Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`_________________________________________________
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`
`)
`EUGENE SCALIA, SECRETARY OF LABOR, UNITED
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`)
`STATES DEPARTMENT OF LABOR
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`Civil No. 5:18-cv-01194
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`Plaintiff,
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`v.
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`EAST PENN MANUFACTURING CO.,
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`Defendant.
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`_________________________________________________
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`ORDER
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`AND NOW, this ____ day of _________, 20__, upon consideration of the Secretary’s
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`Motion for Sanctions, and any response thereto, it is ORDERED that the Motion for Sanctions
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`is GRANTED. Dr. Jeffrey Fernandez is precluded from testifying as to his conclusions on
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`when, and for how long, Defendant East Penn Manufacturing employees engaged in certain
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`activities related to donning and doffing uniforms and personal protective equipment, and
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`showering.
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`BY THE COURT:
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`_______________________
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`GENE E.K. PRATTER, J.
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 2 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`_________________________________________________
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`
`)
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`EUGENE SCALIA, SECRETARY OF LABOR, UNITED
`)
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`STATES DEPARTMENT OF LABOR
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`Civil No. 5:18-cv-01194
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`Plaintiff,
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`) ) ) ) ) ) ) ) ) )
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`v.
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`EAST PENN MANUFACTURING CO.,
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`Defendant.
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`_________________________________________________
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`SECRETARY OF LABOR’S MOTION FOR SANCTIONS FOR DEFENDANT’S
`EXPERT’S WILLFUL DESTRUCTION OF MATERIAL EVIDENCE
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`The Secretary of Labor respectfully files this motion to preclude Dr. Jeffrey E.
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`Fernandez, Defendant East Penn Manufacturing’s expert witness, from providing his conclusions
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`as to the amount of time taken by EPM personnel to perform certain activities related to donning
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`and doffing personal protective equipment and uniforms, and showering, because Dr. Fernandez
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`and his assistants destroyed their contemporaneous handwritten notes on that issue. The
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`Secretary’s requested sanction for this conduct is justified because EPM, through its agent, Dr.
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`Fernandez, willfully, and without justification, destroyed relevant evidence in its possession to
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`hinder the Secretary in effectively cross-examining Dr. Fernandez on the bases for his
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`conclusions. In support of this motion, the Secretary submits the attached memorandum of law,
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`which sets forth the legal authority upon which this motion is based.
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 3 of 12
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`December 9, 2019
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`Mailing Address:
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`U.S. Department of Labor
`Office of the Regional Solicitor
`170 S. Independence Mall West
`Suite 630E, The Curtis Center
`Philadelphia, PA 19106
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`(215) 861-5165 (voice)
`(215) 861-5162 (fax)
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`Respectfully submitted,
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`/s/ Oscar L. Hampton III
`Oscar L. Hampton III
`Regional Solicitor
`MO ID# 36778
`hampton.oscar@dol.gov
`(215) 861-5120
`
`/s/ Adam F. Welsh
`Adam F. Welsh
`Regional Counsel for Wage and Hour
`PA ID# 84988
`welsh.adam@dol.gov
`(215) 861-5159
`
`/s/ Patrick M. Dalin
`Patrick M. Dalin
`PA ID# 307701
`dalin.patrick@dol.gov
`(215) 861-5165
`
`/s/ Ethan M. Dennis
`Ethan M. Dennis
`Trial Attorney
`PA ID# 308871
`Dennis.ethan.m@dol.gov
`(215) 861-5142
`
`/s/ Bertha M. Astorga
`Bertha M. Astorga
`Trial Attorney
`PA ID# 320644
`astorga.bertha.m@dol.gov
`(215) 861-5126
`
`/s/ Christopher H. Rider
`Christopher H. Rider
`Trial Attorney
`PA ID# 307265
`rider.christopher.h@dol.gov
`(215) 861-5149
`
`2
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`

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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 4 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`_________________________________________________
`
`
`)
`
`EUGENE SCALIA, SECRETARY OF LABOR, UNITED
`)
`
`STATES DEPARTMENT OF LABOR
`
`
`Civil No. 5:18-cv-01194
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`
`
`
`
`
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`
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`Plaintiff,
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`) ) ) ) ) ) ) ) ) )
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`
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`v.
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`EAST PENN MANUFACTURING CO.,
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`Defendant.
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`_________________________________________________
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`SECRETARY OF LABOR’S MEMORANDUM OF LAW IN SUPPORT OF ITS
`MOTION FOR SANCTIONS FOR DEFENDANT’S EXPERT’S WILLFUL
`DESTRUCTION OF MATERIAL EVIDENCE
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 5 of 12
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`I.
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`Introduction
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`The Secretary of Labor moves to preclude Dr. Jeffrey E. Fernandez, Defendant East Penn
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`Manufacturing (“EPM”)’s expert witness, from testifying about his conclusions as to the amount
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`of time taken by EPM personnel to perform certain activities related to donning and doffing
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`personal protective equipment (“PPE”) and uniforms, and showering, because Dr. Fernandez
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`willfully, and without justification, destroyed relevant evidence—his handwritten time
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`measurement notes—knowing that such evidence would be produced during discovery, and, in
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`doing so, irreparably damaged the Secretary’s ability to cross-examine him on his conclusions.
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`II.
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`Factual History
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`Between June 17, 2019, and June 22, 2019, the Secretary’s expert witness, Dr. Robert
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`Radwin, and his team, visited EPM locations to gather factual evidence for his expert report.
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`EPM’s expert witness, Dr. Jeffrey Fernandez, and his team, followed Dr. Radwin and, using
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`stopwatches, took copious handwritten notes on the amount of time spent by EPM employees on
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`certain portions of donning/doffing/showering activities. The Secretary requested EPM provide
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`him with Dr. Fernandez’ handwritten notes, only to be informed that Dr. Fernandez had
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`destroyed those notes after supposedly transcribing the data contained therein to an Excel
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`spreadsheet. See Oct. 8, 2019 Emails RE: EPM – Expert Materials, attached as Ex. A; LRCP
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`26.1 Certification of Ethan Dennis, Esq., attached as Ex. B.
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`III. Argument
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`a. This Court should preclude Dr. Fernandez from testifying as to the
`timing of EPM employees donning and doffing uniforms and PPE, and
`showering, because the Secretary cannot effectively cross-examine him on
`that issue due to his destruction of material evidence.
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`Dr. Fernandez destroyed documents that he and his team created despite knowing that he
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`intended to base his conclusions on the information contained therein. Because Dr. Fernandez
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 6 of 12
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`destroyed those documents, the Secretary is unable to effectively cross-examine him on the
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`factual bases of his conclusions. EPM should not be allowed to insulate his opinion from
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`effective cross-examination due to Dr. Fernandez’ deliberate, willful, and inexcusable failure to
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`meet his obligations to retain material his team produced. Accordingly, the Secretary requests
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`that this Court preclude Dr. Fernandez from offering his conclusions as to when, and for how
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`long, EPM employees donned, doffed, and showered.
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`i. Fernandez spoliated evidence when he destroyed handwritten time
`measurements.
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`For this Court to impose a spoliation sanction, the Secretary must first prove that
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`spoliation occurred. Here, Dr. Fernandez clearly engaged in spoliation when he willfully
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`destroyed handwritten time records he and his team created during this litigation.
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`“Courts may impose spoliation sanctions for destruction of evidence where: (1) the
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`evidence was within the alleged spoliator’s control; (2) there has been actual suppression or
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`withholding of the evidence; (3) the evidence was relevant; and (4) it was reasonably foreseeable
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`that the evidence would be discoverable.” Harrell v. Pathmark, No. 14-5260, 2015 WL 803076,
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`at *3 (E.D. Pa. Feb. 26, 2015) (Pratter, J.) (quoting Baynes v. The Home Depot U.S.A., Inc., No.
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`08-3686, 2011 WL 2313658, at *4 (E.D. Pa. June 9, 2011)); see also Bull v. United Parcel Serv.,
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`Inc., 665 F.3d 68, 73 (3d Cir. 2012). Inadvertent or accidental destruction of evidence is
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`insufficient to prove spoliation; a court must find that a party acted in bad faith, as “bad faith is
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`pivotal to a spoliation determination.” Bull, 665 F.3d at 79.
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`First, EPM cannot dispute that it possessed handwritten records of the time taken by EPM
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`employees to perform certain donning, doffing, and showering related activities. Second, EPM
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`cannot dispute that it destroyed those records. Third, EPM cannot realistically dispute that those
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`records were relevant, as EPM clearly intends to offer Dr. Fernandez to testify about his
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`2
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 7 of 12
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`conclusions based on data derived from the records in question. Fourth, EPM cannot dispute that
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`it was foreseeable that, had their agent retained the records in question, those records would have
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`been discoverable. See Fed. R. Civ. P. 26(a)(2)(B); Synthes Spine Co., L.P. v. Walden, 232
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`F.R.D. 460, 464 (E.D. Pa. 2008) (materials generated by a testifying expert are discoverable).
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`Finally, EPM’s counsel and Dr. Fernandez are experienced in donning/doffing cases and should
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`have been well aware that anything Dr. Fernandez created or reviewed would be discoverable.1
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`Therefore, it follows that destruction of those records was not inadvertent, or accidental, but
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`rather a calculated attempt to remove the Secretary’s ability to effectively cross-examine the data
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`underlying his conclusions. In short, Dr. Fernandez acted in bad faith in destroying relevant
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`material records in his possession.
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`ii. Preclusion of Dr. Fernandez’ testimony as to when, and for how
`long, EPM employees donned, doffed, and showered is an
`appropriate sanction.
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`EPM intends to offer Dr. Fernandez’ conclusions on when, and for how long, EPM
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`employees performed certain donning, doffing, and showering related activities. The Secretary
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`cannot, however, effectively cross-examine him those conclusions, as Dr. Fernandez willfully
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`destroyed the sole source material for the data underlying those conclusions. Accordingly, the
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`appropriate sanction is precluding Dr. Fernandez from testifying as to those conclusions.
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`The Third Circuit has promulgated a three factor test to determine the appropriate
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`spoliation sanction: “(1) the degree of fault of the party who altered or destroyed the evidence;
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`(2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser
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`1 The Secretary notes that EPM’s counsel has been diligent throughout this litigation about
`requesting every potentially relevant note, document, or other paper—including serving Dr.
`Radwin with a subpoena for his notes and work papers, and moving to compel the same. See
`Def.’s Mots. to Compel, ECF Nos. 33, 53, 72, 88, 96. The Secretary asks only that EPM be held
`to its own standard.
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`3
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 8 of 12
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`sanction that will avoid substantial unfairness to the opposing party and, where the offending
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`party is seriously at fault, will serve to deter such conduct by others in the future.” Schmid v.
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`Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). “When evidence is ‘actually
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`suppressed’ there is a strong degree of fault that favors the imposition of sanctions.”
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`International Financial Co., LLC v. Jabali-Jeter, No. 18-2120, 2019 WL 2268961, at *15 (E.D.
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`Pa. May 28, 2019). “Potential [spoliation] sanctions include: ‘dismissal of a claim or the entry of
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`judgment in favor of a prejudiced party; the suppression of evidence; an adverse evidentiary
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`inference, such as the ‘spoliation inference’; fines; and attorney fees and costs.’” Id. (quoting
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`AMG Nat’l Trust Bank v. Ries, No. 06-4337, 09-3061, 2011 WL 3099629, at *4 (E.D. Pa. Jul.
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`22, 2011)). A court must “select the least onerous sanction corresponding to the willfulness of
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`the destructive act and the prejudice suffered by the victim.” Schmid, 13 F.3d at 79.
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`First, EPM, through its agent, Dr. Fernandez, is clearly at fault for destroying the records
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`in question. EPM is not a small company and it has hired experienced counsel and expert
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`witnesses. It cannot, therefore, rely on ignorance or inexperience to defend its decision to
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`destroy the records in question. EPM cannot dispute that Dr. Fernandez destroyed those records
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`when he could have just as easily refrained from doing so, and EPM has failed to advance a good
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`faith reason for Dr. Fernandez’ actions in destroying the records in question. EPM’s agents’
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`degree of fault is, therefore, high.
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`Second, the Secretary is severely prejudiced by Dr. Fernandez’ actions. The records in
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`question were the sole sources of the data underlying Dr. Fernandez’ conclusions as to when, and
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`for how long, EPM employees performed certain activities related to donning, doffing, and
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`showering. The Secretary is entitled to cross-examine Dr. Fernandez on the veracity of the
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`underlying data, including the manner in which it was initially recorded, and whether
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`4
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 9 of 12
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`transcription of that data introduced any errors. He cannot now do so. As EPM clearly intends
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`to use Dr. Fernandez’ testimony to minimize its potential damages in this case, the Secretary’s
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`inability to effectively cross-examine Dr. Fernandez on that issue substantially prejudices the
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`Secretary’s ability to recover for the thousands of employees cheated by EPM.
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`Finally, precluding Dr. Fernandez’ testimony as to his conclusions on when, and for how
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`long, EPM employees engaged in certain donning, doffing, and showering related activities is the
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`“least onerous sanction” available, based on the willfulness of Dr. Fernandez’ destruction and the
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`resulting prejudice the Secretary has suffered. Here, although preclusion of Dr. Fernandez’
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`testimony on this issue is a substantial sanction, it is not tantamount to granting judgment for the
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`Secretary, as this motion does not seek to preclude Dr. Fernandez from testify to the conclusions
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`contained in his report not ultimately based on the handwritten stopwatch recordings he
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`destroyed. Accordingly, while the Secretary recognizes that preclusion of testimony is a severe
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`sanction, he maintains that it is the least severe sanction warranted by EPM’s willful destruction
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`of relevant evidence in this matter.2 Cf. Capogrosso v. 30 River Court East Urban Renewal co.,
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`482 Fed. Appx. 577, 682 (3d Cir. 2012) (dismissal is an appropriate spoliation sanction where an
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`attorney deliberately disposed of relevant evidence without justification).
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`IV. Conclusion
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`For the reasons set forth above, the Secretary respectfully requests that this Court
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`preclude Dr. Jeffrey Fernandez from testifying as to when, and for how long, EPM employees
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`engaged in certain activities related to donning, doffing and showering.
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`2 Alternatively, the Secretary requests that this Court give an adverse inference instruction. See
`Bozic v. City of Washington, Pa., 912 F. Supp. 2d 257, 273 (W.D. Pa. 2012) (granting a
`spoliation inference where the defendant destroyed a videotape of a relevant meeting); Mosaid
`Technologies Inc. v. Samsung Electronics Co. Ltd., 348 F. Supp. 2d 332, 335 (D.N.J. 2004)
`(granting a spoliation inference where the defendant destroyed relevant emails).
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`5
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 10 of 12
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`December 9, 2019
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`Mailing Address:
`
`U.S. Department of Labor
`Office of the Regional Solicitor
`170 S. Independence Mall West
`Suite 630E, The Curtis Center
`Philadelphia, PA 19106
`
`(215) 861-5165 (voice)
`(215) 861-5162 (fax)
`
`
`
`
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`Respectfully submitted,
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`UNITED STATES DEPARTMENT OF LABOR
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`Kate S. O’Scannlain
`Solicitor of Labor
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`/s/ Oscar L. Hampton III
`Oscar L. Hampton III
`Regional Solicitor
`MO ID# 36778
`hampton.oscar@dol.gov
`(215) 861-5120
`
`/s/ Adam F. Welsh
`Adam F. Welsh
`Regional Counsel for Wage and Hour
`PA ID# 84988
`welsh.adam@dol.gov
`(215) 861-5159
`
`/s/ Patrick M. Dalin
`Patrick M. Dalin
`PA ID# 307701
`dalin.patrick@dol.gov
`(215) 861-5165
`
`/s/ Ethan M. Dennis
`Ethan M. Dennis
`Trial Attorney
`PA ID# 308871
`Dennis.ethan.m@dol.gov
`(215) 861-5142
`
`/s/ Bertha M. Astorga
`Bertha M. Astorga
`Trial Attorney
`PA ID# 320644
`astorga.bertha.m@dol.gov
`(215) 861-5126
`
`/s/ Christopher H. Rider
`Christopher H. Rider
`Trial Attorney
`PA ID# 307265
`rider.christopher.h@dol.gov
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`6
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 11 of 12
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`(215) 861-5149
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`7
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`Case 5:18-cv-01194-GEKP Document 138 Filed 12/09/19 Page 12 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`_________________________________________________
`
`
`)
`
`EUGENE SCALIA, SECRETARY OF LABOR, UNITED
`)
`
`STATES DEPARTMENT OF LABOR
`
`
`Civil No. 5:18-cv-01194
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`
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`
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`Plaintiff,
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`) ) ) ) ) ) ) ) ) )
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`
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`v.
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`EAST PENN MANUFACTURING CO.,
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`Defendant.
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`_________________________________________________
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`I hereby certify that on the date below, the foregoing Motion for Sanctions has been filed
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`electronically and is available for viewing and downloading.
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`Date: December 9, 2019
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`BY: s/ Christopher H. Rider
`Christopher H. Rider
`Trial Attorney
`U.S. Department of Labor
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