Young v. Act Fast Delivery of West Virginia, Inc. et al

Filing 338

MEMORANDUM OPINION AND ORDER: denying Plaintiff's 334 MOTION for New Trial. Signed by Judge Irene C. Berger on 6/15/2018. (cc: attys; any unrepresented party) (slr)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ERIC YOUNG,
Plaintiff,
v.

CIVIL ACTION NO. 5:16-cv-09788

OMNICARE, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiffs’ Motion for New Trial (Document 334) and
Memorandum of Law in Support (Document 335), Omnicare Inc.’s Memorandum in Opposition
to Plaintiffs’ Motion for New Trial (Document 336), and the Plaintiffs’ Reply (Document 337), as
well as all attached exhibits. For the reasons stated herein, the Court finds that the motion should
be denied.
PROCEDURAL HISTORY
The named Plaintiff, Eric Young, initiated this case with the filing of a Collective Action
Complaint (Document 1) in this Court on October 17, 2016. The Plaintiff named as Defendants
Act Fast Delivery of West Virginia, Inc., a West Virginia corporation, Act Fast Delivery, Inc., a
Texas corporation, Home Care Pharmacy, LLC, a Delaware corporation doing business as a
variety of entities including Omnicare of Nitro and Omnicare of Nitro, West Virginia, Compass
Health Services, LLC, a West Virginia corporation doing business as a variety of entities including
Omnicare of Morgantown and Omnicare of Morgantown, West Virginia, Omnicare, Inc., a

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Delaware corporation and other John Doe Defendants. In the complaint, the Plaintiffs allege
violations of state and federal wage payment laws, including the Fair Labor Standards Act
(“FLSA”) and the West Virginia Wage Payment and Collection Act. The Plaintiffs specifically
allege that the Defendants intentionally misclassified the named Plaintiffs and other similarly
situated individuals as independent contractors, rather than employees, in order to avoid paying
them time-and-a-half rates for hours worked in excess of forty (40) hours per week, in violation of
29 U.S.C. § 207 and 29 C.F.R. § 778.111.
Omnicare, Act Fast Delivery, and Act Fast Delivery of West Virginia answered the
complaint on November 14, 2016, denying any unlawful conduct and all claims of liability. On
August 10, 2017, the Court granted the Plaintiffs’ motion to conditionally certify a class of
employee Plaintiffs pursuant to the FLSA and approved issuance of class notice to putative class
members. After lengthy discovery disputes regarding the Act Fast Defendants’ alleged failure to
appropriately provide the Plaintiffs with evidence, United States Magistrate Judge Omar
Aboulhosn granted the Plaintiffs’ motions to compel and ultimately issued sanctions against the
Act Fast Defendants. On October 24, 2017, Judge Aboulhosn also granted a motion to withdraw
as counsel filed by Act Fast’s attorney. On November 3, 2017, the Court entered an Order
granting the Plaintiffs’ motion to amend the complaint, and ordered the Amended Complaint filed
on the same day. Sometime thereafter, Act Fast Delivery of West Virginia entered Chapter 7
bankruptcy proceedings, and on January 8, 2018, the case was stayed as to that Defendant.
On November 15, 2017, the Plaintiffs moved for partial summary judgment regarding
Omnicare’s status as a joint employer. Omnicare also moved for summary judgment on that same
date on all of the claims alleged by the Plaintiffs. Further, Act Fast Delivery, Inc., moved for
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summary judgment, arguing that it was a separate and distinct entity that had no control over the
actions of Act Fast Delivery of West Virginia, and was therefore also entitled to summary
judgment on all of the Plaintiffs’ claims. On January 3, 2018, the Court entered its Memorandum
Opinion and Order granting the Plaintiffs’ motion for partial summary judgment and denying
Omnicare’s motion for summary judgment, finding that Omnicare was a joint employer of the
Plaintiffs and purported class members for the purposes of the FLSA. On January 8, 2018, the
Court also entered its Memorandum Opinion and Order denying Act Fast’s motion for summary
judgment. On February 20, 2018, the Court denied Omnicare’s motion to decertify the FLSA
class, and certified the class for trial. On February 23, 2018, the Court granted the Plaintiffs’
motion to voluntarily dismiss Act Fast Delivery, Inc., from the action without prejudice.
Trial began on February 26, 2018, and ended on February 28, 2018. At the conclusion of
the Plaintiffs’ case in chief, Omnicare moved for judgment as a matter of law. (See Feb. 27, 2018
Transcr., at 288:9-290:6) (Document 330.) At the close of the evidence the Court denied the
motion, and the case proceeded to the jury. (See Feb 28, 2018 Transcr., at 378:1-381:12)
(Document 331.) The jury returned a verdict finding that Omnicare had not violated the FLSA
and awarding the Plaintiffs no damages. The Plaintiffs filed the present motion on March 22,
2018, Omnicare responded on April 5, 2018, and the Plaintiffs filed their reply on April 12, 2018.
The motion is therefore fully briefed and ripe for review.

STANDARD OF REVIEW
Rule 59(a) of the Federal Rules of Civil Procedure provides, in relevant part, that “… the
court may, on motion, grant a new trial for any reason for which a new trial has heretofore been
granted in an action at law in federal court[.]” Fed. R. Civ. P. 59(a)(1)(a); also see Walker v. West
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Pub. Corp., 2012 WL 3927029, at *1 (S.D.W.Va. Sept. 7, 2012). In the Fourth Circuit, a district
court may only grant a new trial “(1) if the verdict is against the clear weight of the evidence; (2)
is based upon false evidence; or (3) will result in a miscarriage of justice.” Campbell v. BP Amoco
Polymers, Inc., 75 F. App’x. 907, 910 (4th Cir. 2003) (citing Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 301 (4th Cir. 1998); Laubach v. Khajawai, 64 F.3d 657, No. 94-2421, 1995 WL 508879,
at *3 (4th Cir. Aug. 29, 1995). A district court’s determination of a motion for a new trial is
discretionary, and a court is “permitted to weigh the evidence and consider the credibility of
witnesses.” Cline, 144 F.3d at 301 (citing Poynter v. Ratcliff, 874 F.2d 219, 223 (4th Cir. 1989)).
Substantial errors in the “admission or rejection of evidence” may support a new trial.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).
DISCUSSION
The Plaintiffs assert that they are entitled to a new trial under Rule 59(a) for two reasons.
First, they argue that the jury’s verdict is against the clear weight of all of the evidence. According
to the Plaintiffs, the evidence is undisputed that the delivery drivers used their personal vehicles
to make deliveries to Omnicare’s customers, and that they were not reimbursed for the costs of
using those vehicles. The Plaintiffs further claim that, because Omnicare was ruled a joint
employer by this Court and did not keep adequate records reflecting the time spent making
deliveries by the drivers, the only rate that can be used to calculate the damages owed to the
Plaintiffs is the IRS rate. Given this undisputed testimony provided by the Plaintiffs’ experts, the
Plaintiffs assert that “Omnicare presented no evidence to negate the employment of the IRS Rate
as a rate that encompasses a reasonable approximation of the Plaintiffs’ work-related vehicle
expenses.” (Pls.’ Mem. of Law in Supp. at 7.) The Plaintiffs further argue that, in its closing
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arguments, Omnicare “urged the jury to ignore the Court’s instructions” and “appealed to the jurors
to use their ‘common sense’” in a manner that counseled the jury to disregard the plain evidence
that had been presented, resulting in a verdict that is against the clear weight of the evidence. (Id.
at 9-10.)
Second, the Plaintiffs assert that a new trial is necessary to prevent a miscarriage of justice.
The Plaintiffs contend that Omnicare raised arguments regarding additional wages paid to the
Plaintiffs for their duties as dispatchers, and that this line of argument was improper and confusing
to the jury such that a new trial is necessary to prevent a miscarriage of justice. The Plaintiffs
further argue that Omnicare’s arguments regarding the jurors’ use of common sense lead the jurors
to consider facts outside of the evidence admitted at trial such that the verdict constitutes a
miscarriage of justice.
Omnicare counters that the verdict is not against the clear weight of the evidence. It
contends that the Plaintiffs failed to properly prove liability and now improperly attempt to shift
the burden to Omnicare. Omnicare argues that the Court’s jury charge instructed the jurors that
they were permitted to make credibility determinations regarding the witnesses and whether to
accept their testimony, and the Plaintiffs never objected to those instructions. Further, Omnicare
argues that the Plaintiffs failed to object to any of the jury instructions, including the Court’s
instruction that the IRS reimbursement rate was optional and that jurors were not required to use
it. Omnicare also counters that its arguments during its closing do not amount to a miscarriage of
justice. Omnicare argues that it did not encourage the jurors to disregard the evidence, but simply
asked them to draw any appropriate inferences from the facts, inferences the instructions permitted

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the jurors to draw. Further, Omnicare argues that the Plaintiffs again failed to object to this
instruction or its closing during the trial and has therefore failed to preserve this argument.
During Omnicare’s portion of the closing arguments at trial, Omnicare’s counsel began to
discuss rates of pay and overtime regarding the delivery drivers, and his statements were as
follows:
And this is what I submit to you is wrong with that expert report of Dr. Henson [the
Plaintiffs’ expert witness]. And the first one I think is really the most glaring
example of that that we covered with some time yesterday. And that has to do with
his failure to include all of the earnings that these individuals received. Let’s take
a look again at just a few. So when we look at Mr. Pugh, Mr. Henson reported that
he earned—or he should have received $15,195 for his regular rate and $342 for
his overtime which, obviously he—even according to the estimates of Mr. Henson,
he worked very, very little overtime. He was paid, or at least Mr. Henson reported
that [Mr. Pugh] was paid by Omnicare $46,276. Again, the regular and the
overtime is only about $17,000. So that’s way, way more. There’s not an
overtime issue. He received plenty of money to cover all of his expenses. But
what we learned, and we only learned it recently after, even after Dr. Woods
prepared his report, is that Mr. Henson had in front of him that what Mr. Pugh
actually received was in the neighborhood of $154,000 rather than $46,276. So
he’s reporting that to us as if Mr. Pugh did not enough under the Henson analysis
and with the IRS rate when , in fact, he received way, way more than he was entitled
to even if you apply the IRS rate.
(See Feb. 28, 2018 Transcr., at 436:11-437:12) (Document 331.)
Immediately after that portion of argument, Plaintiffs’ counsel asked to approach the bench
for a conference, and Omnicare’s closing argument was halted. (Id. at 437:13.) During this
bench conference, Plaintiffs’ counsel sought to voice an objection to what Omnicare’s counsel was
about to argue, as evidenced by the following exchange:
What clearly Mr. Montgomery is doing is trying to confuse the jury by saying that
this particular individual was paid more money that was not accounted for by Mr.
Henson in the amount of money he was paid to comply with the minimum wage.
The other money that he was paid was for a totally distinct and different job from
driving the car. It’s a separate and distinct matter. The cases are clear that if you
pay both of them the minimum wage—obviously he didn’t pay the minimum wage
for the driver—that you cannot combine those two. He cites a case interestingly
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enough in the Fourth Circuit that, that does not stand for the proposition that he
says it stands for.
(Id. at 437:15-438:7.) At the end of the bench conference, the Court sustained the
Plaintiffs’ objection to Omnicare’s counsel including dispatcher income in the closing argument.
(Id. at 438:15-22.)
The Court finds that the Plaintiffs’ motion for a new trial should be denied. First, the
Plaintiffs have failed to show that the jury’s verdict was against the weight of the evidence. The
jurors were instructed to weigh the credibility of the witnesses, including expert witnesses, in order
to make credibility determinations regarding their testimony.

(The Court’s Charge and

Instructions, at 7-10) (Document 305.) Importantly, the Plaintiffs did not object to that instruction
during the trial. It was within the province of the jury, in making credibility determinations, to
assess the persuasiveness of the Plaintiffs’ expert testimony. Tyson Foods, Inc. v. Bouaphakeo,
136 S. Ct. 1036, 1049 (2016) (holding that resolving the persuasiveness of evidence or testimony
that has been admitted “is the near exclusive province of the jury”). The Court instructed the
jurors that the IRS standard business mileage rate was an optional rate that the jurors could use to
calculate what, if any, amount of damages the Plaintiffs were owed. (The Court’s Charge and
Instructions, at 14) (Document 305.) Again, the Plaintiffs did not object to this instruction.
The Plaintiffs’ expert, Ms. Uy, testified that in her opinion, “[the IRS rate] is really the
only option you would have whenever you don’t have . . . records of actual expenses because you
can’t just make something up.” (See Feb. 27, 2018 Transcr., at 271:6-8) (Document 330.)
Omnicare’s expert witness, however, called into question the Plaintiffs’ experts’ calculations and
use of the IRS rate. Given the evidence presented at trial and the Court’s instruction, a reasonable
juror could have determined that the Plaintiffs’ expert testimony was less credible than that of
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Omnicare’s expert and therefore found in favor of Omnicare. Such a credibility determination is
completely within the province of the jury and does not satisfy the standard for a new trial
established by the Fourth Circuit pursuant to Rule 59.
Secondly, the limited, implied statements made by Omnicare during closing arguments
regarding dispatcher wages or the use of common sense by jurors do not constitute a miscarriage
of justice.

As Omnicare correctly points out, the Plaintiffs did not object to Omnicare’s

examination of its expert regarding wages some drivers were paid for their work as dispatchers.
While the Plaintiffs did object to Omnicare’s implied reference to dispatcher wages during closing
arguments, Omnicare’s counsel did not further pursue any substantive argument on the issue after
the Court sustained the objection during a bench conference. Nor were Omnicare’s statements
regarding the jurors’ use of common sense inappropriate. This Court specifically instructed the
jurors that they were “permitted to draw, from the facts which you find have been established and
proven, such reasonable inferences and conclusions which reason and common sense lead you to
make and as seem justified in light of your own observations and experience in the ordinary affairs
of life.” (The Court’s Charge and Instructions, at 6) (Document 305.) The Plaintiffs did not
object to this instruction during trial.

Given the Court’s instructions, neither Omnicare’s

questioning of its expert regarding total wages nor its argument on the jurors’ use of common sense
constitute a miscarriage of justice such that the jury verdict should be overturned.
CONCLUSION
Wherefore, after careful consideration, the Court ORDERS that the Plaintiffs’ Motion for
New Trial (Document 334) be DENIED.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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June 15, 2018