John Utne v. Home Depot U.S.A., Inc.

Background

This case was brought on behalf of a class of Home Depot employees and alleges violations of California wage-and-hour laws at Home Depot stores in California. After class certification, Lead Plaintiff John Utne and Home Depot each filed three motions seeking to exclude reports or testimony from the opposing party’s experts.

The court evaluated the motions under Federal Rule of Evidence 702, which permits expert testimony when the witness is qualified, the testimony will help the jury, it is based on sufficient information, and it uses reliable methods reliably applied to the case. The court explained that challenges going mainly to the strength or accuracy of an opinion generally are addressed through cross-examination rather than exclusion.

Plaintiff’s Experts and Home Depot’s Motions

Dr. Jon Krosnick conducted a telephone survey of 322 randomly selected class members about activities such as walking to the back of the store, clocking in, and waiting to be let out after shifts. He used the responses to estimate time spent on those activities. The court denied Home Depot’s motion to exclude Krosnick’s First Report. Although the court found that some criticisms of the survey appeared valid, it concluded that they were not fatal and were better addressed through cross-examination.

The court granted Home Depot’s motion to strike the portions of Krosnick’s Third Report containing his individual-level, or “idiographic,” damages calculations. The court found that the calculation likely included damages for employees who were not injured, yet did not provide enough information to identify which class members were entitled to damages or how much each should receive. The court noted that classwide damages may be permissible in the abstract, but concluded that Krosnick’s calculation could not allow the court to distribute an award efficiently and fairly while excluding uninjured members.

James Toney used Krosnick’s survey data to create a classwide, or “nomothetic,” damages model. Home Depot’s motion to exclude Toney’s testimony was denied as to his analysis of the percentage of closing shifts on which time punches were edited upward. The motion was otherwise granted. The court concluded that Toney’s other damages calculations should not be presented to the jury because they did not provide sufficient specificity to identify injured class members and distribute damages only to them. The court stated that the calculations might still have value for settlement or for helping assess penalties.

Gary White, a consultant and former retail executive, offered opinions about Home Depot’s policies and whether employees were under Home Depot’s control before clocking in. The court granted Home Depot’s motion to exclude White’s reports and testimony. It found that several opinions improperly addressed legal issues, speculated about Home Depot’s motives, or relied on an unreliable basis. The court also excluded White’s rebuttal opinion about whether employees would have noticed the cameras used in Crandall’s study because that opinion did not require specialized knowledge and could mislead the jury.

Home Depot’s Experts and Plaintiff’s Motions

Robert Crandall conducted a time-and-motion study using video recordings from 30 randomly selected California Home Depot stores. Utne’s motion to exclude Crandall was granted with respect to the portions previously excluded under the court’s May 8, 2022 order, including opinions about the percentage of employees engaged in personal activities during pre-shift walks to the back of the store or time in the break room before shifts. The motion was denied in all other respects.

Stephen Smith offered rebuttal testimony challenging Krosnick’s survey, including criticisms involving complex questions and memory errors. The court denied Utne’s motion to exclude Smith’s testimony. It concluded that Smith adequately explained the basis for his criticisms and that Utne’s objections went to the weight of the testimony, not whether it was admissible.

Timothy Trujillo was retained solely to rebut White’s testimony. Because the court excluded White’s testimony, it granted Utne’s motion to exclude Trujillo’s testimony as moot.

Disposition

The court denied Home Depot’s motion to exclude Krosnick’s First Report and granted its motion to strike the idiographic damages portions of Krosnick’s Third Report. It denied Home Depot’s motion concerning Toney’s analysis of upward-edited closing-shift time punches and otherwise granted that motion. It granted Home Depot’s motion to exclude White’s testimony. The court granted Utne’s motion concerning the specified portions of Crandall’s opinions, denied it in all other respects, denied the motion concerning Smith, and granted the motion concerning Trujillo. Judge Richard Seeborg signed the order on November 10, 2022.