Moore et al v. Deer Valley Trucking, Inc.

Filing 54

MEMORANDUM DECISION AND ORDER Plaintiff's Motion in Limine (Dkt. 39 ) is DENIED in part and GRANTED in part. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHAWN A. MOORE and DEDE
JARDINE, individuals,

Case No. 4:13-cv-00046-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
DEER VALLEY TRUCKING, INC., and
Idaho corporation,
Defendant.

INTRODUCTION
The Court has before it defendant Deer Valley Trucking, Inc.’s (“DVT”) motion in
limine to exclude the expert opinions of Tyler Bowles. For the reasons expressed below,
the Court will exclude his opinions on the accuracy or completeness of time sheet
records, but deny the remainder of the motion.
LEGAL STANDARD
I. Rule 702 Standard
Whether and to what extent Bowles may testify at trial is addressed under the
well-known standard first enunciated in Daubert and its progeny, but now set forth in
Rule 702 of the Federal Rules of Evidence. Rule 702 establishes several requirements for
permitting expert opinion. First, the evidence offered by the expert must assist the trier of
fact either to understand the evidence or to determine a fact in issue. Primiano v. Cook,

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598 F.3d at 563, (9th Cir.2010); Fed. R. Evid. 702. “The requirement that the opinion
testimony assist the trier of fact goes primarily to relevance.” Id. (Internal quotations and
citation omitted).
Additionally, the witness must be sufficiently qualified to render the opinion. Id. If
specialized knowledge will assist the trier of fact to understand the evidence or determine
a fact in issue, a witness qualified by knowledge, skill, experience, training or education
may offer expert testimony where: (1) the opinion is based upon sufficient facts or data,
(2) the opinion is the product of reliable principles and methods; and (3) the witness has
applied those principles and methods reliably to the facts of the case. Fed. R. Evid. 702;
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93, (1993); Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147, (1999).
The inquiry is a flexible one. Primiano, 598 F.3d at 564, (9th Cir.2010)
Ultimately, a trial court must “assure that the expert testimony both rests on a reliable
foundation and is relevant to the task at hand.” Id. (Internal quotation and citation
omitted). Finally, a review of the case law after Daubert reveals that exclusion of expert
testimony is the exception rather than the rule. Fed. R. Evid. 702, Adv. Comm. Notes
(2000).
ANALYSIS
DVT argues that: (1) Bowles’ opinions in a report submitted October 25, 2013
(Avondet Aff. Ex A. Dkt. 39-1) should be excluded because it utilizes questionable
methods and unreliable principles; and (2) Bowles’ opinions in a supplemental report

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submitted January 10, 2013, (Avondet Aff. Ex B. Dkt. 39-1) should be excluded because it
is not based on scientific, technical or other specialized knowledge, and does not assist
the trier of fact.
1. Opinions in Report
There is no challenge to Bowles’ qualifications, skill, experience, or education;
only a challenge to the methodology employed to figure overtime compensation
described in part of the Code of Federal Regulations. 29 C.F.R. § 778.0. Bowles appears
to follow a reasonable methodology outlined in the statute. The hourly rate is determined
by dividing the wages earned in a day, by the number of hours worked in that day. 29
C.F.R. § 778.112. Bowles divides a $300 daily rate by 12 hours worked and arrives at a
hourly rate of $25 an hour. This hourly rate is used to determine overtime pay at time and
a half, for which Bowles arrives at $37.50 an hour. Avondet Aff. Ex A. Dkt. 39-1. The
methodology used by Bowles appears to be consistent with the methodology described in
the Fair Labor Standards Act (FLSA).
The problem seems to come from Bowles’ final tally. While Bowles applied a
reasonable methodology for calculating wages under FLSA, he failed to consider
compensation already paid to plaintiffs in his final tally; an error which he corrects in a
rebuttal report. Holman Aff. Ex B. Dkt. 48-3. Under these circumstances, the Court does
not see a problem with Bowles’ methodology in his initial report, but simply an error in a
calculation. By correcting this error Bowles changed his estimates for overtime pay from
$23,081.63 for Moore and $23,587.50 for Jardine, to $6,649 and $7,450 respectably. The

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discrepancy is problematic; however, concerns of this nature are best addressed through
“[v]igorous cross examination, presentation of contrary evidence, and careful instruction
on the burden of proof.” Daubert, 509 U.S. at 596.
2. Opinions in Supplemental Report.
Bowles submitted a supplemental report offering his opinion that the time sheet
records provided by DVT were incomplete and inaccurate. Avondet Aff. Ex B. Dkt. 39-1.
Expert testimony is not helpful to the jury – and therefore inadmissible – if it
simply tells the jury what result it should reach. Nationwide Transport Finance v. Cass
Information Systems, Inc., 523 F.3d 1051, 1059–60 (9th Cir.2008) (excluding expert
testimony regarding application of UCC to facts of the case) (citations omitted). Here, it
appears Bowles’ opinions are not based on scientific, technical or other specialized
knowledge. He simply looked at the record and concluded data was missing. Such
observations are within the capacity of the jury, and the use of an expert does not assist
the jury to understanding the evidence, or determine a fact in issue. Primiano, 598 F.3d at
563, (9th Cir.2010); Fed. R. Evid. 702. On the other hand, if the missing documents
affected Bowles calculations, such testimony may be admissible to explain how the
inadequately maintained records affected both the plaintiffs’ and the defendant’s experts
ability to accurately calculate damages.
Accordingly, the Court will grant the motion in limine to the extent it seeks to
exclude Bowles from offering expert testimony that certain time sheets are missing. This
does not mean, of course, that plaintiffs are precluded from offering testimony from a fact

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witness that DVT did not keep accurate or complete time sheets. Such testimony could
be provided by an employee of the defendant or even someone, like Bowles, who has
reviewed the documents DVT produced in discovery.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion in Limine (Dkt. 39) is DENIED in part and GRANTED
in part as explained above.

DATED: October 2, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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