Durham et al v. Lake County Indiana

Filing 146

OPINION AND ORDER: The Court hereby GRANTS in part and DENIES in part 133 Defendant's Motion to Exclude the Trial Testimony of Plaintiff's Proposed Expert Witness Patricia Slate, as described herein. The Court hereby GRANTS in part and DENIES in part 135 Motion to Exclude Defendant's Expert Witness, Robert Viega, pursuant to Fed. Rule of Evidence 702, as described herein. Signed by Magistrate Judge John E Martin on 6/21/2022. (asd)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID DURHAM, et al.,
Plaintiffs,
v.
LAKE COUNTY INDIANA,
Defendant.

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CAUSE NO.: 2:13-CV-300-JEM

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Exclude the Trial Testimony of
Plaintiffs’ Proposed Expert Witness Patricia Slate [DE 133], filed by Defendant on May 20, 2022,
and a Motion to Exclude Defendant’s Expert Witness, Robert Viega, pursuant to Fed. Rule of
Evidence 702 [DE 135], filed by Plaintiffs on May 20, 2022. Defendant seeks to exclude the
testimony of Plaintiffs’ expert, Patricia Slate. Plaintiffs seek to exclude the testimony of
Defendant’s expert, Robert Viega. The parties filed their respective responses on June 3, 2022,
and on June 10, 2022, filed their respective replies.
I.

Background
Plaintiffs, current and former employees of Lake County Highway Department, filed their

Complaint on August 23, 2013, alleging that Defendant Lake County is liable for failing to pay
them for all time they worked pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
and the Indiana Minimum Wage Act, I.C. § 22-2-2-1 et seq.
Plaintiff designated Patricia Slate, a former supervisor at the U.S. Department of Labor
(DOL), as an expert witness. She interviewed four of the Plaintiffs, investigated the allegations
and prepared a report and supplemental report detailing her findings. Defendant now seeks to have
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her testimony excluded from presentation at trial.
Defendant designated Robert Viega, a DOL investigator from 1997 to 2007, as a rebuttal
expert witness. He conducted interviews, reviewed the pleadings and DOL materials, and prepared
a report. Plaintiffs now seek to have his testimony excluded from presentation at trial.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. _ 636(c).
II.

Analysis
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the

standards set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.
2007). Rule 702 provides that courts should admit expert testimony 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.
A. Defendant’s Motion to Exclude
Defendant contends that Slate’s opinion is inadmissible because her methodology was
improper, and her opinions are improper legal conclusions and therefore invade the province of
the jury. Plaintiffs argue that Slate’s methods and the depths of her investigation were sufficient,
and that her opinions are admissible under Rule 704(a), even though they go toward an ultimate

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issue. Plaintiffs agree that Slate cannot testify as to whether Plaintiffs were exempt or non-exempt
employees but argue that she can testify that if a certain set of facts are found to be true, that would
satisfy the standard of whether someone is exempt.
In order to be relevant, the expert testimony must “assist the trier of fact with its analysis
of any of the issues involved in the case,” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.
2000), and reveal something more than “what is obvious to the lay person,” Dhillon v. Crown
Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (quoting Ancho v. Pentek Corp., 157 F.3d 512,
519 (7th Cir. 1998) (internal quotation marks omitted)). “This ‘fit’ analysis essentially represents
an inquiry similar to if not indistinguishable from the basic evidentiary inquiries into whether
evidence is relevant and, if so, whether its probative value is nonetheless substantially outweighed
by, among others, the danger of unfair prejudice and jury confusion.” Rogers v. Quality Carriers,
Inc., No. 4:15-CV-22, 2017 WL 2960264, at *2 (N.D. Ind. July 11, 2017) (citing Daubert, 509
U.S. at 595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill. 1995)); see also United
States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996) (“Unless the expertise adds something, the expert
at best is offering a gratuitous opinion, and at worst is exerting undue influence on the jury that
would be subject to control under [Federal Rule of Evidence] 403.”); Amakua Dev. LLC v. Warner,
No. 05 C 3082, 2007 WL 2028186, at *6 (N.D. Ill. July 10, 2007) (citing Taylor v. Ill. Cent. R.R.
Co., 8 F.3d 584, 586 (7th Cir. 1993) (“Expert testimony does not assist the trier of fact when the
jury is able to evaluate the same evidence and is capable of drawing its own conclusions without
the introduction of a proffered expert’s testimony.”). In addition, “expert testimony as to legal
conclusions that will determine the outcome of the case is inadmissible.” Good Shepherd Manor
Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (citing United States v. Sinclair,
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74 F.3d 753, 757 n. 1 (7th Cir.1996).)
Defendant argues that Slate’s methodology was flawed because she lacked sufficient
evidence to come to a conclusion because she interviewed only four of the eight plaintiffs, did not
investigate the process by which Lake County set the job descriptions of the plaintiffs, and failed
to identify any recognized methodology for her analysis. Plaintiffs argue that Defendant has
offered no legal authority for its argument that Slate’s evidence was insufficient, that Slate
investigated Plaintiffs’ actual job duties, and that her methodology is fully set forth in her reports.
Defendant argues that Slate admitted to only interviewing only four of the eight Plaintiffs
and could not remember how much time she spent with each of them but offers no authority for
its argument that interviewing fewer than all of the plaintiffs gives a potential expert insufficient
evidence from which to draw conclusions. Defendant argues further that Slate did not take into
account the Defendant’s process and analysis when it created the job descriptions for each
Plaintiff’s role. Plaintiffs argue that since none of the plaintiffs were ever given their job
descriptions, their actual job duties were more important to reaching a conclusion as to whether
they are exempt or non-exempt, but that Slate based her conclusions on the actual duties, which
she investigated, rather than the descriptions. The actual job duties performed by any Plaintiff are
at least as relevant as formal job descriptions of which Plaintiffs may not have been aware and
Slate’s consideration of the job duties rather than the job descriptions is not a flaw in her
methodology.
Although interviewing more of the plaintiffs or an analysis of the job descriptions rather
than job functions actually performed may have produced a different result, and those differences
could be a basis for cross-examination, the existence of differing methodological choices do not
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show that Slate’s opinion is not based on “sufficient facts or data,” or that it is not the product of
reliable methods or principles. Fed. R. Evid. 702. The “factual underpinnings of expert testimony”
should generally be evaluated by the trier of fact. Smith, 215 F.3d at 718 (7th Cir. 2000); see also
Walker v. Soo Line R. Co., 208 F.3d 581, 586B87 (7th Cir. 2000) (citing Daubert, 509 U.S. at 596)
(“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”).
Defendant also argues that Slate failed to adequately explain her methodology and how she
arrived at her overtime compensation entitlement conclusions for Plaintiffs. In her report, Slate
describes her methodology, stating that she considered DOL resources, including statutes and
administrative opinions as well as filings in this case, and lists those materials on separate exhibits
to her report. Def. Ex. A p. 5-7 [DE 134-1]. The Court finds that Slate adequately explained her
method and that it is sufficiently supported within the FLSA enforcement community. See
Daubert, 509 U.S. at 590 (holding that while scientific testimony must meet a “standard of
evidentiary reliability,” the subject does not need to be “‘known’ to a certainty”).
Defendant ultimately does not show that Slate’s methodology is “unreliable” or that it must
be excluded rather than addressed with contrary evidence and argument. “The critical point is that
[the expert] employed a proper methodology . . . to rely on the test that he administered and upon
the sources of information which he employed.” Walker, 208 F.3d at 587. Instead, Defendant may
challenge Slate’s opinion on cross-examination. Daubert, 509 U.S. at 596.
Defendant also argues that Slate’s testimony goes to the ultimate conclusion of whether
Plaintiffs (or any of them) were exempt or non-exempt employees for purposes of the payment of
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overtime compensation. In support of this argument, Defendant cites several opinions granting
motions to exclude former DOL employees from testifying as to whether a party is exempt or nonexempt for purposes of overtime compensation, but do not cite any Seventh Circuit opinions in
support of this argument. The Federal Rules of Evidence permit expert testimony which opines on
relevant facts, even if those facts go to an ultimate question of law. Fed. R. Evid. 704. Plaintiffs
argue that Slate’s testimony as to whether an employee would meet the standard of being exempt
or non-exempt from the payment of overtime compensation based on certain facts would be
admissible but agree that she may not testify as to whether any Plaintiff was actually an exempt or
non-exempt employee. The focus of a Rule 704 inquiry should be
whether the testimony contains language that has a “separate, distinct, and
specialized meaning in the law different from that present in the vernacular” or
whether the words also have an everyday meaning. . . . “Even if the everyday
understanding of a term and its legal meaning are congruent, exclusion is
inappropriate where the opinion will not consist of a naked conclusion (i.e., the
defendant’s conduct was reasonable, was negligent, etc.) but will be based on
adequately explored legal criteria.’ That is, they will explain the reasons underlying
the ultimate conclusion. Moreover, the court will instruct the jury on the
appropriate meaning of the legal standard and that the jury is free to reject the
testimony of the expert. Consequently, the risk of jury confusion is not present.”
CDX Liquidating Tr. v. Venrock Assocs., 411 B.R. 571, 587-588 (N.D. Ill. 2009) (quoting Richman
v. Sheahan, 415 F. Supp. 2d 929, at 947 (N.D. Ill. 2006)) (citing Amakua, 2007 U.S. Dist. LEXIS
49952 at *11; In re Commercial Loan Corp., 396 B.R. 730, 739 (Bankr. N.D. Ill. 2008).
In this case, there is relevant statutory language which has a “separate, distinct, and
specialized meaning in the law different from that present in the vernacular.” Slate’s opinions, so
long as they do not consist of a naked conclusion but are based on “adequately explored legal
criteria,” are permissible. As the advisory committee’s note to Rule 704 provides:

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Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule
403 provides for exclusion of evidence which wastes time. These provisions afford
ample assurances against the admission of opinions which would merely tell the
jury what result to reach, somewhat in the manner of the oath-helpers of an earlier
day. They also stand ready to exclude opinions phrased in terms of inadequately
explored legal criteria.
Fed. R. Evid. 704 advisory committee’s note. Accordingly,
an expert may offer his opinion as to facts that, if found, would support a conclusion
that the legal standard at issue was satisfied, but he may not testify as to whether
the legal standard has been satisfied. “There is no doubt that under Rules
702 and 704 an expert may testify about applicable professional standards and the
defendants’ performance in light of those standards.”
Amakua, 2007 U.S. Dist. LEXIS 49952, at *34-35 (quoting Richman, 415 F. Supp. 2d at 945)
(citing Burkhart, 112 F.3d at 1212-13).
Slate’s opinions, so long as they are more than a naked conclusion but are based on
“adequately explored legal criteria” are permissible. Richman, 415 F. Supp. 2d at 947. Questions
must be couched more like “Did T have sufficient mental capacity to know the nature and extent
of his property and the natural objects of his bounty and to formulate a rational scheme of
distribution?” than “Did T have the capacity to make a will?” Fed. R. Evid. 704, committee
advisory note.
In this case, there are technical matters requiring the explanation of an expert and the jury
needs assistance in understanding what factors make an employee eligible for overtime
compensation. Slate’s report addresses those standards. Expert testimony regarding the factors in
determining overtime eligibility is useful for assisting the jury in understanding how employers
should make that determination. Slate may not, however, testify as to the ultimate issue of whether
Plaintiffs were exempt or non-exempt employees. See, e.g., Hawn v. Speedway LLC, No.
1:16-CV-359, 2018 U.S. Dist. LEXIS 67320, at *12-13, 2018 WL 1896634, at *6 (N.D. Ind. Apr.
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21, 2018).
B. Plaintiffs’ Motion to Exclude
Plaintiffs argue that Viega is not qualified, his methodology is flawed, and that his opinions
are impermissible ultimate conclusions. Defendant argues that Viega is qualified to testify as an
expert based on his experience, he is qualified to testify as a lay witness based on his long-term
involvement in Defendant’s process of determining whether Plaintiffs were exempt or nonexempt, and that his testimony as a rebuttal to Plaintiffs’ expert is also appropriate.
Plaintiffs argue that Viega is not qualified as an expert because his education is not relevant
to this field and that his time as an investigator for the U.S. Department of Labor does not qualify
him to testify as to the matters at issue. Plaintiffs also argue that the fact that Viega has not testified
or been presented as an expert in any prior case makes him unqualified. Defendant counters that
Viega worked for the DOL for 30 years investigating DOL claims, including overtime cases, and
as a supervising investigator training new investigators. Viega also has done post-retirement
consulting on FLSA issues for the firm that this Defendant used to conduct its job description and
FLSA assessments. Plaintiffs do not cite any legal authority to establish how the work experience
of Viega, including both his DOL experience and his post-retirement consultant work, or his lack
of prior testimony experience, are insufficient. The Court finds that Viega is qualified to testify as
an expert on overtime compensation issues. See Smith, 215 F.3d at 718. (“Accordingly, [courts]
consider a proposed expert's full range of practical experience as well as academic or technical
training when determining whether that expert is qualified to render an opinion in a given area.”).
Plaintiffs also argue that Viega’s methodology was flawed in that he did not rely upon
specific regulatory provisions, had no recollection of a specific change in the applicable test for
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determining exempt status, and has done no consulting on this issue in the last four years.
Defendant does not address this argument specifically, but the Court finds that, as with Slate’s
methodology, Viega described his methodology and identified the resources and filings in this case
in his report. Pl. Ex. A, p 3-4 [DE 136-1]. The Court finds that Viega adequately explained his
method and that it is sufficiently supported within the FLSA enforcement community. See
Daubert, 509 U.S. at 590 (holding that while scientific testimony must meet a “standard of
evidentiary reliability,” the subject does not need to be “‘known’ to a certainty”).
Plaintiffs ultimately do not show that Viega’s methodology is “unreliable” or that it must
be excluded rather than addressed at trial with contrary evidence and argument. “The critical point
is that [the expert] employed a proper methodology . . . to rely on the test that he administered and
upon the sources of information which he employed.” Walker, 208 F.3d at 587. Plaintiffs may
challenge Viega’s opinion on cross-examination. Daubert, 509 U.S. at 596.
Defendant argues that Viega can also testify as a lay witness in this matter as to those
matters within his personal knowledge because he was involved in the Defendant’s processes at
issue in this case. Plaintiffs argue that Viega’s involvement in Defendant’s processes does not offer
a “back-door” to any expert opinions he may make. Viega can certainly testify as to matters within
his personal knowledge, consistent with the applicable Federal Rules of Evidence.
Plaintiffs finally argue that Viega’s testimony would be impermissible legal conclusions.
Defendant argues that Viega’s testimony would be in the nature of rebuttal of Plaintiffs’ expert
Slate. The Court has analyzed the permissible boundaries of Slate’s testimony above, and the same
boundaries would apply to Viega’s testimony as an expert.

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III.

Conclusion
Accordingly, the Court hereby GRANTS in part and DENIES in part Defendant’s

Motion to Exclude the Trial Testimony of Plaintiffs’ Proposed Expert Witness Patricia Slate [DE
133], as described herein. The Court hereby GRANTS in part and DENIES in part Motion to
Exclude Defendant’s Expert Witness, Robert Viega, pursuant to Fed. Rule of Evidence 702 [DE
135], as described herein.
SO ORDERED this 21st day of June, 2022.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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