Expert Witness Blog
Class action plaintiffs hired a labor economics expert witness to testify on their behalf. The defendants filed a motion to exclude, which was denied
Facts – This case (Bernstein v. Virgin America, Inc. – United States District Court – Northern District of California – November 7th, 2016)- is a putative class action case filed by current and former flight attendants of the defendant (Virgin). They plaintiffs argue that Virgin did not pay them for hours hours that they worked before, after, and between flights; time spent in training sessions, time on reserve; time when they took mandatory drug tests, and time when they were filling out incident reports. In addition, they also allege that Virgin did not allow them to take meal or rest breaks, did not pay them overtime and minimum wages, and did not provide accurate statements of their wages. In order to prove their case, the plaintiffs hired David Breshears, a labor economics expert witness.
Mr. Breshears’ report provides a method for calculating damages for the named plaintiffs that could be applied on a class-wide basis. In order to form his opinion, he relies on three months of flight schedule data and earnings statements for the three named plaintiffs. Virgin has moved to exclude the expert witness report of Mr. Breshears.
Discussion: Virgin first argues that Breshears expert opinion is not relevant because the case is at the class certification stage and pertains to the calculation of damages, not to the liability of the defendant. The court disagreed, stating that, in order to succeed on their class certification motion, they must prove that damages could be efficiently calculated once the liability issues are dealt with.
Virgin next argues that Breshears’ report is not reliable because he assumed that all of the time in the data was compensable under California law. In order words, he did not propose a methodology for those class members that worked principally in California. Breshears does mention to the court that, if necessary, he could limit his analysis to hours spent working in California. To be sure, any argument like this goes to the weight of the evidence, not its admissibility. Thus, this part of the testimony will not be stricken.
Third, Virgin argues that Breshears applied his methodology on a small data set at a class certification stage, which was comprised of three months of data for three people. The court ruled that Breshears does not need to provide a completed model at this stage, and can rely on a sample of data to demonstrate that he has a reliable methodology. To be sure, Breshears provides additional sources of data that he would need to conduct a full analysis over a larger data set.
Penultimately, Virgin argues that the methodology that Breshears’ used for calculating damages on missed meal breaks does not show when the flight attendants actually took a meal break. The court stated that this argument is irrelevant, given the theory of liability that the plaintiffs put forth.
Conclusion: The court denied the defendant’s motion to exclude the expert witness testimony of David Breshears