Author Archives: Luke Brown

About Luke Brown

Luke Brown is a retired attorney, a husband, a father, and the owner of many pets. While practicing law, Luke represented policyholders in claims against their own insurers. He also represented insurers and others in matters before the Florida Department of Insurance. Prior to that, he was Senior Attorney for the Florida Department of Insurance. Later, Luke taught insurance law at Florida State University's Law School and in the College of Business. He has also written a treatise on Florida insurance law, edited the insurance topic of a legal encyclopedia, and served as a consultant on insurance for a major international information provider.

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

The United States Supreme Court held in Tyson Foods vs. Bouaphakeo, et al (577 U.S. ___(2016) that an expert could properly use a statistical sampling of damages claimed to have been sustained by workers in litigation brought under the Fair Labor Standards Act (FLSA). Specifically, the evidence was permissible to establish the required commonality among the parties for certifying and maintaining a class action.

Factual Background

This case was heard by the United States Supreme Court on certiorari from the District Court of Appeals for the Eighth Circuit. It began as a suit by employees of a pork processing plant operated by Tyson Foods, Inc. in Iowa.

The employees worked in different departments of the plant. Their jobs involved, respectively, killing, cutting and re-trimming the product to ready it for packaging and shipment. All of the roles required them to wear protective gear, but the type of gear depended on the job function they performed on a given day. The time required to put on and remove the gear during the day differed depending on the protective gear used. Tyson paid some, but not all, of the Plaintiffs for the time spent in putting on and removing the gear. Tyson kept no record of the time required to be spent by the employees in performing that activity, yet wearing the protective gear was mandatory. The Plaintiffs claimed that because using the gear was mandatory and added to their work time, they were effectively denied overtime pay as required by the Fair Labor Standards Act. In the same suit, a claim was presented under Iowa law.

Procedural History

The Plaintiffs sought certification of the FLSA claims as a “collective action”, and the state law claims as class action. Tyson objected because not all of the employee functions required the same gear and argued that therefore, the wage claims were not similar enough to be resolved on a class-wide basis. At that, depending upon the gear that each employee put on and took off during the workday, different amounts of time were spent. The District Court held that there existed common questions, such as whether or not time spent putting on and taking off the gear, were compensable under the FLSA and they could be resolved on a class-wide basis.

Key Expert Issue and Supreme Court’s Decision

To prevail in the FLSA claim, the Plaintiffs had to prove that all of them worked more than 40 hours per week inclusive of the time involved with the protective gear. The problem was that Tyson had not kept time records. Therefore, the Plaintiffs relied on an industrial relations expert, who videotaped employees putting on and taking off the protective gear. He determined how long it took the employees in each work category, added that time to 40 hours, and was able to determine which class members worked more than 40 hours. Tyson objected to the expert’s method because the differing amount of time for putting on the gear by different categories of employees would result in overtime going to some employees who did not work overtime.

The District Court certified the class, and the Supreme Court affirmed. The Supreme Court also held that despite the different job descriptions and time involved with the protective gear, the expert’s technique was acceptable. It reasoned that it was the only feasible way to establish liability, in this case, because Tyson kept no other time records. It held further that the appropriateness and admissibility of statistical, rather than direct evidence, is fact-driven.

Mallet and Florida Flag

Medical Expert Not Required to Practice in Same Specialty as Defendant Physician

The Florida 4th District Court of Appeal held in Weiss, et al vs. Pratt, (4D08-2179 and 4D10-593) that a testifying medical expert witness did not have to practice in precisely the same field as the treating physician in a medical malpractice action to allow testimony as an expert. The Court’s opinion interpreted a portion of Florida law that may provide some immunity for volunteer medical care. The Court suggested that the legislature may want to review the statute to clarify the immunity issue, but did not specifically address that issue in the opinion. It did, however, rely upon the existing language of the Florida statute in its analysis.

Factual Background

A high school football player was hurt in a football game. An orthopedic surgeon who had previously worked in an emergency room and had some training in pediatric orthopedics and sports medicine volunteered as the team physician.

When the injury occurred, the team physician examined the player, asked questions about what happened and what the player felt and saw (a flash of light). He did not recall asking the player about any period of unconsciousness or paralysis, but did not think that there was a spinal cord injury. After that, the doctor helped the player walk from the field. Paramedics arrived, put the player on a backboard and took him to a hospital. The doctor also went to the hospital, ordered tests and based on them and his clinical experience ruled out a spinal cord injury or a hematoma. He diagnosed a neck strain, a right shoulder contusion and prescribed pain medication.

A few days later, the player went back to the physician’s office but was seen by another doctor. By then, he could not lift his arm, flex his elbow and had lost significant strength in the arm. An MRI disclosed an epidural hematoma on the right side of his spinal cord and a contusion near C-5. At some point after that, the team doctor acknowledged that he should have put the player on a backboard on the field, rather than having him walk off of the field. The player sued the team doctor, the emergency room doctor and the hospital.

Trial and Appellate Theories

The trial court allowed expert testimony for the Plaintiff by an emergency room physician about treatment rendered on the football field. The jury found that the emergency room doctor and the hospital did nothing wrong. However, the jury did find against the team doctor and awarded a total of $750,000 as past and future damages.

The basis of the volunteer doctor’s appeal was that the Plaintiff’s expert should not have been allowed to give an expert opinion because he was neither an orthopedic surgeon nor a volunteer team physician and therefore, not “a similar heath care provider.” He also argued that the [Florida] immunity statute for volunteer doctors prevents an expert from another specialty from testifying.

Court’s Reasoning

The 4th DCA held that the team doctor was “similarly licensed” as the expert witness and therefore, the expert testimony was permissible. The court held that the “similarly licensed” reference related only to the introductory paragraph of the statute to include medical practice, osteopathic medicine, chiropractic medicine, podiatric medicine, and dentistry. Therefore, since the team doctor and the expert witness were both medical doctors, the expert testimony was allowable.

Virginia State Insignia

Testimony of Auto Design Expert Barred by VA Supreme Court

In a Daubert-like challenge, the Supreme Court of Virginia barred the testimony of an expert hired by the guardians and conservators of a person severely injured in a single-car automobile collision. (Hyundai Motor Company, LTD, et al vs. Duncan Record No. 140216)

Factual and Procedural Background

The case involved a single car collision involving a Hyundai driven by Zachary Gage Duncan. He lost control of the car, it ran off the road, hit a snow bank, a bale of hay, and ultimately, a tree. The impact was to the driver’s side of the car, and the driver suffered a closed-head injury despite the car being equipped with side airbags. Although the case had to be tried twice, it ultimately resulted in a verdict for the Plaintiffs of about $14 Million.

The original complaint alleged various theories of wrongdoing; it went to trial on the theory of breach of implied warranty of merchantability. Specifically, Plaintiffs contended that the car was defective, unreasonably dangerous, was unfit for its intended purpose and “did not pass without objection in the industry in which it was sold.” The crux of the defect, according to the Plaintiffs, was that the driver’s side airbag sensor was misplaced and for that reason, the airbag did not deploy on impact.

Discovery and the Expert Witness

The Plaintiffs hired a mechanical engineer, Geoffrey Mahon, as an expert to testify that the car was defectively designed. His opinion was that had the airbag sensor been installed in the pillar where the door closes, rather than on the cross-member under the driver’s seat, the airbag would have deployed when the collision occurred. He, therefore, concluded that it was the placement of the sensor that made the car unreasonably dangerous.

What the Expert Didn’t Do was Crucial to the Outcome

Before trial, and for the reasons discussed below, Hyundai sought to exclude Mr. Mahon’s testimony. The motion in limine was denied and the case went to trial.

As we will discuss, the problem with the expert’s opinion is that in reaching it, he relied on only a computer-aided design study that the car manufacturer had conducted some years prior. That study looked at more than a dozen possible locations for the sensor. One was on the pillar where the door closes, locating it 8-10 inches from the floor. The expert dismissed all of the options that the manufacturer considered, and concluded that locating the sensor on that pillar, but 4-6 inches from the floor instead, “would be his first choice.”

The expert was, at the least, intellectually honest. He stated that since the car manufacturer did not analyze the location that he thought was best, he would “have to run tests to verify that that’s just the right location, but based on [Hyundai’s] evidence of the somewhat higher pillar location, that looks very promising.” He also testified that whether or not a properly functioning airbag would have made a difference, he would have to examine the structure of the vehicle along with the sensors themselves and the attending mathematical algorithms. Significantly, the Plaintiffs’ expert testified that he had not performed any testing nor made any calculations. Nonetheless, the trial court found for the Plaintiffs.

On appeal, the Virginia Supreme Court reversed. It held that the expert’s opinion was based on the assumption that the airbag would have deployed had it been placed elsewhere in the driver’s side door. But, Mr. Mahon did not perform any tests or calculations, nor was any presented at trial to support his opinion. The Supreme Cout held that the expert’s opinion lacked factual basis and was, therefore, inadmissible.

Former Federal Judge Limited in Testimony as Expert Witness

Former Federal Judge Limited in Testimony as Expert Witness

A former Federal Court Judge in Madison, Illinois was limited in the scope of the expert testimony that he could offer at trial. A Court held that some of his opinions invaded the province of the presiding judge.

Factual Background

The underlying case involved a fatal accident that occurred in 2005 when a vehicle carrying 6 people ran off a road and rolled over; one person was killed and others were injured. The Estate of the deceased sued two highway contractors that were under contract with the Illinois Department of Transportation. Significantly, the contractors had formed a joint venture with each other to carry out the project.

The gist of the underlying case was that the contractors failed to post adequate barriers and to properly warn oncoming traffic of hazardous conditions. The defendants counterclaimed, alleging that the deceased drove too fast, drove while fatigued, and drove on the shoulder of the road, all of which were claimed to have proximately caused or contributed to the collision, death and injuries.

Insurance Disclosure Led to Pre-Trial Settlement

Before trial, the parties settled the negligence suit for $1 Million under a demand for policy limits, but before the discovery cut-off date. The settlement was based, in part, on a representation by defense counsel for the joint venture, Richard Green, that the $1 Million policy was the total amount of available liability coverage. The policy limits were tendered because the magnitude of the injuries and the risk of a verdict for the Plaintiff(s) could have resulted in excess exposure on the Defendants had policy limits not been tendered. After the settlement had been reached, the negligence lawsuit was dismissed with prejudice.

Revelation of Additional Insurance Prompts Second Suit

Later, it was determined that the contractors had individual liability insurance policies in addition to coverage for the joint venture. Therefore, the Estate filed a new lawsuit. It claimed that the negligence suit would not have been settled had the Plaintiffs known of the additional liability coverage.

Former Federal Judge Renders an Opinion as a Defense Expert in Second Suit

Former Judge Patrick Murphy stated that the defense counsel in the negligence suit had no reason to believe that there was insurance in addition to that on the joint venture.

But he went further, and that’s where problems arose. He stated that while he had no opinion on whether or not there really was additional coverage, it was the duty of the Plaintiffs’ lawyer to determine if there was. He stated that the lawyer could have propounded detailed interrogatories and used other methods of discovery. Mr. Murphy also stated that under Rule 26 of the Federal Rules of Civil Procedure, defense counsel had no duty to investigate whether there was other coverage. He stated that it was “gross negligence” by the Estate’s attorney not to have done so.

Court Held That the Scope of the Expert’s Opinion Was Overly Broad

The Court in the coverage case granted a motion to strike Judge Murphy’s testimony about Rule 26. It held that whether or not there was compliance with Rule 26 was strictly within the province of the court. The Court also held that Mr. Murphy’s testimony about whether or not plaintiffs’ counsel was negligent in the underlying case were impermissible legal conclusions.

Source: Madison Record

(Photo Credit: “Expert Witness” by NY and Picserver is licensed under CC BY-SA 3.0.)