The Witness Box

Commenting on expert evidence, economic damages, and interesting developments in injury, wrongful death, business torts, discrimination, and wage and hour lawsuits

Friday, October 17, 2008

Attack I: The survey is inadmissible hearsay

Is the bar too high for survey evidence in wage and hour cases?

The defendant's first attack was the survey was inadmissible hearsay of the type not reasonalbly relied on by experts in the field.
According to the defendants:

The results of the Telephone Survey are out-of-court statements by
respondents purportedly discussing their knowledge and application of UPS's
methods and procedures. Plaintiff seeks to use the results ofthe Telephone Survey
to prove the truth of those statements, i.e., that the respondents know and apply
UPS' methods and procedures. This is classic hearsay. FED. R. EVID. 801(c)

Some courts have allowed the admission of survey evidence under the
residual or "catch all" exception to the hearsay rule upon a finding that the survey is
"material; . .. more probative on the issue than any other evidence; and ... has
'circumstantial guarantees of trustworthiness. "

A survey is trustworthy if it "is conducted in accordance with
generally accepted survey principles, and if the results are used in a statistically
correct way, since proper survey and statistical methods are intended to assure a
poll's reliability."

The defendant's attacked the plaintiff's wage and hour survey on several levels. Using the defendant's definition of 'trustworthy' means that a trustworthy survey is one where:

(1) the "universe" was properly defined;
(2) a representative sample of that universe was selected;
(3) the questions to be asked of interviewees were framed in a clear, precise, and nonleading
manner;
(4) sound interview procedures were followed by competent
interviewers who had no knowledge ofthe litigation or the purpose for which the
survey was conducted;
(5) the data gathered was accurately reported;
(6) the data was analyzed in accordance with accepted statistical principles; and
(7) the objectivity of the entire process was ensured.

According to the defendant's motion, the plaintiff's expert's survey did not meet any of these requirements for a sound study.

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