Opinion
No. 05-16992.
Argued and Submitted October 18, 2007.
Filed October 29, 2007.
Timothy Keith Talbot, Esq., Carroll Burdick McDonough LLP, Sacramento, CA, for Plaintiffs-Appellants.
Arthur A. Hartinger, Esq., Laura Lee Josephine Briggs, Esq., Jesse J. Lad, Meyers, Nave, Riback, Silver Wilson, Oakland, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of California, Morrison C. England, Jr., District Judge, Presiding. D.C. No. CV-03-00166-MCE.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
The District court did not abuse its discretion. Expert testimony is admissible if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." Cohen's education and expertise sufficed so that it was not an abuse of discretion to allow the jury to have the benefit of his analysis.
The District court also did not abuse its discretion by a giving the challenged jury instruction. The formulation of the instruction was within the court's discretion, and the law applied in the case was consistent with 149 Madison Avenue Corporation v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432 (1947) and 29 C.F.R. § 778.309.
The jury's verdict in favor of the City was supported by substantial evidence. Testimony from a City Administrator (Mr. Parrott), the Fire Telecommunicators Union (Ms. Storm), Fire Telecommunicators (Ms. Hughes and Ms. Mager), and an expert (Mr. Cohen), together support the jury's verdict that the Fire Telecommunicators were paid for their overtime work under the Fair Labor Standards Act.