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Hurt v. Commerce Energy, Inc.

Hurt v. Commerce Energy, Inc.

United States District Court for the Northern District of Ohio

January 29, 2015, Decided; January 29, 2015, Filed

CASE NO. 1:12-CV-00758

Opinion

OPINION & ORDER

[Resolving Docs. 709, 710, [*2]  723

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

This is a case about minimum wage and overtime pay under the Fair Labor Standards Act ("FLSA")1 and overtime pay under the Ohio Minimum Fair Wage Standards Act ("Ohio Wage Act").2 Plaintiffs are door-to-door workers who solicited residential customers for the Defendants' energy services.

Defendants move to exclude the expert reports, opinion, and testimony of Plaintiffs' expert Dr. Liesl Fox.3 Plaintiffs oppose the motions.4 On November 20, 2014, the Court held a hearing on these motions. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendants' motions.

I. Background

The Court has previously issued an opinion detailing the factual background of this case and incorporates that background by reference.5 Following a trial on the merits, a jury found Defendants liable for violations of the FLSA and the Ohio Wage Act.6

Defendants did not keep adequate records of the number of hours worked by each employee. Because Defendant did not keep sufficient records regarding what hours its employees had worked, the Court [*3]  faces a difficult responsibility to determine how much each employee is owed in back wages and overtime.

Even with this lack of records, this case must still decide what damages are owed.7 Plaintiffs seek class damages calculated by reference to the number of weeks and hours worked by a typical class member.8

In support of their position, Plaintiffs produced a report from their damages expert, Dr. Liesl Fox, Ph.D., who estimated class damages.9 As detailed below, Dr. Fox's estimate relies on a survey distributed by Plaintiffs' counsel to class members.10 Defendants' primary objection to Dr. Fox's report is that this survey was unreliable, and therefore any expert opinion derived from it is unreliable.11 Defendants also move to strike a supplemental report from Dr. Fox on the ground that it was untimely exchanged and impermissibly includes data that was not in the initial report.12

II. Legal Standard

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2015 U.S. Dist. LEXIS 10566 *; 2015 WL 410703

DAVINA HURT, et al., Plaintiffs, vs. COMMERCE ENERGY, INC, et al., Defendants.

Prior History: Hurt v. Commerce Energy, Inc., 2012 U.S. Dist. LEXIS 106395 (N.D. Ohio, July 31, 2012)

CORE TERMS

supplemental report, Plaintiffs', reliable, damages, initial report, estimated, rebuttal, opt-in, responses, methodology, class member, questions, biased, expert report, survey data, responded, overtime, bias, completed application, new data, incorporates, unreliable, costs, entire population, hours worked, Ohio Rule, calculated, principles, employees, untimely