United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant Access eForms, LP's Motion
to Strike Plaintiff's Expert (Dkt. #17). After reviewing
the relevant pleadings, the Court finds that Defendant's
motion should be granted.
December 29, 2016, Plaintiff Sidney Beck initiated this
action against Defendant Access eForms, LP for alleged
violations of the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (“FLSA”). Plaintiff alleges
that she routinely worked in excess of forty hours per week
and was not compensated as required under the FLSA.
26, 2017, the Plaintiff served Defendant with Brian T.
Farrington's (“Farrington”) expert report. On
September 5, 2017, Defendant filed its Motion to Strike
Plaintiff's Expert (Dkt. #17). On September 18, 2017,
Plaintiff filed a response (Dkt. #18). On September 25, 2017,
Defendant filed a reply (Dkt. #19).
Rule of Evidence 702 provides for the admission of expert
testimony that assists the trier of fact to understand the
evidence or to determine a fact in issue. Fed.R.Evid. 702. A
district court must make a preliminary determination, when
requested, as to whether the requirements of Rule 702 are
satisfied with regard to a particular expert's proposed
testimony. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592-93 (1993). Courts act as
gatekeepers of expert testimony “to make certain that
an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999).
party offering the expert's testimony has the burden to
prove by a preponderance of the evidence that: (1) the expert
is qualified; (2) the testimony is relevant to an issue in
the case; and (3) the testimony is reliable.
Daubert, 509 U.S. at 590-91. A proffered expert
witness is qualified to testify by virtue of his or her
“knowledge, skill, experience, training, or
education.” Fed.R.Evid. 702. Moreover, in order to be
admissible, expert testimony must be “not only
relevant, but reliable.” Daubert, 509 U.S. at
589. “This gate-keeping obligation applies to all types
of expert testimony, not just scientific testimony.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th
Cir. 2002) (citing Kuhmo, 526 U.S. at 147).
deciding whether to admit or exclude expert testimony, the
Court should consider numerous factors. Daubert, 590
U.S. at 594. In Daubert, the Supreme Court offered
the following, non-exhaustive list of factors that courts may
use in evaluating the reliability of expert testimony: (1)
whether the expert's theory or technique can be or has
been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known or
potential rate of error of the challenged method; and (4)
whether the theory or technique is generally accepted in the
relevant scientific community. Id. at 593-94;
Pipitone, 228 F.3d at 244. When evaluating
Daubert challenges, courts focus “on [the
experts'] principles and methodology, not on the
conclusions that [the experts] generate.”
Daubert, 509 at 594.
Daubert factors are not “a definitive
checklist or test.” Id. at 593. As the Court
has emphasized, the Daubert framework is “a
flexible one.” Id. at 594. Accordingly, the
decision to allow or exclude experts from testifying under
Daubert is committed to the sound discretion of the
district court. St. Martin v. Mobil Exploration &
Producing U.S., Inc., 224 F.3d 402, 406 (5th Cir. 2000).
expert testimony has been challenged, it is incumbent upon
the court to conduct a preliminary fact-finding to determine
whether the expert is qualified to render the proffered
opinions and whether the substance of the testimony is both
reliable and relevant.” Allison v. NIBCO,
Inc., No. 9:02-CV-172, 2003 WL 25685229, at *1 (E.D.
Tex. May 21, 2003). The court must also articulate its basis
for admitting expert testimony. See Rodriguez v. Riddell
Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001). To be
reliable, and therefore admissible under Rule 702 of the
Federal Rules of Evidence, expert testimony as to a
scientific, technical or other specialized area must: (1)
assist the trier of fact to understand the evidence or to
determine a fact in issue; (2) be based upon sufficient facts
or data; (3) be the product of reliable principles or
methods; (4) and have reliably applied the principles and
methods to the facts. Fed.R.Evid. 702. “The reliability
analysis applies to all aspects of an expert's testimony:
the methodology, the facts underlying the expert's
opinion, the link between the facts and the conclusion, et.
alia.” Knight v. Kirby Inland Marine Inc., 482
F.3d 347, 355 (5th Cir. 2007).
Defendants challenge Farrington's report on the basis
that it contains numerous legal conclusions. Experts cannot
offer testimony regarding what law governs a dispute or what
the applicable law means, because that is a function of the
Court. Fisher v. Halliburton, No. H-05-1731, 2009 WL
5216949, at *2 (S.D. Tex. Dec. 21, 2009) (citing Askanase
v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997)); see
also Goodman v. Harris Cnty, 571 F.3d 388, 399 (5th Cir.
2009) (“An expert may never render conclusions of
law.”). “Allowing an expert to give his opinion
on the legal conclusions to be drawn from the evidence both
invades the court's province and is irrelevant.”
Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th
Cir. 1983). “There is one, but only one, legal answer
for every cognizable dispute. There being only one applicable
legal rule for each dispute or issue, it requires only one
spokesman of the law, who of course is the judge.”
Askanase, 130 F.3d at 673. In addition, an expert
should not be permitted to give opinions that reiterate what
the lawyers offer in argument. Salas v. Carpenter,
980 F.2d 299, 305 (5th Cir. 1992) (citation omitted). The
Court notes that Federal Rule of Evidence 704 provides that
“testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact.”
However, Rule 704 does not open the door to all opinions.
Owen, 698 F.2d at 240. The rule is not intended to
allow expert witnesses to give legal conclusions or tell the
jury what result to reach. Id.
issue in this case is whether Plaintiff is an exempt employee
under the administrative and/or computer occupation
exemptions to the FLSA. 29 U.S.C. §213(a)(1), (17).
“This determination requires the fact-finder to
evaluate the nature and terms of Plaintiff['s]
employment, draw inferences from these facts, and apply the
regulations and interpretations promulgated under section
213(a)(1).” Benavides v. City of Austin, 2012
WL 12883179, at *2 (W.D. Tex. July 2, 2012) (citing
Gelhaus v. Wal-Mart Stores, Inc., 769 F.Supp.2d
1071, 1077 (E.D. Tex. 2011). “‘[T]he ultimate