A recent U.S. Supreme Court case holding that representative evidence can be used in class/collective actions to the same extent that it could be used in an individual action may not have the broad application hoped for by the plaintiff’s bar. In Tyson Foods, Inc. v. Bouaphakeo, the Court held it permissible for the class representatives in a wage and hour class/collective action to utilize an expert report to establish the average time spent by workers donning and doffing protective gear in a pork processing plant in Iowa. The workers were required to wear protective gear, but which gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities.

The trial court concluded that common questions, such as whether donning and doffing protective gear was compensable under the Fair Labor Standards Act, were susceptible to classwide resolution even if not all of the workers wore the same gear. However, to recover for a violation of the FLSA’s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because Tyson didn’t keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, who timed and videotaped various donning and doffing activities, and then averaged the time taken to produce an estimate of the average donning and doffing minutes spent each day for each department. Those estimates were then added to the timesheets of each employee to determine which class members worked more than 40 hours a week and the value of classwide recovery. Tyson argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on the expert’s report improper and would lead to recovery for individuals who, in fact, had not worked the required 40 hours. The Supreme Court rejected that position, holding that representative evidence can be used in a class action to the same extent it could be used in an individual action. However, the Supreme Court noted that it was not adopting broad and categorical rules governing the use of representative and statistical evidence in class actions. Accordingly, the Tyson decision should be limited to its facts.

The decision emphasizes the importance of challenges in class actions to the reliability of expert reports under the Daubert standard. If Tyson had successfully challenged the reliability of the expert report, class members would have been left without sufficient evidence to establish their damages.

Notably, the Tyson decision also seems to run contrary to the Comcast decision which held that plaintiffs cannot be certified to sue as a class unless they can offer a model for measuring damages that applies to everyone in the group.

Finally, and as the concurring opinion makes clear, the underlying verdict in Tyson may be vacated if the trial court is unable to exclude the uninjured class members from receiving any portion of the award. Given that the jury did not accept the expert’s overall estimates, it seems virtually impossible for the trial court to properly exclude all of the uninjured class members from the award.

When defending against a class/collective action, therefore, an employer should never underestimate the importance of asserting a Daubert challenge to the employee’s purported expert report.