Expert Testimony on Federal Safety Regulations Excluded

Plaintiff Frederick Eppich sued Defendant FedEx Ground Package System Inc. ("FedEx") for unpaid overtime wages under the Fair Labor Standards Act ("FLSA") and Maine state law.

Eppich filed a motion to strike and exclude two of FedEx’s experts from testifying at trial. In advance of trial, FedEx has noticed two different expert witnesses to offer testimony on multiple topics, including among others, the business relationship between FedEx and its independent contractors, referred to as Independent Service Providers (“ISPs”), the structure and operation of ISPs generally, industry norms around the use of ISPs, and the requirements imposed on FedEx from federal motor carrier safety regulations as it relates to FedEx’s control over ISPs.

The first expert, Mr. Jack Van Steenburg, is FedEx’s retained expert on federal motor carrier safety regulations and compliance. In Van Steenburg’s expert report, he offers various opinions on the nature of federal safety regulations generally and FedEx’s duty to comply with them. The second expert, Professor Daniel Spulber, is FedEx’s expert regarding the “economics of contracting in the U.S. package delivery industry and the broader economy and its economic implications for individuals employed to drive for ISPs.” In Spulber’s expert report, he offers various opinions on the nature of business relationship between FedEx and ISPs and industry norms regarding the use of ISPs or similar contractors.

Eppich sought to exclude the testimony of both expert witnesses as consisting of “irrelevant legal conclusions,” arguing that neither FedEx’s motive for relying on ISPs or its duty to comply with federal safety regulations is relevant to the primary issue at trial: whether FedEx is considered a joint employer of Eppich, and thus liable for overtime damages under the FLSA.

Motor Vehicle Safety Expert Witness

Jack Van Steenburg is the former Executive Director and Chief Safety Officer of the U.S. Department of Transportation Federal Motor Carrier Safety Administration and has spent over forty years working in the field of motor carrier safety.

Want to know more about the challenges Jack Van Steenburg has faced? Get the full details with our Challenge Study report.

Economics Expert Witness

Professor Daniel F. Spulber holds multiple advanced degrees in the field of economics, has taught at multiple institutions on the topic, and has published 14 books and numerous articles in academic journals and law reviews.

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

Discussion by the Court

Eppich sought to exclude the testimony of both expert witnesses as consisting of “irrelevant legal conclusions,” arguing that neither FedEx’s motive for relying on ISPs or its duty to comply with federal safety regulations is relevant to the primary issue at trial: whether FedEx is considered a joint employer of Eppich, and thus liable for overtime damages under the FLSA.

A. Testimony on the Structure and Operation of ISPs and their Relationship to Motor Carriers Like FedEx

The Court starts by finding that both experts offered by FedEx are qualified under Rule 702 based upon their experience and specialized knowledge regarding the subject matter at hand. The question is whether that specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Although experts “may not assist the jury by expounding upon the law,” expert testimony on the structure and operation of ISPs could be both relevant and helpful to the jury in understanding ISPs in general and their relationship to motor carriers such as FedEx.

As such, subject to further development before or at trial, the Court will allow such testimony

B. Testimony on Federal Safety Regulations

To determine whether FedEx can be considered Eppich’s joint employer under the FLSA, courts “look to the ‘economic reality’ of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence.”

Federal regulations provide six factors to guide an assessment, under the totality of the circumstances, of the “economic realities of the working relationship and the question of economic dependence.” One factor of particular relevance here is the “nature and degree of control,” which “considers the potential employer’s control, including reserved control, over the performance of the work and the economic aspects of the working relationship.”

To that effect, Eppich appears to argue that FedEx’s model utilizing ISPs and its retention of control over various aspects of ISP operations via their operating agreement services are evidence of FedEx’s status as Eppich’s joint employer. In response, FedEx argued that its proposed expert testimony is necessary to both “correct Plaintiff’s mischaracterization of evidence as FedEx’s independent efforts to control” that are instead established by federal regulations, and to address Plaintiff’s purported characterization of FedEx’s “legitimate and commonly utilized business model” as instead a “scheme” to “cheat and exploit drivers.”

Without making any ruling on whether evidence pertaining to federal safety regulations might be generally relevant and admissible through another source, the Court found that testimony on federal safety regulations is not within the purview of expert testimony. After all, it is well established that the law is the exclusive domain of the judge and is not a proper subject for expert testimony.

Although FedEx argued that Van Steenburg “does not interpret the FLSA or state wage and hour laws,” in his report, Van Steenburg opined that “motor carriers like FedEx are bound” by said federal regulations and thus bear “responsibility for transportation safety and compliance issues.”

The Court found that such expert testimony strays dangerously close to the application of the facts of this case to the law, which “falls far outside the purview of expert testimony.” In recognizing its “broad discretion to exclude expert opinion evidence about the law that would impinge on the roles of the judge and the jury,” the Court found that testimony regarding the effect of federal motor carrier safety regulations on FedEx is not admissible as expert testimony under Rule 702.

C. Testimony on the Norms of Motor Carrier Use of ISPs

For similar reasons, the Court found expert testimony regarding the normative implications on the use of ISPs by motor carrier companies such as FedEx, specifically the economic considerations or effects of such agreements, are not relevant to the jury’s determination of whether FedEx is considered Eppich’s joint employer and thus liable for overtime wages under the FLSA. Put differently, the question of why FedEx entered into operating agreements with ISPs does not, at this juncture, appear relevant or helpful to the jury. In any event, even if such testimony were relevant, the Court found that it “is factual testimony that could be given by the Defendant’s personnel,” thus obviating the need for expert testimony on the topic.

Held

The Court granted in part and denied in part Frederick Eppich's motion to exclude the testimony of expert witnesses at trial.

Key Takeaway

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