[J-43A&B-2013][M.O. – Per Curiam]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**MICHELLE BRAUN, ON BEHALF OF**
**HERSELF AND ALL OTHERS SIMILARLY SITUATED,** 

**Appellee**

**v.**

**WAL-MART STORES, INC., A DELAWARE CORPORATION, AND**  **SAM'S CLUB, AN OPERATING SEGMENT OF WAL-MART STORES,**  **INC.,**

**Appellants :** 

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**: No. 32 EAP 2012** 

**Appeal from the Judgment of Superior Court, entered on June 10, 2011, at No.**  **3373 EDA 2007, affirming in part and reversing in part the Judgment of the**  **Court of Common Pleas of Philadelphia County, Civil Division, entered**  **November 14, 2007 at No. 3127, March**
**Term 2002**

**ARGUED: May 8, 2013**

**DOLORES HUMMEL, ON BEHALF OF**
**HERSELF AND ALL OTHERS SIMILARLY SITUATED,** 

**Appellees**

**v.**

**WAL-MART STORES, INC., A DELAWARE CORPORATION, AND**  **SAM'S CLUB, AN OPERATING SEGMENT OF WAL-MART STORES,**  **INC.,**

**Appellants :** 

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**: No. 33 EAP 2012** 

**Appeal from the Judgment of Superior Court, entered on June 10, 2011, at No.**  **3376 EDA 2007, affirming in part and reversing in part the Judgment of the**  **Court of Common Pleas of Philadelphia County, Civil Division, entered**  **November 14, 2007 at No. 3757, August Term 2004** 

**ARGUED: May 8, 2013 [J-43A&B-2013][M.O. – Per Curiam] - 2**  DISSENTING OPINION

MR. JUSTICE SAYLOR DECIDED: December 15, 2014

**I agree with Appellants that the trial court implemen ted, and the intermediate** 

**court approved, a severely lax approach to the applicat ion of governing substantive law** 

**in the issuance and sustainment of an almost two-hundred -million-dollar verdict based** 

**on proof which was insufficient to establish liability a nd damages across a 187,000-** 

**member class. Although I take no issue with the majority ’s observation that the burden** 

**of proof may be relaxed to some degree in wage-and-h our cases, see Majority Opinion,** 

**slip op. at 17, the latitude extended in this case is o f an untenable magnitude. Here, the** 

**Appellee class was permitted to effectively project the anecdotal experience of each of** 

**six testifying class members upon thirty-thousand other m embers of the class at large,** 

**to extrapolate abstract data concerning missed and mistim ed “swipes” from 16** 

**Pennsylvania stores to 139 others, to overlay discrete da ta taken from several years’** 

**experience across a distinct four-year period, and to att ribute a single cause to missed** 

**and mistimed swipes, all despite indisputable variations across store locations,** 

**management personnel, time, and other circumstances. 1**  **The sorts of gross**

**generalizations and assumptions which permitted the simpl e averaging and** 

**extrapolations offered up by Appellees’ expert witne sses to stand in support of the** 

**conclusion that some tens of millions of missed or mistimed swipes reflected rest breaks** 

**foregone on account of payroll pressure exerted from th e Wal-Mart boardroom would** 

**1 For example, presumably as a result of Wal-Mart compli**  **ance initiatives, the numbers of missed swipes for meal breaks dropped dramatically over**  **the years. See N.T., Sept. 19, 2006 (afternoon), at 61-62. Nevertheless, in ext**  **rapolating rest-break data taken from 1998 through 2001 into the 2002 through 2006 t**  **imeframe, Appellees’ expert witness took the liberty of assuming that none of Wal-Ma**  **rt’s compliance measures were of any effect whatsoever relative to the rest breaks.**  **See id. at 67. [J-43A&B-2013][M.O. – Per Curiam] - 3** 

**never hold up to peer review as a matter of science. T herefore, it is very troublesome** 

**for the same to be relied upon in courts of law as the essential support for a large scale** 

**class-action verdict.**

**Certainly, I am sympathetic to efforts to vindicate th e interests of workers with** 

**modest claims who may lack the ability and incentive to p ursue remedies on an** 

**individualized basis. Nevertheless, I remain of the vi ew that the kinds of alterations to** 

**substantive law reflected in the majority’s relaxed ap proach to class-action litigation** 

**should be the subject of overt consideration in the pol itical branch and should not occur** 

**as a byproduct of the application of a mere procedural device by the judiciary. Accord** 

**Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 466-77, 34 A.3d 1, 58-65 (2011)** 

**(Saylor, J., dissenting). 2**  **I maintain this position, in particular, in light of the broad-scale** 

**social effects likely to attend these sorts of modificatio ns. In this regard, and more** 

**generally, I also incorporate by reference the remarks set forth in my dissent in the Kia** 

**case. See id.**

**2 The ability of the General Assembly to alter the class**  **action landscape via legislation is, of course, subject to constitutional limitations such as**  **the due process constraints raised by Appellants.**