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Slack v. Swift Transportation Co. of Arizona, LLC

United States District Court, W.D. Washington, Tacoma

August 16, 2017

TROY SLACK, et al., Plaintiffs,
v.
SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, Defendant.

          ORDER

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This 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:[1]

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On 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. Dkt. 237.

         Swift 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.

         On 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 hourly-paid driver.
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).

         On 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 explanation.
***
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 members.

Id. ¶¶ 53, 56, 63, 66.

         On 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.

         On 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. ...


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