Kinne et al v. Rocky Mountain EMS, Inc.

Filing 92

ORDER denying 69 Defendants' Opposed Motion To Exclude Testimony of Plaintiffs' Designated Expert Witness Pursuant to Fed. R. Evid. 702, by Judge Robert E. Blackburn on 8/14/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02710 REB-CBS
KAREN KINNE,
TIM DILL, and
ABRAHAM BACA,
Individually and on behalf of others similarly situated
Plaintiffs,
v.
ROCKY MOUNTAIN EMS, INC., D/B/A ROCKY MOUNTAIN MOBILE MEDICAL and
RAYMOND GOETZE,
Defendant.
ORDER CONCERNING MOTION TO EXCLUDE TESTIMONY OF PLAINTIFFS’
DESGINATED EXPERT WITNESS PURSUANT TO FED. R. EVID. 702
Blackburn, J.
This matter is before me on Defendants' Opposed Motion To Exclude Testimony of
Plaintiffs’ Designated Expert Witness Pursuant to Fed. R. Evid. 702 [#69], 1 filed October
16, 2013. The plaintiffs filed a response [#70], and the defendants filed a reply [#74]. I deny the
motion.
I. STANDARD OF REVIEW
The defendants seek to exclude the testimony of an expert witness designated by the
plaintiffs. Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert
witness testimony, provides:

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“[#69]” is an example of the convention I use to identify the docket number assigned to a specific paper
by the court’s electronic case filing and management system (CM/ECF). I use this convention throughout
this order.

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A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
FED. R. EVID. 702. As interpreted by the Supreme Court of the United States, Rule 702
requires that the testimony of an expert be both reliable, in that the witness is qualified to testify
regarding the subject, and relevant, in that such testimony will assist the trier of fact in
determining a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589-92 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir.
2004). The Supreme Court has described the role of a trial court in weighing expert opinions
against these standards as that of a “gatekeeper.” See Kumho Tire Company, Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999).
Under Daubert and its progeny, an expert opinion is reliable if it is based on scientific
knowledge. “The adjective ‘scientific’ implies a grounding in the methods and procedures of
science. Similarly, the word ‘knowledge’ connotes more than subjective belief or unsupported
speculation.” Daubert, 590 U.S. at 590. In short, the touchstone of reliability is “whether the
reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592 - 593; see
also Truck Insurance Exchange, 360 F.3d at 1210. The party proffering the expert opinion
must demonstrate both that the expert has employed a method that is scientifically sound and
that the opinion is “based on facts which enable [the expert] to express a reasonably accurate
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conclusion as opposed to conjecture or speculation.” Goebel v. Denver and Rio Grande
Western Railroad Co., 346 F.3d 987, 991 (10th Cir. 2003) (quoting Gomex v. Martin Marietta
Corp., 50 F.3d 1511, 1519 (10th Cir. 1995)).
Rule 702 demands also that the opinion of an expert be relevant, that is, that the
testimony “fit” the facts of the case. Daubert, 590 U.S. at 592; In re Breast Implant Litigation,
11 F.Supp.2d 1217, 1223 (D. Colo. 1998). “‘[T]he standard for fit is higher than bare
relevance.’” In re Breast Implant Litigation, 11 F.Supp.2d at 1223 (quoting In re Paoli
Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3rd Cir. 1994), cert. denied, 513 U.S. 1190
(1995)). The proffered evidence must speak clearly and directly to an issue in dispute in the
case. Id. Guided by these principles, the court has broad discretion in determining whether
expert testimony is sufficiently reliable and relevant to be admissible. Truck Insurance
Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir.
2000). The overarching purpose of the court’s inquiry is “to make certain that the expert . . .
employs in the courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Goebel, 346 F.3d at 992 (quoting Kumho Tire Company, 526
U.S. at 152).
Generally, “rejection of expert testimony is the exception rather than the rule.” U.S. v.
Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008) (quoting Fed. R. Evid. 702 , 2000 Advisory
Comm.'s Notes). “Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” Daubert, 509 U.S. at 596.
II. ANALYSIS
The plaintiffs, Karen Kinne, Tim Dill, and Abraham Baca, were employed as paramedics
by the defendant, Rocky Mountain EMS Inc., d/b/a Rocky Mountain Mobile Medical (“RME”).
Second amended complaint [#55], p. 2. The plaintiffs brought a collective action against RME
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under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 alleging a failure to pay
compensation for earned wages and overtime pay. Id. Beginning in February 2011, RME
began scheduling some of its paramedics, including the plaintiffs, to work 24 hour shifts. Motion

[#69], Exhibit A, pp. 5, 8, 10. RME compensated plaintiffs for working 24 hours shifts according
to the following policy (“Policy”):
RME utilizes the “actual hours worked” ruling on all 24hr scheduled shifts. This is
paid at the crewmembers pay rate for 16 hours, unless call volume doesn’t allow
for the 8 hours of downtime, 5 hours of continuous rest. It is critical that the 24hr
Crew Log be completed each shift! Any crew that exceeds the continuous work
of 16hrs must report this to a supervisor the following day and a full 24hrs will be
compensated to that crew.
Motion [#69], Exhibit B, p. 122:9-22; Exhibit C, pp. 36:23-37:2; Exhibit D, p. 135:9-24. RME’s
policy complied with 29 CFR § 785.22, which provides that when an employee is on duty for 24
hours or more, the employer and employee may agree to exclude bona fide meal periods and
bona fide regularly scheduled sleep periods of not more than eight hours from hours worked,
provided that adequate sleeping facilities are furnished and that the employee can enjoy an
uninterrupted night’s sleep. See 29 CFR § 782.22(1). Additionally, 29 CFR § 785.22(b)
provides that “if the employee cannot get at least 5 hours’ sleep [sic] during the scheduled
period the entire time is [considered] working time.”
Plaintiffs claim they worked 24-hour shifts during which they did not receive the minimum
five hours of rest, but did not get paid for the full 24 hours as required by the regulations. See
Second amended complaint [#55], p. 2. Plaintiffs admit, however, that they received at least
five hours of rest during some 24-hour shifts. Motion [#69], Exhibit C, p. 91:12-22; Exhibit D, p.
74:9-14; and Exhibit E, p. 187:2-12. In turn, RME denies these claims and counters that every
time Plaintiffs reported that they had not received five hours of rest, they were paid for the full 24
hours of work.

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In its present motion, RME challenges the admissibility of the testimony of Dr. Teresa
Fulimeni, PhD, an expert witness designated by the plaintiffs. In her report, Dr. Fulimeni
expresses the opinion that, “the amount owed to the plaintiffs based on the information provided
… is $28,560, or $57,119 including liquidated damages.” Motion [#69], Exhibit A, p. 1. Plaintiffs
seek to offer the opinions of Dr. Fulimeni to prove their damages under the FLSA. RME argues
that this opinion of Dr. Fulimeni is not based on any scientific, technical, or other specialized
knowledge and that the plaintiffs can readily calculate for themselves the compensation they are
owed based on their individual payroll records. In effect, RME claims that the expert testimony
of Dr. Fulimeni will not help the jury understand evidence pertaining to the damages claims of
the plaintiffs, as required by Rule 702.
I disagree. I conclude that the expert testimony of Dr. Fulimeni may be admitted to
explicate and quantify the damages of the plaintiffs. The United States Court of Appeals for the
Tenth Circuit has held that “there is no more certain test for determining when experts may be
used than the common sense inquiry whether the untrained layman would be qualified to
determine intelligently and to the best possible degree the particular issue without
enlightenment from those having a specialized understanding of the subject involved in the
dispute.” United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir.2003). Here, the
calculation of damages involves the consideration of a variety of documentary evidence in the
form of crew reports and oral testimony. Motion [#69], Exhibit A, pp. 6-7. In addition, a lack or
absence of relevant data in the payroll records of the plaintiffs clearly calls for the expertise of
someone who has encountered and dealt with situations involving this complication. See id.,
Exhibit A, pp. 4-5. Thus, the difficulty and complexity in assessing the damages of the plaintiffs
is beyond the experience and ken of an untrained lay jury.
In addition, RME argues that the opinions of Dr. Fulimeni are inadmissible under Rule
702 because they lack reliability. RME notes that Dr. Fulimeni assumed improperly that
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plaintiffs never received five hours of rest on any shift when such assumption is not supported
by any evidence. In short, RME argues that the Dr. Fulimeni’s opinions are not reliable because
they are not supported by sufficient facts and data. In their response [#70], plaintiffs counter
that information about the number of shifts in which the plaintiffs received five or more hours of
rest was not available to Dr. Fulimeni when she issued her initial report on August 12, 2013.
Plaintiffs’ depositions, which elicited that information, occurred after that date. Most importantly,
plaintiffs point to the fact that Dr. Fulimeni subsequently amended her report to account for the
fact that plaintiffs had received five hours of rest time during some shifts. Response [#70].
Exhibit A. In its reply [#74], RME argues that plaintiffs’ amended expert report was submitted
November 5, 2013, well beyond the date specified in the Scheduling Order [#20]. Additionally,
RME argues that the plaintiffs failed to comply with the Fed. R. Civ. P. 15 timeliness
requirements by “neither fil[ing] the amended pleading within 21 days of serving the original
pleading nor [securing] leave of court to file the Amended Expert Report.” Reply [#74], p.3. In
essence, RME argues that the testimony of Dr. Fulimeni’s must be excluded because her report
was not timely.
Under Rule 702, opinion testimony must be “based on facts which enable [the expert] to
express a reasonably accurate conclusion as opposed to conjecture or speculation.” Goebel v.
Denver and Rio Grande Western Railroad Co., 346 F.3d 987, 991 (10th Cir. 2003) (quoting
Gomex v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995)). After reviewing Dr.
Fulimeni’s report and amended report, I find RME’s arguments unpersuasive and consider her
testimony sufficiently reliable under Rule 702. Dr. Fulimeni gathered a variety of documentary
evidence in the form of crew reports, oral testimony, and payroll records. Motion [#69], Exhibit
A, pp. 6-7. In addition, she dutifully supplemented her expert report when new information
became available. This information constitutes sufficient facts and data on which Dr. Fulimeni
may base her opinions concerning the claimed damages of the plaintiffs.
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Moreover, even though the amended expert report of Dr. Fulimeni was filed after the
date stipulated in the Scheduling Order [#20], the court issued an order [#83] granting a Motion
to Amend the Scheduling Order [#76], which modified the discovery cutoff deadline to July 9,
2014, and the disclosure of experts deadline to May 28, 2014. Because plaintiffs submitted
their amended expert report on November 5, 2013, the amended report was timely.
Further, it is well established that a motion is not a pleading. See Trujillo v. Bd. of Educ.
of Albuquerque Pub. Schs., 230 F.R.D. 657, 660 (D.N.M.2005) (citing Searcy v. Soc. Sec.
Admin., No. 91-4181, 1992 WL 43490, at *2 (10th Cir. Mar. 2, 1992); Sunlight Saunas, Inc. v.

Sundance Sauna, Inc., 427 F. Supp. 2d 1022, 1029 (D. Kan. 2006). Similarly, an expert report
is not a pleading. Thus, Fed. R. Civ. P. 15 is inapposite. Therefore, the plaintiffs were not
required to file the amended expert report within 21 days from the filing of their original pleading
or to seek leave of court to do the same.
Lastly, RME argues that the testimony of Dr. Fulimeni would confuse and mislead the
jury causing it to reach the incorrect conclusion that the Policy does not comply with federal
regulations and that plaintiffs did not received five hours of rest time on any occasion. I
disagree. Plaintiffs correctly and timely amended their expert disclosures to account for the
missing facts on which RME’s argument turns. Thus, the testimony of Dr. Fulimeni would not
work to confuse or mislead the jury causing it to reach the incorrect conclusion that RME’s
Policy violates federal law or that the plaintiffs did not receive five hours of rest time on at least
some occasions.
III. CONCLUSION & ORDER
Dr. Fulimeni’s opinion testimony is admissible under Fed. R. Evid. 702. The opinions
expressed in the report are based on sufficient facts or data and are the product of reasonably
reliable principles and methods. Dr. Fulimeni has applied the principles and methods reliably to

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the facts of the case. Any flaws in Dr. Fulimeni’s opinion testimony go to weight, not
admissibility. All else is for cross-examination and competing evidence.
THEREFORE, IT IS ORDERED that Defendants' Opposed Motion To Exclude
Testimony of Plaintiffs’ Designated Expert Witness Pursuant to Fed. R. Evid. 702 [#69]
filed October, 16, 2013, is DENIED.
Dated August 14, 2014, at Denver, Colorado.
BY THE COURT:

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