Tigner v. Food Concepts International, LP et al

Filing 76

ORDER GRANTING [Doc. 125] Motion in Limine to Exclude the Testimony of Plaintiffs' opinion witenss Stephen C. Oberhousen in Case No. 2: 13CV0124. Signed by Judge Algenon L. Marbley on 5/13/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSEPH MILLER,
Plaintiff,
v.
FOOD CONCEPTS INTERNATIONAL,
LP, et al,
Defendants.

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2:13-CV-00124 (Miller)
2:13-CV-00125 (Crozier)
2:13-CV-00126 (Coleman)
2:13-CV-00127 (Gibbs)
2:13-CV-00129 (Johnson)
2:13-CV-00130 (Troyer)
2:13-CV-00132 (Tigner)
2:13-CV-00133 (McEldowney)
2:13-CV-00134 (Keegan)

JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
Before the Court is Defendants’ Motion in Limine to Exclude the Testimony of Plaintiffs’
opinion witness Stephen C. Oberhousen. (Doc. 125) The Motion is GRANTED.
I.

BACKGROUND

A. Procedural History
Plaintiff Joseph Miller commenced this action against Defendants Darren Del Vecchio,
Food Concepts International, LP, and Abuelo’s International LP (collectively, “Defendants”) in
the Franklin County Court of Common Pleas. Nine other plaintiffs also filed Complaints against
the Defendants, and Defendants removed all the cases to this Court on February 12, 2013. The
cases were consolidated for purposes of discovery and, later, nine Plaintiffs’ motions for
prejudgment attachment. Plaintiffs were former and current employees of Abuelo’s restaurant in

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Columbus, Ohio. All Plaintiffs pleaded violations of the Fair Labor Standards Act (“FLSA”) and
breach of contract claims. (See Doc. 38 at 1.)1
Defendants began taking a deposition of Oberhousen but have not yet completed it. On a
July 29, 2015 telephonic status conference with Magistrate Judge Deavers, upon information
from counsel that Defendants intended to file a motion under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), to contest whether Oberhousen was qualified as an
opinion witness, the Magistrate Judge instructed the parties to convert the August 31, 2015
summary-judgment motion deadline to a Daubert motion deadline. (Doc. 125-2 at 15-16.)
Defendants were ordered to file their Daubert motion, at which point the Court would issue a
ruling on the motion and then, if it ruled in Plaintiffs’ favor on the motion, Defendants would
have the opportunity to continue the deposition for the purpose of assessing the content of
Oberhousen’s report and methodology. (Id. at 16.)
Accordingly, Defendants filed this motion in limine to exclude the testimony of
Plaintiffs’ opinion witness, Stephen C. Oberhousen, on August 31, 2015, contending that: (1)
Oberhousen is unqualified to render any expert opinion in this case; (2) any opinion he would
offer would not assist the trier of fact; (3) he intends to testify to a legal conclusion regarding the
FLSA; and (4) he is unqualified as a witness because Fortune Law Limited, Plaintiffs’ counsel’s
law firm, is Oberhousen’s joint employer. (Doc. 125.) Plaintiffs filed two motions for extension
of time to file their response in opposition to Defendants’ motion in limine, which the Court
granted, and then filed the response at 11:59 p.m. on October 7, 2015, the date it was due. (Doc.
132.) At 12:42 a.m. on the following day, Plaintiffs filed exhibits in support of the response.
(Doc. 133.) Defendants moved to strike the exhibits as untimely, and the Court granted the

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Unless otherwise specified, all document citations are to the docket in Miller v. Food Concepts,
Case No. 2:13-cv-124.
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motion for the reasons stated in its April 27, 2016 order.2 (Doc. 145.) Therefore, the Court will
now consider Defendants’ pending motion in limine without the exhibits in question.
B. Oberhousen’s Qualifications
Oberhousen holds a bachelor of science degree in finance from Louisiana State
University-Shreveport and a Masters of Business Administration from Louisiana Tech
University. (Oberhousen Curriculum Vitae, Doc. 125-3 at 1.) Oberhousen admitted in his
deposition that he is not an expert in the FLSA and he has never written or published any articles
regarding wage-and-hour issues or damages calculations. (Deposition of Stephen C.
Oberhousen, Doc. 125-1 at 139-40.) He is not a member of any relevant professional
organizations nor does he hold any pertinent professional licenses. (Id. at 34-36, 38-39.)
Oberhousen is currently employed as a Utility Locate Technician for United States Infrastructure
Corporation (“USIC”), a provider of underground utility locating services. (Id. at 48-49.) In that
capacity, Oberhousen inspects job sites, determines whether there are abnormal operating
conditions at the sites, and marks and flags utilities. (Id. at 51-53.)
Oberhousen is also employed by 521 Hill Road, Limited (“521 Hill Road”), which he
characterized as a provider of administrative services, damages calculations, and expert witness
services to Fortune Law Limited, the law firm of Plaintiffs’ counsel, Wesley T. Fortune. (Id. at
105, 107-08.) Oberhousen stated in his deposition that in this capacity he provided services to
Fortune Law Limited without receiving compensation at times. (Id. at 124-25, 129-30, 139.) In
addition to working without compensation, he also invested upwards of $15,000-16,000 of his

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Defendants also requested an extension of time to file their reply to Plaintiffs’ response in
opposition to the motion in limine. The Magistrate Judge granted an extension of 14 days from
the date of the order on the motion to strike. (Doc. 135.) Defendants filed their reply on May
11, 2016. (Doc. 146.)
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personal funds into 521 Hill Road, and in the future he hopes to earn a partnership stake in the
business. (Id. at 177-79.) 521 Hill Road was formerly owned by Wesley Fortune’s father,
Robert L. Fortune, St., and since September 1, 2015 has been owned by Plaintiffs’ counsel,
Wesley Fortune. (Doc. 132 at 12.)
Before his job with USIC, Oberhousen was employed as a salesman for two car
dealerships during parts of 2014 and 2015. (Oberhousen Dep., Doc. 125-1 at 53-54; 59-60; 13839.) Previously, he worked in the invoice departments of several companies and as a business
development manager in the utility bill pay department for the National Information Solutions
Cooperative (“NISC”), where he was responsible for expanding the third-party bill pay service,
handled monthly invoicing and payables, documented transactions, and performed cost analysis
and trends. (Id. at 64-66.) In a previous job with Pilkington North America, a glass
manufacturer and wholesaler, as a regional operations manager, he managed a staff and handled
human resources issues, including staff, scheduling, and payroll. (Id. at 81-83.)
On his curriculum vitae, Oberhousen lists five wage-and-hour matters where he has
provided “financial analysis and opinion” regarding wage and hour claims. (Doc. 125-3 at 1.) In
all five cases, the plaintiffs were represented by Fortune. Three of the cases are suits against
Defendants in this case. (Id.) During Oberhousen’s deposition, he declined to answer questions
regarding his role as an expert witness in these cases, citing attorney-client privilege, other than
to say that he was retained to provide expert witness services to the plaintiffs in his capacity as
an employer for 521 Hill Rd. (Id. at 147-58.) Oberhousen did not provide an expert report in
connection with the three matters against Defendants.

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II.

LEGAL STANDARDS

Federal Rule of Evidence 702 governs the testimony of expert witnesses and provides as
follows:
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. This rule reflects the Supreme Court’s decisions in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999). In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008) (citing Fed. R.
Evid. 702 advisory committee’s notes to 2000 amendments).
Together, Rule 702, Daubert, and Kumho Tire establish that district courts may admit
proposed expert testimony only if it satisfies three requirements. Id. at 528-29 (describing the
district courts’ responsibility “of acting as gatekeepers to exclude unreliable expert testimony”).
First, “the witness must be qualified by ‘knowledge, skill, experience, training, or education.’”
Id. at 529 (quoting Fed. R. Evid. 702). Second, the proposed testimony “must be relevant,
meaning that it ‘will assist the trier of fact to understand the evidence or to determine a fact in
issue.’” Id. (quoting Fed. R. Evid. 702). Third, “the testimony must be reliable.” Id. To be
relevant, expert testimony must “fit” with the issues to be resolved at trial. Greenwell v.
Boatwright, 184 F.3d 492, 496 (6th Cir. 1999). The reliability requirement, in contrast, focuses
on the methodology and principles underlying the testimony. Id. at 496-97. The proponent of
the testimony—in this case, Plaintiffs—must establish admissibility by a preponderance of the

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evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert,
509 U.S. at 592 n.10).
III.

ANALYSIS

Defendants contend that the Court should disqualify Oberhousen as an expert because he
is not qualified to render the proffered opinions. (Doc. 125 at 14-15.) They argue that, by his
own admission, Oberhousen is not an expert on the FLSA or the subject-matter of the case. (Id.
at 14.) Moreover, although he claims to have a background in financial analysis, he has no
educational credentials, professional licenses, certifications, or coursework in the relevant
subject-matter. (Id. at 14-15.) The financial analysis at issue, they contend, is simply a
familiarity with Microsoft Excel and an ability to make simple calculations, which do not qualify
a witness as an opinion witness. (Id. at 15.)
Plaintiffs counter that Defendants have destroyed relevant evidence and refused to
produce other evidence in their possession, and that as a result, Oberhousen was forced to
convert to electronic format more than 60,000 pages of hard copy and to work with individual
Plaintiffs to “recreate” each employee’s relevant employee data to prove individual injuries and
damages. (Doc. 132 at 10, 5.) Plaintiffs do not dispute that Oberhousen is not an expert on the
FLSA or wage-and-hour damages calculations specifically; rather, they argue that Oberhousen’s
background in handling and analyzing massive quantities of hardcopy and electronic data
qualifies him to process and analyze the data at issue in the damages calculations in this case.
(Id. at 11.) The remainder of Plaintiffs’ opposition focuses on an argument that the Court cannot
rule on Oberhousen’s qualifications to proffer testimony on damages calculations without first
understanding the scientific methods and approaches used, which, Plaintiffs contend, are the

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same methods used by the United States Department of Labor in calculating damages in wageand-hour litigation. (Id. at 5-6, 11.)
The Court must evaluate the qualifications of a witness not “in the abstract” but based on
“whether those qualifications provide a foundation for a witness to answer a specific question.”
Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994). Defendants are persuasive that
Oberhousen lacks the qualifications to opine on harm to Plaintiffs or calculations of damages
resulting therefrom. First, although Oberhousen professes to have been involved as an opinion
witness in five matters, there is no evidence that he has submitted an expert report in any of these
matters and in his deposition he gave little to no indication of the type of opinions he offered in
those cases. Second, he lacks any relevant “knowledge, skill, experience, training, or education”
in any subject-matter area at issue in this case. Fed. R. Evid. 702. Although Oberhousen holds
an MBA and has some experience with data management, the Court finds that this training and
experience is not relevant to the issues of harm and damages calculations to which Oberhousen
intends to testify. His testimony does not “result[] from a process of reasoning which can be
mastered only by specialists in the field.” W. Tenn. Chapter of Associated Builders &
Contractors, Inc. v. City of Memphis, 219 F.R.D. 587, 591 (W.D. Tenn. 2004) (quoting citing
Fed. R. Evid. 701 advisory committee’s notes to 2000 amendments). The Court considers
Oberhousen’s contributions to this case to be administrative, which does not qualify him as an
opinion witness. Therefore, the Court will exclude Oberhousen as an expert witness under Rule
702 because he is not qualified by his knowledge, skill, experience, training, or education to
offer opinion testimony.

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IV.

CONCLUSION

For the reasons stated above, Defendants’ Motion in Limine to Exclude the Testimony of
Stephen C. Oberhousen is GRANTED (Doc. 125).
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: May 13, 2016  

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