court in Hilltop,
sitting as a factfinder, found discrimination, but did not hold
that a particular type of testing methodology must always be
used. See Hilltop, 629 F. Supp. at 1248. Fair housing testing
has multiple uses and can come in multiple forms.(6) Assuming for
the purposes of this argument that plaintiffs did not use the
methodology in Hilltop, a failure to use a particular type of
testing does not render fair housing tests inadmissible. The
Defendant is free to raise this issue, as well as any other issue
on cross examination and in rebuttal. The jury would weigh that
evidence in determining whether the tests were reliable, and if
reliable, whether they showed that the defendant violated the
Fair Housing Act.
This is not to say that testing evidence is always
admissible. The court still may exclude evidence pursuant to
Rule 403. However, it would be an extreme case where testing
evidence was so lacking in probative value that it could be
excluded under Rule 403. There is no requirement under Rule 403
that plaintiffs produce data showing that fair housing tests have
scientific validity. The only possible rationale for such a
requirement would be an application of Daubert to fact evidence.
As stated above, Daubert does not apply beyond expert testimony
offered under Rule 702. Rules 402 and 403 merely require that
the evidence is relevant and that its probative value is not
substantially outweighed by the danger of unfair prejudice or
misleading the jury.
Second, Defendant relies extensively on the decision in
Hilltop to argue that the EHOC's tests are unreliable. In
Hilltop, the court was the finder of fact and, based in part on
the testing evidence, it determined that unlawful discrimination
occurred. In the instant case, the jury is the finder of fact.
After hearing factual evidence of the treatment afforded to black
and white testers, the jury will determine whether those
differences in treatment were based on race or whether the
difference in treatment was based on factors other than race.(7)
See, e.g. United States v. Balistrieri, 981 F.2d 916, 930 (7th
Cir. 1992). Fair housing testing of a defendant is relevant to
the factfinder's determination of whether the defendant engaged
in unlawful discrimination. The district court may only exclude
testing evidence in the extreme case were the admission of the
evidence would violate Rule 403.
For the reasons stated above, the Court should not apply
Daubert to fair housing testing evidence.
Bill Lann Lee
Acting Assistant Attorney General
Joan A. Magagna
Isabelle M. Thabault
Eric I. Halperin
Housing and Civil Enforcement Section
Civil Rights Division
Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
Audrey G. Fliessig
United States Attorney
1. The specific issue in Daubert was the admissibility of
testimony from a physician and epidemiologist, and other experts
on risks from exposure to various chemical substances, on the
question of whether a particular drug caused birth defects.
2. The issue in Kumho Tire was the admissibility of
testimony from an engineer about whether in his opinion a defect
in the tire's manufacture or design caused a tire to blow out.
3. As the Court stated in its Order, most of these reported
decisions involving testing evidence were pre-Daubert. The
admissibility of expert evidence, however, was still subject to
challenge under the "general acceptance" standard established by
Frye v. United States, 293 F. 1013 (D.C. App. 1923). The United
States could find no reported case where the admissibility of
testing evidence was challenged under Frye.
4. In reaching the decisions cited above, the courts did not
rely on expert testimony and there are no indications that expert
testimony was part of the record. Since testing evidence is
routinely accepted without expert testimony, these decisions lack
an affirmative statement that an expert was not involved.
5. Either party may present the testimony of experts who
will provide their opinion to the jury based on an analysis of
the testing evidence. These experts, however, must satisfy the
requirements of Rule 702 as interpreted by the Supreme Court in
6. Testing data, of course, can be used by social
scientists, as well as in enforcement actions. In the HUD study
cited by Defendants on page 6 of their Memorandum, social
scientists used data from fair housing tests to offer conclusions
about rates of disparate treatment in certain metropolitan areas
and nationwide. While the underlying testing data is factual,
the conclusions of the social scientists who manipulate that data
to draw conclusions about rates of discrimination across a
geographic area would be opinion testimony.
7. The Defendant's argument based on Hilltop goes to the
weight and credibility of the testing evidence. These are issues
for the jury. The Hilltop analysis, of course, would be relevant
if the Court determines summary judgment is appropriate or if
after presentation of the evidence one party moves for a judgment
under Rule 50.