Fast v. Applebee's International, Inc.

Filing 250

ORDER by Judge Nanette Laughrey granting in part and denying in part Defendant's Motion to Exclude Expert Testimony in Limine and Pursuant to Daubert 233 . It is hereby ORDERED that Defendants Motion to Exclude Expert Testimony in Limine and P ursuant to Daubert [Doc. # 233] is DENIED in part and GRANTED in part. The Court grants Defendants Motion in Limine as it relates to Mr. Cutlers Opinion 4 and Opinion 5 and partially as to Opinion 6; the Court denies Defendants Motion in Limine as t o Dr. Hagar's opinion; the Court denies in part and grants in part Defendant's Motion in Limine as to Mr. Crain's opinion. Mr. Crains calculation is inadmissible to the extent it is dependent entirely on Mr. Cutlers extrapolation of the questionnaire data to the whole class. It is also inadmissible to the extent the calculation incorporates state minimum wage.(Smith, Fran)

IN THE UNITED STATES DISTRICT COURT FOR THE W E S T E R N DISTRICT OF MISSOURI C E N T R A L DIVISION G E R A L D A. FAST, TALISHA C H E S H IR E , and BRADY GEHRLING, P l a i n t if f s , v. A P P L E B E E 'S INTERNATIONAL, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C as e No. 06-4146-CV-C-NKL

ORDER P la in tif f s, Gerald A. Fast, Talisha Cheshire, and Brady Gehrling ("Plaintiffs"), bring th is case as a collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 2 1 6 . They allege that Defendant Applebee's International, Inc. ("Applebee's"), has failed to p a y its servers and bartenders in compliance with the FLSA. Before the Court is Applebee's M o tio n to Exclude Expert Testimony in Limine and Pursuant to Daubert [Doc. # 233]. For th e following reasons, the Motion is DENIED in part and GRANTED in part. I. F a c tu a l Background A p p le b e e's has moved to exclude the testimony of Plaintiffs' three experts, William C u tle r, John Hagar and Michael Crain. Applebee's claims that William Cutler is not q u alified as an expert on the topics he opines and that some of his opinions are on matters o f law and therefore improper. Because the opinions of Hagar and Crain are derivative f ro m the opinions expressed by Mr. Cutler, Applebee's claims that their opinions must be

s tr ic k e n as well. In addition, Applebee's seeks to exclude the opinion of Crain because h e calculates the Plaintiffs' damages based on state minimum wage laws when an opt-in p la in tif f lives in a state where the state minimum wage is higher than the federal m in im u m wage. A. W illia m Cutler

W illia m Cutler worked for the United States Department of Labor ("DOL") for 24 ye a rs as a Compliance Officer with the Wage and Hour Division. He then worked for v a rio u s companies giving FLSA advice. He now has his own consulting firm and has g iv e n expert testimony in some cases involving the FLSA. During his tenure at the DOL, h e worked on numerous cases involving the compensation of tipped employees. However, he cannot remember a specific case that he worked on. Cutler does not recall a n y time during his DOL employment when he reviewed or interpreted the twenty percent g u id e lin e at issue in this case. As part of this litigation, Mr. Cutler assisted in preparing a questionnaire which w a s sent to the opt-in plaintiffs. Other than the introductory section which he wrote and s o m e changes he made to the body of the questionnaire, Mr. Cutler does not know who d e sig n e d the questionnaire. He does know that the questionnaire used in this case was b a se d on a questionnaire that was used by Applebee's counsel in the early stages of the litig a tio n . Mr. Cutler did make changes to the questionnaire which were consistent with h is experience at the DOL.

2

T h e questionnaire asked the opt-in plaintiffs to describe their duties during a typ ic a l shift. Mr. Cutler eliminated any responses that contained obvious mathematical e rro rs . For example, he would eliminate any response where the total time spent on d u tie s described by the opt-in plaintiff did not add up to the total length of the shift. While working as a DOL Compliance Officer, Mr. Cutler often used sampling te c h n iq u e s to investigate possible violations of the FLSA. He used these tools to gather in f o rm a tio n . Mr. Cutler does not recall ever seeing a DOL form designed to gather in f o rm a tio n with respect to tipped employees, and the Plaintiffs' questionnaire was not b a se d on any DOL template or form. Mr. Cutler admits he is not qualified as a statistician to extrapolate the results of a sample to a larger population. He has no idea what a q u a lif ie d statistician would do to extrapolate responses from only 30% of the class. M r. Cutler is aware of the process used in the distribution of the questionnaire to th e opt-in plaintiffs. The actual distribution was done by Epic Systems, Inc. As a s a f eg u a rd , Epic Systems required a responding opt-in plaintiff to include the last four d ig its of their social security number to ensure that only opt-in plaintiffs were providing in f o rm a tio n . However, Mr. Cutler did not remember this process at the time of his d e p o s itio n . In the questionnaire sent to the opt-in plaintiffs, Mr. Cutler did not define the term " typ i c a l" when asking the opt-in plaintiffs to describe a typical shift. He states that it is a c o m m o n word which is generally understood to mean average or normal. He relied on

3

th e opt-in plaintiffs to do their best to fill in the questionnaire which is the same approach ta k e n by him and other investigators at the DOL. Approximately thirty per cent of the o p t-in plaintiffs returned the questionnaire. About ten percent of those responses were e x c lu d e d because they were obviously incorrect. B. D r . John Hagar

D r. Hagar is a statistician at the University of Missouri. After Mr. Cutler finished e lim in a tin g obvious mathematical errors from the questionnaire responses, Dr. Hagar p e rf o rm e d an analysis to determine the mean, median and distribution of the data g a th e re d . He also determined that the data fell within the expected distribution of a bell c u rv e . Finally, he eliminated from his data the top ten percent of responses which showed g e n e ra l preparation and maintenance work in excess of twenty percent. This was to the a d v a n ta g e of Applebee's. C. M ich a e l Crain

M ic h a el Crain is an economist who does damage calculations. Using the c a lcu latio n s made by Dr. Hagar, he determined the amount of wages which were due to th e Plaintiffs and the opt-in plaintiffs. He took Dr. Hagar's average response calculation a n d applied it to Plaintiffs' time records. In making this calculation, Mr. Crain used the s ta te minimum wage where the state minimum wage was higher than the federal m in im u m wage. II. D is c u s s io n

4

A.

F e d e r a l Rule of Evidence 702

Federal Rule of Evidence 702 provides that expert opinion testimony is p e rm iss ib le if it is based on scientific, technical or other specialized knowledge and will a ss is t the trier of fact. It must be given by a person qualified as an expert based on e x p e rie n c e, training or education. The testimony must meet the following three criteria: (1 ) it must be based upon sufficient facts or data; (2) it must be the product of reliable p rin c ip le s and methods; and (3) the witness must have applied the principles and m e th o d s reliably to the facts of the case. Federal Rule of Evidence 702 was amended to its current form in 2000 in re sp o n s e to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2 7 8 6 , 125 L. Ed.2d 469 (1993). Daubert charged trial judges with acting as gatekeepers to exclude unreliable expert testimony. In Daubert, the Supreme Court held that expert te stim o n y must be based on a reliable and scientifically valid methodology that fits the f a c ts of the case. 509 U. S. 579 (1993). Among the factors a court should consider in its g a te k e ep in g function to allow or exclude expert testimony are (1) whether the m e th o d o lo g y can and has been tested; (2) whether the technique has been subjected to p e e r review and publication; (3) the known or potential rate of error of this methodology; a n d (4) whether the technique has been generally accepted in the proper scientific c o m m u n ity. Id. at 593-94. The Supreme Court has subsequently held that the same s ta n d a rd s of reliability announced in Daubert and codified in the revised Federal Rule of

5

E v id e n c e 702 apply equally to all expert testimony whether based on scientific, technical, o r other specialized knowledge. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148, 1 1 9 S. Ct. 1167, 143 L. Ed.2d 238 (1999). The Eighth Circuit has further held that in determining reliability factors, the d is tric t court must customize its inquiry to fit the facts of each particular case. Jaurequi v . Carter Mfg. Co., 173 F.3d 1076, 1083 (8 th Cir. 1999). Also see, Miller v. Baker Im p le m e n t Co., 439 F.3d 407, 412 (8th Cir. 2006) ("The district court fulfills its role as g a tek e e p e r by screening the proposed evidence and evaluating it in light of the specific c irc u m s ta n c es of the case to ensure that it is reliable and sufficiently relevant to assist the ju ry in resolving the factual disputes."). Moreover, Rule 702 reflects an attempt to lib e ra liz e the rules governing the admission of expert testimony. Lauzon v. Senco P r o d u c ts , Inc., 270 F.3d 681, 686 (8th Cir. 2001). The rule clearly is one of admissibility ra th e r than exclusion. Id. Case law shows that rejection of expert testimony is the e x c e p tio n rather than the rule. Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1101 (8 th Cir.2006). One of the circumstances of an FLSA case is that exactness is not required because o f the difficulty of reconstructing historical data. Thus, a district court must "estimate a n d fashion a reasonable remedy that restores as fully as possible all the employees c o v e re d by the FLSA who were improperly denied compensation . . . ." Brock v. Tony a n d Susan Alamo Foundation, 842 F.2d 1018,1019 (8th Cir. 1988).

6

B.

W illia m Cutler's Opinions

A p p leb e e 's seeks to exclude each of Mr. Cutler's six opinions. The opinions will b e addressed individually and sequentially. 1. O p in io n One

In his first opinion William Cutler states as follows: In my professional opinion and with a reasonable degree of professional c e rta in ty I believe that the use of the Opt-In Questionnaire is a valid means th ro u g h which the duties that are at issue in this lawsuit may be evaluated to d e te rm in e Applebee's compliance with the FLSA. Applebee's claims that this opinion should not be permitted because (1) there is no f o u n d a tio n for it; (2) Mr. Cutler has no expertise in surveys; (3) the questionnaire is not b a se d on reliable principles or methods; (4) the questionnaire is not clear and precise; (5) th e questionnaire is not framed to be unbiased; and (6) the questionnaire will not assist the trie r of facts. Mr. Cutler worked as a compliance officer with the DOL for 24 years. In his job he w a s required to interpret, and apply FLSA regulations, labor laws and DOL Handbook p ro v is io n s . He investigated employers suspected of FLSA violations. Since retiring from th e DOL, Mr. Cutler has continued to work with wage and hour law. He states he has d o n e tip credit investigations although he has not done one involving the twenty percent ru le that is in dispute in this case. While he does not claim to be an expert on surveys, he h a s testified that he used similar surveys during his work at DOL to gather information a b o u t FLSA violations. He also testified that other Compliance Officers used similar 7

q u e stio n n a ire s to gather historical data. His testimony in this regard is supported by c a s e la w . See, e.g., Reich v. Monfort, Inc., 144 F.3d 1329 (10th Cir. 1998); M e tz le r v. IBP, Inc., 127 F.3d 959 (10th Cir. 1997); Brock v. J.R. Sousa & Sons, Inc., 113 F .R .D . 545 (D. Mass. 1986); Donovan v. Hudson Stations, Inc., 1983 WL 2110 (D. Kan. 1 9 8 3 ). He also had documents showing the organization of Applebee's and how work was a ss ig n e d and described. Therefore, his evaluation of the questionnaire was made in c o n te x t not a vacuum. The questionnaire used here is not particularly complicated. It asks employees to iden tify the work they did during a typical shift. While not all parts of the questionnaire a re precise, precision is sometimes not possible in an FLSA case when there are no c o n te m p o r a n e o u s records showing what work was performed. The Court's Daubert a n a lysis must be made in that context. Miller v. Baker Implement Co., 439 F.3d 407, 412 (8 th Cir. 2006). Furthermore, counsel for Applebee's used similar questions to gather in f o rm a tio n from Appleebee's employees early in the case. While counsel does not p u rp o rt to be an expert in the field of surveys, his use of similar questions to gather in f o rm a tio n that is clearly relevant to this case suggests that the approach taken by P lain tiff s is not unreasonable or so inherently unreliable that the questionnaire and Mr. C u tle r' s testimony about it should be excluded.

8

T h e Court does not believe that the Federal Judicial Center's Reference Manual on S c ie n tif ic Evidence is particularly applicable here. If this case involved a patent where a c o u rt or a jury is heavily dependent on scientists to understand the data, the Manual would b e instructive. Such is not the case with a questionnaire that asks employees about their w o rk history. Moreover, it is clear that post-Daubert questionnaires are being used in F L S A disputes and there is no evidence that the guidance in the FJC's Reference Manual c ite d by Applebee's is controlling in these kinds of cases. See, Metzler, 127 F.3d 959,961 (1 0 th Cir. 1997) (The trial court admitted a DOL questionnaire which did not conform to th e FJC Manual. The trial court found problems with the questionnaires such as bias and im p re c is io n caused by recreating historical data about distant and unremarkable tasks. Further, out of 23,580 employees that were sent the questionnaire, only 5,743 responses w e re received, a response rate much lower than the Federal Judicial Center's Reference M a n u a l on Scientific Evidence would recommend. Nonetheless, the trial court relied on th e questionnaire to fashion a remedy applicable to all workers.). Also see, Reich v. M o n fo r t, Inc., 144 F.3d 1329 (10th Cir. 1998) (6,186 questionnaires sent out and 888 re sp o n s e s were received. Class-wide remedy fashioned on 888 responses). Finally, the E ig h th Circuit in Marvin Lumber and Cedar Company v. PPG Industries, Inc., 401 F.3d

9

9 0 1 , 915 (8th Cir. 2005), found that "[i]t goes without saying that the Manual does not h a v e the force of law, nor are judges required to follow it." Id. A p p le b e e's complaint that the questionnaire lacks precision and is not framed to be u n b ia se d clearly goes to the weight of the evidence and not its admissibility. Similarly, the m e th o d by which the questionnaire was assembled and administered and Mr. Cutler's lack o f expertise in the field of surveys can be explored on cross examination and in closing a rg u m e n t. See, Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929 (8th Cir. 2001). T h e Court denies Applebee's Motion as it relates to Mr. Cutler's Opinion One. 2. O p in io n Number 2

I n his Second Opinion Mr. Cutler states: In my professional opinion and within a reasonable degree of professional c e rta in ty, I believe that general preparation and maintenance work is not a tip -p ro d u c in g activity. Applebee's argues that this opinion is not admissible because Mr. Cutler lacks the e x p e rtis e to give the opinion and it is nothing more than a legal conclusion. Previously, th e Court has held that the question of what is tip producing activity is a fact question for th e jury. As of this time, neither party has asked the Court to reconsider this finding or in d ic a te d that it was in error. If this is a fact question, then Mr. Cutler is not giving a legal o p in io n when he identifies what is tip producing activity. As to his credentials, he has

10

w o rk e d for many years interpreting and enforcing the FLSA. He has handled cases which in v o lv e d the tip credit, although never one that required him to interpret or apply the tw e n ty percent rule which is found in the DOL Guidebook. While this is a close question, the Court finds that Mr. Cutler is qualified by his experience to give this opinion. Mr. C u tler' s experience with the DOL Guidebook and regulations enables him to explain to th e jury how the DOL's regulations and Guidebook are used by Compliance Officers and w h at should be considered to determine whether something is a tip producing activity. It w ill be for the jury to determine whether his opinion about tip producing activity is c o n s is te n t with the DOL's interpretation and whether his opinion makes common sense. Thus, even if this involves a legal issue, the Court finds Mr. Cutler's Opinion 2 a d m is s ib le . The Court denies Applebee's Motion as it relates to Opinion 2. 3. O p in io n Number 3

I n his Third Opinion Mr. Cutler states: In my professional opinion and within a reasonable degree of professional c e rta in ty, I believe that the following "Section" and "No" fields of the OptIn Questionnaire were correctly used to identify the opt-in plaintiffs' general p rep ara tio n and/or maintenance type duties and work-time[.] Again, Applebee's argues that this is merely a legal opinion which Mr. Cutler is not q u a lifie d to make. In this opinion Mr. Cutler is effectively defining for the jury what is g e n e ra l preparation work as that term is used in the DOL Guidebook Section 30d00(e) 11

(D e c . 9, 1988). There is no evidence in the record that Mr. Cutler has experience defining w h a t is general preparation and/or maintenance work. However, having worked for the D O L for many years, it would not be surprising that he was called upon to define how s p e c if ic tasks should be categorized based on a general statement in a regulation or h an d b o o k . In other words, when a regulation specifically identifies some tasks that are la b e le d general preparation (in this case "cleaning and setting tables, making coffee, and o c c as io n a lly washing dishes or glasses"), how does a DOL Compliance Officer determine w h a t other tasks should be similarly categorized. The Court assumes a DOL Compliance O f f ic e r would have to make these kinds of interpretations on a regular basis. Laws and re g u la tio n s are normative principles that have to be applied to diverse factual contexts. Rarely does the law or regulation identify on it face every factual context to which it will a p p ly. Given that Mr. Cutler has extensive compliance experience, it is more likely than n o t that he has made similar deductions. The fact that he has never had to classify these p articu lar tasks does not mean his opinion is unreliable or unhelpful to the jury. The Court d e n ie s Applebee's Motion as it relates to Mr. Cutler's Opinion 3. 4. O p in io n Number 4

I n his Fourth Opinion Mr. Cutler states: In my professional opinion and within a reasonable degree of professional c e rta in ty, I believe that opt-in plaintiffs regularly spent, on average, in 12

e x c es s of 20% of their shift time performing general preparation and/or m a in te n a n c e work during the case period. (Cutler Report, pp. 67). Applebee's seeks to exclude this opinion because it is based on th e flawed questionnaire and it is dependent on Mr. Cutler's Second and Third Opinions. While the Court has not excluded the questionnaire or Mr. Cutler's Second and Third O p inion s, it will not allow his Fourth Opinion. It is not particularly helpful to the jury b e c au s e Mr. Cutler's conclusion is derived from evidence already before the jury and the inf ere n ce he makes can be made by the jury without the assistance of an expert. Further, it is sufficiently close to the ultimate issue that the jury must reach, that this expert opinion ru n s the risk of invading the province of the jury. Applebee's Motion is granted as it re la te s to Mr. Cutler's Opinion 4. 5. O p in io n Number 5

I n his Fifth Opinion Mr. Cutler states: In my professional opinion and within a reasonable degree of professional c e rta in ty, I believe that it is possible to extrapolate the results of the opt-in q u e s tio n n a i re to the entire class of opt-in plaintiffs. (Cutler Report, pp. 71-72). T h e Court will not permit Mr. Cutler to give this opinion. First, Plaintiffs have not p ro v id e d sufficient evidence that Mr. Cutler is qualified to give this opinion. There is no e v id e n c e that Mr. Cutler has made similar extrapolations in his job as a compliance officer 13

a n d if he has why that experience is helpful in making this particular extrapolation. The s p e c if ic s of this conclusion are so dependent on the facts in this case the Court is not c o n f id e n t that his general experience at the DOL would permit him to make this c o n c lu s io n and Plaintiffs have not persuaded the Court otherwise. In addition, Mr. Cutler a d m its that he is not an expert on statistics and there is evidence on the face of the q u e stio n n a ire that undermines the expert's opinion. Some of the respondents show that th e y did not work more than twenty percent of their time on general preparation and m a in te n a n ce . While Mr. Cutler can testify about the use of extrapolation generally at the D O L and his experiences with extrapolation, it will not permit him to give Opinion 5. Applebee's Motion is granted as it relates to Opinion 5. 6. E x p e r t Opinion Number 6

I n his Sixth Opinion Mr. Cutler states: In my professional opinion and within a reasonable degree of professional c e rta in ty, I believe that Applebee's failed to maintain an accurate record of h o u rs worked to determine the extent of the amount of general preparation a n d maintenance type work performed by opt-in plaintiffs classified as tip p e d employees, upon which Applebee's ability to take a tip credit for h o u rs worked rests. (Cutler Report, p. 72). The Court will not exclude this opinion in its entirety. The Court w ill permit Mr. Cutler to testify about the record keeping requirements of the FLSA and e x p lain the practical problems that occur when no records are maintained. The Court will 14

a ls o permit him to testify that Applebee's did not maintain a record of hours worked w h ic h could now be used to determine the extent of the amount of general preparation and m a in ten a n c e work performed by opt-in plaintiffs. However, the Court will not permit him to testify to the last clause "upon which Applebee's ability to take a tipped credit for hours w o rk e d rests." First, the Court is not certain what that clause means. Second, it could im p ly that by not keeping records, Applebee's forfeited its right to take a tipped credit w h ic h is not the law. Third, it is for the jury to decide whether Applebee's kept the re c o rd s required by law to take the tipped credit. D. D r . Hagar's Opinions

A p p leb e e's seeks to exclude Dr. Hagar's testimony because all of Dr. Hagar's te stim o n y is allegedly based on Mr. Cutler's inadmissible opinions. Because the Court has n o t excluded Mr. Cutler's opinion testimony about the questionnaire and because Hagar's o p in io n s are not dependent on opinions which the Court did exclude, the Court denies A p p le b e e 's Motion to the extent it relates to Dr. Hagar. E. C r a in 's Opinions

M r. Crain was retained by the Plaintiffs to determine the amount of wages due to th e opt-in plaintiffs. Mr. Crain's testimony references Mr. Cutler's extrapolation opinion w h ic h this Court has limited. To the extent Mr. Crain's calculations are dependent only on

15

M r. Cutler's extrapolation opinion, they are inadmissible. To the extent his calculations a re based on the factual record, Applebee's Motion in Limine is denied. Finally, the Court is unpersuaded by the Plaintiffs' argument that 29 U.S.C. § 2 1 8 (a )1 mandates defining "minimum wage" for purposes of FLSA damages calculations a s the higher of the state and federal minimum wage rates. 29 U.S.C. § 216(b) states that e m p lo ye rs who violate the FLSA are liable to their employees in the amount of their " u n p aid minimum wage." Though § 218(a) expressly provides that the FLSA does not p re e m p t higher state minimum wages, it also does not adopt such higher wages as the m e a s u re of damages for FLSA violations. See Bruns v. Municipality of Anchorage, 182 F .3 d 924, No. 97-36060, 1999 WL 288910, at *2 (9th Cir. May 10, 1999) (" 29 U.S.C. § 218(a) simply makes clear that the FLSA does not preempt any existing state law that e sta b lis h e s a higher minimum wage or a shorter workweek than the federal statute. It does n o t purport to incorporate existing state law") (internal punctuation omitted) (citing Cosme

In relevant part, § 218 provides: No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter . . . . No provision of this chapter shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this chapter, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this chapter. 29 U.S.C. § 218(a). 16

1

N ie v es v. Deshler, 786 F.2d 445, 452 (1st Cir.1986)). The cases cited by Plaintiffs as p r o v i d in g damages at state wage rates included claims for violations of state wage statutes; P la in tif f s clarify that they bring no such claims. See generally Chan v. Sung Yue Tung C o r p ., No. 03 Civ. 6048(GEL), 2007 WL 313483 (S.D.N.Y. Feb. 1, 2007). Plaintiffs p ro v id e no basis for using state minimum wage rates in their damages calculations. To the e x te n t that Mr. Crain's damage calculation is based on that premise, it is inadmissible. III. C o n c lu s io n A cc o rd in g ly, it is hereby ORDERED that Defendant's Motion to Exclude Expert T e stim o n y in Limine and Pursuant to Daubert [Doc. # 233] is DENIED in part and G R A N T E D in part. T h e Court grants Defendant's Motion in Limine as it relates to Mr. C u tle r's Opinion 4 and Opinion 5 and partially as to Opinion 6; the Court denies D e f en d a n t's Motion in Limine as to Dr. Hagar's opinion; the Court denies in part and g ran ts in part Defendant's Motion in Limine as to Mr. Crain's opinion. Mr. Crain's ca lculatio n is inadmissible to the extent it is dependent entirely on Mr. Cutler's

17

e x tra p o la tio n of the questionnaire data to the whole class. It is also inadmissible to the e x te n t the calculation incorporates state minimum wage.

s/ Nanette K. Laughrey NANETTE K. LAUGHREY U n ite d States District Judge D a te d : August 3, 2009 Jef fe rson City, Missouri

18