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

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.

N.D.Cal.: Former DOL Wage and Hour Investigator Struck As Expert Because Cannot Testify As A “Legal Expert”

Valladon v. City of Oakland

Defendant sought to use a former DOL Wage and Hour Investigator as their expert to defend this FLSA claim. While working at the Department of Labor (“DOL”), Ms. Kramer gained expertise on Department of Labor regulations and federal case law interpreting FLSA.

She applied this expertise in her report and arrives at the following conclusion:

‘[I]t is my opinion that the City’s compensation practices with regard to donning and doffing of uniforms and equipment and the maintenance of uniforms and equipment, as well as its practices with regard to the use of compensatory time of, fully comply with the FLSA.’  Ms. Kramer also opined that if the Court nonetheless found that the Defendant’s practices violate FLSA, (1) those violations are not willful, so a two-year statute of limitations applies and (2) that the City is not liable for liquidated damages because it acted in good faith with a reasonable belief that its practices were lawful. Ms. Kramer reached these conclusions by analyzing DOL regulations and federal cases interpreting FLSA and determining whether the policies at issue here violate those laws. That is, she applied the facts of this case to the law. For example, after interpreting the text of FLSA, the DOL’s regulation concerning the “continuous workday rule,” two Supreme Court cases, a DOL advisory opinion, and the DOL’s “Wage and Hour Division’s Field Operations Handbook,” Ms. Kramer 2 concluded, ‘Thus, applying DOL’s interpretation of the FLSA and the agency’s own regulations, the time [p]laintiffs spent donning and doffing uniforms and equipment is not compensable because the City permits donning and doffing at home.’

Ms. Kramer used a similar method to reach her opinions about the statute of limitations and the reasonableness of the Defendant’s policies. She even opines that a particular district court reached the “incorrect” legal conclusion about whether a city must compensate its employees for the time spent donning and doffing uniforms.

Finding that, “Ms. Kramer’s “expert report” reads like a legal brief,” the Court found that because “[r]esolving doubtful questions of law is the distinct and exclusive province of the trial judge,” Nationwide, 523 F.3d at 1058 (citation omitted), Ms. Kramer’s report must be stricken. The Court reasoned that “her area of expertise is the law. She therefore purports not to “assist the trier of fact to understand the evidence or to determine a fact in issue,” but to help the jury understand the law itself. This is not permissible.

The Court further clarified its holding saying, “[h]ad Ms. Kramer offered opinions moored to the facts of this case, such opinions would not have been inadmissible merely because they included reference to legal terms or regulations. See, e.g., Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir.2004) (citation omitted) (“[A] witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms.”). However, Ms. Kramer’s report as drafted, and hence her anticipated testimony, was effectively a surrogate for legal instructions to the jury. This is not allowable.