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Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, November 9, 2007

Did Tyson Provide What Their Employees' Families Deserved? Judge to Make 2 Key Expert Witness Rulings

Tyson Foods Inc. is currently defending charges in federal court that it depressed wages at eight plants by hiring illegal aliens.  The former Tyson employees seeking damages for depressed wages have sought to introduce the testimony of two expert witnesses, which should lead to some interesting rulings.

First, the plaintiffs seek to have economist George Borjas testify about a report he prepared, which concluded that "Tyson pays lower wages than what other unskilled workers get in comparable labor markets."  Tyson has raised a few challenges to this report, including the argument that Borjas compared Tyson's wages to statewide wages and did not compare them to the wages in the areas immediately surrounding Tyson's plants in cities such as Ashland, Alabama, Corydon, Indiana, Center, Texas and Glen Allen, Virginia.

Second, the plaintiffs seek to have retired federal immigration agent Michael Cutler testify that Tyson officials should have known that many of its workers were not legal because they could not speak English.  Tyson has countered that it could have concluded that these workers were permanent residents, first generation citizens, naturalized, etc.

Because this case is being heard in federal court, the judge must decide whether this evidence is admissible in light of Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), where the Court found that before admitting expert evidence, a judge must perform a preliminary assessment to determine whether the methodology used by the exprt is svalid and whether it can properly be applied to the facts at issue.  Furthermore, for expert evidence to be admissible, pursuant to Federal Rule of Evidence 702, it must be able to assist the trier of fact in determining a fact in issue.

Without seeing Borjas' report, it is difficult to say whether it is "valid," but if Tyson's allegations are correct, the report would seem to be misleading.  A quick internet search shows, for instance, that the average salary for jobs in Center, Texas is $21,454.  Meanwhile, the median salary across the entire state is Texas is $56,235.  Furthermore, with all of the controversies raging about illegal immigration, the judge's conclusion about whether experts can testify that employers should know that employees who don't speak English are likely illegal aliens could have wide ranging ramifications in later lawsuits.

Clearly the issues are not clear cut because while there were indications that these issues might have been resolved as early as yesterday, the judge eventually continued the Daubert hearing until next month

-CM

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