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Pesch v. Independent Brewers United Corporation

United States District Court, N.D. California

February 8, 2015

SIMON PESCH, Plaintiff(s),


DONNA M. RYU, Magistrate Judge.

Before the court is a joint discovery letter filed by Plaintiff Simon Pesch and Defendants Independent Brewers United Corporation and North American Breweries, Inc. [Docket No. 56.] In this letter, Plaintiff argues that Defendants have failed to meet the expert witness disclosure requirements of Federal Rule of Civil Procedure 26 for Ryan Pappe and Mark House, two individuals that Defendants disclosed as experts. The court finds that this matter is appropriate for resolution without oral argument pursuant to Civil L.R. 7-1(b).

For the reasons stated below, the court finds that Pappe and House are not qualified to provide expert testimony on the topics designated by Defendants.


The court has summarized the factual background of this case elsewhere. See Docket No. 46. In brief, Defendants employed Plaintiff as Head Brewer (among other positions) until June 2013. Defendants treated Plaintiff as exempt from California's overtime pay requirements while he held that position. Following his termination in June 2013, Plaintiff filed suit against Defendants. Plaintiff alleges that notwithstanding his title, Defendants cannot prove he spent the majority of his time performing exempt managerial tasks. Instead, he alleges that he performed line brewing tasks alongside his hourly subordinates as well as other non-managerial tasks, such as sweeping, loading sacks of raw materials, and pumping thousands of gallons of water and beer between the different areas of the brewery.

Plaintiff claims that Defendants wrongly failed to pay him overtime from June 2009 to June 2013, resulting in various violations of California Industrial Welfare Commission Wage Orders and Labor Code sections.


Under the Federal Rules, "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702." Fed.R.Civ.P. 26(a)(2)(A).

Federal Rule of Evidence 702 provides that "[a] witness who is qualified as an expert by knowledge, skill experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." "[T]he proponent [of the proposed expert] has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence." Fed.R.Evid. 702, Advisory Committee's note to 2000 Amendment.

Rule 702 requires "the trial judge [to] ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). "Although the district court must perform a gatekeeping function, a trial court not only has broad latitude in determining whether an expert's testimony is reliable, but also in deciding how to determine the testimony's reliability." United States v. Gadson, 763 F.3d 1189, 1202 (9th Cir. 2014) (citation omitted). Furthermore, "[t]he trial court, acting as gatekeeper, is required to assess, pursuant to Rule 104(a), whether the expert is proposing to testify to' scientific, technical, or other specialized knowledge that will help the factfinder understand or decide a fact in issue." Alatorre, 222 F.3d at 1102 (quoting Daubert, 509 U.S. at 592); Fed.R.Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified.... In so deciding, the court is not bound by evidence rules, except those on privilege.").

The inquiry into whether the testimony meets the requirements of Rule 702 is "a flexible one." United States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000).


On December 15, 2014, Defendants disclosed Pappe and House as "non-retained experts, " and served limited disclosures for each of them pursuant to Rule 26(a)(2)(C). Pappe is the Head Brewer of Defendants' brewery in Portland, Oregon. It does not appear that he has worked in the Berkeley brewery that is at issue in this case. House is Defendants' Director of Craft Breweries and Corporate Distribution. House is based in New York, but was in charge of Defendants' Berkeley brewery for the last five months of Plaintiff's employment.[1]

Defendants' non-retained expert disclosures state fifty "subject matters" about which House and Pappe are expected to present evidence, as well as a "summary of [the expert's] facts and opinions" on each topic. The "summaries" add no further detail regarding the proposed expert's planned testimony. The subject matters generally concern Defendants' documentation, the job duties of a Head Brewer, the training and supervision by a Head Brewer of his subordinates, and the process by which beer is brewed in the ...

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