Attack II: Your expert is not an expert

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

The second approach that the defendant's in Marlo v. UPS employed was an attack on the plaintiff's expert's qualifications as a survey expert. Although the expert had done a lot of surveys, the defendant's were able to convince the court that she was not quite expert enough.

Specifically,

According to the defendant's, Rules 702 and Daubert, the Reference Manual
details specific expertise requirements for survey experts and provides that experts
who design, conduct, or analyze a survey be appropriately skilled with the
following qualifications:

• Experts prepared to design, conduct, and analyze a survey generally
should have graduate training in psychology (especially social,
cognitive, or consumer psychology), sociology, marketing,
communication sciences, statistics, or a related discipline.

• That training should include courses in survey research methods,
sampling, measurement, interviewing, and statistics.

• In all cases, the expert must demonstrate an understanding of survey
methodology, including sampling, instrument design (questionnaire
and interview construction), and statistical analysis.

• Publication in peer-reviewed journals, authored books, membership in
professional organizations, faculty appointments, consulting
experience, research grants, and membership on scientific advisory
panels for government agencies or private foundations are indications
of a professional's area and level of expertise.

• In addition, if the survey involves highly technical subject matter (e.g.,
developmentally disabled adults with limited cognitive skills), the
survey expert also should be able to demonstrate sufficient familiarity
with the topic or population (or assistance from an individual on the
research team with suitable expertise) to design a survey instrument
that will communicate clearly with relevant respondents.

In short, the defense said the expert met none of the above.