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Childress v. Ozark Delivery of Missouri L.L.C.

United States District Court, W.D. Missouri, Southern Division

December 16, 2014

CALVIN CHILDRESS, et al., Plaintiffs,
v.
OZARK DELIVERY OF MISSOURI L.L.C., et al., Defendants.

ORDER

DOUGLAS HARPOOL, District Judge.

Pending before the Court is Defendant Advantage's Motion to Exclude the Testimony of Plaintiff's Expert Witness. (Doc. 130). Defendant seeks to exclude the testimony of Dr. Liesl M. Fox, whom Plaintiffs designated to calculate damages. The Court, after full and careful consideration, DENIES Defendant's motion.

BACKGROUND

Plaintiffs Calvin Childress and Jolene Loyd brought the above-captioned lawsuit as a collective action pursuant to section 216(b) of the Fair Labor Standards Act ("FLSA"). Plaintiffs allege that Defendants willfully violated section 207 of the FLSA by failing to fully compensate local delivery drivers for all hours worked in excess of 40 hours per week. The action is brought against Ozark Delivery, L.L.C. ("Ozark"), Klein Calvert, [1] and Employer Advantage, L.L.C. ("Advantage")[2] as "joint employers." On February 3, 2010, the Court conditionally certified the case as a collective action. The class now includes fifty-six (56) opt-in plaintiffs who were allegedly employed by Defendants between April 2006 and June 2009 as local van delivery drivers.

On August 27, 2014, Plaintiffs designated Liesl M. Fox, Ph.D., as an expert witness to testify regarding damage calculations. Dr. Fox earned a doctoral degree in biostatistics and has accumulated over twenty years of experience working as a statistical analyst and consultant. She reported that she frequently "prepare[s] damages calculations as an expert witness for other claims of unpaid time worked similar to the claim currently before the Court, " including damage calculations in the FLSA collective action context. Defendant Advantage deposed Dr. Fox on October 1, 2014. Shortly thereafter, Defendant Advantage filed a "Motion to Exclude the Testimony of Plaintiff's Expert Witness" and requested that the Court preclude Dr. Fox from testifying at trial and bar Plaintiffs from making any use of Dr. Fox's report during the trial.

STANDARD

The standard to admit expert testimony is stated in Federal Rule of Evidence 702 as amended in 2000 to conform with Daubert v. Merell Dow Pharmaceuticals, Inc., 509 U.S. 479 (1993). The Rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. "The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence." Lauzon v. Senco Products, ...


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