Expert Witness Profiler

Tag: Exemption

  • Expert Reliably Applied Vocational Counseling Experience to the Facts

    Expert Reliably Applied Vocational Counseling Experience to the Facts

    In July 2021, the Federal Reserve Bank of Minneapolis required its employees to be vaccinated against COVID-19. The policy allowed religious exemptions. Plaintiff Rodney Maki—one of the Bank’s law enforcement officers—requested one, citing his opposition to vaccines linked to fetal stem cells. The Bank granted Maki a temporary accommodation but revoked it a few months later. In January 2022, Maki remained unvaccinated, and the Bank terminated him. Maki sued under Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act (or “RFRA”) for religious discrimination.

    Maki filed a motion to exclude two of Bank’s experts, Dr. Frank Rhame and Jennifer Bey. The Bank, in response, filed a motion to exclude the testimony of Maki’s expert rebuttal witness Dr. Peter A. McCullough.

    Infectious Diseases Expert Witness

    Dr. Frank S. Rhame is a medical doctor with board certifications in internal medicine and infectious diseases. He studied at Stanford University and directed the Hospital Infection Control Program at the University of Minnesota. Rhame is an Adjunct Professor of Medicine at the University of Minnesota and is a fellow of the Infectious Diseases Society of America. He has presented over twenty lectures on COVID-19 and testified as an expert in two trials.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Frank Rhame’s expert testimony.

    Vocational Rehabilitation Expert Witness

    Jennifer Bey is a vocational expert and owner of Bey & Dyer. She has a B.S. in Psychology from the University of Wisconsin-River Falls and a Master’s in Rehabilitation Counseling from Illinois Institute of Technology.

    Bey has over twenty years of experience in the field, and has testified or been deposed as an expert in thirty-four cases from 2017 to 2024, not counting this matter.

    Want to know more about the challenges Jennifer Bey has faced? Get the full details with our Challenge Study report.

    Internal Medicine Expert Witness

    Dr. Peter Andrew McCullough has a medical degree from the University of Texas Southwestern Medical School in Dallas. He completed a master’s degree in public health in the field of epidemiology at the University of Michigan. McCullough has published frequently in medical journals and provided testimony on government panels on the response to the COVID-19 pandemic. 

    He is board certified in the United States in internal medicine and cardiovascular disease, and holds an additional certification in clinical lipidology, as well as a previous certification in echocardiography.

    Get the full story on challenges to Peter McCullough’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Frank Rhame

    Maki argued that Rhame’s testimony regarding the effectiveness of vaccines on COVID-19 infection and transmission is irrelevant to the Bank’s undue hardship defense and described scientific opinions the Bank never consulted while it developed its vaccination policy.

    There are two basic aspects to Maki’s argument that Rhame’s opinions should be excluded. The first is that Rhame addresses many scientific aspects of COVID-19, but “COVID-19 is not on trial in this case.” This argument is not persuasive. In developing its vaccination policy and in determining not to grant Maki’s requested accommodation, the Bank accounted for a variety of scientific information regarding COVID-19, the disease’s impact on its employees and operations, and the efficacy of vaccines or other measures in addressing these impacts. The Court held that Rhame’s proffered testimony will assist the jury in understanding this information.

    The second aspect to Maki’s argument is that Rhame’s proffered testimony would concern information the Bank never considered in developing its policy or refusing the requested accommodation.

    The Court explained that the issue with Maki’s motion is that he did not point out the specific parts of Rhame’s testimony that were based on information the Bank did not have in January 2022 or before.

    Jennifer Bey

    First, Maki argued that Bey is not offering specialized knowledge, but rather a cursory and superficial analysis within the jury’s capabilities. However, Bey did not merely repeat written job descriptions or compare them as a layperson might. She analyzed Maki’s deposition testimony in relation to his work for both employers.

    As for Bey’s salary-comparison analysis, Maki contended that Bey “did not address Maki’s testimony, nor did she identify what most of the security jobs’ benefits packages might entail, and how they would compare with Maki’s benefits at the Bank.” The Court clarified that the problems Maki pointed out are matters that can be challenged during cross-examination, but they are not serious enough to justify excluding the testimony.

    Maki contended that Bey’s methodology is inadequate to determine the reasonableness of a job search. However, the Court held that Bey’s proffered testimony drew on her vocational counseling experience, described tangible steps an applicant could take to pursue employment, and offered an expected timeframe to gain a licensed position.

    Maki asserted that Bey would inappropriately opine on legal matters if she testified as proffered that Maki’s job search was not a reasonable and diligent effort. As Maki’s cited authorities confirm, the reasonableness of a job search for purposes of mitigating damages is a fact question for the jury. Bey’s opinion embraces an ultimate issue with respect to damages, but this is consistent with the rules.

    Peter McCullough

    The Bank sought to exclude only “the narrow portion of McCullough’s opinion related to vaccine requirements and exemptions or accommodations to such requirements.”

    McCullough would testify, for example, that “a position supporting or mandating COVID-19 vaccination goes against good medical practice and cannot be backed by ethical and prudent physicians, public health agencies, schools, or employers.” And again, “the COVID-19 vaccines have never been sufficiently protective against contracting COVID-19 to support their use beyond voluntary participation.” The Bank argued that these statements exceeded the boundaries of acceptable expert testimony in three ways: they are outside McCullough’s expertise; they constitute legal opinions; and they are irrelevant.

    The parties disagreed about whether McCullough is qualified to testify regarding the appropriateness of employer responses to the COVID-19 pandemic.

    McCullough may testify on the medical value of vaccines, and although the Bank disputes this testimony, it does not seek to exclude it. The Court admitted this testimony. However, when McCullough opined on how “prudent” employers should have responded, the Court held that he spoke beyond his expertise. This included his references to “ethical and prudent employers” and his statements that “[e]xemptions from vaccination saved lives and should have been granted for all applications” and “[n]o one should have received any pressure, coercion, or reprisal for requesting exemption from or declining COVID-19 vaccination.”

    Held

    • The Court granted in part and denied in part Rodney Maki’s motion to exclude the testimony of Frank Rhame and Jennifer Bey.
    • The Court granted Federal Reserve Bank of Minneapolis’s motion to exclude the testimony of Peter McCullough.

    Key Takeaway:

    An expert must stay within his area of expertise when testifying. If the witness’ competence does not match the subject matter of the testimony, the Court must exclude the opinion.

    Case Details:

    Case Caption: Maki V. Federal Reserve Bank Of Minneapolis
    Docket Number: 0:22cv2887
    Court Name: United States District Court, Minnesota
    Order Date: May 21, 2025
  • Employment Law Expert Witness’ Opinion Regarding the Application of the MCA Exemption Excluded

    Employment Law Expert Witness’ Opinion Regarding the Application of the MCA Exemption Excluded

    Plaintiffs, currently or formerly employed by Defendants as lawn and landscape workers, bring this class and collective action under the Fair Labor Standards Act (“FLSA”) and state law, alleging that Defendants failed to pay overtime compensation for all hours worked in excess of 40 in a workweek.

    Defendants have retained Brian Farrington to provide an expert opinion regarding the application of the Motor Carrier Act (“MCA”) exemption to Plaintiffs—an issue that is the primary focus of the FLSA and MMWL (“Missouri Minimum Wage Law”) claims in this litigation.

    Plaintiffs move to exclude Farrington’s testimony and report under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. Rule 702, which was amended effective December 1, 2023, governs the admissibility of expert witness testimony by allowing someone “who is qualified as an expert by knowledge, skill, experience, training, or education [to] testify in the form of an opinion.”

    Employment Law Expert Witness

    Brian Farrington is a former investigator in the Wage and Hour Division of the Department of Labor. After working as an investigator for nearly 15 years in which he performed between 500 and 600 full DOL investigations, Farrington obtained his law degree. He presently practices employment law at a private law firm where his practice is focused almost exclusively on wage and hour matters. Together, Farrington has nearly 50 years of experience working primarily on wage and hour issues.

    Get the full story on challenges to Brian Farrington’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    In his report, Farrington sets forth in detail his view of the statutory and regulatory framework of the MCA exemption as further explicated by numerous federal court decisions. 

    Using his interpretation of the law he deems pertinent to the MCA exemption, Farrington then applies that law to facts that he has gleaned from the evidence in the case. He opined that “the types of employees under consideration in this lawsuit impact safety of operation of motor vehicles by driving Epic’s trucks, helping the truck drivers, loading and inspecting the trucks and trailers, maintaining and fixing the trucks and trailers, and/or combinations of such duties—to determine the application of the MCA exemption and the exempt status of Plaintiffs.”

    Analysis

    According to Plaintiffs, Farrington’s report consists entirely of inadmissible legal conclusions that are based on his interpretation of the law as it applies to his factual findings.

    In the report, Farrington analyzed the Plaintiff’s job duties through the lens of the pertinent regulations to conclude that Plaintiff’s job was exempt from the overtime requirements of the FLSA.

    While Farrington analyzes the job duties of Epic’s employees, applies various regulations to those job duties, and concludes that the DOL would find that Epic’s employees are exempt under the MCA exemption, the Court agrees with Plaintiffs that Farrington’s report in this case is not admissible as it is rife with legal conclusions drawn from an application of the law as he views it to facts as he finds them. Rather than providing the jury with objective criteria by which they can exercise independent judgment and assess the nature and extent of the activities performed by Epic’s employees, Farrington supplants the jury’s judgment with his own.

    Similarly, Farrington opines on the ultimate legal determination in this case—whether Plaintiffs are exempt by virtue of the MCA exemption—and, in doing so, usurps the role of the Court.

    Because Farrington’s opinions are not properly within the scope of expert testimony, the Court finds that the expert report should be stricken in its entirety and Farrington will not be permitted to testify at trial. The Court declined Defendants’ invitation to strike those portions of Farrington’s report that constitute legal conclusions or that usurp the jury’s role as fact finder and to permit Farrington to testify consistent with admissible statements in the report. After the Court has excised the inadmissible portions of the report, there is simply nothing left in the report on which Farrington might appropriately opine.

    Held

    The Court granted Plaintiffs’ motion to exclude Defendants’ expert Brian Farrington.

    Key Takeaway:

    When Farrington analyzed the Plaintiff’s job duties through the lens of the pertinent regulations to conclude that Plaintiff’s job was exempt from the overtime requirements of the FLSA, the Court declined Defendants’ invitation to strike those portions of Farrington’s report that constitute legal conclusions or that usurp the jury’s role as fact finder and to permit Farrington to testify consistent with admissible statements in the report. After the Court has excised the inadmissible portions of the report, there is simply nothing left in the report on which Farrington might appropriately opine.

    Rather than providing the jury with objective criteria by which they can exercise independent judgment and assess the nature and extent of the activities performed by Epic’s employees, Farrington supplants the jury’s judgment with his own.

    Case Details:

    Case Caption: Gomez Et Al V. Epic Landscape Productions, L.C., Et Al
    Docket Number: 2:22cv2198
    Court: United States District Court, Kansas
    Order Date: December 3, 2024
  • Testimony of Labor and Employment Expert Witness Regarding Applicability of 7(i) Exemption of FLSA Rejected

    Testimony of Labor and Employment Expert Witness Regarding Applicability of 7(i) Exemption of FLSA Rejected

    The Plaintiffs, including Kelli Salazar, Wayne Carpenter, Rodney Lopez, and Gregory Hanna who were either current or former drivers for Defendant, The Driver Provider (“DP”), initiated legal proceedings under the Fair Labor Standards Act (FLSA). They contended that the Defendants misclassified them and did not adequately compensate them, contravening the FLSA regulations. Specifically, the Plaintiffs argued that they did not meet the criteria for the 7(i) exemption as outlined in the FLSA and thus were not exempt from the FLSA’s overtime compensation provisions. Section 7(i) of the FLSA exempts certain commissioned employees from the overtime compensation requirement of the FLSA. This exemption applies to retail and service employees.

    Plaintiffs engaged Randall G. O’Neal as an expert witness to offer his testimony about whether Plaintiffs met the requirements for the 7(i) exemption under the FLSA.

    Labor and Employment Expert Witness

    Randall G. O’Neal is a wage and hour consultant based in Garland, Texas, with extensive expertise spanning over seven years. His consultancy focuses primarily on matters pertaining to the Fair Labor Standards Act of 1938 (FLSA) and federal minimum wage and overtime laws.  Prior to his consultancy career, O’Neal served the United States Department of Labor (DOL) in various roles within the Wage and Hour Division (WHD) for approximately 40 years. Notably, in the 20 years leading up to his retirement in 2015, he held the positions of Director of Regional Operations and Director of Enforcement for the 11-state Southwest Region, covering states such as Arkansas, Colorado, Louisiana, and Texas, among others. O’Neal holds a Bachelor of Science in Business Administration from Oklahoma State University, earned in 1972.

    Discussions by the Court

    Plaintiffs designated O’Neal as an expert in federal wage-and-hour matters and DOL enforcement actions. O’Neal, a retired DOL employee, had a career spanning approximately forty years with the Wage and Hour Division (WHD), where he held various positions, including director of regional operations and regional director of enforcement. His testimony primarily focused on the applicability of the 7(i) exemption to Driver Provider. However, the Court’s summary judgment order determined that Defendants did not qualify for the 7(i) exemption, rendering only a small portion of O’Neal’s report relevant to the proceedings.

    Plaintiffs indicated their readiness to limit O’Neal’s testimony to matters concerning willfulness, specifically concerning Defendants’ assertions of good faith reliance on the 2012 DOL investigation, advice from legal counsel, and the classification of Drivers as exempt employees. However, Defendants objected and sought the complete exclusion of O’Neal’s opinion and testimony. The Court examined the highlighted portion of O’Neal’s report provided by Plaintiffs and proceeded to address the remaining issues sequentially.

    In his report, O’Neal expressed his opinion that the WHD would likely reject any assertion of reliance upon the 2012 DOL investigation regarding the existence of a 7(i) exemption from the overtime payment at issue here. Plaintiffs contended that O’Neal’s opinions on Defendants’ claim of good faith reliance on the 2012 DOL investigation should be heard at trial. They argued that O’Neal’s report highlighted flaws in the 2012 investigation, undermining Defendants’ reliance on it. Defendants countered that this amounted to an impermissible legal conclusion.

    The Court concurred that admitting O’Neal’s testimony regarding good faith reliance would be inappropriate because determining whether Defendants relied in good faith on the 2012 investigation was a matter for the jury to decide and did not necessitate expert testimony. The focus of O’Neal’s report predominantly centered on the potential application of the 7(i) exemption. However, the Court observed that his opinion on good faith reliance was detached from the 7(i) exemption. Consequently, all he provided was a conclusion that Defendants could not have relied in good faith on the 2012 investigation, which was held to be improper for two reasons.

    First, experts may opine on an issue of fact within the jury’s province. However, they may not give testimony stating legal conclusions based upon those facts. The Court held that O’Neal’s testimony cannot be admitted for this very reason, as it invades on the province of the jury and in fact hinders rather than assists the jury. Second, this conclusion drew inferences about Defendants’ intent or state of mind. The Court citing Krause v. Cnty. of Mohave, 459 F. Supp. 3d 1258, 1264 (D. Ariz. 2020), held that the opinion testimony submitted by O’ Neal attempted to substitute O’Neal’s own judgment for that of the jury’s despite the jury being fully capable of examining the witnesses and evidence to decide whether Defendants’ conduct constituted a willful violation or good faith reliance.

    O’Neal’s report included a short opinion regarding DP’s counsel’s statements, suggesting potential improper reliance on the 2012 investigation. Plaintiffs asserted that O’Neal’s testimony would aid jurors in comprehending the issues and his report would shed light on DP’s attempts to evade liability based on the prior investigation and their counsel’s alleged advice. Defendants reiterated their objection, contending that O’Neal’s testimony would constitute an improper legal conclusion.

    The Court affirmed Defendants’ position, stating that the question of whether Defendants relied in good faith on their counsel’s advice fell squarely within the jury’s jurisdiction. Additionally, the Court noted that O’Neal’s opinion on this matter presupposed that the 2012 investigation was flawed, implying that the counsel and DP could not have relied on it in good faith. Furthermore, the Court has determined that genuine questions of material fact persisted on this matter which is why O’Neal’s testimony on this topic would constitute a legal conclusion. After all, the jury could ascertain this issue for themselves and determine whether DP relied in good faith on their counsel’s advice.

    Plaintiffs argued that O’Neal’s opinions regarding DP’s reliance that Drivers were exempt employees should be heard at trial. Defendants, however, maintained their stance that this constituted an impermissible legal conclusion. This opinion paralleled the earlier assertion that Defendants could not have relied on the 2012 investigation. O’Neal indicated in his report that it was his belief that the WHD would dismiss any claims of reliance upon the 2012 investigation for the existence of a 7(i) exemption. He further noted that this reliance on the investigation was purportedly used to support the claimed applicability of the 7(i) exemption.

    The Court held that the 7(i) exemption was no longer at issue.
    Separating the lack of application of the exemption from the alleged lack of good faith reliance upon it only left a legal conclusion. O’Neal’s testimony would essentially assert that DP could not have in good faith believed the exemption applied. The Court added that this opinion amounted to a conclusion regarding willfulness and would only serve to complicate matters, as per Federal Rule of Evidence 403. Additionally, the determination of whether there was good faith reliance regarding employee classifications fell well within the jury’s purview and hence did not necessitate expert testimony due to its lack of technical complexity.

    The Court acknowledged O’Neal’s knowledge regarding DOL operations and investigations but did not permit O’Neal to testify to his general legal conclusions. Considering the inapplicability of the 7(i) exemptions and the Court’s assessments of the remaining issues with O’Neal’s opinion, the Court decided to strike both his testimony and report in their entirety.

    Held

    The Court granted Defendants’ Motion to Strike the Expert Testimony and Report of Plaintiffs’ Expert Randall O’Neal. 

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    The expert testimony regarding the Fair Labor Standards Act (FLSA) and the application of the 7(i) exemption presented several key points. Randall G. O’Neal, a seasoned wage and hour consultant, was engaged to provide legal assessments related to the 7(i) exemption. Plaintiffs, comprised of current or former drivers for The Driver Provider, initiated legal proceedings under the FLSA, alleging misclassification and inadequate compensation by the Defendants, in violation of FLSA regulations. At the heart of the dispute was the contention over the applicability of the 7(i) exemption, with Plaintiffs arguing they were entitled to overtime compensation. However, the Court’s summary judgment determined Defendants did not qualify for the exemption, limiting the relevance of O’Neal’s opinion. Consequently, the Court excluded O’Neal’s testimony on various matters, ruling that such opinions amounted to impermissible legal conclusions and were within the jury’s jurisdiction. The Court underscored the jury’s role in determining issues such as good faith reliance and employee classifications, emphasizing that expert testimony should not overshadow the jury’s decision-making authority. Ultimately, the Court decided to strike O’Neal’s testimony and report entirely due to their limited relevance and potential to confuse the issues at hand.

    Case Details

    Case Caption Salazar v. Driver Provider Phx. LLC
    Docket Number 2:19cv5760
    Court United States District Court, Arizona
    Citation 2024 U.S. Dist. LEXIS 27174
    Order Date February 16, 2024
  • Expert’s opinion need not rely on admissible evidence to be admissible; Court deems a motion to bar forensic accounting expert witness premature

    Expert’s opinion need not rely on admissible evidence to be admissible; Court deems a motion to bar forensic accounting expert witness premature

    Justin Guy, a former employee of Absopure where he worked as a driver transporting products within the state of Michigan, had filed a collective action lawsuit on behalf of himself and 25 opt-in Plaintiffs, alleging that Absopure violated the Fair Labor Standards Act (FLSA) by not paying overtime for hours worked in excess of 40 per week. Throughout the litigation, Absopure contended that its drivers, including some of the Plaintiffs, were exempt from FLSA’s overtime provisions under the Motor Carrier Act (MCA) exemption.

    One of the key points of contention in the case was whether the “small vehicle exception” to the MCA exemption applicable to the Plaintiffs. This exception would entitle them to overtime pay if they drove trucks weighing less than 10,001 pounds, regardless of the MCA exemption.

    The parties had ongoing disputes related to discovery, particularly concerning the weight of the vehicles driven by the Plaintiffs and the hours worked by them. Following a Court order, Absopure was required to furnish Plaintiff with information it possessed relevant to the topics of Absopure’s discovery requests to Plaintiff , while the Plaintiffs were instructed to respond with any agreements or disagreements they might have with the information furnished by Absopure.

    Absopure had submitted an interrogatory to the Plaintiffs requesting that they identify each day they drove a vehicle weighing 10,000 pounds or less and each day they drove a vehicle weighing 10,001 pounds or more during the relevant time period. As per the Court’s order, Absopure provided a statement and additional information about the weights of vehicles it claimed were driven by the Plaintiffs. Plaintiffs’ counsel reported that they were conferring with opt-in Plaintiffs regarding their vehicle usage. Subsequently, the Plaintiffs provided Absopure with a summary chart detailing the estimated number of times that 18 opt-in Plaintiffs had driven vehicles weighing 10,000 pounds or less. Notably, only five of those 18 Plaintiffs had submitted declarations stating the number of times they drove small vehicles and similar declarations for the remaining 13 Plaintiffs on the chart were missing.

    The parties also disputed the number of hours worked by the Plaintiffs. Plaintiffs initially provided Absopure with a chart estimating the daily start and end times for 22 Plaintiffs, although this chart was not sworn to by any of the Plaintiffs. Additionally, Plaintiffs’ expert, Martin K. Williams, calculated the Plaintiffs’ asserted damages based in part on his review of this estimated hours-worked chart.

    Absopure had submitted a motion in limine seeking several specific actions from the Court. These requests included, first, the request to prohibit the Plaintiffs from offering any testimony or evidence related to the small vehicle exception to the Motor Carrier Act (MCA) as a sanction under Federal Rule of Civil Procedure 37 due to the Plaintiffs’ failure to respond to Absopure’s interrogatories.

    Additionally, Absopure asked the Court to exclude from evidence the Plaintiffs’ estimated hours-worked chart, which had been attached as Exhibit A to the Plaintiffs’ third supplemental initial disclosures. Absopure had argued that this chart consisted of inadmissible hearsay and hence warranted exclusion.

    Finally, Absopure also requested the Court to exclude the testimony of the Plaintiffs’ proffered damages expert, Martin Williams.

    However, after Absopure filed its motion, the Plaintiffs subsequently provided Absopure with sworn declarations from 19 Plaintiffs, which contained estimates of the hours they had worked.

    Forensic Accounting Expert Witness

    Martin K. Williams, CPA/CFF, CFE is a twenty-two year Certified Public Accountant and sixteen-year seasoned forensic accountant/expert witness. He specializes in economic damages and lost profits in cases pertaining to breach of contract, shareholder disputes, personal injury and marital dissolution. He holds a Bachelor’s and Master’s degree in Business Administration from University of Miami Herbert Business School.

    Discussions by the Court

    The Court first addressed Absopure’s request to prohibit Plaintiffs from presenting any evidence or testimony related to the small vehicle exception to the MCA exemption as a sanction under Rule 37. The Court recognized that the small vehicle exception was highly relevant to the parties’ claims and defenses. The Court also acknowledged that Plaintiffs failed to adequately respond to Absopure’s interrogatory asking them to specify which vehicles under 10,000 pounds they drove. However, the Court determined that imposing sanctions at this stage would be premature if Plaintiffs promptly supplemented their discovery responses as required.  

    Instead of imposing sanctions immediately, the Court ordered Plaintiffs to produce for every Plaintiff for whom recovery is sought, a declaration, affidavit, or sworn testimony by October 31, 2023 specifying the number of times the Plaintiffs drove vehicles under 10,000 pounds. The Court stated that reasonable estimates could be used if Plaintiffs attested exact numbers were unknown. The Court warned that any Plaintiff who failed to timely provide the required sworn statement without showing good cause would be barred from presenting evidence or testimony regarding the small vehicle exception. This potential sanction would apply unless there was some other evidentiary basis for establishing a Plaintiff’s invocation of the exception. 

    Next, the Court addressed the admissibility of Plaintiffs’ estimated hours-worked chart attached to their supplemental disclosures. The Court agreed with Absopure that the chart constituted inadmissible hearsay under Rule 801, noting that Plaintiffs did not dispute this characterization or indicate an intent to admit the chart into evidence. Because the chart was hearsay and did not fall under any recognized hearsay exception, the Court ruled the chart inadmissible as evidence at trial. However, the Court stated Plaintiffs could potentially use the chart as a demonstrative exhibit to illustrate evidence properly admitted at trial. If Plaintiffs wished to use the chart for this limited purpose, the Court instructed them to file a motion setting forth the proposed use and supporting authority. 

    Absopure had argued that Plaintiffs’ expert, Martin Williams, should not be allowed to testify because his expert report summarizing his likely testimony regarding Plaintiffs’ damages relied on their inadmissible hours-worked chart and was based on what they considered “pure speculation.” The Court had agreed with Absopure to some extent, noting that Martin Williams’ intended testimony would lack a proper evidentiary basis at trial.

    Plaintiffs had correctly asserted that, according to Federal Rules of Evidence 703, an expert’s opinion did not necessarily need to rely on admissible evidence to be admissible. However, the Courts had discretion under the Federal Rules of Evidence to exclude expert opinion testimony if it was based entirely on speculation. In this case, the expert report of Martin Williams had generated calculations based on (i) the expert’s review of the estimated hours-worked chart and (ii) assumed workdays ranging from 9 to 12 hours. The report had calculated Plaintiffs’ “total unpaid overtime premiums and liquidated damages” based on this estimated hours-worked chart.

    The Court had emphasized that expert testimony must have an evidentiary basis to be considered sufficiently reliable and not speculative. Therefore, the Court had determined that it should wait to see what evidence would be presented at trial. If evidence establishing a factual basis was presented, the expert’s testimony might be deemed reliable. At that point, it was considered premature to bar him from testifying.

    Held

    The Court granted in part and denied in part Defendant Absopure Water Company, LLC’s motion to exclude Plaintiffs from presenting at trial 1) any testimony or evidence related to the Small Vehicle Exception to the Motor Carrier Act, 2) Exhibit A to their Third Supplemental Initial Disclosures consisting of Plaintiffs’ estimated hours-worked chart, and 3) the purported expert testimony of Martin Williams.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    • Expert opinions must have a reliable factual basis to be admissible. If the facts underlying the opinion are too speculative or unreliable, the testimony must be excluded.
    • According to Federal Rules of Evidence 703, an expert’s opinion need not rely on admissible evidence to be admissible. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
    • Because the expert’s testimony must have an evidentiary basis to take it out of the realm of speculative testimony and render it sufficiently reliable, the Court must await what evidence is presented at trial. If evidence is presented that establishes a factual basis, the expert’s testimony may well be reliable.