Greenwell et al v. Howard Group et al

Filing 121

ORDER partly granting and mostly denying 113 Motion to clarify, reconsider, provide an amended expert report, or certify for interlocutory appeal. Slate can testify about her observations of the work at the Defendants' restaurants. And - with important limitations - she can testify about general practices in the restaurant business based on her experience. What she may not do, directly or indirectly, is tell the jury what the law required in these circumstances or that these restaurants followed that law. The title of Slate's positions with the Department of Labor should not be mentioned. Slate may not explicitly or implicitly tie the practices she's observed into what's proper under the law, either regulatory or stat utory. It's the Defendants' decision whether to have Slate use her expertise and testify at trial about them. The Court will not certify this issue under 28 U.S.C. § 1292(b). It's not the sort of extraordinary, unsettled question appropriate for immediate review. Signed by Judge D. P. Marshall Jr. on 8/9/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PAIGE GREENWELL and ZACHARY FLUKER,
on behalf of themselves and all other persons
similarly situated, known and unknown

v.

PLAINTIFFS

No. 4:15-cv-742-DPM

R WINGS R WILD LLC; CONWAY WILD
WINGS LLC; NORTH LITTLE ROCK WINGS
LLC; JEROMY HOWARD; FORT SMITH
FIERY HOT LLC; JONESBORO WINGS LLC;
WING IT LLC; I-40 WINGS LLC; EDMOND
WINGS LLC; RWINGS ROCK LLC; TULSA
WINGS LLC; SHAWNEE WINGS LLC;
MIDDELWINGS LLC; WILD WINGS WEST
LLC; OWASSO WINGS LLC; YUKON WINGS
LLC; NORMAN WINGS LLC; and
STILLWATER WINGS LLC

DEFENDANTS

ORDER
Motion to clarify, reconsider, provide an amended expert report, or
certify for interlocutory appeal, NQ 113, partly granted and mostly denied.
Slate can testify about her observations (through live video feeds and archived
videos) of the work at the Defendants' restaurants. And-with important
limitations-she can testify about general practices in the restaurant business
based on her experience. What she may not do, directly or indirectly, is tell the
jury (with the imprimatur of her long public service) what the law required in

these circumstances or that these restaurants followed that law. Ultimate-issue
evidence often is admissible. FED. R. EVID. 704(a); United States v. Posters N

Things Ltd., 969 F.2d 652, 661 n.6 (8th Cir. 1992). But it should be excluded
when the jury question is compliance with federal law and the expert proposes
to school the jury in detail on that law, define legal terms operationally, and
tell the jury whether a party violated that law or not. Southern Pine Helicopters,

Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003).
The limitations. The title of Slate's positions with the Department of
Labor should not be mentioned. Testimony by a "Compliance Specialist" or
"Enforcement Coordinator" from the DOL' s Wage and Hour Division about
what's usually done necessarily carries a judgment about what pay practices
are legally proper. And Slate may not, explicitly or implicitly, tie the practices
she's observed into what's proper under the law, either regulatory or
statutory.
Some examples: She may say which tasks servers in the industry usually
perform, but not whether it's permissible to pay a tipped rate for those tasks.
NQ 85-1at50-51. She may say which tasks servers customarily share, but not

whether they can share tasks without the tasks' becoming non-tipped work.

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NQ 85-1 at 54.

Slate may likewise say that servers often prepare their

work-stations for the day. She can't say, however, whether that prep work is
tip-yielding, or that the tipped rate must be paid for it. NQ 85-1at55, 59. And
she can't say or imply anything about how other restaurants pay their servers
or bartenders, such as which duties they count as general preparation work or
maintenance. E.g., NQ 85-1 at 50, 52 & 55.
All three of Slate's opinions are a tight weave of fact and law. NQ 85-1

at 50-64. If she can unwind those opinions, and eliminate the law from them,
then what's left might help the jury some. Without the law parts, a few
threads of pure fact remain. It's the Defendants' decision whether to have
Slate use her expertise and testify at trial about them.
The Court will not certify this issue under 28 U.S.C. § 1292(b). It's not
the sort of extraordinary, unsettled question appropriate for immediate
review.
So Ordered.

D.P. Marshaltfr.
United States District Judge

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