Oracle Corporation et al v. SAP AG et al

Filing 1157

Declaration of Tharan Gregory Lanier in Support of 1156 Opposition/Response to Motion Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions in Limine filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Related document(s) 1156 ) (Froyd, Jane) (Filed on 5/10/2012)

EXHIBIT 18

Page 1

LILIANA MARTINEZ-HERNANDEZ and ULDA APONTE, both individually and
on behalf of all other similarly situated persons, Plaintiffs, v. BUTTERBALL,
L.L.C., Defendant.
No. 5:07-CV-174-H
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
NORTH CAROLINA, WESTERN DIVISION
2011 U.S. Dist. LEXIS 111000

September 26, 2011, Decided
September 26, 2011, Filed
PRIOR HISTORY: Martinez-Hernandez v. Butterball,
LLC, 2011 U.S. Dist. LEXIS 35134 (E.D.N.C., Mar. 31,
2011)
COUNSEL: [*1] For Liliana Martinez-Hernandez,
Individually and on behalf of all others similarly situated
persons, Plaintiff: Joel Todd Alexander, LEAD
ATTORNEY, Law Office of Joel T. Alexander,
Pittsboro, NC; Robert J. Willis, LEAD ATTORNEY,
Raleigh, NC; Dan C. Getman, Getman & Sweeney,
PLLC, New Paltz, NY.

Chuck Eppinette, Richard Ward, Jonathan Cunningham,
Keith Nye, Cheyney Hales, Objectors, Pro se.
JUDGES: DAVID
Magistrate Judge.

W.

DANIEL,

United

States

OPINION BY: DAVID W. DANIEL
OPINION

ORDER
For Ulda Aponte, Individually and on behalf of all others
similarly situated persons, Plaintiff: Dan C. Getman,
LEAD ATTORNEY, Getman & Sweeney, PLLC, New
Paltz, NY; Joel Todd Alexander, LEAD ATTORNEY,
Law Office of Joel T. Alexander, Pittsboro, NC; Robert J.
Willis, LEAD ATTORNEY, Raleigh, NC.
For Butterball, LLC, formerly known as Carolina
Turkeys, a joint enterprise of Maxwell Farms, Inc. and
Smithfield Foods, Inc., Defendant: Donald C.
Lauderdale, LEAD ATTORNEY, Jackson Lewis, LLP,
Greenville, SC; L. Dale Owens, LEAD ATTORNEY,
Christopher T. Van Dyke, Eric R. Magnus, Robert W.
Capobianco, Jackson Lewis LLP, Atlanta, GA; Melissa
R. Davis, LEAD ATTORNEY, Jackson Lewis LLP,
Cary, NC.

This matter is before the Court on Plaintiffs' motion
[*2] in limine to preclude the expert report and testimony
of Defendant's expert, Dr. Jeffrey Fernandez, [DE-468];
Defendant's motion to exclude the testimony of Plaintiffs'
rebuttal expert, Dr. Francis Giesbrecht, [DE-458]; and
Plaintiffs' first and second motions to strike evidence of
Defendant in violation of Rules 56(c)(2) and 56(e)
[DE-540 & 558]. The issues have been fully briefed and
are ripe for decision.
I. Motions to Exclude Expert Reports and Testimony
A. Standard of Review
Expert testimony is governed by Rule 702, which

Page 2
2011 U.S. Dist. LEXIS 111000, *2

provides as follows:
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, if (1) the testimony is based
upon sufficient facts or data, (2) the
testimony is the product of reliable
principles and methods, and (3) the
witness has applied the principles and
methods reliably to the facts of the case.
Fed. R. Evid. 702. "Under Daubert and Rules 702 and
703 of the Federal Rules of Evidence, federal judges are
to act as gatekeepers [*3] to determine whether an
expert's opinion is reliable and whether his testimony will
be helpful to the jury." Sheffield v. West Am. Ins, Co., No.
7:08-cv-191-H, 2010 U.S. Dist. LEXIS 75721, 2010 WL
2990012, at *3 (E.D.N.C. July 27, 2010)(citing Daubert
v. Merrell Dow Pharms., 509 U.S. 579, 589, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993)). There are five factors
generally considered in assessing relevancy and
reliability: "(1) whether the particular scientific theory
'can be (and has been) tested'; (2) whether the theory 'has
been subjected to peer review and publication'; (3) the
'known or potential rate of error'; (4) the 'existence and
maintenance of standards controlling the technique's
operation'; and (5) whether the technique has achieved
'general acceptance' in the relevant scientific or expert
community." United States v. Crisp, 324 F.3d 261, 266
(4th Cir. 2003) (quoting Daubert, 509 U.S. at 593-94).
However, this list is not exhaustive and "the analysis
must be 'a flexible one.'" Id. (quoting Daubert, 509 U.S.
at 593-94; citing Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141-42, 119 S. Ct. 1167, 143 L. Ed. 2d 238
(1999) (concluding that testing of reliability should be
flexible and that Daubert's five factors neither necessarily
nor exclusively apply to every expert)).
B. [*4] Analysis
1. Plaintiffs' Motion to Exclude the Report and
Testimony of Dr. Fernandez [DE-468]
Plaintiffs contend that Dr. Fernandez's report and
testimony violate Rule 702 and should be excluded

because (1) the testimony fails to help the trier of fact to
determine a fact in issue; (2) the report fails to follow
proper standards for an industrial time study; and (3) the
report fails to follow proper statistical methodologies.
Defendant contends that Dr. Fernandez's report and
testimony are both relevant and scientifically reliable in
conformity with Daubert. The Court agrees and
concludes that Dr. Fernandez's report is both relevant and
reliable and, thus, meets the requirements of Rule 702
and Daubert.
Plaintiffs first contend that Dr. Fernandez's report is
not relevant. Defendant has pointed out that this Court
"rejected a virtually identical attack on the admissibility
of Dr. Fernandez's testimony in Hosler v. Smithfield
Packing Co., 2010 U.S. Dist. LEXIS 87883, *15
(E.D.N.C. Aug. 20, 2010) (Gates, M.J.). adopted Hosler
v. Smithfield Packing Co., 2010 U.S. Dist. LEXIS 101776
(E.D.N.C. Sept. 24, 2010) (Howard, J.)." Def.'s Resp. at 2
[DE-523]. The Court, having considered the decision
[*5] in Hosler, agrees and finds that it is relevant to the
inquiry here. Plaintiffs in both this case and Hosler
brought claims under the Fair Labor Standards Act
("FLSA") for failure to pay employees for all time
worked, including time spent donning and doffing
employer required clothing and gear. The Hosler
defendant retained Dr. Fernandez to evaluate "the time it
takes employees to don, doff, wash, and walk certain
activities" at its meat processing facility. Hosler, No.
7:07-cv-166-H, Fernandez Expert Report at 1
[DE-352-5]. In the present case, Defendant retained Dr.
Fernandez to evaluate "the time it takes employees to don
and doff certain items, dip, sanitize, wash and to perform
walking activities" at its poultry processing facility.
Fernandez Report at 3 [DE-470-1]. In conducting the
evaluations in both cases, Dr. Fernandez used an
"elemental analysis" method, which "breaks down each
activity into the smallest possible measurable task."
Compare id. at 6, with Hosler, Fernandez Report at 6. Dr.
Fernandez further explained the elemental analysis
method as follows:
In time and motion studies, activities are
broken down into elements. Breaking the
operation down into short elements [*6]
and timing each of them separately are
essential parts of time study. One of the
best ways to describe an operation is to
break it down into definite and measurable
elements and describe each of them

Page 3
2011 U.S. Dist. LEXIS 111000, *6

separately. The beginning and end point
(breakpoints) of each element need to be
specified (Barnes, 1980). Also, elements
should be broken down into divisions that
are as fine as possible and yet not so small
that reading accuracy is sacrificed (Neibel
and Freivalds, 1999; Barnes, 1980). "To
be of value a time study must be a study of
the elements of the operation, not merely a
record of the total time required per cycle"
(Barnes, 1980).
Compare Fernandez Report at 6, with Hosler, Fernandez
Expert Report at 4.
In Hosler, as in this case, plaintiffs argued that
Fernandez's elemental analysis could not be reconciled
with the continuous workday rule, as set forth in IBP, Inc.
v. Alvarez, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288
(2005). Hosler, Pls.' Mem. at 3 [DE-353]. The continuous
workday rule provides that "the compensable workday
begins with the first principal activity of a job and ends
with the employee's last principal activity, but excludes
time spent during a bona fide meal period.." Perez v.
Mountaire Farms, Inc., 650 F.3d 350, 2011 U.S. App.
LEXIS 11547, 2011 WL 2207110, at *4 (4th Cir. 2011)
[*7] (citing Alvarez, 546 U.S. at 29). More specifically,
Plaintiffs in this case argued that because Fernandez only
measured the time to undertake certain discrete donning
and doffing activities, he failed to account for
"unproductive time," e.g., waiting in line to obtain
smocks, opening and closing lockers, taking off personal
shoes to don boots, etc., which they argue would be
compensable under the continuous workday rule. Pls.'
Mem. at 6, 9-15 [DE-469].
In a memorandum and recommendation adopted by
Judge Howard, Magistrate Judge Gates rejected the
Hosler plaintiffs' objections based on Alvarez and found
that Fernandez's opinions were relevant, reasoning as
follows:
The time required for donning and
doffing and the related activities at issue
are not within the everyday knowledge
and experience of a lay juror. Fernandez's
opinions would provide the jury
information on this issue and would
therefore be helpful to it. See Kasten v.
Saint-Gobain Performance Plastics Corp.,

556 F. Supp. 2d 941, 946 (W.D. Wis.
2008) (finding Dr. Fernandez's expert
report relevant in face of challenges like
those brought by plaintiffs here). More
specific issues on which Fernandez's
opinions would shed light [*8] include
whether the amount of time for which
defendant paid employees for these
activities was adequate, whether the
amount of time spent on particular
activities is so small they do not have to be
compensated under the applicable law, and
whether the amount of time claimed by
plaintiffs for particular activities is
excessively high. . . .
Fernandez's opinions would be
helpful and thereby relevant even if it is
assumed, as plaintiffs contend, that it
reflects only a portion of the time required
for the various activities, not the full time
required when they are performed on a
continuous basis. At least in the present
context, even purportedly incomplete
information would be better than none.
Plaintiffs will, of course, have the
opportunity to point out any purported
gaps in Fernandez's opinions at trial to
assist the jury in evaluating it.
Plaintiffs' principal challenge to the
reliability of Fernandez's opinions is also
based on its purported noncompliance
with the continuous workday principals of
Alvarez. But plaintiffs have not shown
that the methodology used by
Fernandez is prohibited by Alvarez.
Rather, the methodology simply
conflicts with plaintiffs' interpretation
of Alvarez. Kasten, 556 F. Supp. 2d at
946-47 [*9] (rejecting challenges to
Fernandez's expert report on similar
grounds). Inconsistency of an expert
witness's opinions with the legal theory of
an opposing party manifestly does not
render the opinions unreliable. Such
conflicts are inherent in our adversarial
court system, particularly in an area of the
law, such as this, which is still developing.
. . . [Fernandez] is not being offered as an

Page 4
2011 U.S. Dist. LEXIS 111000, *9

expert on the law applicable to this case
and, indeed, he could not be.
Hosler, 2010 U.S. Dist. LEXIS 87883 at *13-*16, Aug.
20, 2010 Mem. & Recommendation (emphasis added)
[DE-417]. Plaintiffs, in an attempt to distinguish Hosler,
argued that Fernandez's own testimony at his deposition
was that his report cannot be used to measure donning
and doffing time "if the legal test in this case involves
activities unmeasured by him." Pls.' Reply at 6 [DE-553].
Consequently, Plaintiffs contend that the conclusion in
Hosler that "even purportedly incomplete information
would be better than none," is not true in this case. The
Court disagrees.
That Dr. Fernandez, the Defendant's expert, did not
conduct his time study to fit Plaintiffs' theory of the case
is not surprising. Furthermore, even if the Court
ultimately finds that Dr. Fernandez [*10] did not
measure every activity necessary to calculate the total
time for which Plaintiffs should be compensated, that
does not necessarily mean that his report has no relevance
or usefulness in providing information related to the
components of the compensable time calculation.
Precisely as Magistrate Judge Gates recognized in
Hosler, the present Plaintiffs will "have the opportunity
to point out any purported gaps in Fernandez's opinions at
trial to assist the jury in evaluating it." 2010 U.S. Dist.
LEXIS 87883 at *15; see also Kasten, 556 F. Supp. 2d at
946 ("Plaintiffs' concerns regarding relevance are actually
concerns regarding the content of the report. Such
concerns are best addressed through cross examination
before the trier of fact."). Furthermore, in its order
adopting the memorandum and recommendation in the
Hosler case, Judge Howard found that "[Dr. Fernandez's]
opinions are both relevant to the proceeding and would
be helpful to the jury." Sept. 24, 2010 Order at 2
[DE-443]. Accordingly, the Court finds that Dr.
Fernandez's report, including the time estimates of
various donning and doffing activities, may be helpful in
determining the amount of time for which Plaintiffs
should have been compensated [*11] during the workday
and is, therefore, relevant.
Next Plaintiffs contend that Dr. Fernandez's report
fails to follow proper standards for an industrial time
study. Plaintiffs argue, based on the rebuttal report of Dr.
Robert Radwin, (1) that Dr. Fernandez used a "should
take" methodology, rather than a "did take" methodology;
(2) that Dr. Fernandez relied on simulations and

theoretical walking distances rather than on measuring
the actual time that employees take; and (3) that Dr.
Fernandez did not select a random representative sample
of employees to study. Even if the Court assumes that
each of these assertions are true, they do not provide a
basis to exclude Dr. Fernandez's report, but more
appropriately go to its weight.
None of the issues raised by Plaintiffs implicate the
five factors 1 that the Supreme Court set forth in Daubert
for evaluating the reliability of expert testimony. To the
contrary, this Court has already concluded in the Hosler
case that Dr. Fernandez's methodology "has been tested
and subjected to peer review and publication, has no high
known or potential rate of error, and enjoys general
acceptance within the field of industrial engineering."
2010 U.S. Dist. LEXIS 87883 at *16, Aug. 20, 2010
Mem. [*12] & Recommendation [DE-417]. The Kasten
court also rejected similar challenges to Dr. Fernandez's
methodology, including that the size of the samples used
were too small to be statistically significant and that it
was error to rely on standardized walking times rather
than actual walking times. 556 F. Supp. 2d at 946. The
Kasten court concluded that the challenges did not
"address the reliability but the correctness of the report's
conclusions, which are concerns best addressed through
cross examination." Id. Furthermore, this Court in Hosler
concluded that "[t]he elemental analysis methodology
upon which Fernandez' opinions are based is also a
reliable scientific methodology that is generally accepted
within the industrial engineering community." Sept. 24,
2010 Order at 2 [DE-443]. Accordingly, the Court
concludes that Dr. Fernandez's report should not be
excluded for failure to follow proper standards.
1 (1) Whether the particular scientific theory can
be (and has been) tested; (2) whether the theory
has been subjected to peer review and publication;
(3) the known or potential rate of error; (A) the
existence and maintenance of standards
controlling the technique's operation; and [*13]
(5) whether the technique has achieved general
acceptance in the relevant scientific or expert
community. Daubert, 509 U.S. at 593-94.
Finally, Plaintiffs contend that Dr. Fernandez's report
fails to follow proper statistical methodologies. For
example, Plaintiffs argue, based on the report of Dr.
Francis Giesbrecht, that Dr. Fernandez erred by adding
median times to produce a representative number,

Page 5
2011 U.S. Dist. LEXIS 111000, *13

because the representative number is not itself a mean,
median, or mode. On this issue, Dr. Giesbrecht's report
states as follows: "In Table El Dr. Fernandez combines
medians of times required for elemental tasks to give
estimates of times required for per shift allowances.
Times are obtained by adding medians (medians
multiplied by constants). Adding medians is not a
standard statistical activity. Statistical properties of the
results are not well known." Giesbrecht Report at 3
[DE-520-2]. Dr. Fernandez, at his deposition, admitted
that some statisticians "don't like adding medians," but
added that "some statisticians do" and explained that it
was an issue of competing theory. Fernandez Dep.
233:11-15 [DE-459-2].
The Court finds that the concerns expressed in Dr.
Giesbrecht's report regarding [*14] Dr. Fernandez's
statistical methodologies do not render Dr. Fernandez's
report unreliable, but instead go to the weight of the
evidence. "The Daubert decision itself cautions that
lower courts should not confuse the role of judge and jury
by forgetting that 'vigorous cross-examination,
presentation of contrary evidence, and careful instruction
on the burden of proof'. rather than exclusion, 'arc the
traditional and appropriate means of attacking shaky but
admissible evidence.'" United States v. Santiago
Santiago, 156 F. Supp. 2d 145, 148-49 (D. Puerto Rico
2001) (rejecting argument that evidence was inadmissible
based on allegation of statistical invalidity) (quoting
Daubert, 509 U.S. at 596). Accordingly, the Court
concludes that Dr. Fernandez's report should not be
excluded for failure to follow proper statistical
methodologies.
In summary, the Court concludes that Dr.
Fernandez's report is relevant and reliable as required by
Rule 702 and Daubert. Therefore, Plaintiffs' motion to
preclude the report and testimony of Dr. Fernandez
[DE-468] is DENIED.
2. Defendant's Motion to Exclude the Testimony of
Dr. Giesbrecht [DE-458]
Defendant contends that Dr. Giesbrecht's testimony
should be [*15] excluded because it is not rebuttal
testimony, but instead is an attempt to introduce
affirmative expert testimony after the deadline to
designate experts. Plaintiffs contend that the Court has
already ruled on this issue by allowing the filing of Dr.
Giesbrecht's report and that his report is not affirmative in
nature and only critiques the statistical validity of Dr.

Fernandez's report. Having reviewed Dr. Giesbrecht's
report, the Court finds that it is in the nature of rebuttal
testimony and will not exclude it.
Defendant first argues that Plaintiffs missed the
deadline to designate an affirmative expert and are
attempting to circumvent the Court's scheduling order by
characterizing Dr. Giesbrecht's testimony as "rebuttal"
testimony. The Court previously allowed Plaintiffs to
designate a rebuttal expert on the statistical validity of Dr.
Fernandez's report. May 21, 2010 Order at 26 [DE-390].
Therefore, the issue now before the Court is whether the
report and testimony of Plaintiffs' expert overreaches the
Court's previous order by offering affirmative evidence as
opposed to rebuttal evidence.
In Dr. Giesbrecht's expert report, he stated that he
was tasked to "to review Dr. Fernandez's [*16] report
and comment on the reliability and statistical validity of
the conclusions" and concluded that "both the sample and
the statistical calculations are inadequate," Giesbrecht
Report at 1 [DE-520-2]. Dr, Giesbrecht raises five points
in support of his conclusion: (1) the sample, i.e., number
of visits to the plant, used by Dr. Fernandez was
inadequate; (2) there are no standard deviations listed for
Appendix E; (3) the calculations and conclusions on walk
times are questionable, (4) the numbers in Table El
reflect the added medians of times and adding medians is
not a standard statistical activity; and (5) data on break
times is inadequate. Id. at 1 -4. Defendant argues that Dr.
Giesbrecht generally agrees with Dr. Fernandez's
conclusions, that he offers alternate opinions designed to
support Plaintiffs' theory of the case, that he offers legal
conclusions, that he manufactures "straw man" arguments
to make it appear that he is rebutting Dr. Fernandez's
opinions, and that he simply states that he does not know
whether Dr. Fernandez is correct or incorrect on various
points.
First, Defendant's objections that Dr. Giesbrecht
generally agrees with Dr. Fernandez's conclusions and
that [*17] he simply states that he does not know
whether Dr. Fernandez is correct or incorrect on various
points go to the weight of Dr. Giesbrecht's testimony and
may be raised on cross-examination. Next, Dr.
Giesbrecht's report itself does not offer affirmative
testimony or legal conclusions. To the extent Plaintiffs
attempt at trial to elicit such testimony from Dr.
Giesbrecht, Defendant is free to object. Finally, with
respect to the straw-man argument regarding medians, the

Page 6
2011 U.S. Dist. LEXIS 111000, *17

Court disagrees with Defendant's characterization of Dr.
Giesbrecht's report.
Defendant contends that "Dr. Giesbrecht falsely
asserts that Dr. Fernandez testifies that a total of multiple
medians is itself a median." Def.'s Mem. at 18 [DE-459].
Dr. Giesbrecht's report stated in relevant part: "In Table
E1 Dr. Fernandez combines medians of times required
for elemental tasks to give estimates of times required for
per shift allowances. Times are obtained by adding
medians (medians multiplied by constants). Adding
medians is not a standard statistical activity. Statistical
properties of the results are not well known." Giesbrecht
Report at 3 [DE-520-2], Dr. Giesbrecht does not say that
Dr. Fernandez testified that a total [*18] of multiple
medians is itself a median. As discussed above, these
experts simply disagree as to whether it is statistically
sound to add medians. Therefore, the Court concludes
that Dr. Giesbrecht's report is within the parameters of
the Court's May 21, 2010 Order allowing a rebuttal
expert related to the statistical validity of Dr. Fernandez's
report, and Defendant's motion to exclude Dr.
Giesbrecht's testimony [DE-458] is DENIED.
II. Plaintiffs' Motions to Strike [DE-540 & 558]
A. Standard of Review
Rule 56(c)(2) provides as follows with respect to
facts asserted on summary judgment: "A party may
object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence." The Fourth Circuit Court of Appeals has
explained the importance of the evidentiary standards
found in Rule 56 as follows:
Fed. R. Civ. P. 56 prescribes specific
procedures to be followed in submitting
evidence for or against a summary
judgment motion. These procedures help
assure the fair and prompt disposition of
cases. They ensure further that neither side
in a dispute can unfairly surprise the other
with evidence that the other has not had
time to consider. They [*19] also allow a
district court to ascertain, through criteria
designed to ensure reliability and veracity,
that a party has real proof of a claim
before proceeding to trial.
Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993).

"|S]ummary judgment affidavits cannot be conclusory or
based upon hearsay." Christian v. Vought Aircraft Indus.,
Inc., No. 5:09-cv-00186-FL, 2010 U.S. Dist. LEXIS
110148, 2010 WL 4065482, at *4 (E.D.N.C. Oct. 15,
2010) (quoting Evans v. Techs Applications & Serv. Co.,
80 F.3d 954, 962 (4th Cir. 1996) (internal citations
omitted)).
B. Analysis
Many of the issues raised in Plaintiffs' first motion to
strike [DE-540] are also present in the second motion to
strike [DE-558]. Accordingly, the Court will address
them contemporaneously.
Plaintiffs contend that certain evidence relied on by
Defendant in its motion for partial summary judgment on
claims outside of the two-year statute of limitations
[DE-454], motion for partial summary judgment on good
faith defenses to liquidated damages [DE-456], motion to
decertify [DE-460], and response in opposition to
Plaintiffs' motion for partial summary judgment as to
good faith and other affirmative defenses alleged by
Defendant [DE-527] is inadmissable as hearsay [*20] or
violates Daubert and should not be relied on by the Court
in resolving these motions. Defendant generally contends
that the evidence is not offered to prove the truth of the
matter asserted and, therefore, is not hearsay and that the
Daubert objections both lack merit and are an untimely
collateral attack on their expert. Additionally, Defendant
contends that a motion to strike is not a procedurally
appropriate method for challenging evidence in the
context of summary judgment. Having considered the
evidence at issue, the Court denies Plaintiffs' motions.
As an initial matter, the Court rejects Defendant's
contention that the motions to strike are procedurally
inappropriate. While Rule 56(c)(2) allows a party to
"object" to material cited and does not expressly provide
for striking material, there is precedent in this district for
entertaining motions to strike as a form of objection to
evidence presented at summary judgment. Christian,
2010 U.S. Dist. LEXIS 110148, 2010 WL 4065482, at *5
(striking conclusory and contradictory statements that
were not made in a separate affidavit from memorandum
in support of summary judgment). Accordingly, the Court
will not summarily deny the motions to strike on
procedural [*21] grounds.
Next the Court will consider the parties substantive
arguments. Plaintiffs have identified thirty eight

Page 7
2011 U.S. Dist. LEXIS 111000, *21

statements that they contend are inadmissible, and the
Court has grouped them for analysis based on the
substance of the statement and/or the objection.
1. Statements related to Department of Labor
("DOL") Policy (Pls.' First Mot. to Strike ¶¶ 3, 7, 9,
12, 13 & 18 and Pls.' Second Mot. to Strike ¶¶ 1-11)
Defendant asserts various statements in its briefs
regarding DOL policy, and Plaintiffs object to those
statements as hearsay. For example, Plaintiffs contend
that a statement "as to what the U.S. Department of Labor
("DOL") 'has recognized' with regard to 'the use of 'plug
time' such as this as an acceptable means of
compensating employees for these activities'" is
"inadmissible hearsay as to official DOL policy" and "is
contradicted by DOL's January 15, 2001 Opinion Letter."
Pls.' Second Mot. to Strike at 2, ¶ 1 [DE-558], The
complete text from Defendant's brief, in which the
objectionable statement appears, is as follows:
Many of the sources Mr. Lenaghan
reviewed addressed the DOL's view on the
compensability of donning and doffing
time. For example, CT [Carolina Turkeys]
[*22] received a memo authored by David
Wylie dated November 28, 2005 titled
"Supreme Court Issues Decision in
Donning and Doffing Case: Many
Questions
Still
Remain."
(BB012283-BB012288,
attached
to
DE-455 as Exhibit N.) The memo
addressed "the options going forward."
(Id.) One of the options presented by Mr.
Wylie was "implement[ing] a system of
'plug time.'" (Id.) Mr. Wylie advised that
the
USDOL has recognized
the use of 'plug time' such
as this as an acceptable
means of compensating
employees
for
these
activities. The amount of
time paid as so called 'plug
time' should not simply be
an arbitrary figure, but
should approximate the
actual and/or average time
spent by employees in the

donning,
doffing
walking activities.

and

(Id.) (emphasis added). (See DE-457,
p. 10 at ¶¶ 28-29.)
Def.'s Resp. in Opp'n to Pls.' Mot. For Partial Summ. J. at
7, ¶ 16 [DE-527]. Defendant argued that this statement is
not offered to prove the truth of the matter asserted, 2 but
is instead offered to show Defendant's subjective state of
mind, i.e., what it and its decision makers relied upon in
making donning and doffing policies. In opposing
Plaintiffs' motion for partial summary judgment as to
Defendant's good [*23] faith defense, Defendant argued
that Plaintiffs failed to show an "absence of genuine
issues of material fact concerning whether Butterball
acted in good faith in conformity with and in reliance on
written administrative regulations, orders, rulings,
approvals, or interpretations of the Wage and Hour
Division of the Department of Labor ("DOL") or any
administrative practice or enforcement policy of the
DOL." Def.'s Resp. in Opp'n to Pls.' Mot. for Partial
Summ. J. at 2-3 [DE-527]. In support if its argument,
Defendant enumerated 66 "Facts Relevant to Butterball's
29 U.S.C. § 259 Good Faith Defense." The disputed
statement cited above and ten other disputed statements
enumerated in Plaintiffs' second motion to strike are
among these '"facts."
2 "Hearsay" is defined as "a statement, other
than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove
the truth of the matter asserted." Fed. R. Evid.
801(c).
In their reply, Plaintiffs stated that "[t]o the extent
that Butterball has used Butterball's Response to limit the
testimony cited in ¶¶ 1-11 of [Plaintiffs' Second Motion
to Strike] to prove its subjective "state of mind" of the
corporate defendant [*24] [sic], the plaintiffs concede
that the defendant has met its burden to establish the
testimony cited in those paragraphs is admissible for
solely that purpose." Pls.' Reply at 3 (emphasis in the
original) [DE-568]. In addition to Plaintiffs' apparent
concession of the issue, it appears to the Court that the
statement cited above was offered not as proof of DOL's
alleged position on plug time, but was instead offered as
evidence of what Gary Lenaghan, Defendant's Vice
President of Human Resources, had reviewed in making

Page 8
2011 U.S. Dist. LEXIS 111000, *24

his decision on compensation for donning and doffing
activity. See Def.'s Resp. in Opp'n to Pls.' Mot. For
Partial Summ. J. at 23-24 (citing disputed statements
from Wylie memo regarding DOL's recognition of plug
time as evidence of documents that it relied upon in
implementing plug time) [DE-527]. Accordingly, the
statement is not inadmissible hearsay.
Likewise, the analysis and conclusion are the same
for the other statements related to DOL policy. See id. ¶¶
18 (statement from Wylie's memo recounting information
he received in a meeting with DOL officials); 22
(statement regarding DOL's settlement with Purdue on
donning and doffing); 33 (statement from Lawson memo
[*25] regarding settlements between DOL and various
employers "blessing the payment of plug time"); 34
(statement from Lawson memo regarding position of
courts and DOL with respect to generic vs. specialized
gear); 35 (statements regarding DOL's position on plug
time in the context of DOL's settlement with Tyson
Foods); 36 (statements regarding Shoemaker's knowledge
of DOL's settlement with Tyson Foods related to plug
time); 37-40 (statements regarding DOL investigation of
ConAgra donning and doffing compensation at
Longmont, Colorado facility); see also Def.'s Mem. in
Supp. of Mot. Partial Summ. J. on Good Faith Defenses
to Liquidated Damages [DE-457] ¶¶ 31 (statements from
Wylie's memo recounting information he received in a
meeting with DOL officials); 33 (statements regarding
DOL policy regarding compensability for donning and
doffing of certain items and the content of the DOL Field
Operations Handbook Section 31b13); 92 & 93
(statement regarding Lenaghan's and Shoemaker's
knowledge of DOL settlement with Tyson Foods); 101
(statements regarding ConAgra's donning and doffing
policy and DOL's findings with respect to that policy).
Therefore, the Court finds that the disputed
statements [*26] related to DOL policy (Pls.' First Mot.
to Strike ¶¶ 3, 7, 9, 12, 13 & 18 and Pls.' Second Mot. to
Strike ¶¶ 1-11) are not inadmissible hearsay insofar as
they may be considered as evidence of Defendant's state
of mind when making decisions regarding compensation.
2. Statements related to Dr. Fernandez's time study
(Pls.' First Mot. to Strike ¶¶ 5, 6, 19, 21, & 22 and
Pls.' Second Mot. to Strike ¶¶ 12-15)
Defendant cited a time study conducted by its expert,
Dr. Fernandez, in support of its position that its plug time
policy fully compensated employees for donning and

doffing activities. See, e.g., Def.'s Resp. in Opp'n to Pls.'
Mot. for Partial Summ. J. at 29-30 [DE-527]. Plaintiffs
have essentially renewed their objections first raised in
their Daubert motion [DE-468] and also set forth what
they characterized in their second motion to strike as a
"three-part factual basis for their objections to the Court's
consideration of the inadmissible conclusions and
opinions of Dr. Fernandez[.]"Pls.' Reply at 4 [DE-568].
Specifically, Plaintiffs contend that the statements related
to Dr. Fernandez's time study are inadmissible because
they are (1) based upon an unreliable statistical sample;
[*27] (2) based upon a methodologically invalid
comparison; or (3) are not relevant to any issue in the
case. Pls.' Memo, in Supp. of Second Mot. to Strike at
3-22 [DE-559]. Defendant countered that any new
arguments with respect to Dr. Fernandez that were not
made in the original Daubert motion are untimely. Def.'s
Resp. in Opp'n to Pls.' Second Mot. to Strike at 7
[DE-527J. Defendant also argued that whether a sample
is statistically sufficient goes to the weight of the
evidence and not its admissibility. Id. at 8. In their Reply,
Plaintiffs emphasize that there is a "three-part factual
basis" for their objections in addition to the renewed
Daubert objections and that Defendant failed to address
two of those arguments. Pls.' Reply at 4-6 [DE-568],
The Court has already rejected Plaintiffs' Daubert
objections and, therefore, will not strike the statements
related to Dr. Fernandez's time study based on those
renewed objections. Furthermore, the Court finds that
Plaintiffs additional objections do not provide a basis to
strike the statements related to Dr. Fernandez's time
study.
First, Plaintiffs argue that Dr. Fernandez's opinions
and conclusions with respect to break allowances are
based [*28] on an unreliable statistical sample. The
Court has already found, see supra at 6-8, that Dr.
Fernandez's report is reliable and that objections as to the
statistical validity, e.g., the size of the statistical sample,
go to the weight of the evidence. Plaintiffs also argue that
Dr. Fernandez's report does not indicate that he had any
personal knowledge of any break allowances allegedly
provided and that his opinions and conclusions with
respect thereto would be hearsay. Dr. Fernandez's report
stated in relevant part: "The company provides a plug
allowance extra time beyond scheduled break allowances
to employees at the Mt. Olive facility. This is based on
declarations as presented in Appendix E and
observations during site visits." Fernandez Report at 10

Page 9
2011 U.S. Dist. LEXIS 111000, *28

(emphasis added) [DE-470-1]. An expert may base his
opinion on facts "perceived by or made known to the
expert . . . ." Fed. R. Evid. 703 (emphasis added).
Furthermore, Plaintiffs acknowledged that Dr. Fernandez
collected break data as to some employees, although they
contended that the number was too few to provide a
statistically reliable result. Pls.' Mem. in Supp. of Second
Mot. to Strike § III.B.l. at 4 [DE-559], Accordingly,
[*29] Dr. Fernandez's statements with regard to break
allowances are not inadmissible hearsay.
Next, Plaintiffs argue that Dr. Fernandez's opinions
and conclusions that most production workers were
overcompensated for donning and doffing time are based
upon a methodologically invalid method. Specifically,
Plaintiffs contend that Dr. Fernandez's activity
measurements were not based on continuous workday
time measurements, but that his break measurements
were based on continuous workday, resulting in an apples
to oranges comparison. The Court has already rejected
Plaintiffs' argument regarding the continuous workday
rule, see supra at 3-6. To the extent that Plaintiffs are
raising a new objection based on Dr. Fernandez's use of
varying methods, the Court finds, consistent with its
ruling on the Plaintiffs' Daubert motion, see supra at 6-7,
that such an objection would not provide a basis to
exclude Dr. Fernandez's report, but would more
appropriately go to its weight. Furthermore, it appears
that this argument could have been raised in Plaintiffs'
Daubert motion and is, thus, untimely.
Finally, Plaintiffs argue that the "should take"
measurements of Dr. Fernandez are not relevant to any
issue [*30] in this case. The Court has already
considered and rejected this argument in the context of
Plaintiffs' Daubert motion, see supra at 6-7.
Accordingly, the Court will not strike the statements
related to Dr. Fernandez's time study (Pls.' First Mot. to
Strike ¶¶ 5, 6, 19, 21, & 22 and Pls.' Second Mot. to
Strike ¶¶ 12-15).
3. Statements Related to Defendant's State of Mind
(Pls.' First Mot. to Strike ¶¶ 1, 2, 8, 10, 11, 15-17 &
23)
Plaintiffs contend that various statements made by
Butterball's officers are inadmissible hearsay because the
declarants do not have personal knowledge of the facts
and, thus, cannot be used to demonstrate Defendant's
knowledge. As with the DOL statements, see supra at

12-14, Defendant contends that the statements are offered
to show Defendant's subjective state of mind and are not
inadmissible hearsay. In their reply, Plaintiffs concede
that some of the disputed statements (Pls.' First Mot. to
Strike ¶¶ 1, 10, 11, 17 & 23) are admissible "to prove the
'state of mind' of the corporate defendant[.]" Pls.' Reply §
III.A.l. [DE-565]. However, Plaintiffs dispute the
characterization of the remainder of the disputed
statements (Pls.' First Mot. to Strike ¶¶ 2, 8, [*31] 15 &
16) as going to Defendant's "state of mind," because the
statements do not expressly state that they are
Defendant's "belief or perception" and are instead stated
as fact. The Court disagrees.
A fair reading of the statements regarding the law on
donning and doffing (Pls.' First Mot. to Strike ¶ 2, 8, 15
& 16), when considered in the context presented, is that
they convey the beliefs of Defendant's predecessor,
Carolina Turkeys, as to the state of the law. For example,
the statements regarding the uncertainty of the law on
donning and doffing (Pls.' First Mot. to Strike ¶ 2) are
found in a section titled "Prior to the Supreme Court's
Decision in Alvarez, Butterball Did Not Pay For Donning
and Doffing Time Due to Uncertainty In The Law,"
Def.'s Mem. in Supp. of Mot. Partial Summ. J. on Good
Faith Defenses to Liquidated Damages at 3 [DE-457]. In
that section, Defendant sets forth facts regarding how
employees were being paid prior to Alvarez and the
company's rationale for its compensation policy, Id. ¶¶ 1
- 5. For example, citing deposition testimony from two of
its officers, Defendant stated that "the Company was
aware of what was going on in the industry and in
particular, the [*32] legal uncertainty of whether time
spent donning and doffing was considered compensable
'work' under the FLSA by the courts." Id. ¶ 3. It appears
to the Court that this statement conveys the Company's
belief regarding the state of the law and is appropriately
considered as evidence of Defendant's state of mind. The
analysis and conclusion are the same for the other
disputed statements. Id. ¶¶ 8 (statement by Lenaghan that
authors of trade publications and alerts on donning and
doffing law were legal experts); 15 & 16 (statements by
Lenaghan as to what constitutes compensable time or
compensable donning and doffing activities).
Accordingly, the Court will not strike the disputed
statements (Pls.' First Mot. to Strike ¶¶ 1, 2, 8, 10, 11,
15-17 & 23) insofar as they may be considered as
evidence of Defendant's stale of mind.

Page 10
2011 U.S. Dist. LEXIS 111000, *32

4. Lenaghan's Statement Regarding Internal Time
Study (Pls.' First Mot. to Strike ¶ 4)
Plaintiffs contend that a statement by Lenaghan that
"Parker also included the time employees spend taping
their sleeves closed" is inadmissible, because Lenaghan
does not have personal knowledge as to what Carolina
Turkeys or Parker knew with respect to what specific
donning and doffing [*33] activities were timed as part
of the internal time study. Defendant counters that
Plaintiffs cited no evidence that Lenaghan's statement
was not based on personal knowledge, that other sources
regarding the details of the time study will be admissible
at trial and, thus, that the disputed fact is admissible in
some form as required by the civil rules, and that the
statement would be admissible to, at minimum, show
Lenaghan's belief as to what the time study included. In
their reply, Plaintiffs argue that Defendant has the burden
to show that the challenged evidence is admissible, that
the other sources cited by Defendant do not contain the
details in Lenaghan's statement, and that the statement as
written does not purport to allege state of mind, but
instead fact.
As previously discussed with respect to other
disputed statements, to the extent the statement is offered
to demonstrate what Defendant, through Lenaghan, knew
regarding the time study, it would be admissible for such
a purpose. However, because it is not clear that
Defendant intended the statement to be limited in such a
way, the Court will consider whether it may be offered to
prove the matter asserted.
Plaintiffs correctly [*34] point out that the burden of
showing the admissibility of challenged evidence is on
the proponent of the evidence. See Fed. R. Civ. P. 56(c)
advisory committee's note ("The burden is on the
proponent to show that the material is admissible as
presented or to explain the admissible form that is
anticipated."). Notwithstanding, the objector must offer
some basis for the challenge, and here Plaintiff offers the
report of Parker and the deposition testimony of Ingram
to support its position that Lenaghan had no personal
knowledge of the study. Parker's report does not indicate
that Lenaghan was involved in the study. Def.'s Mem. in
Supp. Mot. Summ. J. Statute of Limitations, Ex. I
[DE-455-16]. However, Ingram's deposition testimony,
cited by Plaintiffs, indicated that the idea for the study
originated with Lenaghan in response to the Alvarez
decision and that the study was conducted by a Human

Resources Manager who reported to Lenaghan. Id., Ex.
U2 at 100:21-101:5 & 99:3-19 [DE-455-32]. This
undermines Plaintiffs' claim that Lenaghan was not in
any way involved in the time study or had any basis for
personal knowledge of the study. Furthermore, while
Plaintiffs correctly point out that [*35] the reports that
Defendant maintains are admissible to prove the disputed
statement do not actually contain the details of the
disputed statement, id., Ex. I & L [DE-455-16, 22],
Parker could presumably testify to the details of the
study, as the one who conducted it, and such testimony
would be an admissible form of evidence to prove the
disputed fact. Accordingly, the Court will not strike
Lenaghan's statement regarding Parker's report.
5. Statements Regarding Alvarez Decision (Pls.' First
Mot. to Strike ¶ 14)
Plaintiffs contend that statements regarding what the
Supreme Court decided and "left open" in Alvarez are not
admissible to prove the contents of the Alvarez decision.
As with the statements regarding DOL policy, see supra
at 12-14, the Court finds that these statements go to what
Defendant believed about the Alvarez decision and that
they were not presented to prove the truth of the matter
asserted. The statements were prefaced by a sentence
indicating that they were taken from a memo that
Carolina Turkeys received from Wimberly Lawson titled
"Questions and Answers About the Practical Impact of
the Supreme Court's Decision in IBP, Inc. v. Alvarez"
and the disputed statements [*36] themselves were direct
quotations from the memo. Def.'s Mem. in Supp. of Mot.
Partial Summ. J. on Good Faith Defenses to Liquidated
Damages ¶ 36 [DE-457]. Further, two other related
statements preceding the disputed statements, and within
the same paragraph, were prefaced with "[t]he memo
notes." Id. Based on the context in which the statements
were presented, the Court concludes that these statements
are presented as evidence of Defendant's state of mind
and, thus, are not inadmissible hearsay.
6. Ingram's Statement Regarding Line Schedule (Pls.'
First Mot. to Strike ¶ 20)
Plaintiffs argue that the following two statements
made by Karen Ingram, Defendant's Human Resources
Manager, in her June 18, 2008 Declaration are
inadmissible hearsay, because they are not based on her
personal knowledge:
15. If a line begins operations before its

Page 11
2011 U.S. Dist. LEXIS 111000, *36

scheduled time or ends operations after its
scheduled time, then the supervisor
changes the line schedule to reflect the
time the line was operating.
16. If an individual begins work
before or ends work after his or her normal
scheduled time, then the supervisor
changes the schedule to reflect the time
the employee begins and ends work.

100 supervisors were doing on three different shifts
during the continuous operation" of the plant as Plaintiffs
contend. Pls.' First Mot. Strike ¶ 20 [DE-540].
Accordingly, the Court will not strike Ingram's
statements.
Therefore, based on the foregoing, Plaintiffs' first
and second motions to strike [DE-540 & 558] are
DENIED.
III. Conclusion

Ingram Decl. ¶¶ 15-16 [*37] [DE-74-1]. Plaintiffs
specifically argue that because Ingram is not on the
production line she could not know what the Defendant's
supervisors were doing with respect to line schedules
during operations at the plant. Defendant counters that
Ingram stated in her declaration that her statements were
based on personal knowledge and that she has worked in
Defendant's Human Resource department since 2005,
which demonstrates sufficient personal knowledge of the
scheduling and compensation policies at the plant.
Having reviewed these statements in the context of
the Ingram declaration in its entirety, it appears to the
Court that Ingram's statements go to Defendant's policy
regarding line schedules, i.e. what Defendant told its
supervisors to do and expected was occurring, and do not
purport to cover every such instance of "what more than

Plaintiffs' motion [*38] in limine to preclude the
expert report and testimony of Defendant's expert, Dr.
Jeffrey Fernandez, [DE-468]; Defendant's motion to
exclude the testimony of Plaintiffs' rebuttal expert, Dr.
Francis Giesbrecht, [DE-458]; and Plaintiffs' first and
second motions to strike evidence of Defendant in
violation of Rules 56(c)(2) and 56(e) [DE-540 & 558] are
DENIED.
This the 26th day of September, 2011.
/s/ David W. Daniel
DAVID W. DANIEL
United States Magistrate Judge