Lopez et al v. Tyson Foods

Filing 307

MEMORAUNDUM AND ORDER - IT IS ORDERED that the motions of plaintiff and defendant are granted in part and denied in part in accordance with these findings of the Court. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
DIMAS LOPEZ, et al.,
individually and on behalf of
a class of others similarly
situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
TYSON FOODS, INC.,
)
)
Defendant.
)
______________________________)

8:06CV459

MEMORANDUM AND ORDER

This matter is before the Court upon plaintiffs’
omnibus motion in limine (Filing No. 216), plaintiffs’ motion in
limine regarding de minimis related evidence or argument (Filing
No. 217), plaintiffs’ motion to preclude argument or evidence
based on “elemental” increments of time or time studies (Filing
No. 218), plaintiffs’ motion to preclude Dr. Jeffrey Fernandez
from testifying or introduction of his expert report (Filing No.
219), plaintiffs’ motion in limine to preclude evidence or
argument on compensability for knife-related employees (Filing
No. 220), plaintiffs’ motion in limine to preclude argument or
evidence concerning class certification or the number of class
members testifying (Filing No. 221), plaintiffs’ motion to
preclude evidence or argument about obsolete portions of the
Reich v. IBP decision (Filing No. 222), defendant’s motion to
strike 25 previously undisclosed witnesses and dismiss three
plaintiffs for failure to appear for their depositions (Filing

No. 223), defendant’s motion in limine to exclude certain
evidence (Filing No. 225), defendant’s motion for clarification
or amendment of prior order (Filing No. 256), and defendant’s
motion in limine to limit plaintiffs’ use of video evidence and
to strike their objections and counter-designations to
defendant’s designated video clips (Filing No. 293).
Upon review the motions, briefs, and relevant law, the
Court makes the following findings:
A. Plaintiffs’ omnibus motion in limine (Filing No. 216)
Plaintiffs respectfully move the Court to preclude
defendant’s witnesses and defense counsel from testifying,
referencing, arguing, mentioning in testimony, questions or
comments or submitting documentary evidence concerning the
following topics at trial:
1. Evidence of arrest, criminal prosecution or
conviction of plaintiffs or other class members
This Court retains the power to rule that the
prejudicial effect of a particular conviction requires its
exclusion.

Fed. R. Evid. 609(a)(1).

In this case, evidence of

class member’s criminal conviction may have a highly prejudicial
effect on the class as a whole.

Thus, plaintiffs respectfully

request that the Court adopt a rule restricting the admission of
all criminal convictions unless defendant can demonstrate that
the particular conviction: (1) was for a felony that was
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punishable by more than one year imprisonment or involved a
required element of dishonesty; (2) occurred less than ten years
ago; and (3) is not unduly prejudicial to the class.
Plaintiffs’ motion as to this issue will be granted,
although defendant will be able to impeach the credibility of any
of plaintiffs’ witnesses within the bounds of Fed. R. Evid. 609.
2. Evidence of any plaintiff’s or other class member’s
financial difficulties domestic relations or civil suits
Defendant stipulates to this part of plaintiffs’ motion
(See Filing No. 247, p. 4).

Defendant, however, wants to make

clear that it intends to adduce evidence of the close
relationships (sometimes familial) among some of the plaintiffs’
witnesses that may bear upon their credibility and bias.
Plaintiffs replied that they do not seek to preclude defendant
from adducing such evidence (See Filing No. 258, p. 2).
plaintiffs’ motion as to this issue will be granted.

Thus,

However,

defendant may use evidence “of close familial relationships” as
it bears upon the credibility of any member of the plaintiffs’
class who testifies.
3. Plaintiffs’ and other class members’ employment at
companies other than Tyson or IBP, Inc.
Defendant stipulates to this part of plaintiffs’ motion
(See Filing No. 247, p. 4).

Thus, plaintiffs’ motion as to this

issue will be granted.
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4. Disciplinary actions taken against plaintiffs or
other class members unrelated to the sanitation, donning/doffing
tardiness or attendance lack relevance and are highly prejudicial
Plaintiffs move to exclude all evidence concerning
plaintiffs’ or other class members’ disciplinary records at
Tyson, except as they may be related to discipline for failure to
comply with policy and requirements to wear sanitary and
protective equipment to perform the job assigned, and discipline
related to plaintiffs’ or other class members tardiness or
attendance regarding when they must report to work stations fully
dressed, when they are tardy at break time, and when they are
disciplined for failing to stay after the shift to perform
additional work.

Defendant has listed as trial exhibits a number

of disciplinary records (reflecting progressive discipline
ranging from simple oral counselings or up to terminations)
related to persons who may be called to testify at trial.
Defendant claims these documents are relevant because they relate
to the witnesses’ potential bias against Tyson Foods.
Fed. R. of Evid. 608(b) provides:
(b) Specific instances of conduct.
Specific instances of the conduct
of a witness, for the purpose of
attacking or supporting the
witness' character for
truthfulness, other than conviction
of crime as provided in rule 609,
may not be proved by extrinsic
evidence. They may, however, in
the discretion of the court, if
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probative of truthfulness or
untruthfulness, be inquired into on
cross-examination of the witness
(1) concerning the witness'
character for truthfulness or
untruthfulness, or (2) concerning
the character for truthfulness or
untruthfulness of another witness
as to which character the witness
being cross-examined has testified.
The giving of testimony, whether by
an accused or by any other witness,
does not operate as a waiver of the
accused's or the witness' privilege
against self-incrimination when
examined with respect to matters
that relate only to character for
truthfulness.
Thus, in the event a witness for plaintiff testifies,
and that witness has been disciplined by defendant, the defendant
will only be able to inquire on cross-examination if the witness
has been so disciplined to show possible bias against Tyson; and
defendant will not be allowed to present extrinsic evidence on
such matters.

However, if the Court finds such disciplinary

action is trivial and will not prove such witness’s potential
bias against Tyson, the Court may limit defendant’s use of such
evidence to show bias.
5. Evidence concerning actions against other processing
plants or “Industry Practice” to support defendant’s de minimis
defense or any other defense
In general, defendant does not intend to rely upon
evidence of “industry practice” or litigation involving other
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meat processors.

See Filing No. 247, p. 5.

If the “willfulness”

issue remains in the case and is presented to the jury, however,
evidence of defendant’s understanding of the law -- which may
include the outcome of litigation involving defendant’s red-meat
processing plants, as well as other companies -- might be
relevant, and accordingly, the court reserves ruling on this
issue.

See Def’s Opp. to Pltfs’ Mot. for Summary Judgment

(Filing No 192, p. 49-53).

If defendant decides to offer such

evidence, it will first seek a side bar with the Court to obtain
a ruling.
6. Evidence concerning plaintiffs’ or other class
members’ failure to complain about non-payment
Plaintiffs’ motion as to this issue will be granted because
such evidence is irrelevant.

Defendant, however, claims

plaintiffs want to introduce evidence of employee complaints that
employees were not getting paid for cleaning after the shift.

As

defendant cannot present evidence of plaintiffs’ failure to
complain, it follows that plaintiffs will not be able to present
evidence that they did so complain they were being paid
inadequately.

Thus, plaintiffs’ motion as to this issue will be

granted with this additional instruction.

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7. Evidence that defendant paid overtime for hours it
deemed compensable aside from pay for donning and doffing
activities
Defendant anticipates plaintiffs will contend that
Tyson was trying to make a profit, and cut as many costs as
possible in order to do so.

In particular, defendant claims

plaintiffs may attempt to argue that Tyson avoided paying
overtime compensation for donning, doffing, and rinsing standard
clothing items and outer garments so that it could earn a greater
profit at the expense of these plaintiffs.

In the event

plaintiff attempts to bring such testimony, defendant should be
allowed to rebut it by showing the other ways it pays overtime to
its workers.

Plaintiffs’ motion as to be this issue will be

denied.
8. In-court demonstration of time needed to don or doff
If the Court allows a demonstration of donning and
doffing to be performed in the courtroom, it will not allow
anyone to time this activity, or allow any conclusions to be
drawn by the jury from the length of time that the activity
takes, given the differences in plaintiffs’ physical conditions
and the equipment that plaintiffs may wear.

This demonstration

will be allowed simply to demonstrate to the jury what is meant
by donning and doffing.

Thus, plaintiffs’ motion as to this

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issue will be denied, but any demonstration that may be performed
will only be allowed with this limiting instruction.
9. Evidence of “Sunshine” Time as offsetting
compensable time
Defendant claims “sunshine” time is compensation that
is used to be paid to workers in the Slaughter area at the
Lexington facility when those employees worked less than a full
shift -- i.e. they were paid for time they did not actually work
or have to be at the plant.

At issue in this case is whether

plaintiffs have been compensated for the actual amount of time
they spend working during the continuous workday.

Thus, class

members who received “sunshine” time were compensated for time
they did not work, which is directly relevant to whether they
were fully compensated for time that they spent performing
compensable activities.

Thus, defendant will be allowed to

present evidence concerning sunshine time paid to workers in the
Slaughter area as an offset -- or a regular rate of pay that can
be credited toward overtime compensation owed as damages, if the
jury finds such damages are owed, pursuant to 29 U.S.C. § 207(h).
10. Evidence that workers are paid for time the line
stops or lack product
Defendant has no intention of offering such evidence.
See Filing No. 247, p. 11.

Thus, plaintiffs’ motion as to this

issue will be granted.
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11. Evidence that plaintiffs knew they were not paid
for donning and doffing
Plaintiffs’ motion is granted as to this issue because
such evidence is irrelevant. “FLSA rights cannot be abridged or
waived because it would ‘nullify the purposes’ of the statute or
legislative policies it was designed to effectuate.”

Barrentine

v. Arkansas Best Freight Systems, Inc., 450 U.S. 728, 740 (1981).
12. Evidence concerning the effects that a judgment
against Tyson Foods may have on its financial condition or
business operations
The motion will be tentatively granted as to this issue
because such evidence is irrelevant.

In the case plaintiffs open

the door to this kind of evidence, the Court will entertain a
motion to rebut such evidence.
13. Reference to the fact that a principal of Tyson
Foods may be required to personally pay any judgment entered in
this case
Defendant has no intention of offering such evidence.
See Filing No. 12, p. 12.

Thus, plaintiffs’ motion will be

granted as to this issue.
14. References to the opt-in process
Plaintiffs do not dispute the size of the respective
classes under both the state law claim and the FLSA claim may be
disclosed to the jurors, but any other evidence of the opt-in
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process itself is irrelevant.

Plaintiffs’ motion as to this

issue will be granted with this exception.
15. References to the circumstances surrounding
plaintiffs’ attorney-client relationship
Defendant does not intend to offer such evidence.
Thus, plaintiffs’ motion as to this issue will be granted.
16. Reference to objections to discovery requests,
claims of privilege, or motion to exclude evidence from trial
Defendant does not intend to offer such evidence.
Thus, plaintiffs’ motion as to this issue will be granted.
17.

The calling of any witness in defendant’s case in

chief that defendant refused to produce in plaintiffs’ case in
chief
Plaintiffs’ motion as to this issue seeks only to
prevent the defendant from calling a witness over whom it has
power to compel attendance that it has refused to produce in
plaintiffs’ case after it was given reasonable notice to produce
such witnesses.

Thus plaintiffs’ motion will be granted as to

this issue.
18.

To exclude all witnesses from the courtroom at all

times other than when they are called to testify
Plaintiffs’ motion will be granted as to this issue
within the limitations of Fed. R. of Evid. 615 (The Court may
allow expert witnesses to be present during the trial).
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19. Any reference or argument concerning attorney’s
fees or the cost of litigation -- unless evidence concerning the
March 29, 2010 increase in donning and doffing pay is admitted
Defendant does not dispute plaintiffs’ motion as to
this issue with this limitation.
be granted as to this issue.

Thus, plaintiffs’ motion will

(Defendant mentioned in its

response that it objected to plaintiffs’ exhibit 338.

Defendant,

however, failed to move in limine concerning this exhibit; thus
the Court will rule on the admittance of this exhibit, at the
time it is offered into evidence.)
20. Reference to Tyson’s charitable contribution or
involvement in community affairs
The motion will be granted as to this issue because
such evidence is irrelevant, unless plaintiffs open the door to
this kind of evidence.
B. Plaintiffs’ motion in limine regarding de minimis related
evidence or argument (Filing No. 217)
The Court will not preclude defendant from presenting
de minimis defense as to the compensability of standard/nonunique clothing or gear because whether the donning and doffing
of such items constitutes hours worked remains a question of
fact.

Defendant, however, will not be able to assert a de

minimis defense as to unique items used by knife-wielding
employees, as defendant concedes these activities are
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compensable.

Plaintiffs may reserve their noted arguments to

attack the merits of this defense at the time of trial.
C. Plaintiffs’ motion to preclude argument or evidence based on
“elemental” increments of time or time studies (Filing No. 218)
Defendant may use such evidence to prove: (1) the
amount of time the activities at issue take in order to prove how
much defendant owes plaintiffs if the time is deemed compensable,
and/or (2)to help support defendant’s de minimis defense.

The

evidence may not, however, be used by defendant to prove the
threshold issue of compensability of such activities relating to
standard or unique gear -- as it is not relevant to the test for
deciding compensability of activities related to standard gear,
and defendant concedes activities related to unique gear are
compensable.

Plaintiffs may reserve their arguments that such

evidence is fundamentally flawed to attack the credibility/
reliability of such evidence at the time of trial.
D. Plaintiffs’ motion to preclude Dr. Jeffrey Fernandez from
testifying or introduction of his expert report (Filing No. 219)
As defendant failed to disclose Dr. Jeffrey Fernandez
as an expert in this case, Dr. Fernandez will be precluded from
testifying in this case, and the Court will reserve ruling on the
admissibility of his expert report at the time of trial.

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E. Plaintiffs’ motion in limine to preclude evidence or argument
on compensability for knife-related employees (Filing No. 220)
This motion will be granted in accordance with the
Court’s previous summary judgment memorandum opinion and order.
F. Plaintiffs’ motion in limine to preclude argument or evidence
concerning class certification or the number of class members
testifying (Filing No. 221)
This motion will be granted as to evidence concerning
class certification, but denied as to the number of class members
testifying.
G. Plaintiffs’ motion to preclude evidence or argument about
obsolete portions of the Reich v. IBP decision (Filing No. 222)
The Court will reserve ruling on the admissibility of
the Reich v. IBP decision at the time of trial.

In the case the

willfulness issue is presented to the jury, the Court may
instruct the jury on the portions of Reich that are relevant to
such issue.
H. Defendant’s motion to strike 25 previously undisclosed
witnesses and dismiss three plaintiffs for failure to appear for
their depositions (Filing No. 223)
The witnesses and plaintiffs that defendant was able to
take the depositions of after the filing of this motion, will be
allowed to testify at trial.

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I. Defendant’s motion in limine to exclude certain evidence
(Filing No. 225)
Defendant respectfully moves the Court to preclude
plaintiffs’ witnesses and defense counsel from testifying,
referencing, arguing, mentioning in testimony, questions or
comments or submitting documentary evidence concerning the
following topics at trial:
1. Evidence of or relating to other lawsuits involving
defendant or other meat processing facilities
The motion as to this issue will be granted as such
evidence is irrelevant.
2. Evidence of or relating to past litigation involving
defendant’s other red-meat processing facilities
This motion as to this issue will be granted -- except
the Court will reserve ruling on the admissibility of evidence
referencing the Reich v. IBP litigation, Herman v. IBP negotiated
settlement, and IBP v. Alvarez as they relate to the willfulness
issue and/or the sufficiency of defendant’s compensation for
knife-wielding activities at the time of trial.
3. Evidence of or relating to the Department of Labor’s
past or pending positions on issues in this litigation
The motion as to this issue will be denied if the
willfulness issue is presented and/or if the regulations address
compensation of knife-wielding activities.
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4. Evidence of or relating to defendant’s other
facilities or those owned by other meat processing companies
The motion as to this issue will be granted -- but see
2. above.
5. Reference to defendant’s financial condition and the
comparative or absolute economic statue of the parties
The motion as to this issue will be granted.
6. Statements mischaracterizing jobs at the Lexington
facility as grueling, dangerous, or low-paying
Plaintiffs contend the dangerous and grueling
conditions of plaintiffs’ work is part of the proof of why the
STANDARD equipment at issue is necessary and primarily used for
Tyson’s benefit -- such evidence may be admitted for this limited
purpose.
7. Evidence of or relating to USDA or OSHA incidents at
the Lexington facility or other meat processing facilities
Plaintiffs contend the dangerous and grueling
conditions of plaintiffs’ work is part of the proof of why the
STANDARD equipment at issue is necessary and primarily used for
Tyson’s benefit -- such evidence may be admitted for this limited
purpose.
8. References to defendant’s withdrawal of any of its
defenses
The motion as to this issue will be granted.
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9. Video clips that plaintiffs have failed to
adequately disclose
Plaintiffs were ordered by Magistrate Judge Thalken to
disclose the portions of video they wish to play at trial by
April 22, 2011.

This Court extended this deadline to April 29,

2011, and plaintiffs disclosed the portions they wish to play at
the time of trial along with their counter-designations to
defendant’s proposed video clips.

The Court will reserve ruling

on the admissibility of all designated video clips at the time of
trial.
10. Evidence of or relating to employee injuries and
workers’ compensation claims
Such evidence is relevant as to why employees are
required by Tyson to wear the STANDARD equipment at issue and why
such primarily benefits Tyson’s ability to market unadulterated
food products.

Thus, such evidence may be admitted for this

limited purpose.
J. Defendant’s motion for clarification or amendment of prior
order (Filing No. 256)
In accordance with the Court’s previous memorandum
opinion and summary judgment order, defendant will not be
permitted to present evidence arguing Tyson did not enter into a
“previous agreement” with any plaintiff to pay for the activities
at issue as pertaining to plaintiffs’ NWPCA claims.
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Plaintiffs

were/are hourly employees of Tyson, and if the donning/doffing
activities constitute hours worked under the FLSA, it follows
that Tyson “previously agreed” to pay plaintiffs for such work
through plaintiffs hourly rate set by Tyson.

Thus, this motion

will be denied.
K. Defendant’s motion in limine to limit plaintiffs’ use of video
evidence and to strike their objections and counter-designations
to defendant’s designated video clips (Filing No. 293)
Plaintiffs were ordered by Magistrate Judge Thalken to
disclose the portions of video they wish to play at trial by
April 22, 2011.

This Court extended this deadline to April 29,

2011, and plaintiffs disclosed the portions they wish to play at
the time of trial along with their counter-designations to
defendant’s proposed video clips.

The Court reserves ruling on

the motion until the time of trial.
IT IS ORDERED that the motions of plaintiff and
defendant are granted in part and denied in part in accordance
with these findings of the Court.
DATED this 11th day of May, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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