Statistics Expert Witness’ Potential Backpay Calculation Excluded
Posted on July 22, 2024 by Expert Witness Profiler
Named Plaintiffs Mary Alice Clark, Christopher Coulter, Aaron Perez, Kevin Nelson and Phillip Roscher (collectively, “Plaintiffs”), individually and on behalf of all others similarly situated, brought this putative collective action against Defendant Capital Vision Services, LLC d/b/a MyEyeDr (“MyEyeDr” or the “Company”), claiming that MyEyeDr misclassified all General Managers (“GMs”) and General Managers-in-Training (“GMITs”) as exempt from the overtime pay requirements imposed by the federal Fair Labor Standards Act (“FLSA”), as well as Massachusetts and Pennsylvania law.
MyEyeDr filed a motion to exclude Plaintiffs’ proffered expert witness, Dr. Liesl M. Fox under Fed. R. Evid. 702 and 403.
Statistics Expert Witness
Liesl M. Fox, Ph.D. is a Senior Consultant and Partner at Quantitative Research Associates, a firm that provides statistical and computing consulting services. She has been a statistical consultant for over twenty-five years, including conducting analyses in the fields of litigation and medical research, and has testified as an expert witness.
Furthermore, she has consulted on and testified in numerous matters involving wage-and-hour disputes, including claims under the Fair Labor Standards Act of 1938 (“FLSA”). These matters have involved allegations of unpaid overtime, off-the-clock work, employment misclassification, minimum wage violations, time-shaving, record-keeping violations, and other wage-and-hour issues.
Discussion by the Court
Reliability
Initially, MyEyeDr challenged Fox’s opinions on several grounds. As to the calculation of potential backpay, she assumed that all of the GMs’ training last eight weeks when there was testimony from MyEyeDr’s Chief Revenue Cycle Officer that such period could be shortened, and two class members for which she had made such calculation, testified that neither undertook such training and others testified to a shorter training period.
Consequently, the Court held that the fact that Fox’s calculation for backpay were premised on such unsupported assumptions undermined the reliability of those calculations. Similarly, in her opinion regarding whether Plaintiffs supervised the equivalent of two full-time employees (for the purposes of determining if the executive exemption applied), the Court found that she did not account for inventory hours spent by these employees “which artificially deflated the labor hours GMs supervised.”
Moreover, according to the Court, the key is that there is no explanation of a reliable methodology in which she included some work hours in her analysis and excluded others.
Helpfulness to the Trier of Fact
Next, the Court questioned whether Fox’s opinions will be helpful to the trier of fact.
If MyEyeDr is found to have violated the FLSA, it would owe backpay for uncompensated overtime hours worked by GMs at a rate of one and a half times their hourly rate. Upon determining the number of overtime hours each GM worked, the jury would be tasked with calculating each individual’s hourly rate by dividing the weekly salary by the number of hours worked that week. To calculate the backpay, the jury would (1) multiply the hourly rate by one and a half and (2) multiply that by the GM’s overtime hours that given week. Such calculations constituted basic math that a jury can compute without the opinion of an expert.
However, Plaintiffs noted that the payroll data in this case “contains more than 95,400 rows of data” spanning five years with “81 different earnings code[s] some of which are included in the damage calculations and others that are not properly included in the regular rate,” and “it contains unpaid and paid time off hours that need to be excluded from hours work estimates, and . . . bonuses that need to be spread over the time periods during which they are earned.” They argued that, given the enormity of the data, a jury is unlikely to have the ability to do these calculations.
Nevertheless, the Court held that such data can be presented in summary fashion to the jury. Plaintiffs may explain the meaning of such numbers through lay witnesses and argue the reasonable inferences that can be drawn from same to the jury. The Court decided that this proffered “opinion” did not require specialized knowledge or would be helpful to the jury as required under Fed. R. Civ. P. 702.
Risk of Undue Prejudice and Confusion to the Jury
Furthermore, the Court held that there is a risk that the jury will attach undue significance to this opinion offered by Fox based on the deficiencies addressed above, such that any probative value of same is outweighed by the risk of undue prejudice and confusion to the jury under Rule 403.
Held
In conclusion, the Court granted the Defendants’ motion to exclude Plaintiffs’ proffered expert witness, Liesl M. Fox.
Key Takeaways:
To begin with, MyEyeDr did not challenge Fox’s credentials as a highly qualified statistical consultant, or the general relevance of her proffered opinions, but challenged their reliability on several grounds and posited that her proposed testimony would be unhelpful to the jury.
- First of all, Fox’s testimony would not assist the jury because Fox’s calculations are basic math that a jury can compute without the opinion of an expert.
- Secondly, Fox’s calculation for backpay were premised on unsupported assumptions. For instance, Fox assumed that all of the GMs’ training lasted eight weeks when there was testimony from MyEyeDr’s Chief Revenue Cycle Officer that such period could be shortened.
Case Details:
| Case Caption: | Clark Et Al V. Capital Vision Services, Llc |
| Docket Number: | 1:22cv10236 |
| Court: | United States District Court for the District of Massachusetts |
| Order Date: | July 18, 2024 |
