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Weiser v. Pathway Services, Inc.

United States District Court, N.D. Oklahoma

April 4, 2019

BENNIE R. WEISER, JR., an individual, and LATRICE (ALVERSON) WEISER, an individual, Plaintiffs,
v.
PATHWAY SERVICES, INC., a domestic for profit business corporation, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Exclude Report and Testimony of Defendant&#3');">3');">3');">39;s Expert Witness Randall G. O&#3');">3');">3');">39;Neal [Doc. 40] filed by plaintiffs Bennie R. Weiser, Jr. and Latrice (Alverson) Weiser. For the reasons set forth below, the motion is granted in part and denied in part.

         I. Background

         Defendant Pathway Services, Inc. (“PSI”) employed the Weisers as road surveyors between July 2015 and March 2017. The Weisers allege that PSI failed to pay overtime compensation as required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. PSI denies wrongdoing and asserts counterclaims for fraud and breach of contract, alleging that it overpaid the Weisers because they falsely reported the number of hours they worked.

         PSI retained the services of Randall G. O&#3');">3');">3');">39;Neal to serve as its expert witness. M r. O &#3');">3');">3');">39;Neal prepared a written report dated June 29, 2018. [Doc. 40-3');">3');">3');">3]. He also provided deposition testimony on September 25, 2018. [Doc. 40-1, pp. 16-49 (“O&#3');">3');">3');">39;Neal Depo. Tr.”)]. According to his report, M r. O &#3');">3');">3');">39;Neal is a wage-and-hour consultant with approximately forty years of experience working for the Wage and Hour Division of the United States Department of Labor. [Doc. 40-3');">3');">3');">3, p. 2]. His report sets forth two principal opinions: first, “that the two time-reporting systems the Defendant utilized with respect to Plaintiffs . . . would fully comply with the requirements of the FLSA, ” and second, “that Plaintiffs did not accurately report their hours worked.” [Doc. 40-3');">3');">3');">3, p. 6].

         II. Standard of Review

          Pursuant to Federal Rule of Evidence 702, a qualified expert may give opinion testimony if the following conditions are satisfied:

(a) the expert&#3');">3');">3');">39;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 imposes on the trial court an important gate-keeping obligation, “to ‘ensure that any and all [expert] testimony . . . is not only relevant, but reliable.&#3');">3');">3');">39;” Kumho Tire Co., Ltd. v. Carmichael, 3');">3');">3');">37');">526 U.S. 13');">3');">3');">37, 147 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 578, 590 (1993');">3');">3');">3)). Thus, “the trial judge must determine whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.&#3');">3');">3');">39;” Kumho, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592).

         “To determine whether an expert&#3');">3');">3');">39;s opinion is admissible, the district court must undertake a two-step analysis.” Mathis v. Huff & Puff Trucking, Inc., 787 F.3');">3');">3');">3d 1297, 13');">3');">3');">307 (10th Cir. 2015) (citing United States v. Nacchio, 3');">3');">3');">3d 123');">3');">3');">34');">555 F.3');">3');">3');">3d 123');">3');">3');">34, 1241 (10th Cir. 2009)). First, the court must determine whether the expert is qualified “by knowledge, skill, experience, training, or education” to render an opinion. Nacchio, 555 F.3');">3');">3');">3d at 1241 (quoting Fed.R.Evid. 702). Second, “the court must determine whether the expert&#3');">3');">3');">39;s opinion is reliable by assessing the underlying reasoning and methodology, as set forth in Daubert.” Id.

         III. ...


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