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Rosenberg v. Renal Advantage, Inc.

United States District Court, Ninth Circuit

June 24, 2013

TANYA ROSENBERG, an individual, on behalf of herself, and all persons similarly situated Plaintiff,
RENAL ADVANTAGE, INC., a Delaware Corporation; and DOES 1 through 50, inclusive, Defendants.


GONZALO P. CURIEL, District Judge.

Before the Court is a motion for class certification filed by Plaintiff Tanya Rosenberg ("Plaintiff"). (ECF No. 42.) Also before the Court is Defendant Renal Advantage's ("Defendant" or "Renal Advantage") motion to strike the declaration of Valerie Berkowtiz. (ECF No. 48.) For the reasons stated below, the Court DENIES Plaintiff's motion for class certification and DENIES Defendant's motion to strike.

I. Procedural History

On September 15, 2011, Defendant removed the civil action from state court. (ECF No. 1.) On November 15, 2011, Plaintiff filed an amended class action complaint. (ECF No. 14, "FAC".) On October 12, 2012, the case was transferred to the undersigned judge. (ECF No. 41.) On November 2, 2012, Plaintiff filed a motion to certify the class. (ECF No. 42, "Pl. Mtn"). Defendants filed an opposition to Plaintiff's motion and moved to strike the declaration of Valerie Berkowitz. (ECF Nos. 46, 48, "Def. Opp.".) Plaintiff filed a reply to Defendant's opposition, and also opposed Defendant's request to strike. (ECF Nos. 52, 53.) On May 31, 2013, the Court held a hearing on the pending motions.

II. Background

Plaintiff Tanya Rosenberg brings this class action complaint against her former employer Defendant Renal Advantage, Inc. on behalf of Registered Dieticians ("RDs") who were employed by the Defendant. Plaintiff was employed by Renal Advantage as a Registered Dietician from October 2004 through September 2010.[1] Plaintiff seeks certification under the theory that RDs are categorically misclassified as exempt from overtime, meal/rest break and wage statement requirements under California law.

Defendant Renal Advantage is a provider of outpatient dialysis services and operates approximately 45-50 renal dialysis centers, commonly referred to as "Care Centers, " throughout the state of California. (Pl. Mtn, "Statement of Facts" at 5-6). The Care Centers perform in-center hemo-dialysis and other related services to patients with stage 5 chronic kidney disease. (Id.) The Care Centers are organized into interdisciplinary teams which consist of an attending physician, registered nurse, registered dietitian, and social worker. (Id.) Defendant typically provides one team per Care Center. (Id.)

A. FAC Allegations[2]

The FAC contains the following five causes of action: (1) unfair competition in violation of Cal. Bus. & Prof. Code §§ 17200 et seq., (2) failure to pay overtime compensation in violation of Cal. Labor Code §§ 510, 1194 and 1198, (3) failure to provide accurate itemized wage statements in violation of Cal. Labor Code § 226, (4) failure to pay overtime compensation in violation of 29 U.S.C. § 201, et seq., and (5) violation of the Private Attorneys General Act as provided under Cal. Labor Code § 2698 et seq. Plaintiff seeks class certification as to the first three state law based causes of action.

Plaintiff alleges the RD job duties are outside the scope of the professional, administrative, or executive exemptions as provided by California law. Plaintiff claims the RD tasks were primarily day-to-day non-exempt production activities, and Defendant improperly misclassified all RDs as "exempt" and "salaried" employees.

Plaintiff describes the RDs as part of a broader production team of other medical professionals. The RDs utilize a defined skill set to review, plan and develop patient diets and offer patients education on nutrition and dietetics. Plaintiff alleges RDs do not provide "traditional" direct medical services to patients, render opinions or make any medical diagnosis. Rather, the RDs plan and develop patient diets in accordance with the orders given by the attending physician and RDs advice is subject to the physician's limitations.

The RDs allegedly worked eight to nine hours each workday or between two to five hours in overtime each week. Plaintiff claims as a result of the misclassification she and all other RDs were wrongfully denied overtime compensation, meal breaks and rest periods in violation of California labor laws, California Unfair Competition Law, and the Fair Labor Standards Act. Plaintiff also alleges RDs were not provided accurate itemized wage statements.

B. Registered Dieticians' Job Qualifications and Responsibilities

According to the Plaintiff's job description, Renal Advantage requires all Registered Dietitians possess specific qualifications. (Pl. Mtn, Ex. 7.) The RD must have a bachelor degree in Nutrition/Dietetics, must be a registered dietitian with the American Dietetic Association, and licensed in the practice of nutrition and dietetics. (Id.) The job also requires minimum experience of two years in clinical dietetics and/or nutrition, renal nutrition preferred, and specific oral, written, and technical communication skills. (Id.) The RDs "provide[] education and counseling to the ESRD patient and their families to support and maximize the nutritional functioning of the patient. At all times, the Registered Dietician should perform all job responsibilities in alignment with the mission and core values of Renal Advantage, Inc. and comply will all [company] policies and procedures" and other applicable state and federal laws.

The job description provided to RDs by Renal Advantage identifies seven essential job responsibilities for the Registered Dietitians, which are broken down by percentage of time spent on each task. (Id.) The essential responsibilities are: (1) to provide nutrition education and counseling based on individualized patient dietary needs; and develop educational resources for patients including but not limited to written materials, lobby displays, games, etc. (25%); (2) to monitor nutritional status, laboratory values, dialysis kinetics, adherence and response to dietary and/or nutrition therapy; evaluate outcomes and make modifications; participate in care center process; and document appropriate information in medical record (25%); (3) to assess nutritional status of patients and develop short and long term treatment goals (20%); (4) to develop an individual dietary plan for each patient (15%); (5) to participate in monthly interdisciplinary care plan meetings (5%); (6) to be responsible for osteodystrophy management; review data and recommend changes to therapy as indicated (5%); (7) to order and distribute enteral supplements, vitamins and phosphorous binders for Medicaid (5%); and (8) to perform other duties as assigned. (Id.) It is undisputed that all full-time Registered Dietitians were classified as exempt employees under the professional exemption.

III. Legal Discussion

A. Motion to Strike

Federal Rule of Evidence 702 requires that a testifying expert be "qualified as an expert by knowledge, skill, experience, training, or education." Fed.R.Evid. 702. When faced with a proffer of expert testimony, a district court must determine whether the testimony is both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589 (1993)("Daubert I"). The court has broad discretion in assessing both requirements. See United States v. Alatorre , 222 F.3d 1098, 1100 (9th Cir.2000). The reliability requirement ensures "that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152 (1999). To satisfy the relevance requirement, the proffered expert testimony must assist the trier of fact in understanding or determining a fact in issue. Daubert I , 509 U.S. at 591.

Defendant moves to strike the expert statement of Valerie Berkowitz. (Dkt. No. 48.) Defendant argues the Berkowitz declaration is deficient because it was not signed under penalty of perjury, and therefore fails to comport with 28 U.S. § 1746 and Local Civ. R. 1-1(e)(7). (Id. at 2.) Defendant further argues the Berkowitz statement is unreliable as it is based on personal, anecdotal experience and also irrelevant to any issue bearing on Plaintiff's motion. (Id. at 3.) Plaintiff contends Ms. Berkowtiz's opinions are reliable, relevant, and fully comply with Fed.R.Civ.P. 26(a)(2)(B). (Dkt. No. 52.)

The Court finds Ms. Berkowitz is sufficiently qualified to provide expert testimony. Under Ninth Circuit law, an expert may be qualified through either practical training or academic experience. See Rogers v. Raymark Indus., Inc. , 922 F.2d 1426, 1429 (9th Cir.1991). Moreover, the threshold for qualification is low: a minimal foundation of knowledge, skill, and experience suffices. Hangarter v. Provident Life & Accident Ins. Co. , 373 F.3d 998, 1015-16 (9th Cir.2004); see also Thomas v. Newton International Enterprises , 42 F.3d 1266, 1269 (9th Cir.1994). Defendant argues Ms. Berkowitz only has experience as a non-renal dietitian, which makes her unqualified. The Court disagrees. Ms. Berkowitz has several degrees in the relevant field, and she has worked as a registered dietitian for over 25 years. (Pl. Mtn., Ex. 3, Berkowitz Decl. at 2.) Based on this experience and credentials, Ms. Berkowiz satisfies the qualifications requirement.

Ms. Berkowitz testimony is sufficiently reliable and relevant. "When evaluating specialized or technical expert opinion testimony, the relevant reliability concerns may focus on personal knowledge or experience.'" U.S. v. Sandoval-Mendoza , 472 F.3d 645, 655 (9th Cir. 2006)(citing Khumho Tire Co. , 526 U.S. at 150). "Because medical expert opinion testimony is based on specialized as distinguished from scientific knowledge, the Daubert factors are not intended to be exhaustive or unduly restrictive.'" Id . (quoting Sullivan v. U.S. Department of the Navy , 365 F.3d 827, 833-34 (9th Cir. 2004)).

Here, Ms. Berkowitz reviewed relevant testimony and declarations and Renal Advantage policies which resulted in an opinion that the RDs act more like vocational employees. (Berkowitz Decl. at 2.) The fact that Ms. Berkowitz may rely on her own personal experience, rather than on the nuances of the Renal Advantage procedures, does not ultimately render her opinion unreliable. Moreover, Ms. Berkowitz statement appears to be a reasonable opinion that speaks directly to the threshold issue regarding the RDs job classification as exempt employees. As such, the opinion is also relevant to the class action proceedings.

The fact that Ms. Berkowitz did not sign her statement under penalty of perjury does not render the opinion inadmissible. As Plaintiff points out, the declaration complies with each requirement under Fed.R.Civ.P. 26(a)(2) for expert testimony.

For these reasons, the Court finds the expert opinion of Ms. Berkowitz is admissible. Accordingly, the Court DENIES Defendant's motion to ...

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