Meal Break Class Certification Denied

A California appeals court refused last week to revive a putative class action that alleged the defendant employer had not given employees adequate meal breaks. See In re: Walgreen Company Overtime Cases, No. B230191 (Cal. Ct. App. 2d Dist.,10/23/14).  What is interesting is that significant part of the reasoning related to the fact that multiple putative class members recanted at deposition declarations that had been prepared and submitted by class counsel. 

This class action was about meal breaks at work, and  while the company's stated policy was adequate, in practice the company allegedly departed from the policy. (California employers must give workers time off to eat meals at work.) The trial court denied plaintiffs'  motion for class certification. Plaintiff appealed.

The court of appeals noted the burden on the moving party is to “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.  California courts generally afford trial courts great latitude in granting or denying class certification, and normally review a ruling on certification for an abuse of discretion. While a class certification motion is not a license for a free-floating inquiry into the validity of the complaint’s allegations, issues affecting the merits
of a case may be enmeshed with class action requirements.  Thus, analysis of a class certification’s propriety frequently will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped, said the court.

A legal issue is (1) whether an employer must merely make meal breaks available, or (2) whether the employer must actually ensure employees take the breaks. Walgreens employees apparently sometimes did decide to skip or delay breaks. One employee explained, for instance, that “I generally take my lunch breaks, but about once a week I will skip lunch because I want to be able to leave work early.” Another testified that, “[e]ven though it has always been Walgreens’ policy to provide a 30-minute meal period, I preferred to skip mine and instead leave early. If I am not hungry, which is typically the case, I do not need a meal period, especially since it is unpaid time.” There
was other similar evidence about skipping or delaying breaks.  

California has adopted the make available standard. To meet this test, attorneys for the class plaintiff submitted 44 form declarations from other workers, all saying that Walgreen forced them to work through some meal breaks because their store was understaffed.  The trial court gave the declarations no weight because they were deemed unreliable. That is, most witnesses recanted their declarations to some degree or entirely at their deposition. The court of appeals stated that the prevalence of apparent falsity in the declarations raised questions about how the lawyers had created these declarations in the first place.

The trial court was “especially troubled” that, once deposed, so many witnesses recanted their declarations. The court of appeals agreed, "Form declarations present a problem. When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are."  There is nothing attractive, said the court, about submitting form declarations contrary to the witnesses’ actual testimony. Thus, it was not error for the trial court to give these unreliable declarations no weight.

Denial of certification affirmed.

 

Supreme Court Declines to Review Defense Win in Drug Case

The Supreme Court declined earlier this month to review a decision by the Second Circuit affirming a defense verdict in the Fosamax litigation.  See Secrest v. Merck, Sharp & Dohme Corp., U.S., No. 12-1318, cert. petition denied 6/3/13).  The case explicates an interesting and somewhat rare evidentiary issue.

Readers may recall that a jury in the Southern District of New York handed down a defense verdict for Merck in October, 2011. One of the key evidentiary issues was the trial court's decision to exclude one of the expert witnesses for plaintiff under the so-called “sham issue of fact” doctrine. Dr. Epstein initially was designated a fact witness, and deposed as such.  After Merck moved for summary judgment, Dr. Epstein was designated as an expert, and he was re-deposed, and changed his testimony.  The second time around the witness testified that plaintiff took Fosamax in 2004 and 2005, but earlier had said he did not know about her alleged usage.

Because the physician’s expert testimony contained contradictions that were unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and were central to Secrest’s failure-to-warn claim, the Second Circuit held that the District Court did not err in determining that there was no genuine dispute of material fact raised by the later testimony.  The Supreme Court refused to entertain plaintiff's appeal.

Specifically, the District Court was entitled to disregard Dr. Epstein’s new testimony relating to his knowledge based on the “sham issue of fact” doctrine, which prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony. See Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Although courts more typically apply the sham issue of fact doctrine where a party submits an affidavit that contradicts the party’s own prior statements, it may also apply when a party attempts to use evidence from an expert witness to defeat summary judgment.


Here, said the Second Circuit, the doctrine applied to stop Secrest from manufacturing a factual dispute by submitting testimony from an expert whom she tendered, where the relevant contradictions between the first and second depositions were unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and were central to the claim at issue.  See Rivera v. Rochester Genesee Reg’l Transp. Auth., No. 11-762-cv, 2012 WL 6633938, at *7 (2d Cir. Dec. 21, 2012) (concluding that summary judgment was inappropriate because the inconsistencies in the plaintiff’s testimony were not “real, unequivocal, and inescapable contradiction[s]”).  Here, Dr. Epstein’s February 2011 expert deposition testimony inescapably and unequivocally contradicted the testimony he gave in August, 2008.

Also, the relevant contradiction was not only unequivocal but was left unexplained – indeed, was inexplicable – so the trial court could properly determine that plaintiff had manufactured a sham issue of fact. See Rojas, 660 F.3d at 105-06; AEP Energy, 626 F.3d at 735-36. Finally, the sham issue of fact doctrine applied here, continued the Second Circuit, because the relevant contradictions in Dr. Epstein’s testimony were central to Secrest’s failure-to-warn claim. Applicable Florida law required Secrest to show that her treating physician would have recommended that she cease taking the drug if a different, adequate warning had been provided. Here, no reasonable juror could find that Dr. Epstein would have recommended that Secrest cease taking Fosamax if he did not even know she was taking it at the relevant time. 

The Supreme Court then denied plaintiff's cert petition.