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

434 F.Supp.3d 712

David BROWNE, Antonio Caldwell, and Lucretia Hall, on Behalf of Themselves and others Similarly Situated, Plaintiffs

v.P.A.M. TRANSPORT, INC., et al., Defendants

CASE NO. 16-CV-5366

United States District Court, W.D. Arkansas, Fayetteville Division.

Signed January 17, 2020

Joshua S. Boyette, Justin L. Swidler, Richard Swartz, Travis Martindale-Jarvis, Swartz Swudler LLC, Cherry Hill, NJ, for Plaintiffs.

Amber Prince, Kerri E. Kobbeman, Robert L. Jones, III, Conner & Winters, Fayetteville, AR, Martin D. Holmes, Morris Reid Estes, Jr., Peter Fredrick Klett, Dickinson Wright PLLC, Nashville, TN, K. Scott Hamilton, Dickinson Wright PLLC, Detroit, MI, for Defendants.

OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs' Motion for Partial Summary Judgment (Doc. 160), which is fully briefed and ripe for decision.¹ Also ripe for decision is Plaintiffs' Motion to Strike the Declaration of Dustin Mixon (Doc. 187).² Because the Declaration of Dustin Mixon was offered in support of Defendants' Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Doc. 167-12), the Court will first address Plaintiffs' Motion to Strike and then turn to the Motion for Partial Summary Judgment. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART the Motion to Strike the Declaration of Dustin Mixon (Doc. 187) and GRANTS IN PART AND DENIES IN PART the Motion for Partial Summary Judgment (Doc. 160).

I. MOTION TO STRIKE

Plaintiffs have filed a Motion to Strike the Declaration of Dustin Mixon, a risk supervisor at PAM. The initial Declaration was filed by Defendants in support of their Motion to Decertify (Doc. 157-3) and their Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Doc. 167-12). Mr. Mixon's Declaration offers testimony on three main topics: the findings of an audit he conducted after the commencement of this litigation (the "expanded audit"), the PAM Passenger Program, and PAM's yards and facilities. Plaintiffs moved to strike the Declaration, arguing that because it did not lay a foundation for Mr. Mixon's personal knowledge of these topics, it constituted untimely and impermissible expert testimony. (Doc. 187). In their Response to the Motion to Strike (Doc. 205), Defendants included a Supplemental Declaration (Doc. 205-1) offering the same factual testimony but intended to cure the foundational issues raised by Plaintiffs by expounding the basis for Mr. Mixon's lay opinions. Plaintiffs' Reply (Doc. 212) argues that the Court should still strike Mr. Mixon's Supplemental Declaration because Defendants failed to timely produce the documents that Mr. Mixon claims to have reviewed as the basis for his testimony, in violation of Rule 26(a)(1)(ii) of the Federal Rules of Civil Procedure, and that his testimony contradicts Defendants' other discovery responses, disclosures, and designee testimony.

The deadline for expert witness disclosures in this case is long past, so the Court must first determine if Mr. Mixon's Declaration may be considered opinion testimony by a lay witness rather than testimony of an expert witness. Pursuant to Rule 701 of the Federal Rules of Evidence, the testimony of a witness who does not testify as an expert must be "rationally based on the witness's perception" and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Expert testimony, pursuant to Rule 702, is permitted so long as it meets the following four criteria:

(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.

"Determining whether a witness is offering an expert or lay opinion requires a case-by-case analysis of both the witness and the witness's opinion." United States v. STABL, Inc. , 800 F.3d 476, 486 (8th Cir. 2015). The decision whether or not to admit such testimony is "within the district court's considerable discretion." In re Air Crash at Little Rock Ark. , 291 F.3d 503, 516 (8th Cir. 2002). "Although lay witnesses may not testify about scientific knowledge within the scope of Federal Rule of Evidence 702, perceptions based on industry experience are a sufficient foundation for lay opinion testimony." STABL, Inc. , 800 F.3d at 487 (internal quotation marks omitted and modifications adopted) (emphasis in original). "Personal knowledge or perception acquired through review of records prepared in the ordinary course of business, or perceptions based on industry experience, is a sufficient foundation for lay opinion testimony." Burlington N. R.R. Co. v. Nebraska , 802 F.2d 994, 1004–05 (8th Cir. 1986).³

The paragraphs of Mr. Mixon's Supplemental Declaration addressing the number and nature of PAM's yards and facilities across the country and the headquarters in Tontitown specifically (Doc. 205-1, ¶¶ 21–23} will not be stricken. The Supplemental Declaration asserts that these opinions are based on Mr. Mixon's "personal knowledge and a review of information and documents maintained in the normal course and scope of PAM's business operations." Id. at ¶ 21. The Court concludes that the opinions offered in these paragraphs are "rationally based on [Mr. Mixon's] perception" from his physical presence at the headquarters in Tontitown and his review of information and documents produced in the normal course of business.

The paragraphs of Mr. Mixon's Supplemental Declaration regarding the expanded audit, however, will be stricken. His testimony on this topic cannot be considered lay testimony even with the additional foundation provided in the Supplemental Declaration. The conclusions offered in paragraphs 15 through 19 of the Supplemental Declaration cannot be reached by a simple review of records created in the ordinary course of business or "mere tabulation" of data in such records. See STABL, Inc. , 800 F.3d at 487 (permitting lay testimony as to the number of violations where the witness simply counted the occurrences as recorded in the ordinary course of the defendant's business). Defendants acknowledge that the expanded audit was not conducted in the regular course of PAM's business but was initiated "[i]n connection with this lawsuit." (Doc. 205, p. 6 n.2). Furthermore, neither review of the log records nor of the location histories alone would create the perception that drivers were engaged in personal activities while in an "on duty" status. Mr. Mixon had to perform a technical or specialized process using the data from driver logs, GPS coordinates, and information as to what physically existed at those GPS coordinates in order to identify times that a driver was logged "on duty" while parked, for example, at home or at a casino. Thus, Mr. Mixon's testimony is based on the application of "methods" to "data," exactly the kind of testimony that is guided by Rule 702. This kind of data analysis distinguishes expert from lay testimony, and the conclusions in paragraphs 15 through 19 must therefore be considered expert testimony. In fact, Defendants' designated expert, Dr. Matthew Thompson, did exactly the same thing that Mr. Mixon did: he analyzed driver logs and GPS data to poke holes in Plaintiffs' theory of damages by identifying times that drivers claim are compensable but did not perform compensable work. (Doc. 167-13). Defendants may not supplement Dr. Thompson's expert findings now under the guise of lay opinion testimony.

Furthermore, even if Mr. Mixon's Supplemental Declaration offered only lay opinions, his testimony regarding the expanded audit would still be excluded because Defendants failed to disclose it during discovery, and the Court finds that failure is not substantially justified or harmless. Rule 26(a)(1)(ii) requires that a party disclose anything it "may use to support its claims or defenses, unless the use would be solely for impeachment." Rule 37(c)(1) provides that the consequence for a failure to disclose is that "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Defendants rely on the expanded audit to demonstrate that Plaintiffs are not always on duty and to challenge Plaintiffs' calculation of damages. Defendants therefore had an affirmative obligation to disclose their findings from the expanded audit, even if it did not technically fall within any particular request for production by the Plaintiffs, and have offered no justification for their failure to do so. Nor can the failure to disclose be considered harmless; on the contrary, it results in significant prejudice to Plaintiffs. Though Mr. Mixon was identified as PAM's Rule 30(b)(6) designee for several deposition topics, none of those topics appear to be most relevant to the topic of the expanded audit.⁴ Furthermore, the individuals who testified about log audits not only did not disclose the expanded audit now described by Mr. Mixon but indicated that it was not possible for PAM to check the accuracy of a driver's representation as to the use of his time.⁵ Presumably, Plaintiffs developed their litigation strategy in light of this testimony, and to permit Defendants to introduce new and conflicting testimony at this juncture would be significantly prejudicial to Plaintiffs.

By asserting that these "examples of personal activities ... can be determined in some instances by closely analyzing the drivers' log records, load records, location histories, and Qualcomm messages, which have been provided to Plaintiffs during discovery," Mr. Mixon seems to imply that Plaintiffs had the information they needed to conduct this analysis for...