Browne v. PAM Transport Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

DAVID BROWNE, ANTONIO

CALDWELL, and LUCRETIA HALL,

on behalf of themselves and others

similarly situated PLAINTIFFS

V. CASE NO. 16-CV-5366

P.A.M. TRANSPORT, INC., et al. DEFENDANTS

MEMORANDUM OPINION AND ORDER

Before the Court is a Motion to Exclude Dr. Steve Viscelli’s Expert Report (Doc.

149) filed by Defendant P.A.M. Transport, Inc. (“PAM”) and a Brief in Support (Doc. 150).

Plaintiffs filed a Response in Opposition (Doc. 172). For the reasons and to the extent

discussed below, Defendant's motion is GRANTED IN PART AND DENIED IN PART.

|. BACKGROUND

In its Case Management Order, this Court set the following deadlines for expert

witness disclosures: July 22, 2019 for Plaintiffs’ initial disclosures and reports; September

6, 2019 for Defendants; and September 30, 2019 for rebuttal experts. (Doc. 104, J 3).

These deadlines were ultimately extended to August 12, September 13, and October 14,

respectively. On August 12, Plaintiffs disclosed a report by Dr. Robert Speakman, a labor

economist who offers an expert opinion on the quantity of damages to which Plaintiffs

may be entitled. Dr. Speakman relies on data sets for his calculations, including pay and

pay deductions data, DOT driver logs, and load data. See Doc. 150-2.

On September 13, PAM disclosed its expert, Dr. Matthew Thompson. Dr.

Thompson is also a labor economist, and his report offers several conclusions regarding

the reliability of Dr. Speakman’s damages calculations. For example, Dr. Thompson

concludes that “[i]f hours spent logged in the Sleeper Berth at a secure PAM facility or

other secured areas are not compensable, then Dr. Speakman’s damage calculations are

unreliable.” (Doc. 150-3, p. 4). Similarly, Dr. Thompson concludes that “[i]f time spent

driving to and from home is not compensable, then Dr. Speakman’s damage calculations

are unreliable.” /d. Finally, Dr. Thompson opines that “Dr. Speakman has not done this

review [of individual factors that may impact the compensability of time] for any driver on

any day[,] rendering his damage calculations unreliable.” /d.

On October 14, Plaintiffs disclosed Dr. Steve Viscelli as a rebuttal expert. PAM

now seeks to exclude Dr. Viscelli’s report, opinions, and testimony as untimely,

inadmissible, and not appropriate rebuttal. In the alternative, PAM requests time to

respond to Dr. Viscelli’s report, presumably by offering its own rebuttal expert. Plaintiffs

respond that Dr. Viscelli was timely disclosed as a rebuttal expert and is qualified to offer

the opinions and testimony contained in his report. However, they do not object to PAM

being permitted to offer the expert testimony of Dr. Kristen Backor, whose declaration is

attached to PAM’s Motion (Doc. 150-7), as long as her testimony is limited to the opinions

offered in her declaration and they have the opportunity to depose her in December 2019.

See Doc. 172, p. 25-26.

ll. LEGAL STANDARD

The decision whether to exclude expert testimony is committed to a district court's

discretion—subject, of course, to the Federal Rules of Evidence, including Rule 702.

Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (2014). Rule 702 states that:

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.

The Eighth Circuit applies these elements through a three-part test:

First, evidence based on scientific, technical, or other specialized

knowledge must be useful to the finder of fact in deciding the ultimate issue

of fact. This is the basic rule of relevancy. Second, the proposed witness

must be qualified to assist the finder of fact. Third, the proposed evidence

must be reliable or trustworthy in an evidentiary sense, so that, if the finder

of fact accepts it as true, it provides the assistance the finder of fact requires.

Johnson, 754 F.3d at 561.

The proponent of expert testimony bears the burden of showing by a

preponderance of the evidence that these requirements are satisfied, but “Rule 702 favors

admissibility if the testimony will assist the trier of fact, and doubts regarding whether an

expert's testimony will be useful should generally be resolved in favor of admissibility.”

Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir.1998) (internal citation and quotation marks

omitted). “Only if an expert’s opinion is so fundamentally unsupported that it can offer no

assistance to the jury must such testimony be excluded.” Hose v. Chi. N.W. Transp. Co.,

70 F.3d 968, 974 (8th Cir.1995) (internal quotation marks omitted).

Expert rebuttal testimony is offered “solely to contradict or rebut evidence on the

same subject matter” discussed by another expert. Fed. R. Civ. P. 26(a)(2)(D)(ii). Its

purpose must be to “explain, repel, counteract, or disprove evidence of an adverse party.”

United States v. Lamoreaux, 422 F.3d 750, 755 (8th Cir. 2005). The fact that evidence

could have been offered in the case-in-chief, and may even have been more appropriate

during the case-in-chief, “does not preclude the testimony if it is proper both in the case-

in-chief and in the rebuttal.” Everett v. S.H. Parks & Assocs., 697 F.2d 250, 252 (8th Cir.

1983).

lil. DISCUSSION

A. Timeliness

As an initial matter, PAM argues that Plaintiffs should have disclosed Dr. Viscelli

and his survey in response to interrogatories and requests for production during

discovery. However, the dates for disclosure of expert witnesses were established by the

Court's Case Management Order, and neither party was required to make such

disclosures before the dates set by the Court. Plaintiffs objected to the requests for

production on this ground. See Doc. 172-2, p. 2. Additionally, though Dr. Viscelli began

his research in this case during the summer of 2018, any work product he created before -

the final report disclosed on October 14 was protected by privilege and Plaintiffs were not

required to disclose such preliminary work during discovery. Simmons Focd, Inc. v. Indus.

Risk Insurers, 2015 WL 5679760, at *3 (W.D. Ark. Sept. 25, 2015) (“Rule 26(b)(4)(B)

provides that draft reports or disclosures made by retained experts are protected by work-

product privilege.”).

Therefore, the timeliness of Plaintiffs’ disclosure of Dr. Viscelli turns on whether

his report is true rebuttal or a mischaracterization of a new expert witness, as PAM

contends. The Court finds that Dr. Viscelli’s testimony is offered in direct rebuttal of Dr.

Thompson's report. In particular, PAM objects to the relevance of two issues addressed

by Dr. Viscelli’s report, which he labels as issues 4 and 5:

4) Is there a reasonable way to construct more precise estimates of drivers’

work time than the utilization of the data used by Dr. Speakman, such as by

directly asking drivers, in interviews or surveys?

5) Overall, are Dr. Speakman’s assumptions fair in estimating the amount

of time over-the-road drivers spend engaged in work duties which benefit

PAM and which significantly restrict the drivers’ ability to pursue their own

personal pursuits? ©

(Doc. 150-1, p. 4). PAM’s expert, Dr. Thompson, concluded that Dr. Speakman’s

calculations were unreliable because he used data provided by PAM rather than

conducting an individualized review of drivers’ time. Issue 4 and the portions of Dr.

Viscell’s report and testimony that are responsive to it serve to rebut or disprove Dr.

Thompson's conclusion that the lack of individualized review made Dr. Speakman’s

calculations unreliable.

Dr. Thompson suggests that drivers may be relieved of responsibility when they

are in secure PAM facilities and that time logged in the sleeper berth in such a facility may

therefore not be compensable, undermining Dr. Speakman’s method of calculating

potential damages. (Doc. 150-3, p. 9).1 He also contends that time spent driving to and

from the drivers home may also be inappropriately included in Dr. Speakman’s

calculation of damages. (Doc. 150-3, pp. 9 & 10). Issue 5 and the related portions of Dr.

1 For example, Dr. Thompson writes,

At 8:05 PM on 3/13/2019, Mr. Kolman records time under Line 2 — Sleeper

Berth. This record lasts until 9:33 AM on 3/14/2019 (almost 13.5 hours

later). During this time Mr. Kolman’s truck is parked at a PAM Transport

yard in Laredo, Texas. It is my understanding that Plaintiffs claim that their

Sleeper Berth time is compensable due to the fact that they are always

responsible for the truck. If Plaintiffs are relieved of this responsibility during

the time in which the truck is parked at a PAM facility, then none of the time

recorded while at that facility would be compensable under Plaintiffs’ theory.

Dr. Speakman makes no distinction between the Line 2 — Sleeper Berth

time recorded at a PAM facility versus time recorded anywhere else. In fact,

all of Mr. Kolman’s Line 2 — Sleeper Berth time on 3/13/2019 — 3/14/2019

contributes to Dr. Speakman’s associated damage estimates.

(Doc. 150-3, pp. 7-8).

2 For example, Dr. Thompson continues,

Viscelli’s report are directly responsive to these arguments in Dr. Thompson's report. □

Thus, the questions posed to Dr. Viscelli are directly responsive to the challenges Dr.

Thompson raises to Dr. Speakman’s reports, and Dr. Viscelli’s responses are intended to

rebut, explain, or disprove Dr. Thompson's assertions.

PAM also objects to Sections IV and V of Dr. Viscelli’s report, arguing that those

sections do not rebut anything in Dr: Thompson’s report. Section IV describes the driver

survey that Dr. Viscelli conducted in Summer 2018 “only to demonstrate that reliance on

drivers’ memories as to their work time will not produce a more precise estimate of work

time” than Dr. Speakman’s approach. (Doc. 150-1, p. 8). Dr. Thompson opined that “an

individual review of each driver on each day would be required to appropriately assess

damages or to determine whether a minimum wage violation occurred.” (Doc. 150-3, p.

4). Therefore, Plaintiffs are permitted to offer Dr. Viscelli’s rebuttal conclusion, based on

Mir. Kolman went from the PAM facility in Irving, Texas and drove home on

the morning of 3/15/2019, but all of the time spent logged under Line 3 —

Driving and Line 4 — On-Duty (not Driving) is included in Dr. Speakman’s

estimates of compensable work time under each of his various damages

calculations. Mr. Kolman’s house does not appear to be directly along the

route that he drives while driving for Pam.

(Doc. 150-3, p. 9). Dr. Thompson adds that this conduct “is not particularly unique for Mr.

Kolman.” (Doc. 150-3, p. 10). Another week

begins with Mr. Kolman at home following a week logged at home in Line 1

— Off Duty. On 10/17/2016, he leaves home and heads north towards

Lewisville. Based on the Load data for this week, Mr. Kolman does not have

an active load as he leaves home and makes his way towards Lewisville.

All of the time logged in Line 3 — Driving on this day is counted as

compensable work time by Dr. Speakman, even the time spent traveling to

pick up the first load of the day.

Id.

his own efforts at individual review, that a survey did not provide a more precise estimate

of damages than Dr. Speakman’s calculations.

Section V of Dr. Viscelli’s report provides background information regarding the

nature of drivers’ work and time-recording policies and practices. See Doc. 150-1, pp. 9—

15. Again, it is clear that this information is offered to explain why such time logged as

spent in the sleeper berth or off duty may be compensable. It rebuts Dr. Thompson's

assertions that Dr. Speakman’s calculations are unreliable because they may include the

time that drivers are in secure PAM facilities or are driving to or from their homes in their

trucks. Dr. Viscelli uses his specialized knowledge of the trucking industry to provide an

opinion on how workers are likely occupied while they are parked in the secure PAM

facility, for example, or how allowing them to park their trucks at their homes can be

considered to be for the benefit of PAM. See Doc. 150-1, pp. 10-14.

PAM attempts to argue that Dr. Viscelli’s report is analogous to reports in other

cases that were held to be inadmissible. For example, PAM directs the Court to Wegener

v. Johnson, in which the Eighth Circuit affirmed the district court’s decision to exclude

supplemental testimony offered as rebuttal evidence. 527 F.3d 687 (8th Cir. 2008). In

Wegner, the defendant's expert entered a supplemental report and plaintiffs expert

sought to enter one as well. The court found that nothing in the plaintiffs supplemental

testimony was rebuttal of the defendant’s supplemental report, but only of assertions

made the defendant expert’s initial report, and the supplement was therefore untimely. /d.

at 691-92. Here, in contrast, Dr. Viscelli’s report is directly responsive to Dr. Thompson's

report and is offered within the period set by the Court for rebuttal expert witness

disclosure. Therefore, Wegener does not instruct the Court on this matter.

.

PAM also offers another case involving Plaintiffs’ counsel in which the Eighth

Circuit reversed the district court's decision to modify the scheduling order and permit a

supplemental report despite the fact that it was otherwise untimely. Pefrone v. Werner

Enters., Inc., 940 F.3d 425 (8th Cir. 2019). In Petrone, the process of defendants vetting

the plaintiffs’ expert “revealed considerable flaws in the methodology” used by the expert

to calculate damages. /d. at 432. Plaintiffs sought to correct these errors, of which they

had not been aware until they were highlighted by defendants, through a supplemental

report from their expert, which the Eighth Circuit held must be rejected because

“[p]laintiffs’ expert was materially altering, not merely clarifying his original report” and

there was no good cause for the delay in doing so. /d. at 434. Here, however, Dr. Viscelli’s

report is not offered to correct any errors or materially alter Dr. Speakman’s report.

Instead, it is offered to reinforce Dr. Speakman’s report by rebutting the flaws Dr.

Thompson's report attempts to highlight. This is the appropriate role of a rebuttal report.

Since Petrone deals with an untimely corrective supplemental report, not a rebuttal report,

it is not relevant to the Court’s deliberations here.

Thus, the Court concludes that Dr. Viscelli’s report is offered as permissible

rebuttal to Dr. Thompson’s report, not as an untimely addition to the case-in-chief. The

disclosure of Dr. Viscelli was not untimely and his report and testimony are admissible.

B. Qualifications and Reliability

PAM also challenges the admissibility of Dr. Viscelli’s report by arguing that he is

not an expert in survey design and interpretation, his survey and any conclusions drawn

from it are unreliable, and he offers impermissible legal or factual conclusions that are the

responsibility of the judge and jury. Specifically, PAM objects to the three conclusions of

Dr. Viscelli’s report. See Doc. 150-1, p. 5. PAM asserts that Dr. Viscelli’s first conclusion

regarding what “data clearly indicates” is based on the data from his survey. However,

reading the sentence in the context of the entire paragraph makes clear that “data” refers

to messaging and log data and depositions rather than the survey results. /d. This makes

sense since Dr. Viscelli’s testimony regarding his driver survey is intended to discredit

survey-taking as a viable strategy for assessing damages in this case. Dr. Viscelli’s

admissibility as a trucking industry expert is not disputed, see Doc. 150, p. 12, and he can

reach his first conclusion based on his industry expertise and the data he reviewed, which

does not include his own survey data. .

Dr. Viscelli's second conclusion is more directly related to his qualifications to

opine on surveys. In reviewing Dr. Viscelli’s CV and deposition testimony, the Court finds

that his background, education, and experience are sufficient to allow him to opine on the

subject of the survey he conducted in relation to this litigation and the conclusions he

believes can be drawn from the survey. In pursuing his doctoral degree, Dr. Viscelli

completed extensive coursework in qualitative interviews, surveys, and _ statistical

analysis. (Doc. 150-6, 30:4-20). As a lecturer at the University of Pennsylvania, he

teaches a course on qualitative methods that covers research design and interviewing.

(Doc. 150-1, p. 37). He has conducted two other similar surveys in the course of his

academic research. (Doc. 150-6, 28:5-17). These qualifications are sufficient for Dr.

Viscelli to conduct a study and offer his interpretation of his findings to the jury.

PAM also argues that flaws in the design and execution of Dr. Viscelli’s survey

make it unreliable and inadmissible. PAM submits a declaration from Dr. Kristen Backor

asserting, for example, that the survey population is biased; questions are repetitive,

contain logical errors, are leading, and engender acquiescence bias or confusion; and the

use of a slider scale with an outer limit skews the results. (Doc. 150-7). However, after □

examining the survey, the Court does not believe “it is so fundamentally flawed and devoid

of scientific validity that it lacks probative value” on the issue of whether a driver survey

was a superior method for calculating Plaintiffs’ damages. Zefor N. Am., Inc. v.

Rozeboom, 2018 WL 3865411, at *17 (W.D. Ark. Aug. 14, 2018). For example, it was not

unreasonable for Dr. Viscelli to use the FLSA opt-in class members as his survey

population since its purpose was to see if a driver survey could accurately assess class

damages. Even though Dr. Backor might have structured some questions differently, Dr.

Viscelli made reasonable choices in structuring the survey as he did.

Ultimately, PAM’s arguments challenge the reliability of the survey as a factual

basis for Dr. Viscelli's opinion regarding the usefulness of a driver survey. However, “the

factual basis of an expert opinion goes to the credibility of the testimony, not the

admissibility, and it is up to the opposing party to examine the factual basis for the opinion

in cross-examination.” Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988).

Only if “an expert opinion is so fundamentally unsupported that it can offer no assistance

to the jury” should that testimony be excluded. /d. Dr. Viscelli’s conclusion is sufficiently

supported by his survey, and his testimony on the matter will be admitted. PAM may use

its opportunity to cross-examine him to highlight any credibility issues for the jury.

Finally, PAM argues that Dr. Viscelli’s third conclusion infringes on the role of the

jury to determine credibility by endorsing Dr. Speakman’s assumptions and calculations.

To support this argument, PAM directs the Court to several cases that are inapplicable to

the current context. First, PAM cites two cases that address only whether experts may

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offer jegal conclusions. See United States v. Klaphake, 64 F.3d 435, 438-39 (8th Cir.

1995) ("[I]t was not proper for [the expert] to testify concerning the legality of the trust

arrangement. As a general rule, questions of law are the subject of the court's instructions

and not the subject of expert testimony.” (internal quotations marks omitted)); S. Pine

Helicopters, Inc., 320 F.3d 838, 841 (8th Cir. 2003) (criticizing the admission of expert

testimony “opining as to whether [the plaintiff] had violated FAA regulations” because

“expert testimony on legal matters is not admissible”). PAM does not cite, nor does the

Court find, inappropriate legal conclusions in Dr. Viscelli’s report.

Next, PAM directs the Court to Rottlund Co. v. Pinnacle Corp., holding that expert

opinion on an ultimate issue of fact should have been excluded because it “added nothing

helpful to the jury's consideration” of the issues of fact. 452 F.3d 726, 732 (8th Cir. 2006).

Rule 704 permits expert testimony “embracing an ultimate issue,” but not “on a question

which the jury was entirely capable of answering without the benefit of expert opinion.” /d.

Accord Hinkle v. LaRoche, 2008 WL 5453779, at *3 (E.D. Wash. Aug. 1, 2008) (“If the

issues in the case are ones that jurors can understand and evaluate through their own

knowledge and experience, expert testimony is not needed and should be excluded.”).

Here, in contrast, Dr. Viscelli offers his professional opinion, rooted in his specialized

knowledge as an expert, to concur in the conclusions of another expert. The Court does |

not find, nor has PAM directed it to, any opinions on issues of fact or credibility that are

not informed by Dr. Viscelli’s expertise and offered in his role as a rebuttal expert witness.

The Court concludes that Dr. Viscelli is qualified to offer his opinion on all topics

covered by his report, and his report is sufficiently reliable and offers appropriate

conclusions. It is therefore admissible.

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C. PAM’s Opportunity to Respond

If its motion to exclude Dr. Viscelli is denied, PAM requests in the alternative that

it be permitted to respond to his report because PAM is prejudiced by this unjustified and

untimely disclosure. The disclosure of Dr. Viscelli's expert testimony was not untimely,

however, and cannot be considered to have prejudiced PAM or entitled PAM to relief. Nor

has PAM described the type of “response” it would like to offer. However, PAM did attach

the Declaration of Dr. Kristen Backor to the instant motion (Doc. 150-7), and Plaintiffs

have indicated that they would not object if PAM wished to offer Dr. Backor as a sur-

rebuttal expert witness, so long as her testimony was limited to the content covered by

her Declaration and Plaintiffs were given the opportunity to timely depose her. Since the

30-day window prescribed by Rule 26(a)(2)(D)(ii) for disclosure of rebuttal witnesses has

passed, PAM will not be permitted to offer any other rebuttal witness, but since Plaintiffs

have given their consent, PAM may have Dr. Backor testify to the extent of her

Declaration. PAM must make her available for deposition no later than January 17, 2020.

IV. CONCLUSION

Therefore, PAM’s Motion to Exclude Expert Report (Doc. 149) is GRANTED IN

PART AND DENIED IN PART. No portion of Dr. Viscelli’s expert report will be excluded,

but PAM will be permitted to offer Dr. Kristen Backor as a further rebuttal witness, subject

to the limitations described above.

IT 1S SO ORDERED on this Ie: day of December, 209.

IMO tHY-E-BROOKS

UNITED STATES DISTRICT JUDGE

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