Employment Expert Witness Testimony Allowed in Part in Wage & Hour Litigation

Summary: Employment Expert Witness testimony is granted in part and denied in part even though the plaintiff argued that Crandall’s methodology does not compare to other time and motion studies in similar cases.

Facts: This case (Utne v. Home Depot U.S.A., Inc – United States District Court – Northern District of California – May 6th, 2022) involves a purported class action complaint related to unpaid wages.  The plaintiff, John Utne, filed a class action lawsuit against the defendant, Home Depot.  The third amended complaint brings forth five claims against Home Depot: 1) Failure to pay hourly wages, 2) failure to provide adequate written wage statements, 3) failure to pay wages at the termination of employment, 4) violation of California’s Unfair Competition law, and 5) penalties from Home Depot’s violation of numerous state labor codes.  Home Depot has hired Employment Expert Witness Robert Crandall to provide expert testimony.  The plaintiff has filed a motion to exclude this expert from testifying.

Discussion:  The plaintiff argues that Crandall’s expert witness opinion should be excluded.  The court notes that the plaintiff’s arguments mostly go to the weight of the evidence, not their admissibility.  In addition, the court opines that numerous arguments set forth by the plaintiff will be denied.  These include how Crandall’s methodology compares to other time and motion studies, whether he followed the correct methodology for observational studies, and his failure to provide margins of error.

To be sure, the court states that it will exclude certain parts of Crandall’s expert witness report.  For example, Crandall’s opinions on the number of employees engaged in activities not related to work on their pre-shift walk back to the store are excluded.  The court notes that Crandall would not know if the employee was engaged in work activity or not based only on the video that he set up.   The court states that conversations between colleagues could have concerned work issues.  In addition, an employee’s time spent on the phone may have involved discussing work matters.

In addition, the court opines that it is not possible to know whether all of the actions seen during Crandall’s study that are classified as personal were actually personal.  The court states that the lack of classification of the term “personal” means that Crandall’s opinion on the time spent by employees on personal matters is not based on sufficient facts or data.

Last, the court opines that certain aspects of Crandall’s expert witness testimony are improper legal opinions and are thus excluded as well.

Conclusion:  The plaintiff’s motion to exclude the expert witness opinions of Robert Crandall is granted in part and denied in part.