Browne v. P.A.M. Transport, Inc.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         In its 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.

         On 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." Id.

         On 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. 25-26.

         II. LEGAL STANDARD

         The 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 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.

         The Eighth Circuit applies these elements through a three-part test:

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.

         The 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 marks omitted).

         Expert 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 ...