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January 8, 2004.

KIMBERLY A. MARTING, on behalf of herself and all others similarly situated, Plaintiff,
CRAWFORD & COMPANY, Martin C. Ashman Defendant

The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge


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.

  I. Background

  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 Page 2 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 supervise anyone.

  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.) Page 3

  II. Discussion

  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 Page 4 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 Page 5 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. Page 6

  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' ...

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