McCleery v. Allstate Ins. Co., No. B282851 (D2d1 Dec. 14, 2018)
Plaintiffs in this wage and hour class action put forward a trial plan where the only evidence on liability would be statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The survey seems like it was analytically rigorous, but that’s still not going to fly.
First, it didn’t take into account important factual aspects of the case, such as the fact that plaintiffs were employed by contracting companies whose services were used by, among others, the two insurance companies that are defendants in the case. Without any breakdown of time worked for each defendant (or some other non-defendant customer of the contractor) core liability questions—questions like “did this employee work more than eight hours for any particular defendant?”—can’t be answered.
More fundamentally, even if the expert was doing a good job as a statistician, the survey still depended on questions like: From 2005 to 2008, how many times did you fail to take a meal break less than thirty minutes long? How many weeks in 2008 did you work more than forty hours? The veracity of the respondents and the quality of their recollection were, essentially, presumed. And because all the survey participants were anonymous, even to the expert, the multiple hearsay inside his opinions can’t be impeached or cross-examined. Which is a pretty big problem; it flies in the face the way trials are supposed work in the common law adversarial system.
No doubt, that experts can sometimes rely on inadmissible hearsay. And it is also true that statistical techniques have a valid role to play in wage-and-hour class actions. But an expert can’t be a conduit that dumps huge amounts of hearsay into evidence while shielding it from any meaningful adversarial testing. As the court explains, no case “suggests a trial may be conducted solely on the evidence of an expert witness relying on an anonymous double-blind survey, no matter how scientific the survey may be.”
Denial of class cert affirmed.
Showing posts with label statistics. Show all posts
Showing posts with label statistics. Show all posts
Monday, December 17, 2018
Tuesday, March 27, 2018
Nurse Class Needed Better Glue
Lampe v. Queen of the Valley Med. Cntr., No. A146588 (D1d4 Jan 23, 2018)
Duran seems to be all the rage lately.
This is another wage and hour class action where Plaintiff failed to establish a uniform and unlawful policy, whether official or de facto, that applied across the various sub-classes it defined. Although Plaintiff provided declaration evidence of noncompliance with various wage and hour requirements from various class members, Defendant provided its own declarations to the contrary. In the absence of something that tied it all together—like the kind of rigorous statistical analysis showing a likely pattern of violations that was offered in In re ABM—Plaintiff can’t show that common issues predominate.
Affirmed.
Duran seems to be all the rage lately.
This is another wage and hour class action where Plaintiff failed to establish a uniform and unlawful policy, whether official or de facto, that applied across the various sub-classes it defined. Although Plaintiff provided declaration evidence of noncompliance with various wage and hour requirements from various class members, Defendant provided its own declarations to the contrary. In the absence of something that tied it all together—like the kind of rigorous statistical analysis showing a likely pattern of violations that was offered in In re ABM—Plaintiff can’t show that common issues predominate.
Affirmed.
Monday, March 26, 2018
Bad Stats Still Don't Show Predominance
Duran v. U.S. Bank Nat’l Assoc., No A148817 (D1d1 Feb. 9, 2018)
This is a post-remand appeal after the Supreme Court’s decision in Duran, which reversed a plaintiff-side judgment in a wage and hour class action, because Plaintiff was permitted to rely on sketchy statistical evidence for both class cert and liability. On remand, the trial court denied cert, finding that plaintiffs couldn’t cure the ails that the Supreme Court pointed out.
And the Court of Appeal agrees. The statistical evidence that Plaintiff came up with after the reversal wasn’t good enough to fix the problems that the Supreme Court identified. In particular, Plaintiff had his expert do another survey of the putative class, but the survey still had significant problems with sample bias and the rate of error was too high to merit extrapolating the data to the whole class. Indeed, the new survey had significant discrepancies in responses from the same class exact members on the first go-round. That’s all just too unreliable to let some survey data stand in for the individual work experiences of the actual members of the class.
Affirmed.
This is a post-remand appeal after the Supreme Court’s decision in Duran, which reversed a plaintiff-side judgment in a wage and hour class action, because Plaintiff was permitted to rely on sketchy statistical evidence for both class cert and liability. On remand, the trial court denied cert, finding that plaintiffs couldn’t cure the ails that the Supreme Court pointed out.
And the Court of Appeal agrees. The statistical evidence that Plaintiff came up with after the reversal wasn’t good enough to fix the problems that the Supreme Court identified. In particular, Plaintiff had his expert do another survey of the putative class, but the survey still had significant problems with sample bias and the rate of error was too high to merit extrapolating the data to the whole class. Indeed, the new survey had significant discrepancies in responses from the same class exact members on the first go-round. That’s all just too unreliable to let some survey data stand in for the individual work experiences of the actual members of the class.
Affirmed.
Friday, June 6, 2014
Lies, Damn Lies, and Statistics
Duran v. U.S. Bank Nat’l Assoc., No. S200923 (Cal. May 29, 2014)
In this significant case that the wage-and-hour class action bar has been eagerly awaiting, the California Supreme Court reverses a wage-and-hour class action that actually went to trial. That makes it, as the court explains, “an exceedingly rare beast.” But it isn’t just the fact that this case was tried that is unusual. The way it was tried is also outside of the ordinary. The trial court selected twenty-one plaintiffs out of a total class of 260. It then tried those claims and extrapolated their results class-wide. It refused to admit any evidence outside of the sample plaintiffs. This all resulted in a finding that the entire class was erroneously misclassified as exempt, and a $15 million judgment ($57,000 per class member) against the defendant. While the court does not go so far to say that trial by sample can never be appropriate, what happened in this case can’t withstand scrutiny.
In this significant case that the wage-and-hour class action bar has been eagerly awaiting, the California Supreme Court reverses a wage-and-hour class action that actually went to trial. That makes it, as the court explains, “an exceedingly rare beast.” But it isn’t just the fact that this case was tried that is unusual. The way it was tried is also outside of the ordinary. The trial court selected twenty-one plaintiffs out of a total class of 260. It then tried those claims and extrapolated their results class-wide. It refused to admit any evidence outside of the sample plaintiffs. This all resulted in a finding that the entire class was erroneously misclassified as exempt, and a $15 million judgment ($57,000 per class member) against the defendant. While the court does not go so far to say that trial by sample can never be appropriate, what happened in this case can’t withstand scrutiny.
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