Deutsch v. My Pillow, Inc.

• Docket Number: 20-cv-0318 (SRN/ECW)
• Decision Date: 01 May 2023
• Parties: Brandon Deutsch, individually and on behalf of all similarly situated individuals, Plaintiff, v. My Pillow, Inc., Defendant.
• Court: U.S. District Court — District of Minnesota

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Brandon Deutsch, individually and on behalf of all similarly situatedindividuals, Plaintiff, v. My Pillow, Inc., Defendant.

No. 20-cv-0318 (SRN/ECW)

United States District Court, D. Minnesota

May 1, 2023

Jacob Robert Rusch, Timothy J. Becker, and Zackary S. KaylorJohnson Becker PLLC, 444 Cedar St., Ste. 1800 St. Paul, MN 55105, for Plaintiff

Alec J. Beck, Andrew D. Parker, and Lori A. Johnson, Parker Daniels Kibort, LLC, 1233rd St. N., Ste. 888, Minneapolis, MN 55401, for Defendant

ORDER ON DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY OF BRIAN C. GRIESER

SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

This matter is before the Court on DefendantMy Pillow, Inc.'s (“My Pillow's”)Motion to Exclude Expert Testimony of Plaintiffs' Expert Brian C. Grieser[Doc No. 134].Based on a review of the files, submissions, and proceedings herein, and for the reasons below, the Court denies the motion.

I.BACKGROUND

The Court incorporates by reference its discussion of the background of this litigation in its April 26, 2023 order (the “Summary Judgment Order”)[Doc. No. 169] that addressed the parties' cross motions for summary judgment and plaintiffs' class certification motion.In brief, Defendant My Pillow is a Minnesota corporation that manufacturers pillows and other products.(Am. Compl. [Doc. No. 31]¶ 2.)Plaintiffs are a group of current and former My Pillow employees who worked as customer service representatives and sales representatives, known as “call center representatives,” or “CCRs,” at My Pillow's Chaska, Minnesota call center between 2017 and 2020.^[1](Id.¶ 14.)My Pillow provided computers with software, including a program called Annaware, from which CCRs answered customers' phone inquiries.(Miles Summ. J. Decl. [Doc. No. 145]¶ 6;see alsoHagaman Decl. [Doc. No. 148]¶ 7.)In November 2021, My Pillow moved its call center.(First Kaylor Decl. [Doc. No. 124], Ex. 2 (Miles Dep.)at 12:3-9).)At that time, My Pillow updated its technology.(Id.;KaylorDecl., Ex. 18(Hagaman Dep.)at 43:16-24).)

A.Employee Log-In Times

In this lawsuit, Plaintiffs seek compensation for unpaid time spent booting up and logging into My Pillow's computers prior to clocking into My Pillow's electronic timekeeping system, ADP.My Pillow did not record or keep track of this time.(SeeSumm. J. Orderat 31.)Plaintiffs allege that by failing to pay them for this time, My Pillow violated various labor laws, including the Fair Labor Standards Act(“FLSA”) and the Minnesota Payment of Wages Act.

Prior to taking their first calls of the day, CCRs were required to complete the “call-ready process,” which consisted of logging into their computers, logging into ADP, punching in, opening Outlook, opening Annaware, and checking their email.(MilesDep. at 92:14-17.)If an employee's computer was powered down, prior to taking any of these steps, the employee had to first turn on their computer.My Pillow would begin to compensate CCRs after they opened their browser, logged into ADP, and clicked “clock in.”(Id. at 24:25-25:4.)

In their deposition testimony, Plaintiffs generally estimated the log-in process took five to eight minutes per day.(Sokolowski Summ. J. Decl. [Doc. No. 140], Ex. 1 (Arth Dep.)at 14:3-9, 21:16-21(five to eight minutes, on average);id., Ex. 2(Deutsch Dep.)at 15:21-23(eight minutes on a good day);id., Ex. 5(Jenkins Dep.)at 47:19-24(approximately five minutes);id., Ex. 6(Lyons Dep.)at 113:19-23, 141:4-6, 143:5-18(five to ten minutes);id., Ex. 7(Mendez Zepeta Dep.)at 12:10-15(no less than five minutes during training period);id., Ex. 3 (Dols Dep.)at 10:8-9, 32:6-33:24 (close to an average of seven minutes).)Deutsch testified that on days when he had to power-on his computer from a cold start, the boot-up process sometimes took 10 to 15 minutes, and at best, eight minutes.(DeutschDep. at 15:21-23.)He noted that log-in times were inconsistent across computers, and testified that the boot-up and log-in process once took 30 minutes on his assigned computer.(Id. at 47:24-48:4.)Jenkins testified that after she began leaving her computer powered on at the end of shift, the log-in process took approximately one to two minutes, assuming no computer updates were necessary.(JenkinsDep. at 36:14-47:3;see alsoMendez ZepetaDep. at 59:21-60:1.)If there were computer updates, Lyons estimated that the log-in process could take 10 to 15 minutes.(LyonsDep. at 60:5-11.)

While working at My Pillow, Lyons recorded two videos showing the boot-up and log-in process.(First KaylorDecl., Exs. 23(First Video) & 25 (Second Video).)In the first video, recorded on August 7, 2019, he powered on his computer from a cold start.(First Video at 7:25-08:01;LyonsDep. at 104:8-13.)The process of booting up and logging in took him approximately seven minutes and 21 seconds.(First Video at 7:25- 08:01;LyonsDep. at 104:8-13.)In the second video, recorded on August 19, 2019, it is unclear whether Lyons powered on his computer, but the process of logging in took three minutes and 57 seconds.(Second Video at 03:57.)

In its defense, My Pillow asserts that it provided training to CCRs on timekeeping practices, maintained a procedure in which employees could request time adjustments, required CCRs to report technology problems, and instructed that its computers should not be turned off at the end of a CCR's shift.(SeeSumm. J. Orderat 15-20.)Because these facts are not directly at issue in the instant motion, the Court does not address them further.

B.Expert Opinions

Plaintiffs retained Brian C. Grieser as an expert witness to perform an elemental time study at My Pillow's new call center location.(Sokolowski Decl. [Doc. No. 137], Ex. 1 (Grieser Report)at 1.)Mr. Grieser is a Senior Consultant and Director of Technology and Instrumentation at Applied Safety and Ergonomics, Inc.(“ASE”) in Ann Arbor, Michigan.(Id. at 2.)He holds master's and bachelor's degrees from the University of Michigan College of Engineering.(Id.)Mr. Grieser has over 28 years of experience in conducting research, consulting, and lecturing in the following areas: human factors/ergonomics, time study, statistics, design of experiments, and product, occupational, and premises safety management.(Id.)Mr. Grieser leads the time and motion study work at ASE, which has conducted multiple time studies in a variety of workplace settings.(Id.)In particular, ASE has specialized experience in the analysis and timing of donning/doffing, sanitizing of protective clothing/PPE, COVID-19 screening, and other off-the-clock and overtime work.(Id.)

During Mr. Grieser's July 21, 2022 live study of first and second shift My Pillow CCR employees, he studied the amount of time reasonably required for CCRs “to open and log into various programs prior to taking the first call of the day.”(Id.)Based on his study, he opines that My Pillow employees spend an average of 24 seconds opening and logging into Windows, 12 seconds opening Outlook, 43 seconds opening the My Pillow Order Tracker, and 33 seconds opening and logging into the web-based ADP timekeeping software, for a total of approximately 112 seconds.(Grieser Reportat 1.)

Mr. Grieser also reviewed at least one of the 2019 Lyons videos, and found that Lyons spent approximately 62 seconds booting up the computer, 226 seconds logging into Windows, 39 seconds opening Outlook, and 111 seconds opening the ADP software, for a total of approximately 438 seconds.(Id. at 1-2.)

My Pillow retained Dr. Robert G. Radwin to rebut Mr. Grieser's opinion.(Sokolowski Decl., Ex. 2 (Radwin Report)at 1.)Dr. Radwin personally observed Mr. Grieser's time study and reviewed his report and findings.(Id. at 3.)In general, he opines that Plaintiffs' time study: (1) does not help the jury understand the total time that My Pillow employees spent logging into their computer and clocking into the time clock; (2) is not based on sufficient facts or data; (3) is not the product of reliable principles and. methods; and (4) does not reliably apply the principles and methods to the facts of the case.(Id. at 6.)Dr. Radwin performed his own calculations and opines that “the average time to launch Windows was 23.63 seconds, and the average time taken for the online ADP time tracking software to load for a CCR to log in was 32.68 seconds,” for a total time of 56.31 seconds.(Id. at 4.)

Mr. Grieser produced a rebuttal report in response to Dr. Radwin's criticisms, which the Court discusses in greater detail below.(Miles Decl.[Doc. No. 155], Ex. 3(Grieser Rebuttal Reportat 1-2.)

II.DISCUSSION

My Pillow moves to exclude Mr. Grieser's opinion in its entirety, arguing that it is not helpful to the finder of fact, is not the product of reliable principles and methods, and that his commentary on the Lyons video does not constitute expert testimony.(Def.'s Mem. [Doc. No. 136]at 8-12;Def.'s Reply [Doc. No. 163]at 2-9.)Thus, My Pillow contends that his opinion fails to meet the requirements of Federal Rule of Evidence 702andDaubert v. Merrell Dow Pharms., Inc., 509 U.S. 579(1993).

Plaintiffs oppose the motion, arguing that Mr. Grieser's opinion sufficiently meets the requirements of Rule 702andDaubert and should not be excluded.

A.Standard of Review

Federal Rule of Evidence 702 governs the admissibility of expert testimony.^[2] Under the rule, proposed expert testimony must satisfy three prerequisites to be admitted.Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686(8th Cir.2001).“First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact.”Id.(citation omitted).“Second, the proposed witness...