tuling out subjective beliefs and unsupported speculation. Chapman v. Maytag Corp., 297 F.3d
682, 687 (7th Cir. 2002). When the expert testimony is based on the expert's personal
experience, the expert must employ "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, 150
(1999). Under the relevancy prong, the Court must determine if the expert's testimony will assist
the trier of fact. See Daubert, 509 U.S. at 591. The judge acts as a gatekeeper to exclude expert
testimony if the possible prejudice of the testimony outweighs its probative force. Jd. at 595.
Defendant contends that Kleiner's report and testimony do not meet either prong of the Daubert
test.

First, under the reliability prong, Daubert sets forth a nonexclusive list of facts that the
Court may consider for this analysis: (1) whether the theory can be and has been verified by the
scientific method through testing; (2) whether the theory has been subjected to peer review; (3)
the known or potential rate of error; and (4) the general acceptance of the theory in the scientific
community. Chapman, 297 F.3d at 687. This test is "flexible," and the factors do not necessarily
have to be applied to all experts in every case. Kumho, 526 U.S. at 141. However, we must
determine if the expert is qualified, as well as examine his methodology. See Smith v. Ford
Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

We agree with Defendant that Kleiner's teport lacks reliability. Kleiner's report has not
been verified by the scientific method through scientific tests or experiments. He has not
published any articles regarding his methodology of analyzing jobs to determine if they are
exempt or non-exempt under the FSLA. Kleiner himself admits he does not know if his methods

are widely accepted or what other methods might be widely accepted. Although Kleiner has

-4-



including how much discretion she exercised and how closely she was supervised, all of which

are facts to be established by fact witnesses and documents.

TII. Conclusion

For the following reasons, the Court recommends that Defendant's Motion to Exclude the

Report and Testimony of Brian H. Kleiner be granted.

— a GE

MARTIN C. ASHMAN
Dated: January 8, 2004. United States Magistrate Judge


II. Discussion

The primary issue in this case is whether Marting’s position is non-exempt under the
FSLA. Under the FSLA, an employer must pay overtime unless the employee is employed in an
exempt position, i.¢., in a “bona fide executive, administrative, or professional capacity ....” 29
US.C. § 213(a)(1). Defendant claims that it employed Marting in an administrative capacity and
her work required “the exercise of discretion and independent judgment" which would place her
in an exempt category. See 29 C.F.R. § 541.207(a).? Kleiner has attempted to quantify Marting's
duties to determine whether her primary duty required her to exercise discretion and independent
judgment. Defendant claims that Kleiner's report (and anticipated testimony) is unreliable and
irrelevant and should not be admitted.

Federal Rule of Evidence 702 governs the admissibility of expert testimony.? Expert
testimony must be both reliable and relevant. Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 589 (1993). Under the reliability prong, the Court must determine whether the expert's
testimony reflects scientific knowledge; i.e., "a preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid ...." See id. at 592-93. The

Court must consider whether the testimony has been subjected to the scientific method, while

? "Tn general, the exercise of discretion and independent judgment involves the
comparison and the evaluation of possible courses of conduct and acting or making a decision
after the various possibilities have been considered. The term . . . more over, implies that the
person has the authority or power to make an independent choice, free from immediate direction
or supervision and with respect to matters of significance." 29 C.F.R. § 541.207(a).

3 "Tf scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion
or otherwise... ." Fed. R. Evid. 702.

-3-


published two articles relating to California law, Marting has not pointed out what relation
California law has to the FSLA. Furthermore, it is implausible that Kleiner is an expert in the
classification of jobs under the FSLA where he admits that he has not even tead the law itself.
Additionally, Kleiner admitted in his deposition that he did not know the rates of error in his
analysis. (Kleiner Dep. at 75-76.) See Chapman, 297 F.3d at 687-88 (finding that trial court
erred in admitting expert's testimony that did not meet any of the Daubert factors of reliability).

Kleiner's analysis was not based on extensive empirical studies and statistics, but merely
based on dividing Marting’s tasks up and deciding if she exercised discretion and independent
judgment in each category. This overlaps with the second objection to his report under
Daubert — it is not relevant. Defendant contends that Kleiner's analysis goes to the ultimate legal
issue of the case. The Court agrees. An expert should offer more than opinions or legal
conclusions on issues that will determine the outcome of the case. See c.f Bammerlin v.
Navistar Int'l Transp. Corp., 30 F.3d 898, 900-01 (7th Cir. 1994) (finding that meaning of
federal regulations was issue of law, not issue of fact for experts to speculate upon).

We find that the case of Cowan v. Treetop Enterprises, Inc., 120 F. Supp. 2d 672 (M.D.
Tenn. 1999), is persuasive on this issue. In Cowan, the court granted a motion to strike the report
of an expert who had opined that fast food managers were "primarily tesponsible" for the
profitable operation of the restaurant. The court first noted that the expert's report was not based
on extensive statistical and empirical analyses and was not reliable. Jd. at 683-84. Next, the
court noted that the distinct legal meaning of the term "primary responsibility" under the FSLA

was a legal issue that should be decided by the court, not by the expert. Id. at 684.


Written objections to any finding of fact, conclusion of law, or the recommendation for
disposition of this matter must be filed with the John A. Nordberg within ten (10) days after
service of this Report and Recommendation. See Fed. R. Civ. P. 72(b). Failure to object will
constitute a waiver of objections on appeal.

Copies have been mailed to:

CLINTON A. KRISLOV, Esq. WILLIAM H. BARRETT, Esq.
KENNETH T. GOLDSTEIN, Esq. J. KEVIN HENNESSY, Esq.
Krislov & Associates, Ltd. LAURA S. LISS, Esq.

Civic Opera Building Michael Best & Friedrich, L-L.C.
20 North Wacker Drive 401 North Michigan Avenue
Suite 1350 Suite 1900

Chicago, IL 60606 Chicago, IL 60611-4274
DAVID J. TECSON, Esq.

Chuhak & Tecson, P.C.

30 South Wacker Drive

Suite 2600

Chicago, IL 60606

Attorneys for Plaintiff Attorneys for Defendant


‘Minute OrdegForm (06/97)

United States District Court, Northern District of Illinois

Na ae seas John A. Nordberg SinettAsosed Judge Martin C. Ashman
CASE NUMBER 00 C 7132 DATE 1/8/2004
CASE Kimberly A. Marting vs. Crawford & Company
TITLE
[In the following box (2) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(60) a Filed motion of [ use listing in “Motion” box above.]
2) oO Brief in support of motion due___
@) Oo Answer brief to motion due- . Reply to answer brief due___.
(4) oO Ruling/Hearingon___—sset fora
(5) a Status hearing[held/continued to] [set for/re-set for} on set for at
(()) Oo Pretrial conference(held/continued to] (set for/re-set for]on___setfor__—s—s at.
() Oo Trial[set for/re-set for]on___—at__—.
(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at
9) oD This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OCOFRCP4(m) COlLocal Rule 41.1 CIFRCP41(a)(1} (I FRCP4I(a)(2).

do [Other docket entry] | Report and recommendation recommending that defendant’s motion to

exclude the report and testimony of Brian H. Kleiner [56-1] be granted is hereby entered of record.

al) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.
Y | Notices mailed by judge's staff.
Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form.
of | Copy to judge/magistaejudae-

48N09 Lojyssig sn

wus ta vrer004
boon be date mailed notice
Is cepa Chea uy 6- RUE ny 1s
initials OT Caper eT
edt eDffice ailing depury tila



Under Federal Rule of Evidence 704(a), an expert's report will not be rejected merely
because it encompasses an ultimate issue to be decided by the trier of fact; however, the report
must offer more analysis than just the "bottom line." Minasian v. Standard Chartered Bank,
PLC, 109 F.3d 1212, 1216 (7th Cir. 1997) (quoting Mid-State Fertilizer Co. v. Exch. Nat'l Bank
of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989)). In Minasian, the court rejected an expert's
affidavit that was "full of vigorous assertion (much of it legal analysis in the guise of banking
expertise), carefully tailored to support plaintiffs' position but devoid of analysis." Jd. The court
also noted that it appeared that the expert allowed the plaintiffs' attorneys to write the affidavit in
his name. Jd.

We have no doubt that Kleiner is an educated, prolific, and well-respected academic.
Nevertheless, his report and testimony in this case fails to fulfill the standards set forth by
Daubert. The testimony offered by the expert must draw upon his special expertise. United
States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996). In other words, the opinion "must be an
expert opinion (that is, an opinion informed by the witness's expertise) rather than simply an
opinion broached by a purported expert.” Jd, (quoting U.S. v. Benson, 941 F.2d 598, 604 (7th
Cir. 1991)). Kleiner's report lacks the analysis we would expect from such a distinguished
academic. It merely parrots Marting's assertions that she is a non-exempt employee under the
FSLA without providing significant analysis. Whether Marting exercised discretion and
independent judgment in her primary tasks under the FSLA does not fall under the area of
Kleiner's expertise. Furthermore, his testimony will not aid the trier of fact in the resolution of

this case. Expert testimony is not necessary to determine the exact nature of Marting's job,



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KIMBERLY A. MARTING, on behalf of )
herself and all others similarly situated, )
} Case No. 00 C 7132
Plaintiff, )
) Judge John A. Nordberg
v. )
) Magistrate Judge
CRAWFORD & COMPANY, ) Martin C. Ashman
)
Defendant. )
REPORT AND RECOMMENDATION

This motion is before the Court on Defendant's Motion to Exclude the Report and
Testimony of Brian H. Kleiner.’ For the following reasons, we recommend that Defendant's
motion be granted. lr,
YAY 9 Eley

I. Backgrow 04

Plaintiff, Kimberly A. Marting, brought this putative class action pursuant to the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq., against Defendant, Crawford & Company.
Defendant provides insurance services to various carriers and companies. Plaintiff was
employed by Defendant under the title of “adjuster 1, 2, 3, 4 and Casualty General Adjuster" until
May of 2000. (Compl. 4 6.) Plaintiff alleges that she was a non-exempt employee, but

Defendant refused to pay overtime compensation for any work she performed in excess of 40

hours per week. Plaintiff's duties included investigation of personal injury accidents. She claims

' This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.1 for a report and recommendation.

val



that the tasks she performed in investigating accidents were conducted pursuant to rules and
regulations promulgated by Defendant and its clients and she exercised no discretion with respect
to her duties. Plaintiff's work was supervised by her superiors, and she did not supervise anyone.

Plaintiff has retained Brian H. Kleiner, Ph.D. as her expert in this case. Kleiner is a
tenured professor in the College of Business and Economics at California State University.
Kleiner has published hundreds of articles reflecting his work in the field of human resource
management. He claims that his specialties include "job analysis." (Rep. at 1.) He has testified
as an expert in numerous matters, primarily in California. Two of his articles include
Determining Exempt Or Non-Exempt Status Under California Law for Managers and California
Minimum Wage and Overtime.

Before preparing his report, Kleiner reviewed the tasks performed by Marting that she
had recorded on her daily time cards. These tasks were summarized by Marting's attommeys at
Exhibit B to the report. Kleiner also reviewed Defendant's employee training and operation
systems and analyzed deposition transcripts of Defendant's corporate designee. Exhibit C to the
report describes specific billing categories, states the percentage of time that Plaintiff spent
performing tasks in each billing category, and lists the instructions which governed her
performance of the tasks in each category. Kleiner concluded that Marting "did not customarily

or regularly exercise discretion and independent judgment." (Rep. at 14.)