United States District Court, W.D. Washington, Tacoma
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs Eric Dublinski,
Richard Erickson, Sean Forney, Jacob Grismer, Timothy
Helmick, Henry Ledesma, Scott Praye, Gary Roberts, Troy
Slack, Dennis Stuber, and Robert Ulrich's
(“Plaintiffs”) motion for partial summary
judgment (Dkt. 215), motion to exclude in part the expert
reports and testimony of Angela Sabbe (Dkt. 217), motion to
strike improper expert report of Robert Crandall (Dkt. 219),
and motion to exclude Mr. Crandall (Dkt. 245); and Defendant
Swift Transportation Co.'s (“Swift”) motion
to exclude expert Dwight Steward Ph.D. (Dkt. 246). The Court
has considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and
hereby rules as follows:
PROCEDURAL AND FACTUAL BACKGROUND
November 20, 2013, the Court certified a class of truck
drivers who were paid by the mile and worked more than forty
hours per week and a subclass of drivers who were allegedly
not paid for attending orientation. Dkt. 83 at 11. Swift
contends that it paid the reasonable equivalent of overtime
(“REOT”) and that Plaintiffs have failed to
submit admissible evidence on their orientation pay claim.
retained Ms. Sabbe “to evaluate the reasonable
equivalence between pay received by mileage drivers and pay
they would have received as an hourly driver.” Dkt.
218-1 ¶ 5. Ms. Sabbe is “a leader in the complex
data analytics practice in Los Angeles and specialize[s] in
the application of financial and complex data-intensive
analyses to legal issues.” Id. ¶ 2.
September 15, 2016, Ms. Sabbe produced a report contending
that class members earned more as mileage-paid drivers than
they would have as hourly-paid drivers. Specifically, Ms.
Sabbe concluded as follows:
From 2011 to 2016, class members earned, on average, between
2.8% and 19.8% more per hour as mileage-paid drivers than
they would have earned if they had been paid as an hourly
driver. From 2008 to 2010, class members earned, on average,
between 4.5% and 12.4% less than they would have earned as an
From 2012 to 2016, class members' total earnings were, on
average, between 1.7% and 17.6% more than the total earnings
they would have earned as hourly-paid drivers. From 2008 to
2011, the class of mileage-paid drivers earned approximately
7% less than they would have earned as hourly-paid drivers.
Id. ¶¶ 7(i)-(ii).
October 17, 2016, Plaintiffs' expert, Dr. Steward, issued
his report. Dkt. 218-7. As part of the report, Dr. Steward
provided “a preliminary analysis of the defendant's
expert report prepared by Ms. Angela Sabbe.”
Id. ¶ 7. Dr. Steward opined in part as follows:
Ms. Sabbe failed to provide an apples-to-apples comparison of
the rates earned by the class members to her identified
comparison drivers who are not class members. Further, Ms.
Sabbe compared the class members to a nonexistent position at
Swift. Ms. Sabbe also appears to make assumptions which
effectively downward skew the average rate earned by the
class members. A comparison to publically available data
further shows that the comparison rate used by Ms. Sabbe is
significantly lower than the average or median for truck
drivers in the State of Washington. These issues are
discussed in more detail below.
As described above, and included in the Sabbe Report, Ms.
Sabbe compared the average effective hourly rate each year of
the class members she analyzes to the weighted average of the
minimum rates for each position she understands to have
similar job duties to class members each year. Although Ms.
Sabbe attempted to justify the use of the minimum rate for
each position during each year due to the relatively short
median tenure of the class members, she also stated
“unlike mileage rates, which have established increases
based upon a driver's experience and additional
responsibilities, the hourly pay rates for Washington based,
hourly paid drivers are discretionary and based on a variety
of factors including market conditions and are set at or
above the minimum wage.” She clearly stated that the
hourly rate paid by Swift to its hourly drivers need not be
based on experience and then inappropriately attempted to
justify the use of minimum hourly rates based on short
tenure. Ms. Sabbe's use of minimum hourly rates as a
point of comparison is nonsensical based on her own
Ms. Sabbe failed to compare the class members to an hourly
position which exists at Swift. Ms. Sabbe merely compares the
earnings and average hourly rate of the class members to the
weighted average of certain hourly driving positions at
Swift. Ms. Sabbe does not compare the positions held by the
class members to an hourly counterpart position. Mileage-paid
dedicated drivers at Swift work more hours on average than
Ms. Sabbe calculates in her analysis, overestimating the
effective rate earned by the class members.
Mileage-paid dedicated drivers at Swift work more hours on
average than Ms. Sabbe calculates in her analysis,
overestimating the effective rate earned by the class
Id. ¶¶ 53, 56, 63, 66.
March 10, 2017, Ms. Sabbe issued a Rebuttal Report. Dkt.
218-2. In this report, Ms. Sabbe contends that “Dr.
Steward's criticisms are unsubstantiated and
inconsistent.” Id. at ¶ 7(iv). Moreover,
Ms. Sabbe “made certain revisions to [her] initial
analysis.” Id. ¶ 34. Based upon these
revisions, Ms. Sabbe concluded as follows:
On average, across the class period, mileage-paid drivers
earned between -2.5% and 11.2% more per hour more than they
would if they had been paid as an hourly driver in 2008,
2009, and between 2011 and 2016, while in 2010, the hourly
rate variance was approximately 6.0%. As indicated, overall,
across the class period, dedicated drivers earned 4.5% more
as mileage-paid drivers than they would have as hourly-paid
drivers, including overtime, for the same hours worked.
Id. ¶ 45.
March 10, 2017, Swift also produced the expert rebuttal
report of Robert Crandall. Dkt. 220-1 (“Crandall
Report”). Mr. Crandall attacks Dr. Steward's
report, offers opinions in support of Ms. Sabbe, and offers
his own opinions. Id. ...