Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John M. Fry - 020455 [email protected] Kelly K. Johnson ­ 022793 [email protected] Attorneys for Defendant

9 10 11 12 13

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated, Plaintiff, No. CV2003-2262-PHX-ROS REPLY ON DEFENDANT'S MOTION IN LIMINE TO STRIKE OPINIONS OF ORAN CLEMONS (Assigned to the Honorable Roslyn O. Silver)

14 v. 15 BANK OF AMERICA, N.A., 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28
727835.1

I. Ms. Hutton's Introduction Arguments A. Timeliness

Ms. Hutton argues that this Motion is premature because Defendant could have waited until this Court rules on the pending dispositive motions. Plaintiff's Response to Defendant's Motion In Limine to Strike Opinions of Oran Clemons ("Response"), pp. 12, lns. 19-8. On the contrary, Ms. Hutton relied upon the opinions of Mr. Clemons in presenting and defending the two pending dispositive motions. A challenge to the opinions is timely because the opinions do not constitute admissible evidence and therefore cannot be relied upon to support or oppose the motions. B. Procedural Error

Ms. Hutton argues that this Motion should be denied on procedural grounds
Case 2:03-cv-02262-ROS 10/4/2006 Document 309 Filed 10/04/2006 Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

because it is a supplemental brief to her Motion for a Final Finding of Willfulness ("Final Finding Motion"). Response, pp. 2-3, lns. 9-11. Such is not the case. The only use of Mr. Clemons' reports in the Final Finding Motion was foundational in nature, and challenged as such. See Defendant's Controverting Statement of Facts and

Objections to Plaintiff's Final Finding Motion, p. 2, paragraph E and p. 7, paragraph 3. Rather, Ms. Hutton's Response to Defendant's Motion for Summary Judgment (and its incorporation by reference in her Reply on the Final Finding Motion) relies heavily on Mr. Clemons' substantive "opinions." See, e.g., Plaintiff's Response to Defendant's Motion for Summary Judgment, pp. 8-9; Plaintiff's Reply to Final Finding Motion, p. 9. Appropriate objections were lodged by Defendant, and this Motion was filed in support of the objections.1 II. The Willfulness Opinions A. Assistance to the Jury

The questions of whether punitive damages or liquidated damages should be imposed on a defendant have been answered by juries for over one hundred years. A search of the case law indicates that no court ever has allowed an expert opinion on either issue. Ms. Hutton offers no reason why this Court should be the first. Such an opinion is of no assistance to a jury, any jury. B. The Correct Principle or Method

Mr. Clemons may have referenced McLaughlin in his initial report (Preliminary Expert Report of Oran Clemons, p. 13), but the standard he later applies is the negligence standard rejected by McLaughlin (see, e.g., Rebuttal to Defendant's Expert Report, p. 5). At best, Mr. Clemons does not consistently apply the same standard. C. Reliability

Mr. Clemons uses grossly inadequate materials to support his willfulness

Ms. Hutton's assertion that Defendant's reference to "this motion" refers to her Final Finding Motion is disingenuous. See Response, p. 2, note 2. The reference obviously refers to the current Motion In Limine.
Case 2:03-cv-02262-ROS Document 309 -2- Filed 10/04/2006 Page 2 of 6

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

opinion.

This renders the opinion unreliable.

Olsen v. Marriott Int'l., Inc., 75

F.Supp.2d 1052, 1057 (D. Ariz. 1999). III. The Off-The-Clock Opinions A. Assistance to the Jury

Ms. Hutton seems to justify Mr. Clemons' off-the-clock opinions on the premise that based on his experience, he knows management pressure almost invariably results in employees recording fewer hours than they really worked. Response, p. 13, lns. 3-11. Yet Mr. Clemons admits a jury would reach the same conclusion. Therefore, his opinion is of no assistance to the jury. See United States v. Seschillic, 310 F.3d 1208, 1212 (9th Cir. 2002); GST Telecomm., Inc. v. Irwin, 192 F.R.D. 109, 110 (S.D.N.Y. 2000). B. Reliability

Ms. Hutton does not try to defend the one-sided nature of the database of evidence provided to Mr. Clemons. Neither the physical nor the social sciences find conclusions based upon a skewed, insignificant universe to be reliable. Yet Ms. Hutton asks this Court to allow Mr. Clemons to opine solely based on four Client Manager interviews, statements from five other former Client Managers, and part of Ms. Hutton's deposition ­ a total of 10 former Client Managers out of a universe of about 100 present and former Client Managers. All are Opt-Ins. Of the 10: 1. Ms. Bogdonas (6 weeks), Mr. Reilly (14 weeks), Ms. Larkin (15 weeks), See

Ms. Lyftogot (3 weeks) and Ms. Massignami (18 weeks), are short term.

Defendant's Statement of Facts in Support of Motion for Decertification and Motion for Partial Summary Judgment No. 11. 2. Ms. Cooper waived her off the clock claim. See Defendant's Statement of

Facts in Support of Motion for Decertification and Motion for Partial Summary Judgment No. 100. 3. Ms. McClintic and Ms. Peterson testified they were told to record all their

time. See Defendant's Statement of Facts in Support of Motion for Decertification and
Case 2:03-cv-02262-ROS Document 309 -3- Filed 10/04/2006 Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Motion for Partial Summary Judgment No. 83. 4. Ms. Hutton testified that if all Client Managers told the truth, they would

say they were told there was a budget constraint on overtime and they were not allowed to go over four hours a week without prior approval. See Defendant's Statement of Facts in Support of Motion for Decertification and Motion for Partial Summary Judgment No. 89. Mr. Clemons' one-sided facts reflect none of this. IV. The Misclassification Opinion A. Legal Conclusion

Mr. Clemons specifically opines that the work done by the "plaintiffs" is not exempt work, and that their pay does not meet the salary test. These, at least in part, are legal conclusions. Mr. Clemons is incompetent to render these and they are not needed by this Court.2 B. Reliability

Ms. Hutton does not try to defend the one-sided nature of the data provided to Mr. Clemons as evidence on the misclassification issue. Without question, the inquiry into misclassification is an individual, fact-intensive inquiry. Nevertheless, Mr.

Clemons opines that universally, all 36 "plaintiffs" were misclassified, though he spoke or read the declaration of only 10. Such a generalization based on one-sided evidence is not reliable. See e.g. Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1025-26 (10th Cir. 2002)(Testimony of economics expert properly excluded when based on unreliable data, expert did not conduct or cite surveys to support testimony, and he attempted to spin information from a handful of conversations with firms in a limited geographic area into general evidence of a worldwide product market). V. Conclusion For the foregoing reasons, Defendant requests that this Motion be granted.

2

The same is true of Mr. Clemons' opinion on willfulness.
Document 309 -4- Filed 10/04/2006 Page 4 of 6

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DATED: October 4th, 2006. RYLEY CARLOCK & APPLEWHITE

By /s/Charles L. Chester Charles L. Chester John M. Fry Kelly K. Johnson One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

Case 2:03-cv-02262-ROS

Document 309 -5- Filed 10/04/2006

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14

CERTIFICATE OF ELECTRONIC FILING I hereby certify that on October 4th, 2006, I electronically transmitted REPLY ON DEFENDANT'S MOTION IN LIMINE TO STRIKE OPINIONS OF PLAINTIFF'S EXPERT ORAN CLEMONS to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Ms. Lydia A. Jones ROGERS & THEOBALD, LLP 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff Michael O'Connor Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 By: /s/Bree Bellefeuille

15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-02262-ROS Document 309 -6- Filed 10/04/2006 Page 6 of 6