United States District Court, W.D. Arkansas, Fayetteville Division
DAVID BROWNE, ANTONIO CALDWELL, and LUCRETIA HALL, on behalf of themselves and others similarly situated PLAINTIFFS
P.A.M. TRANSPORT, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Exclude Dr. Steve Viscelli's
Expert Report (Doc. 149) filed by Defendant P.A.M. Transport,
Inc. ("PAM") and a Brief in Support (Doc. 150).
Plaintiffs filed a Response in Opposition (Doc. 172). For the
reasons and to the extent discussed below, Defendants motion
is GRANTED IN PART AND DENIED IN PART.
Case Management Order, this Court set the following deadlines
for expert witness disclosures: July 22, 2019 for
Plaintiffs' initial disclosures and reports; September 6,
2019 for Defendants; and September 30, 2019 for rebuttal
experts. (Doc. 104, ¶ 3). These deadlines were
ultimately extended to August 12, September 13, and October
14, respectively. On August 12, Plaintiffs disclosed a report
by Dr. Robert Speakman, a labor economist who offers an
expert opinion on the quantity of damages to which Plaintiffs
may be entitled. Dr. Speakman relies on data sets for his
calculations, including pay and pay deductions data, DOT
driver logs, and load data. See Doc. 150-2.
September 13, PAM disclosed its expert, Dr. Matthew Thompson.
Dr. Thompson is also a labor economist, and his report offers
several conclusions regarding the reliability of Dr.
Speakman's damages calculations. For example, Dr.
Thompson concludes that "[i]f hours spent logged in the
Sleeper Berth at a secure PAM facility or other secured areas
are not compensable, then Dr. Speakman's damage
calculations are unreliable." (Doc. 150-3, p. 4).
Similarly, Dr. Thompson concludes that "[i]f time spent
driving to and from home is not compensable, then Dr.
Speakman's damage calculations are unreliable."
Id. Finally, Dr. Thompson opines that "Dr.
Speakman has not done this review [of individual factors that
may impact the compensability of time] for any driver on any
day[, ] rendering his damage calculations unreliable."
October 14, Plaintiffs disclosed Dr. Steve Viscelli as a
rebuttal expert. PAM now seeks to exclude Dr. Viscelli's
report, opinions, and testimony as untimely, inadmissible,
and not appropriate rebuttal. In the alternative, PAM
requests time to respond to Dr. Viscelli's report,
presumably by offering its own rebuttal expert. Plaintiffs
respond that Dr. Viscelli was timely disclosed as a rebuttal
expert and is qualified to offer the opinions and testimony
contained in his report. However, they do not object to PAM
being permitted to offer the expert testimony of Dr. Kristen
Backor, whose declaration is attached to PAM's Motion
(Doc. 150-7), as long as her testimony is limited to the
opinions offered in her declaration and they have the
opportunity to depose her in December 2019. See Doc. 172, p.
decision whether to exclude expert testimony is committed to
a district court's discretion-subject, of course, to the
Federal Rules of Evidence, including Rule 702. Johnson v.
Mead Johnson & Co., LLC, 754 F.3d 557, 561 (2014).
Rule 702 states that:
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
(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.
Eighth Circuit applies these elements through a three-part
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. This is the basic rule
of relevancy. Second, the proposed witness must be qualified
to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides
the assistance the finder of fact requires.
Johnson, 754 F.3d at 561.
proponent of expert testimony bears the burden of showing by
a preponderance of the evidence that these requirements are
satisfied, but "Rule 702 favors admissibility if the
testimony will assist the trier of fact, and doubts regarding
whether an expert's testimony will be useful should
generally be resolved in favor of admissibility."
Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir.1998)
(internal citation and quotation marks omitted). "Only
if an expert's opinion is so fundamentally unsupported
that it can offer no assistance to the jury must such
testimony be excluded." Hose v. Chi. N.W. Transp.
Co., 70 F.3d 968, 974 (8th Cir.1995) (internal quotation
rebuttal testimony is offered "solely to contradict or
rebut evidence on the same subject matter" discussed by
another expert. Fed.R.Civ.P. 26(a)(2)(D)(ii). Its purpose
must be to "explain, repel, counteract, or disprove
evidence of an adverse party." United States v.
Lamoreaux,422 F.3d 750, 755 (8th Cir. 2005). The fact
that evidence could have been offered in the
case-in-chief, and may even have been more
appropriate during the case-in-chief, "does not
preclude the testimony if it is proper both in ...