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Home » Experts » W.D.Wash.: FLSA Plaintiff’s Proffered Expert Testimony Admissible Under FRE 702

W.D.Wash.: FLSA Plaintiff’s Proffered Expert Testimony Admissible Under FRE 702

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Andrew Frisch

Dixon v. City of Forks

This case was before the Court on Defendant’s motion to exclude Plaintiff’s proposed expert testimony, from 2 separate experts. The Court denied the motion, after applying FRE 702’s requirements for expert testimony.

The primary claims in this case brought under the FLSA and Washington’s Minimum Wage Act (MWA) were based on Defendants’ alleged failure to compensate Plaintiff for off-shift/overtime care and maintenance of his police dog while employed as a police officer for the City of Forks.

Plaintiff identified two expert witnesses and submitted the expert witness reports for Deputy John Munson and Steve Grasser.

“Deputy Munson proposes to testify that 60 minutes per day is a reasonable amount of time for Plaintiff to have spent working with police canine during Plaintiff’s off-shift hours. He also proposes to testify that the time spent by Plaintiff in off-shift training, grooming, feeding, and exercising his canine was reasonable and necessary. Deputy Munson’s testimony is based on his experience and training as a professional canine handler, as well as his discussions with Plaintiff as to Plaintiff’s off-shift time commitments caring for and maintaining his canine, Robyn.

Defendant objects to the testimony of Deputy Munson on the basis that (1) it provides a legal opinion, (2) it is speculative and (3) it forces the City to defend two claims and will confuse and mislead the jury.

Plaintiff’s expert witness Steve Grasser is a certified public accountant. Mr. Grasser proposes to testify regarding the Plaintiff’s average hourly overtime rate of pay during the relevant period of time that Plaintiff was employed as a canine officer with the City of Forks. Grasser’s opinions are derived from an analysis of the City of Forks’ payroll history reports from the relevant time period.

Defendant objects to this testimony as (1) it encompasses common knowledge, (2) it is speculative and (3) it will confuse, not assist the trier of fact.”

Holding first, that the proposed testimony of Munson, the expert dog handler, was admissible, the Court explained, “Plaintiff and Defendant dispute the justification for overtime and the amount of overtime hours necessary for the maintenance and care of the canine. Although the testimony is directed at determining an ultimate issue, its purpose is to assist the trier of fact to understand the evidence to determine a fact at issue. The reasonableness of the alleged overtime is an issue of fact for the jury. Caring for and maintaining a dog, especially a police dog, is not within the common knowledge of a lay person. Albanese v. Bergen County, N.J., 991 F.Supp. 410, 424 (D.N.J.1997). In addition, Plaintiff’s’ expert serves to negative the reasonableness of the argument of Defendant, that off-shift care and maintenance was not required or was de minimus in nature. See Albanese, at 424.Thus, the Court finds that Plaintiff’s expert Deputy Munson’s testimony is not a legal conclusion.

Not is the proposed testimony speculative. Deputy Munson’s testimony is based, in part, on his discussions with Plaintiff as to what he did off-shift in the care and maintenance of his canine. Accordingly, the proposed testimony is not based on speculation, but on the first-hand information provided by Plaintiff and Mr. Munson’s expertise as a professional canine handler.

The Court also rejects Defendant’s “two claims” argument. The expert’s opinion as to what is reasonable in the care of a police canine and the reasonableness of the time expended for the care of the police canine does not constitute unfair prejudice; nor will not mislead or confuse the jury. Plaintiff is required to establish the activity for which overtime compensation is sought constitutes “work” and that such work must be actually compensable; the quantum of time claimed by plaintiff must not be de minimis, and must be reasonable in relation to the principal activity. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688, 693 (1946). The expert testimony provides a factual basis for a jury determination of reasonableness of the overtime work that may be established by Plaintiff at trial.

The testimony of Plaintiff’s expert Deputy John Munson is admissible.”

In allowing the proposed testimony of Plaintiff’s expert accountant the Court noted, “Mr. Grasser’s testimony as to Officer Dixon’s rate of overtime pay is not based on speculation, but on an analysis of the City’s records. Nor is the testimony prejudicial. His testimony merely goes to a rate of overtime pay. Whether Mr. Dixon worked these hours (60 minutes daily) is not an issue that Mr. Grasser’s testimony addresses.

Mr Grasser’s opinions are properly based on the payroll evidence and his accounting expertise in analyzing and synthesizing this payroll data. The testimony will assist the trier of fact in comprehending factual issues beyond the scope of understanding of the average person. The testimony is neither based on speculation or confusing or prejudicial.

The testimony of Plaintiff’s expert Deputy Steve Grasser is admissible.”

Click here to read the full Federal Rules of Evidence 702.

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