Loy ex rel. Situated v. Rehab Synergies, LLC
| Decision Date | 02 September 2021 |
| Docket Number | Civil Action No. 7:18-cv-00004 |
| Citation | 558 F.Supp.3d 402 |
| Parties | Valerie LOY, on Behalf of herself and All Others Similarly Situated, Plaintiffs, v. REHAB SYNERGIES, LLC, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Caitlyn Elizabeth Silhan, Charles Stein Siegel, William Paul Lawrence, II, Waters Kraus & Paul, Dallas, TX, David W. Garrison, Pro Hac Vice, Jerry Edward Martin, Pro Hac Vice, Seth Marcus Hyatt, Pro Hac Vice, Barrett Johnston et al., Nashville, TN, Roberto Luis Ramirez, The Ramirez Law Firm, PLLC, McAllen, TX, for Plaintiffs.
Derek T. Rollins, Jasmine Marcella Harding, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Austin, TX, Erika L. Leonard, Pro Hac Vice, Ogletree Deakins et al., Atlanta, GA, for Defendant.
Micaela Alvarez, United States District Judge The Court now considers 1 Plaintiffs’ response;2 and Defendant's reply.3 The motion is ripe for consideration. Upon consideration of the motion, the record, and relevant authorities, the Court GRANTS Defendant's motion.4
This is a Fair Labor Standards Act ("FLSA")5 case concerning "off-the-clock" work allegedly performed by Plaintiffs and other therapists6 while working for Defendant, a skilled nursing provider with approximately forty-four locations throughout the state of Texas.7
Named Plaintiff Valerie Loy was employed by Defendant from March 2014 to August 2016 at its facility in McAllen, Texas.8 On January 5, 2018, she filed suit in this Court alleging that she, and other similarly situated therapists, worked "off-the-clock or otherwise underreported their time" while employed by Defendant.9 Plaintiffs further allege that this off-the-clock work occurred as a result of the "onerous productivity requirements" set by Defendant.10 Plaintiffs also allege that Defendant knew off-the-clock work was occurring and "expressly encouraged it."11 As a result of this practice, Plaintiffs allege they have been "denied overtime payments that they are due" in violation of the FLSA.12
This case was certified as a collective action under 29 U.S.C. § 216(b) on April 3, 2019.13 After certification, there were a total of fifty Plaintiffs in this case—one named Plaintiff and forty-nine opt-in Plaintiffs.14 Plaintiffs’ expert, Dr. Liesl M. Fox, Ph.D. purports to calculate the amount of damages for uncompensated overtime performed by Plaintiffs.15
Defendant filed the present motion to exclude the report and testimony of Dr. Fox.16 The motion is now ripe for consideration. The Court turns to its analysis.
In Defendant's motion to exclude, it requests the Court exclude the testimony and report of Plaintiffs’ expert Liesl M. Fox, Ph.D.17
"[T]he Federal Rules of Evidence control the admission of expert testimony."18 The Rules and judicial scrutiny extend to all experts, whether scientific or otherwise.19 When an expert's "factual basis, data, principles, methods, or their application" are sufficiently called into question,20 the Court must undertake a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."21 The Court must first determine, under Federal Rules of Evidence 104(a) and 402, that the expert's proposed testimony is relevant and would assist with determining a fact at issue.22 Evidence that is not both is not admissible.23 24 The Court scrutinizes proposed expert testimony more searchingly than lay witness testimony for its pertinency and potential prejudice.25
Additionally, "[u]nder the Rules[,] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."26 "Experts qualified by knowledge, skill, experience, training or education may present opinion testimony to the jury"27 only 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."28 The proponent of the proffered expert testimony "must prove by a preponderance of the evidence that the testimony is reliable" and cannot rest on generic assurances.29 Under the first element, "the existence of sufficient facts ... is in all instances mandatory."30 "[A] district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert's opinion."31 Unsubstantiated factual assertions will bar expert testimony,32 as will "altered facts and speculation designed to bolster [the proponent's] position."33 Expert opinions that are unsupported, self-contradicted, or assumptive are to be excluded.34 However, the proponent "need not prove the testimony is factually correct, but rather need only prove by a preponderance of the evidence the testimony is reliable"35 and the Court should "approach its inquiry with the proper deference to the jury's role as the arbiter of disputes between conflicting opinions."36 "As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration."37 Indeed, the Fifth Circuit has cautioned against transforming a motion to exclude an expert into a trial on the merits, because the factfinder may be entitled to accept or reject an expert's testimony including by judging whether the predicate facts on which an expert relied are accurate.38 Generally, cross-examination and presentation of competing evidence are traditionally sufficient to challenge an expert opinion, rather than exclusion for inadmissibility.39 In short, experts may rely on disputed facts,40 but not unsubstantiated assertions.41 An opinion based on "insufficient, erroneous information," fails the reliability standard.42
Under the second and third elements for assessing expert evidence, ’ "43 44 To test reliability, the Court assesses the intellectual rigor of the proposed expert testimony,45 which must be validated by an independent and objective source beyond the expert's assurances,46 and the Court "should ensure that the [expert] opinion comports with applicable professional standards outside the courtroom and that it will have a reliable basis in the knowledge and experience of [the] discipline,"47 but an expert report or opinion need not be in lockstep with the common or prevailing standard to be admissible.48 Similarly, the Court should exclude expert evidence if the witness is not qualified in a particular field or subject,49 but an expert witness need not be highly credentialed or qualified to offer an expert opinion to the factfinder.50 The Court may "conclude that there is simply too great an analytical gap between the data and the opinion proffered" to be admissible,51 but there is no definite formula for determining whether expert testimony is reliable or unreliable "and the court must judge admissibility based on the particular facts of the case."52 "Certain more specific factors, such as testing, peer review, error rates, and ‘acceptability’ in the relevant scientific community ... might prove helpful in determining the reliability of a particular scientific ‘theory or technique.’ "53 Reliance on studies that do not support a contention, cherry-picked data, or a dubious methodology may be grounds to reject expert testimony.54 "Trial judges retain ‘broad latitude’ both in deciding how to determine whether an expert's testimony is reliable, and ultimately, whether the testimony is, in fact, reliable."55
In Defendant's motion to exclude, it argues that the Court should exclude the testimony of Plaintiffs’ expert Dr. Liesl M. Fox, Ph.D. (Dr. Fox) because (1) it is not based on sufficient facts or data, (2) it is not the product of reliable principles and methods, (3) she did not reliably apply the principles and methods to the facts of the case, and (4) her report will not assist the jury in understanding the evidence.56
In preparing her report and testimony, Dr. Fox merged three data sources: (1) Defendant's payroll records, (2) Defendant's time keeping records, and (3) a spreadsheet created by Plaintiffs’ counsel listing an estimation of off-the-clock hours worked by each Plaintiff.57 With this information, Dr. Fox calculated the estimated total hours worked by each Plaintiff each week; the estimated amount of weekly unpaid overtime worked by each Plaintiff, if any; and estimated damages.58
As the sole source for data on Plaintiffs’ estimated unrecorded off-the-clock work, Dr. Fox relied on the spreadsheet59 created by Plaintiffs’ counsel.60 Plaintiffs state that "Dr. Fox's report is based upon estimates contained in verified and sworn interrogatory responses for 38 Opt-In Plaintiffs and sworn deposition testimony of the five original Plaintiffs who joined the case prior to the Court's decision on class certification" and "sworn...
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