The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge
REPORT AND RECOMMENDATION
This motion is before the Court on Defendant's Motion to Exclude the
Report and Testimony of Brian H. Kleiner.*fn1 For the following reasons,
we recommend that Defendant's motion be granted.
Plaintiff, Kimberly A. Marring, brought this putative class action
pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq., against Defendant, Crawford & Company. Defendant
provides insurance services to various carriers and companies. Plaintiff
was employed by Defendant under the title of "adjuster 1, 2, 3, 4 and
Casualty General Adjuster" until May of 2000. (Compl. ¶ 6.) Plaintiff
alleges that she was a non-exempt employee, but Defendant refused to pay
overtime compensation for any work she performed in excess of 40 hours
per week. Plaintiff's duties included investigation of personal injury
accidents. She claims
that the tasks she performed in investigating accidents were
conducted pursuant to rules and regulations promulgated by Defendant and
its clients and she exercised no discretion with respect to her duties.
Plaintiffs work was supervised by her superiors, and she did not
Plaintiff has retained Brian H. Kleiner, Ph.D. as her expert in this
case. Kleiner is a tenured professor in the College of Business and
Economics at California State University. Kleiner has published hundreds
of articles reflecting his work in the field of human resource
management. He claims that his specialties include "job analysis." (Rep.
at 1.) He has testified as an expert in numerous matters, primarily in
California. Two of his articles include Determining Exempt Or
Non-Exempt Status Under California Law for Managers and California
Minimum Wage and Overtime.
Before preparing his report, Kleiner reviewed the tasks performed by
Marling that she had recorded on her daily time cards. These tasks were
summarized by Marting's attorneys at Exhibit B to the report, Kleiner
also reviewed Defendant's employee training and operation systems and
analyzed deposition transcripts of Defendant's corporate designee.
Exhibit C to the report describes specific billing categories, states the
percentage of time that Plaintiff spent performing tasks in each billing
category, and lists the instructions which governed her performance of
the tasks in each category. Kleiner concluded that Marling "did not
customarily or regularly exercise discretion and independent judgment."
(Rep. at 14.)
The primary issue in this case is whether Marting's position is
non-exempt under the FSLA. Under the FSLA, an employer must pay overtime
unless the employee is employed in an exempt position, i.e., in a "bona
fide executive, administrative, or professional capacity . . ."
29 U.S.C. § 213(a)(1). Defendant claims that it employed Matting in an
administrative capacity and her work required "the exercise of discretion
and independent judgment" which would place her in an exempt category.
See 29 C.F.R. § 541.207(a).*fn2 Kleiner has attempted to
quantify Marting's duties to determine whether her primary duty required
her to exercise discretion and independent judgment. Defendant claims
that Kleiner's report (and anticipated testimony) is unreliable and
irrelevant and should not be admitted.
Federal Rule of Evidence 702 governs the admissibility of expert
testimony.*fn3 Expert testimony must be both reliable and relevant.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
Under the reliability prong, the Court must determine whether the
expert's testimony reflects scientific knowledge; i.e., "a preliminary
assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid . . . " See id. at
592-93. The Court must consider whether the testimony has been subjected
to the scientific method, while
ruling out subjective beliefs and unsupported speculation.
Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002). When
the expert testimony is based on the expert's personal experience, the
expert must employ "the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field." Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). Under the
relevancy prong, the Court must determine if the expert's testimony will
assist the trier of fact. See Daubert, 509 U.S. at 591. The
judge acts as a gatekeeper to exclude expert testimony if the possible
prejudice of the testimony outweighs its probative force. Id. at
595. Defendant contends that Kleiner's report and testimony do not meet
either prong of the Daubert test.
First, under the reliability prong, Daubert sets forth a
nonexclusive list of facts that the Court may consider for this analysis:
(1) whether the theory can be and has been verified by the scientific
method through testing; (2) whether the theory has been subjected to peer
review; (3) the known or potential rate of error; and (4) the general
acceptance of the theory in the scientific community. Chapman,
297 F.3d at 687. This test is "flexible," and the factors do not
necessarily have to be applied to all experts in every case.
Kumho, 526 U.S. at 141. However, we must determine if the expert
is qualified, as well as examine his methodology. See Smith v. Ford
Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
We agree with Defendant that Kleiner's report lacks reliability.
Kleiner's report has not been verified by the scientific method through
scientific tests or experiments. He has not published any articles
regarding his methodology of analyzing jobs to determine if they are
exempt or non-exempt under the FSLA. Kleiner himself admits he does not
know if his methods are widely accepted or what other methods might be
widely accepted. Although Kleiner has
published two articles relating to California law, Marting has not
pointed out what relation California law has to the FSLA. Furthermore, it
is implausible that Kleiner is an expert in the classification of jobs
under the FSLA where he admits that he has not even read the law itself.
Additionally, Kleiner admitted in his deposition that he did not know the
rates of error in his analysis. (Kleiner Dep. at 75-76.) See
Chapman, 297 F.3d at 687-88 (finding that trial court erred in
admitting expert's testimony that did not meet any of the
Daubert factors of reliability).
Kleiner's analysis was not based on extensive empirical studies and
statistics, but merely based on dividing Marting's tasks up and deciding
if she exercised discretion and independent judgment in each category.
This overlaps with the second objection to his report under
Daubert it is not relevant. Defendant contends that
Kleiner's analysis goes to the ultimate legal issue of the case. The
Court agrees. An expert should offer more than opinions or legal
conclusions on issues that will determine the outcome of the case.
See c.f. Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898,
900-01 (7th Cir. 1994) (finding that meaning of federal regulations was
issue of law, not issue of fact for experts to speculate upon).
We find that the case of Cowan v. Treetop Enterprises, Inc.,
120 F. Supp.2d 672 (M.D. Tenn. 1999), is persuasive on this issue. In
Cowan, the court granted a motion to strike the report of an
expert who had opined that fast food managers were "primarily
responsible" for the profitable operation of the restaurant. The court
first noted that the expert's report was not based on extensive
statistical and empirical analyses and was not reliable. Id. at
683-84. Next, the court noted that the distinct legal meaning of the term
"primary responsibility" under the FSLA was a legal issue that should be
decided by the court, not by the expert. Id at 684.
Under Federal Rule of Evidence 704(a), an expert's report will not be
rejected merely because it encompasses an ultimate issue to be decided by
the trier of fact; however, the report must offer more analysis than just
the "bottom line." Minasian v. Standard Chartered Bank, PLC,
109 F.3d 1212, 1216 (7th Cir. 1997) (quoting Mid-State Fertilizer Co. v.
Exch. Nat'l Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989)).
In Minasian, the court rejected an expert's affidavit that was
"full of vigorous assertion (much of it legal analysis in the guise of
banking expertise), carefully tailored to support plaintiffs' ...