Kasten v. Saint-Gobain Performance Plastics Corp.
| Decision Date | 02 June 2008 |
| Docket Number | No. 07-cv-449-bbc.,07-cv-449-bbc. |
| Citation | 556 F.Supp.2d 941 |
| Parties | Kevin KASTEN and James Poole, individually and on behalf of other similarly situated individuals, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Jessica Jean Clay, Paul J. Lukas, James Raster, Nichols Kaster & Anderson, PLLP, Minneapolis, MN, Michael Robert Fox, Fox & Fox, S.C., Madison, WI, for Plaintiffs.
Jeffrey A. McIntyre, Anthony J. Sievert, Whyte Hirschboeck Dudek, Madison, WI, for Defendant.
This is a civil action for monetary relief in which plaintiffs Kevin Kasten and James Poole, individually and on behalf of others similarly situated, contend that defendant Saint-Gobain Performance Plastics Corporation violated the Fair Labor Standards Act, Wisconsin wage statutes and regulations and state common law by not compensating its employees for all "work" time prior to December 11, 2006. Since this lawsuit began, 156 similarly situated individuals have opted into the FLSA collective action. Jurisdiction is present. 28 U.S.C. §§ 1331 and 1367.
Currently there are eight motions pending before the court in this case, seven of which will be addressed in this opinion. Plaintiffs have the following three motions pending: (1) motion for partial summary judgment (dkt.# 98); (2) motion for Fed. R.Civ.P. 23 class certification (dkt.# 107); and (3) motion to strike Jeffrey Fernandez's expert report (dkt.# 168). Defendant has the following four relevant motions pending: (1) motion to decertify plaintiffs' FLSA collective action (dkt.# 113); (2) motion for partial summary judgment (dkt.# 101); (3) motion to strike plaintiffs' proposed findings of fact numbers 56 and 65 (dkt.# 132); and (4) motion to strike portions of plaintiffs' reply brief (dkt.# 192).
In an attempt to address the vast array of motions in an organized fashion, I have split this opinion into three sections and grouped related motions together in each section. The first section will address the three non-dispositive motions, which are plaintiffs' motion to strike and both of defendant's motions to strike. The second section will address the parties' cross motions for partial summary judgment. The third section will address plaintiffs' motion for class certification and defendant's motion to decertify the collective action.
Regarding the motions in the first section, I conclude that all the parties' motions to strike will be denied. Regarding the motions in the second section, I conclude that plaintiffs' motion for partial summary judgment will be granted as it applies to plaintiffs' FLSA and Wisconsin labor law claims for overtime and regular pay for donning, doffing and walking to work stations; it will be denied in all other respects. Defendant's motion for partial summary judgment will be denied because the offset defense does not apply under the circumstances of this case. Finally, regarding the motions in the third section, I will deny defendant's motion to decertify plaintiffs' FLSA action because I find that the named plaintiffs and opt-in plaintiffs are similarly situated. Plaintiffs' motion for class certification of their state law claims will be granted as to their statutory claims and denied as to their common law claims.
Plaintiffs contend that defendant's expert Jeffrey Fernandez's expert report regarding the time defendant's employees spend donning, doffing and walking should be stricken from the record and that the court should not rely upon the report's conclusions in its summary judgment determinations because the analysis and conclusions in the report are irrelevant and the methodology and calculations are unreliable. Put more specifically, plaintiffs contend that Fernandez's expert report does not satisfy the requirements regarding the admissibility of an expert report under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant disputes plaintiffs' criticisms of the report and contends that it is admissible.
Fed.R.Evid. 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
It is the duty of a district court to function as a "gatekeeper" regarding expert testimony, which entails determining whether the proposed expert testimony, or the proffered expert report, is both relevant and reliable. Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The Court of Appeals for the Seventh Circuit follows a three-step analysis in addressing relevance and reliability:
the witness must be qualified "as an expert by knowledge, skill, experience, training, or education," Fed.R.Evid. 702; [2] the expert's reasoning or methodology underlying the testimony must be scientifically reliable, Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; and [3] the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702.
Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.2007). The court of appeals accords the district courts "`wide latitude and discretion when determining whether to admit expert testimony.'" Id. (quoting Wintz By & Through Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir.1997)).
Plaintiffs do not challenge Fernandez's expert qualifications and his résumé clearly supports his knowledge of ergonomics, that is, the relation between workers and their environments. Rather, the core of plaintiffs' argument is that the report is irrelevant because some of the factors used in the report, such as the time period evaluated or the use of a task-based methodology, are legally improper and, therefore, the report's time estimates are inherently incorrect. Plaintiffs' argument misses the mark.
Fernandez's expert report addresses a central issue in this case: what amount of time, if any, plaintiffs were working but not compensated by defendant. His report provides time estimates regarding employee donning, doffing and walking times. The report could help the finder of fact in determining how much time plaintiffs were working without being compensated. Plaintiffs' concerns regarding relevance are actually concerns regarding the content of the report. Such concerns are best addressed through cross examination before the trier of fact. I find the report relevant.
Plaintiffs's second attack on Fernandez's expert report focuses on the reliability of his method and conclusions. In addressing this issue, a district court must "ensure that the testimony is sufficiently reliable to qualify for admission." Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir.2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The Supreme Court has provided five non-exhaustive and flexible criteria for guidance in addressing reliability:
whether the theoretical framework or technique underlying the witness's testimony (1) is subject to verification through testing, (2) whether it has been subject to peer review and publication, (3) what its known or potential rate of error is, (4) whether there are standards controlling its application, and (5) whether it is generally accepted within the relevant expert community.
Id. (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786).
Plaintiffs provide eight reasons why Fernandez's expert report is unreliable. Those include a challenge to the size of the samples Fernandez used as being too small to be statistically significant and Fernandez's alleged error in relying on standardized walking times rather than actual walking times. These challenges do not undermine the reliability of the report sufficiently to preclude its use for summary judgment purposes.
In arguing reliability, plaintiffs make the mistake they made when they argued relevance. Their concerns do not address the reliability but the correctness of the report's conclusions, which are concerns best addressed through cross examination. Fernandez used clear standards in creating the time estimates in his report and he verified his conclusions through transparent testing. Plaintiffs do not disagree with the way Fernandez used the standards or the way he implemented his tests; instead, they disagree with the standards themselves and the tests that were created. Essentially, plaintiffs are arguing that Fernandez tailored his evaluation toward defendant's position regarding the time employees spent donning, doffing and walking. This does not make Fernandez's report unreliable; it merely makes it biased, which, as stated before, is something that goes to the weight to be given his report or testimony and not to its admissibility. Plaintiffs have failed to prove that Fernandez's expert report is not sufficiently reliable to qualify for admission. Therefore, their motion to strike will be denied.
Defendant requests that portions of plaintiffs' reply brief be stricken because they contain new arguments regarding the...
To continue reading
Request your trial
-
Kasten v. Saint-Gobain Performance Plastics Corp.
...donning and doffing certain required protective gear and walking to work areas" violated the Act. Kasten v. Saint–Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 954 (W.D.Wis.2008). In this suit Kasten claims unlawful retaliation. He says that Saint–Gobain discharged him because he or......
-
Dekeyser v. Thyssenkrupp Waupaca Inc. D/B/A Waupaca Foundry Inc.
...where defendant failed to provide evidence of any practical administrative difficulty); see also Kasten v. Saint–Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 954 (W.D.Wis.2008) (“Because defendant has admitted that it would incur no additional administrative burden in compensating ......
-
Sec'y U.S. Dep't of Labor v. Am. Future Sys., Inc.
...2014) ; Brown v. L & P Indus., LLC, No. 04-0379, 2005 WL 3503637, at *6 (E.D. Ark. Dec. 21, 2005) ; Kasten v. Saint–Gobain Perform. Plastics Corp., 556 F.Supp.2d 941, 953 (W.D. Wis. 2008) ; Martin v. Waldbaum, Inc., No. CV 86-0861, 1992 WL 314898, at *1 (E.D.N.Y. Oct. 16, 1992).57 Greinetz,......
-
Rodgers v. Gary Cmty. Sch. Corp.
...F.2d 1112, 1116 (7th Cir.1982) (finding the “very act of production was implicit authentication.”); Kasten v. Saint-Gobain Performance Plastics Corp. , 556 F.Supp.2d 941, 948 (W.D.Wis.2008) (rejecting authenticity challenge at summary judgment as disingenuous where the challenged e-mails “w......
-
Greathouse v. Jhs Security, Inc.: the Second Circuit Correctly Held That Intracompany Complaints to Employers Are Protected Under the Fair Labor Standards Act
...held the location of the timeclocks was in fact a violation of the FLSA. Id. at 5; Kasten v. Saint-Gobain Performance Plastics Corp., 556 F. Supp. 2d 941, 954 (W.D. Wis. 95. Kasten III, 563 U.S. at 5. Saint-Gobain's internal grievance-resolution procedure stated employees had a "responsibil......