Plaintiffs Say Wal-Mart Expert Witness Biased

In the multidistrict wage-and-hour litigation against Wal-Mart Stores Inc., plaintiffs from four states say that a key Wal-Mart expert witness’s testimony is irreparably biased and should be tossed.

The plaintiffs filed a motion on Monday in the U.S. District Court for the District of Nevada to strike those portions of Dr. Joan Haworth’s expert testimony on behalf of Wal-Mart that rely on Wal-Mart-produced employee declarations.

The data set on which Haworth relies — made up of 138 declarations from Wal-Mart employees and regional managers — is irredeemably biased and therefore her testimony is also biased, the plaintiffs said.

“The declarations were drafted by Wal-Mart’s attorneys and suffer from serious indicia of bias, and the interviews have never been disclosed,” the plaintiffs said Monday in an accompanying memorandum.

They continued, “Wal-Mart has refused to disclose how the declarants were selected, how the declarations were obtained, or how the content of the declarations was decided, other than to admit that Wal-Mart’s attorneys did the initial drafting.”

The plaintiffs added that “These attorney-crafted declarations and undisclosed interviews fail to satisfy the requirement, set forth in [the Federal Rules of Evidence], that expert opinions rest on ‘reliable principles and methods.'”

A lawyer from Johnson Heidepriem Miner Marlow & Janklow LLP, which is representing the North Dakota plaintiffs, and a lawyer at Wolf Block Schorr & Solis-Cohen LLP, which is representing Wal-Mart, did not return requests for comment Tuesday.

The suits accuse Wal-Mart management of manipulating electronic payroll records by shaving off recorded working hours, deleting overtime and inserting phantom meal breaks to cut costs.

Haworth’s testimony is designed to rebut that of the plaintiffs’ expert witness, Dr. Martin Shapiro. His data analysis concluded that “one-minute clock outs, missed and uncompensated breaks and off-the-clock work occur constantly at Wal-Mart stores,” according to the plaintiffs.

This undocumented and uncompensated work provides the basis for the plaintiffs’ claims that Wal-Mart violated the Federal Labor Standards Act in refusing to pay overtime at the requisite rate of one-and-a-half times normal wages.

But Wal-Mart has disputed the validity of Shapiro’s analysis, arguing that its employees frequently shirk company policies, with the result that the alleged undocumented and uncompensated labor never actually occurs. That claim is purportedly backed up by Haworth’s testimony.

The plaintiffs also said Monday that the declarants are not representative of the putative class members and that their declarations are both prejudicial and inherently indicative of bias.

“Even among those declarants who qualify for class membership, the declarations reveal that nearly all have risen above entry level employment to low level management and have had a much longer tenure than most of Wal-Mart’s hourly employees. Furthermore, none of the declarants are former employees, even though a large segment of the prospective class consists of former employees,” the plaintiffs said.

The first-phase cases — those involving plaintiffs from Alaska, Delaware, Nevada and South Dakota— have been dominated for the past year by the plaintiffs’ motion for class certification, which was filed in November 2006.

A hearing on the motion is scheduled for Nov. 16.

In September, Wal-Mart called for the dismissal of statutory wage and conversion claims, claims under the Employee Retirement Income Security Act and those alleging breach of fair dealing in 22 of the 34 consolidated suits in the multidistrict litigation.

The retail giant further urged the court to reject some complaints outright, alleging they were either filed with the wrong court or had yet to be served on Wal-Mart and its subsidiary defendants.

The suits claim that Wal-Mart deleted overtime hours that employees worked in excess of 40 hours, deleted employee punches so that they wouldn’t be paid for an entire day or afternoon of work, altered their time records so it would look like they took a meal period when they didn’t and deducted time spent on breaks.

The complaints allege that the company directed its store managerial personnel to delete the time or at least knew that managers were doing it.

The stores’ culture, the suit says, is to convince workers they are part of its family and will be rewarded for playing by the rules. But the corporate office also ties compensation and bonuses for store managers to their ability to reduce employee payroll, the complaints said.

Wal-Mart has been inundated by complaints from labor groups and former employees for years. The retailer was hit with a $78 million verdict in October 2006 in a case alleging the store didn’t give its employees breaks.

Two former Wal-Mart employees, Michelle Braun and Dolores Hummel, had sued the company on behalf of 187,000 other workers, alleging that between 1998 and 2001 the stores violated labor laws by making workers skip more than 33 million breaks and 2 million meal periods.

The first-phase plaintiffs are represented by Bonsignore & Brewer, the Law Offices of Carolyn Beasley Burton and several other firms.

The defendants are represented by Goodsill Anderson Quinn & Stifel LLP, Wolf Block Schorr & Solis-Cohen LLP, Santoro, Driggs, Walch, Kearney, Johnson & Thompson, Greenberg Traurig LLP and several other firms.

The case is In re: Wal-Mart Wage and Hour Employment Practices Litigation, case number MDL 1735, in the U.S. District Court for the District of Nevada.

–Additional reporting by Shannon Henson and Christine CaulfieldFor a reprint of this article, please contact [email protected].

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