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Luz Lugo, et al. v. Farmer's Pride Inc.

June 23, 2011

LUZ LUGO, ET AL.
v.
FARMER'S PRIDE INC.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: PLAINTIFFS' MOTION TO LIMIT DEFENDANT'S EXPERT TESTIMONY

I. Introduction

Plaintiff Luz Lugo and members of the certified class ("Plaintiffs") filed a Motion to Limit Jeffrey E. Fernandez, Ph.D.'s Testimony at Trial (ECF No. 513) in this collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). Defendant Farmer's Pride, Inc. intends to offer at trial the testimony of Jeffrey E. Fernandez, Ph.D. ("Dr. Fernandez"), a time study expert, to assist the jury in determining the reasonable amount of time that Defendant's employees spend on certain activities at the poultry production plant, including donning, doffing, sanitizing, washing, and walking. Dr. Fernandez submitted an expert report in this litigation dated October 28, 2009 ("10/28/09 Report") (Ex. 1) and a supplemental expert report dated March 3, 2011 ("3/3/11 Report") (Ex. 2).*fn1 Plaintiffs deposed Dr. Fernandez on December 3, 2009 (Ex. 3) and March 14, 2011 (Ex. 4).

Plaintiffs do not challenge Dr. Fernandez's qualifications as an expert witness. Plaintiffs also do not seek to limit Dr. Fernandez's testimony at trial concerning time measurements. Pls.' Mot. 2. Instead, Plaintiffs move pursuant to Federal Rules of Evidence 104(b), 401, 402, 403, and 702 to exclude three categories of Dr. Fernandez's opinions.

First, Plaintiffs contend that Dr. Fernandez's testimony that Defendants gave "time credits" to employees for donning and doffing activities is irrelevant and unreliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and inadmissible under Rule 403, because it is not relevant to whether Plaintiffs worked off-the-clock.

Second, Plaintiffs contend that Dr. Fernandez's opinions regarding the "total time" employees spend donning, doffing and on related activities are based on a flawed methodology under Daubert and Kumho Tire, and inadmissible under Rule 403, because he omitted measurements for certain activities and his resulting opinions are misleading.

Third, Plaintiffs contend that Dr. Fernandez's opinions improperly relied on information that Defendant and Defendant's counsel provided to Dr. Fernandez, rendering his testimony inadmissible under Daubert, Kumho Tire, and Rules 104(b) and 403.

Defendant filed a response in opposition to Plaintiffs' Motion (ECF No. 515), arguing that Dr. Fernandez's proffered testimony satisfies the requirements for admissibility at trial. The Court heard oral argument on the Motion on June 17, 2011.

II. Legal Standards

Federal Rule of Evidence 702 sets forth the requirements for admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 702 reflects "a liberal policy of admissibility" for "any evidence which has the potential for assisting the trier of fact." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citations omitted).

Scientific expert testimony must be both relevant and reliable to be admissible. Kumho Tire, 526 U.S. at 141; Daubert, 509 U.S. at 589. Daubert requires the district court to act as a gatekeeper for expert testimony by conducting a "flexible" inquiry into whether the expert's methodology is reliable. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (citing Daubert, 509 U.S. at 591; United States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985)).*fn2 The district court may exclude otherwise relevant expert testimony "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403; Elcock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3d Cir. 2000) ("Permitting [an expert] witness to ...

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