Prejean ex rel. Himself v. Satellite Country, Inc.

474 F.Supp.3d 829

Christopher PREJEAN, on behalf of Himself and Other Persons Similarly Situated

v.SATELLITE COUNTRY, INC., et al.

CIVIL ACTION NO. 17-1170

United States District Court, W.D. Louisiana, Lafayette Division.

Signed July 24, 2020

George B. Recile, Matthew Arthur Sherman, Preston Lee Hayes, Ryan Paul Monsour, Chehardy Sherman et al., Metairie, LA, for Christopher Prejean, Charles E. Bailey, Jr., Algeria D. Johnson, Stafford C. Migues, Anthony Williams, Danny Wheeler, Lucius Jackson, Sonya Chapman, Joseph C. Hensley, IV, Eric J. Bordelon, Garfield A. Wright, Jeremy T. Gradney, Timothy Clark, Steven Davis, Joshua P. Fontenot, Estrick Warren, Burt A. Leonard, Jr., Ignatius A. Joseph, III, Keldrick Cormier, Drew Brown, Eric J. Alexander, Jr., Ricky Lee White, Wendall D. Jordan, Brian Arnold, Sherwin L. Feast, Tabbott J. Sauder, Todd Savoy, Obrian White, Diamante Tolivour, Jace Scott, Raul Casas, III, Samuel Greene, Stacey L. Bordelon, Linden J. Comeaux, Jr., Scott Galliano, Sherron White, J. Norris K. Carter, Shanendoah Hathaway, Morgan Ross, Bryan Robert Fisher, Darrell S. Peres, Donavin Solomon, Helys Perozo, Tevin Doucette, Martin Salavec, Natalie Paige, Joshua Flores, James Pham, Destin Weekly, All Plaintiffs.

Jesse B. Hearin, Hearin Law Office, Slidell, LA, Bert P. Noojin, Pro Hac Vice, Noojin & Noojin, Fairhope, AL, for Satellite Country Inc., Lynn Jenkins.

MEMORANDUM RULING

TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE

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 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 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 of 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.

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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 Leflore County, Miss. , 80 F.3d 1074, 1078 (5^th Cir. 1996) (quoting Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ).

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 (5^th 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 (5^th 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 issue." Bocanegra v. Vicmar Services, Inc. , 320 F.3d 581, 584 (5^th Cir. 2003) (citing Daubert , 509 U.S. at 591-92, 113 S.Ct. 2786 ).

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, 113 S.Ct. 2786.

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...