Lieff Cabraser partner Jason L. Lichtman spoke with Bloomberg BNA for the article “Aggressive Challenges to Experts Expected After Tyson Foods” on the impact the Tyson Foods ruling will have on future court cases. Tyson Foods v. Bouaphakeo was brought by low-wage workers at a Tyson Foods pork-processing plant seeking pay for their considerable time spent putting on and taking off protective work attire and equipment (“donning and doffing”).
In March 2016, the U.S. Supreme Court upheld a previous $5.8 million judgment in the worker’s favor. The ruling noted that in a situation where the employer failed to keep proper records, statistical-based representative proof could be used to determine the number of additional hours that each employee actually worked.
Attorneys from both the plaintiffs and defense side question whether the Tyson Foods ruling will bring about Daubert challenges. Based on the 1993 Daubert v. Merrell Dow Pharms case, a Daubert challenge is a hearing conducted before a judge where the validity and admissibility of expert testimony is challenged. An expert is therein required to demonstrate that their methodology and reasoning are scientifically valid and can be applied to the facts of the case.
Lichtman explained to Bloomberg BNA that he believes “Tyson Foods will bring about an increase in Daubert challenges to representative evidence in class certification disputes but ‘only at the margins’… Now, obviously, there are some strategic reasons defendants may not want to attack an expert during class certification, and Tyson Foods may impact that calculus to the extent that defendants may be hesitant to waive the argument that an expert’s testimony is legally insufficient.”
Whether or not Daubert challenges are raised in these kinds of cases, “strong evidentiary challenges are going to be successful as they always have been,” noted Lichtman.
About Jason Lichtman
Mr. Lichtman is a partner in Lieff Cabraser’s New York office with a practice focused on consumer protection and defective product cases. In addition to his trial court practice, he has secured major victories as a counsel of record before numerous federal appellate courts, including Butler et al. v. Sears, Roebuck & Co., and In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation.
National Employee Rights Attorneys at Lieff Cabraser
Lieff Cabraser has a strong tradition of fighting for employee rights across America. Our employment law class action cases challenge discrimination based on employees’ race, color, national origin, religion, age, gender, sexual orientation, or disability; wage violations, including failure to pay overtime, break time, or vacation time; and misuse of employees’ retirement benefits. We also represent employees who “blow the whistle” on wrongdoing by their employers as well as in other cases alleging violations of the law.