Opinion
No. 97-4174-SAC
June 19, 2002
MEMORANDUM AND ORDER
This case comes before the court on plaintiffs' motion to strike defendant's expert witness, Robert L. Mathis, from testifying. Defendant opposes the motion.
Defendant first notes that plaintiff's motion does not meet the requirements for motions to strike because it is not directed toward the pleadings, in violation of Fed.R.Civ.P. 12(f). Although defendant is correct, the court will, in the interest of judicial economy and for the purpose of moving this case forward, liberally construe plaintiff's motion as a motion in limine. The court thus reaches the merits of the motion.
Dr. Robert L. Mathis is a Professor of Management at the University of Nebraska in Omaha, Nebraska. He testified in his deposition that he teaches a full load but spends approximately half of his time doing consulting work with small and medium sized companies throughout the United States, primarily in the area of human resource management. Approximately 80% or more of his consulting projects involve compensation, and on most of those projects, part of his review is of the wage and hour status of jobs and identifying positions that may be inappropriately classified as exempt or non-exempt. He estimates that in the course of his consulting work he has provided hundreds of opinions regarding whether certain positions are exempt or non-exempt for the purposes of the Fair Labor Standards Act (FLSA).
Whether the positions of the planitiffs are exempt or non-exempt is, of course, the ultimate legal issue in this case. But as Fed.R.Civ.P. 704(a) provides, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issues to be decided by the trier of fact."
Plaintiff expects expert Mathis to testify that plaintiffs used discretion in their everyday work activities. Plaintiff seeks to exclude this testimony because it will allegedly encroach upon the province of the trier of fact, and is unnecessary. Plaintiffs further contend that Dr. Mathis will attempt to interpret the law, but plaintiffs rely almost exclusively upon cases in which juries, and not judges, served as the triers of fact. Thus this latter concern is not a weighty one in this case, which will be tried to the court. See In re Franklin Sav. Corp., 182 B.R. 859, 864 (D.Kan. 1995).
The parties agree that the essential "touchstone" of the admissibility of opinion evidence is helpfulness to the trier of fact. See Werth v. Makita Electric Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991). Curiously, even plaintiffs concede that "the opinions of Mr. Mathis . . . may be helpful to a fact finder in concluding whether or not the Plaintiffs were exempt or non-exempt . . ." (Dk. 334, p. 3).
The fact finder in this case will be this court. This was a choice made by plaintiffs, who although they initially demanded a jury trial, waived that right in the pretrial order. (See Dk. 481, p. 12). This court has the benefit of having carefully examined the issues remaining for trial when determining the summary judgment motion. Based upon the court's knowledge of the facts of this case, and the court's recollection that there are no accurate job descriptions for the plaintiffs, the court believes that expert testimony such as that to be offered by Dr. Mathis will be greatly helpful in the court's resolution of the issues. In fact, as this court previously informed the parties, the court seriously considered appointing an expert witness for the court's assistance in determining the very issues upon which Dr. Mathis is expected to testify. Having once again reviewed the witness lists of the parties, the credentials of Dr. Mathis, and the nature of his proposed testimony, the court finds no need for a court-appointed expert, and will instead carefully evaluate the testimony of all witnesses, including experts retained by the parties.
The court has considered calling a jury in an advisory capacity, but because the issues are legal and not equitable in nature, and the parties waived their right to jury trial, the court has no discretion to do so in the absence of a motion by a party. See McKinney v. Gannett Co., Inc., 817 F.2d 659 (10th Cir. 1987); Hargrove v. American Cent. Ins. Co., 125 F.2d (10th Cir. 1942).
IT IS THEREFORE ORDERED that plaintiffs' motion to strike expert witness (Dk. 334) is denied.