The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CHRISTOPHER PREJEAN, CIVIL ACTION NO. 17-1170
on behalf of Himself and Other
Persons Similarly Situated
VERSUS JUDGE TERRY A. DOUGHTY
SATELLITE COUNTRY, INC., ET AL. MAG. JUDGE WHITEHURST
MEMORANDUM RULING
Pending before the Court is Defendants’ Motion to Exclude Report and Testimony of John
W. Theriot [Doc. No. 187]. Defendants Satellite Country, Inc. (“Satellite Country”) and Lynn
Jenkins (“Jenkins”) move to exclude the report and testimony of John W. Theriot (“Theriot”), a
certified public accountant (“CPA”) expert retained by Plaintiff Christopher Prejean (“Prejean”)
to provide damages calculations. Prejean opposes the motion.
For the following reasons the motion is GRANTED IN PART AND DENIED IN PART.
I. FACTS AND PROCEDURAL HISTORY
On September 14, 2017, Prejean, on behalf of himself and all others similarly situated, filed
a Collective Action Complaint against Satellite Country, Pamela McCue (“McCue”), and Jenkins,
asserting violations of the Fair Labor Standards Act (“FLSA”) for alleged failure to pay overtime
compensation. On April 17, 2018, the Court conditionally certified this matter as a Collective
Action, and approximately forty-eight (48) Plaintiffs have joined Prejean in this litigation.1 After
motion practice, Pamela McCue was dismissed as a Defendant. Prejean’s claims against Satellite
1Some Plaintiffs have been dismissed after motion practice because their claims were determined to be
untimely.
Country and Jenkins remain pending. Trial is set for December 7, 2020.
Prejean and other class members worked as satellite technicians who performed work
orders on behalf of DISH Network, LLC (“DISH”) for Satellite Country.
At trial, if the satellite technicians are determined to have been employees of Satellite
Country, the jury will be charged with determining the amount of damages due to them. To assess
damages, the jury will need to determine the hours worked by all Plaintiffs. Prejean has retained
Theriot, a CPA, to calculate the damages allegedly owed to all Plaintiffs.
In April 2019, Theriot issued a Preliminary Report. In the introduction, Theriot states as
follows:
Christopher Prejean and all other similarly situated (“Plaintiffs”) were hired to work
for Satellite Country as Technicians. Plaintiffs were, at all times, “non-exempt”
employees and eligible to receive overtime pay pursuant to Section 2017 of Fair
Labor Standards Act (“FLSA”). Plaintiffs were employed by Satellite
Country and were not paid for all hours worked and also were not
paid appropriate overtime wages when they worked more than forty
(40) hours in a workweek as require by the FLSA. Additionally, Satellite
Country makes improper deductions from Plaintiffs’ wages causing
Plaintiffs to be paid less than statutory minimum and overtime wage required by
FLSA. As a result, Satellite Country violates the minimum and overtime wage
provisions of the FLSA.
[Doc. No. 187-2]. He bases his summary on the Collective Action Complaint. Id. n.1.
In order to perform his wage calculations, Theriot relied on “Fact Sheet #23,” which was
issued by the Wage and Hour Division of the United States Department of Labor. He further
“made the following computations and/or assumptions” to comply with “the FLSA requirements”:
1. Counsel has asked us to assume that each Plaintiff worked a 70-hour
workweek, but were only paid for a 40-hour workweek. The overtime rate
is computed by dividing the total of the “Weekly Commission on Sales and
Installs Expense” amounts by the 40-hour workweek outlined by
FLSA then multiplying that result by 1.5 in order to compute
the applicable overtime rate. Additionally, counsel has asked us to assume
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that all time worked discussed above is subject to the rules of the FLSA.
2. Counsel has asked us to assume a workweek consisted of the 168-hour
period being paid on each weekly check.
3. The actual rate of pay has been computed by dividing the total of the
“Weekly Commission on Sales and Installs Expense” amounts by the 40-
hour workweek outlined by FLSA in order to determine the actual rate of
pay for each 168-hour period being paid on each weekly check. In some
instances, this computation yielded a rate a pay below minimum wage. In
an effort to be conservative we have not computed the loss related to the
rate of pay being below minimum wage as these instances appear to be
sporadic in nature.
4. As stated above, in order to determine the applicable rate of pay we have
divided the “Weekly Commission on sales and installs Expense” applicable
day rate paid by the 40-hour workweek outlined by FLSA in order to
determine the average hourly rate for each plaintiff.
5. In the event that a Plaintiff, in a single workweek, worked with differing
straight-time rates of pay, the regular rate for that week is the weighted
average of such rates.
6. Counsel has informed us that there were not any non-cash payments to
employees in the form of good or facilities.
[Doc. No. 187-2]. To calculate wages for the applicable time period, Theriot used weekly check
stubs, the “Tech Install Sheet,” and the 1099’s. Id. He then created a table for the Plaintiffs for
whom he had information.
On June 4, 2019, Theriot issued an Addendum [Doc. No. 187-3] to his report, which
contained calculations for three of the Plaintiffs and updated calculations for two additional
Plaintiffs.
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II. LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Evidence 702 establishes the standards for admissibility of expert
testimony to assist a trier of fact in understanding evidence or determining a fact in issue. In
determining whether expert testimony is reliable and relevant, the district court’s role in applying
Rule 702 is that of a gatekeeper. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 597-598 (1993). However, as gatekeeper, the district court is not intended to replace the
adversary system: “Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” United States v. 14.38 Acres of Land, More or Less Situated in
Lefore County, Miss., 80 F.3d 1074, 1078 (5th Cir. 1996) (quoting Daubert, 509 U.S. at 596.
In determining whether to allow expert opinion testimony, the Court must first decide
whether the witness is qualified as an expert by knowledge, skill, experience, training, or
education. See Moore v. Ashland Chemical, Inc., 126 F.3d 679, 684 (5th Cir. 1997). A district
court should refuse to allow an expert witness to testify if it finds that the witness is not qualified
to testify in a particular field or on a particular subject. Wilson v. Woods, 163 F.3d 935 (5th Cir.
1999).
If a witness is qualified to testify, the court must then determine whether the proffered
testimony is both relevant and reliable. “The expert testimony must be relevant, not simply in
the sense that all testimony must be relevant, FED. R. EVID. 402, but also in the sense that the
expert’s proposed opinion would assist the trier of fact to understand or determine a fact in
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issue.” Bocanegra v. Vicmar Services, Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert,
509 U.S. at 591-92).
As to reliability, Rule 702 only authorizes the admission of expert testimony when “(1)
the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.” FED. R. EVID. 702. Expert testimony requires more than “subjective belief or
unsupported speculation.” Daubert, 509 U.S. at 590.
B. Analysis
Defendants move to exclude Theriot’s reports on three bases: (1) he is not qualified to
give the “opinions” contained in the summary at the beginning of his Preliminary Report; (2) his
methodology in calculating unpaid wages and liquidated damages is flawed; and (3) his
presentation to the jury as an expert in the calculation of FLSA damages would confuse the jury
and is highly prejudicial to Defendants.
Prejean responds that Theriot is qualified to offer testimony that
(1) is well grounded in the facts of this matter, (2) based on his respective
education, training, expertise and experience, which will (3) unquestionably be
helpful to the fact-finder in this matter, and (4) which is beyond the comprehension
of the average lay person.
[Doc. No. 198, p. 2]. He explains that Theriot will testify regarding the average hourly overtime
rate of pay during the relevant period of time that the class plaintiffs were employed by Satellite
Country and that his opinion is based on his education and expertise as a CPA and properly based
on wage and hour information derived from weekly check stubs, tech install sheets and the 1099s
provided for each technician, along with utilizing a 70-hour workweek for each technician based
upon the testimony of the technicians.
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Prejean explains further that Theriot’s expertise as a CPA was not employed to perform
the mathematical calculations necessary to determine the alleged overtime amounts, but because
he was called upon to review and synthesize hundreds of pages of complicated payroll documents
from Defendants which contained large quantities of data.
He refutes Defendants’ contention that Theriot improperly relied on the testimony of the
class Plaintiffs that they worked 70 hours a week. Theriot did not offer an opinion on the accuracy
of the hours works. Prejean contends that if there is a factual determination that some other
amount of time worked by technicians is different, then his calculation can be applied to that
number. If Theriot were to be barred from explaining his calculations, Prejean argues that the
jury would be left with having to compute the overtime amounts for each Plaintiff based upon
hundreds of data entries.
Defendants reply that Prejean failed to address their argument that the opinions proffered
in the summary of Theriot’s preliminary report should be excluded. They further refute Prejean’s
contention that Theriot is needed to calculate the overtime rate of pay, arguing that his calculation
is common and “based upon readily accessible data and basic math that requires no expertise.”
[Doc. No. 215, p. 2]. They use data from one technician to illustrate their point. They further
seeks to distinguish persuasive case law relied upon by Prejean, pointing the Court to the other
persuasive case law they contend is more apt.
Defendants do not challenge Theriot’s qualifications as a CPA or argue that he is not
qualified as an expert in accounting. Rather, they challenge that his qualifications to render the
“opinions” in the summary of the Preliminary Report, contend that his calculations are not
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helpful to the jury on a matter requiring expertise, and that such unnecessary opinions are
prejudicial.
First, as an initial matter, to the extent that Defendants move to exclude Theriot’s “report,”
the motion will be granted. Absent stipulation, Prejean will need to present Theriot’s testimony
at trial, and his report will not be received in evidence.
Second, to the extent that Defendants move to exclude Theriot’s “opinions” in the summary
at the Background section of his Preliminary Report, Defendants’ motion is also GRANTED.
Theriot has not been offered as an FLSA expert, and, more importantly, he clearly identifies in a
footnote that the statements are all derived from the allegations contained in the Complaint. They
are not opinions at all and are not to be offered at trial.
However, the Court must also consider whether Theriot’s opinions are relevant and reliable
on the amount of damages/overtime wages allegedly owed the class action Plaintiffs. The Court
considers reliability first. Defendants have attacked Theriot’s opinions because they are based on
a number of assumptions, particularly that each Plaintiff worked 70-hours weeks during the time
period at issue. Defendants have previously argued that this testimony is inherently unreliable,
and the Court has previously found that such testimony is a credibility determination for the trier
of fact. Theriot explained the multiple sources he relied upon for his calculations, including this
testimony. The Court finds that his opinions based on the identified sources is “reliable” in the
sense required by Rule 702.
The Court, as it must, has also considered the relevance of Theriot’s testimony and finds
that his opinions will assist the trier of fact to understand or determine a fact in issue. While the
calculations themselves are not difficult, Theriot expended hours analyzing various sources of
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information spanning a large number of pages. Theriot’s review and synthesis of a large volume
of complex documents and information will be helpful to the trier of fact. See Total Control, Inc.
v. Danaher Corp., 338 F. Supp. 2d 566, 569 (E.D. Pa. 2004) (citation and internal quotation marks
omitted) (rejecting contention that financial analyst’s testimony should be excluded because his
damage calculations were based on simple arithmetic and explaining that “an expert can be
employed if his testimony will be helpful to the trier of fact in understanding evidence that is
simply difficult, [though] not beyond ordinary understanding.”). Even if an individual calculation
appears straightforward, an expert’s ability to present, in an understandable format, “a vast
quantity of calculations derived from disparate sources” can assist a trier of fact. Id.; see also
Solstice Oil & Gas I LLC v. OBES Inc., 2015 WL 5059601, at *5 (E.D. La. Aug. 26, 2015) (holding
that, while the expert who analyzed hundreds of disparate documents used facially inexpert
methodology (addition and subtraction), his specialized knowledge of accounting would assist the
trier of fact); Sudo Properties, Inc. v. Terrebonne Par. Consol. Gov’t, 2008 WL 2623000, at *7
(E.D. La. July 2, 2008) (rejecting argument that expert’s opinion was simple arithmetic and
holding that the opinion was admissible because the expert’s “specialized knowledge, regardless
of whether his calculations involve complex methodology, will assist the trier of fact” in
determining damages); Gen. Elec. Capital Bus. Asset Funding Corp. v. S.A.S.E. Military Ltd., 2004
WL 5495588, at *5 (W.D. Tex. Oct. 6, 2004) (“Given its complexity and cumbersome nature, [the
expert’s] compilation of this information and documentation into a presentable format is ‘helpful’
. . . [and] will assist the jury in extracting relevant information from the accounting documents
given and will facilitate its understanding of the evidence presented.”).
Here, allowing Theriot to utilize his specialized knowledge and experience to calculate
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figures from different sources and synthesize his results will aid the trier of fact in ascertaining
Prejean’s and the other class action Plaintiffs’ alleged damages. See Charalambopoulos v.
Grammar, 2017 WL 930819, at *16 (N.D. Tex. Mar. 8, 2017) (“Allowing [the expert] to sift
through the evidence . . . , explain the relevant evidence to the jury in a format that it can more
easily follow, and point out, based on her experience as a criminal investigator and forensic
sciences consultant, why certain statements in the evidence are inconsistent with, or are not
supported by, the physical evidence, will not usurp the role of the jury.”).
Finally, the Court has considered whether Theriot’s testimony will cause undue prejudice
to Defendants and should be excluded under Federal Rule of Evidence 403. See FED. R. EVID.
403 (“The court may exclude relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”). They suggest
that the sheer amount of calculated damages per Plaintiff may suggest to the trier of fact that even
if an amount such as $425,000 is not due to each person, something must be due. The Court
disagrees. The trier of fact may be equally likely to conclude that testimony that Plaintiffs worked
70 hours per week every week and seek such a large amount of damages is simply not credible
and render a judgment accordingly. The Court is not permitted and will not engage in credibility
determinations to exclude this testimony.
Defendants remain free to challenge Theriot’s calculations and the bases for those
calculations through “vigorous cross examination, presentation of contrary evidence, and careful
instruction on the burden of proof.” Daubert, 509 U.S. at 596.
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Wl. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Exclude Report and Testimony of
John W. Theriot [Doc. No. 187] is GRANTED IN PART AND DENIED IN PART. To the extent
that Defendants move to exclude Theriot’s report, the motion is GRANTED. Theriot will testify
at trial, and his report will not be received in evidence. Further to the extent that Defendants move
to exclude any testimony by Theriot consistent with the summary in his preliminary report, the
motion is also GRANTED. Theriot clearly states in a footnote that this information was taken
from Prejean’s Complaint and is not his “opinions.” The motion is otherwise DENIED, and
Theriot will be permitted to testify on the wage and damages calculations he performed.
MONROE, LOUISIANA this 24" day of July, 2020.
Eos RY A. DOUGH
UNITED STATES DISTRICT JU i
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