                     [J-43A&B-2013][M.O. – Per Curiam]
                IN THE SUPREME COURT OF PENNSYLVANIA
                            EASTERN DISTRICT


MICHELLE BRAUN, ON BEHALF OF     : No. 32 EAP 2012
HERSELF AND ALL OTHERS SIMILARLY :
SITUATED,                        : Appeal from the Judgment of Superior
                                 : Court, entered on June 10, 2011, at No.
               Appellee          : 3373 EDA 2007, affirming in part and
                                 : reversing in part the Judgment of the
                                 : Court of Common Pleas of Philadelphia
          v.                     : County, Civil Division, entered
                                 : November 14, 2007 at No. 3127, March
                                 : Term 2002
                                 :
WAL-MART STORES, INC., A         :
DELAWARE CORPORATION, AND        :
SAM'S CLUB, AN OPERATING         :
SEGMENT OF WAL-MART STORES,      :
INC.,                            :
                                 :
               Appellants        : ARGUED: May 8, 2013


DOLORES HUMMEL, ON BEHALF OF     : No. 33 EAP 2012
HERSELF AND ALL OTHERS SIMILARLY :
SITUATED,                        : Appeal from the Judgment of Superior
                                 : Court, entered on June 10, 2011, at No.
               Appellees         : 3376 EDA 2007, affirming in part and
                                 : reversing in part the Judgment of the
                                 : Court of Common Pleas of Philadelphia
          v.                     : County, Civil Division, entered
                                 : November 14, 2007 at No. 3757,
                                 : August Term 2004
                                 :
WAL-MART STORES, INC., A         :
DELAWARE CORPORATION, AND        :
SAM'S CLUB, AN OPERATING         :
SEGMENT OF WAL-MART STORES,      :
INC.,                            :
                                 :
               Appellants        : ARGUED: May 8, 2013
                                DISSENTING OPINION



MR. JUSTICE SAYLOR                                     DECIDED: December 15, 2014

      I agree with Appellants that the trial court implemented, and the intermediate

court approved, a severely lax approach to the application of governing substantive law

in the issuance and sustainment of an almost two-hundred-million-dollar verdict based

on proof which was insufficient to establish liability and damages across a 187,000-

member class. Although I take no issue with the majority’s observation that the burden

of proof may be relaxed to some degree in wage-and-hour cases, see Majority Opinion,

slip op. at 17, the latitude extended in this case is of an untenable magnitude. Here, the

Appellee class was permitted to effectively project the anecdotal experience of each of

six testifying class members upon thirty-thousand other members of the class at large,

to extrapolate abstract data concerning missed and mistimed “swipes” from 16

Pennsylvania stores to 139 others, to overlay discrete data taken from several years’

experience across a distinct four-year period, and to attribute a single cause to missed

and mistimed swipes, all despite indisputable variations across store locations,

management personnel, time, and other circumstances.1              The sorts of gross

generalizations and assumptions which permitted the simple averaging and

extrapolations offered up by Appellees’ expert witnesses to stand in support of the

conclusion that some tens of millions of missed or mistimed swipes reflected rest breaks

foregone on account of payroll pressure exerted from the Wal-Mart boardroom would


1
  For example, presumably as a result of Wal-Mart compliance initiatives, the numbers
of missed swipes for meal breaks dropped dramatically over the years. See N.T., Sept.
19, 2006 (afternoon), at 61-62. Nevertheless, in extrapolating rest-break data taken
from 1998 through 2001 into the 2002 through 2006 timeframe, Appellees’ expert
witness took the liberty of assuming that none of Wal-Mart’s compliance measures were
of any effect whatsoever relative to the rest breaks. See id. at 67.
                        [J-43A&B-2013][M.O. – Per Curiam] - 2
never hold up to peer review as a matter of science. Therefore, it is very troublesome

for the same to be relied upon in courts of law as the essential support for a large scale

class-action verdict.

       Certainly, I am sympathetic to efforts to vindicate the interests of workers with

modest claims who may lack the ability and incentive to pursue remedies on an

individualized basis. Nevertheless, I remain of the view that the kinds of alterations to

substantive law reflected in the majority’s relaxed approach to class-action litigation

should be the subject of overt consideration in the political branch and should not occur

as a byproduct of the application of a mere procedural device by the judiciary. Accord

Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 466-77, 34 A.3d 1, 58-65 (2011)

(Saylor, J., dissenting).2 I maintain this position, in particular, in light of the broad-scale

social effects likely to attend these sorts of modifications. In this regard, and more

generally, I also incorporate by reference the remarks set forth in my dissent in the Kia

case. See id.




2
  The ability of the General Assembly to alter the class action landscape via legislation
is, of course, subject to constitutional limitations such as the due process constraints
raised by Appellants.
                          [J-43A&B-2013][M.O. – Per Curiam] - 3
