David et al v. Signal InternationaL LLC et al

Filing 2136

ORDER granting in part and denying in part 1827 Motion in Limine to Exclude Legal Opinion Testimony of Plaintiffs' and Signal's Immigration Law Experts and 1830 Motion to Exclude Portions of the Report and Testimony of Signal's Proposed Expert Enrique Gonzalez, III, as stated herein. Signed by Judge Susie Morgan on 1/11/2015. (tsf)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KURIAN DAVID, et al.
Plaintiffs

CIVIL ACTION

VERSUS

No. 08-1220

SIGNAL INTERNATIONAL, LLC, et al.,
Defendants

SECTION “E”

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff

CIVIL ACTION

VERSUS

No. 12-557

SIGNAL INTERNATIONAL, LLC, et al.,
Defendants

SECTION "E"

LAKSHMANAN PONNAYAN ACHARI, et al.,
Plaintiffs

CIVIL ACTION

VERSUS

No. 13-6218
(c/w 13-6219, 13-6220,
13-6221, 14-732, 141818)

SIGNAL INTERNATIONAL, LLC, et al.,
Defendants

SECTION "E"

Applies To:
David v. Signal
(No. 08-1220)

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ORDER
Before the Court are (1) Defendant Burnett’s Motion to Exclude Legal Opinion
Testimony of Plaintiffs’ Immigration Law Expert, Cyrus D. Mehta, and Signals’
Immigration Law Expert, Enrique Gonzalez,1 and (2) Plaintiffs’ Motion to Exclude
Portions of the Report and Testimony of Signal’s Proposed Expert, Enrique Gonzalez,
III.2 Both witnesses are immigration law experts who have been offered to testify about
the H-2B program, green card process, best practices of attorneys practicing
immigration law, and Burnett’s representation of Plaintiffs and Signal in immigration
matters. Burnett seeks to prohibit both Mehta and Gonzalez from offering any testimony
as to their opinions of the law, inferences, and legal conclusions or interpretation of
what the evidence establishes. With respect to Gonzalez, Plaintiffs seek to prohibit him
from testifying only with respect to Opinion II in his report and certain statements in
the report that appear to be directed at Plaintiffs.
The Federal Rules of Evidence permit an expert witness with “scientific, technical
or other specialized knowledge” to testify if such testimony “will help the trier of fact to
understand the evidence or to determine a fact in issue,” so long as “the testimony is
based upon sufficient facts or data,” “the testimony is the product of reliable principles
and methods,” and “the expert has reliably applied the principles and methods to the
facts of the case.”3 Courts, as “gatekeepers,” are tasked with making a preliminary

R. Doc. 1827.
R. Docs. 1830.
3 Fed. R. Evid. 702.
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assessment whether expert testimony is both reliable and relevant.4 The trial judge is
afforded broad latitude in making such expert testimony determinations.5
“The expert testimony must be relevant, “not simply in the sense that all
testimony must be relevant [pursuant to Rule 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.”6 To determine what expert testimony may be used, “‘[t]here is no more certain
test . . . than the common sense inquiry whether the untrained layman would be
qualified to determine intelligently and to the best degree the particular issue without
enlightenment from those having a specialized understanding of the subject involved in
the dispute.’”7
Testimony about Immigration Law Generally and Specifically
There are no objections to the training, experience, knowledge, or skill of either
expert. The parties also have no objection to either expert testifying as to the factual
issues dealing with immigration law and the general process for obtaining H-2B visas
and green cards, such as the identification and wording of particular statutes and
regulations at issue, applicable procedures, the proper filing of forms, and the like.
Because immigration law is a large and complex body of law with which an ordinary
juror is not familiar,8 the Court finds expert testimony on these areas will be helpful to

See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592–93 (1993)).
5 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999).
6 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
7 Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702 advisory
committee’s note)).
8 See Ismail v. Gonzales, 245 F. App’x 366, 368 (5th Cir. 2007) (internal quotation marks and citation
omitted) (“[F]ederal immigration laws are exceedingly complex.”); Singh v. Gonzales, 499 F.3d 969, 980
(9th Cir. 2007) (internal quotation marks and citation omitted) (“The maze of immigration statutes and
amendments is notoriously complicated and has been described as second only to the Internal Revenue
Code in complexity.”); Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004) (“The immigration laws are
complex and their application often requires knowledge of foreign cultures unfamiliar to most
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the jury.9 Both experts may testify generally to factual issues dealing with immigration
law and the general process for obtaining H-2B visas and green cards.
Mehta and Gonzalez also offer opinions in their reports as to whether certain
conduct would be consistent or inconsistent with immigration law. Under Rule 704, an
expert witness’s testimony may “embrace an ultimate issue to be decided by the trier of
fact.” However, “Rule 704 . . . does not open the door to all opinions” or allow experts to
offer legal conclusions.10 This is because any such conclusions invade the province of the
jury, which is capable of coming to its own conclusion after considering all of the
evidence presented at trial.11 However, the Court finds testimony regarding the language
and applicability of immigration statutes and regulations and whether conduct generally
would be consistent or inconsistent with these laws does not amount to a legal

Americans.”). See also Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997) (stating “[w]e
can . . . hypothesize instances in rare, highly complex and technical matters where a trial judge, utilizing
limited and controlled mechanisms, and as a matter of trial management, permits some testimony
seemingly at variance with the general rule” that an expert may not opine on questions of law. “Such an
instance may be patent litigation, in which technical experts are generally allowed to comment on the
scope of a patent’s coverage and give their conclusions on the issue of infringement”); Centricut, LLC v.
Esab Grp., Inc., 390 F.3d 1361, 1369 (Fed. Cir. 2004) (stating “[i]n other areas of the law courts have held
that relevant expert testimony regarding matters beyond the comprehension of laypersons is sometimes
essential” and citing cases).
9 Expert testimony should be excluded if it does not assist the jury “to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702. See also Andrews v. Metro N. Commuter R. Co., 882 F.2d
705, 708 (2d Cir. 1989) (citing other circuits and stating “[f]or an expert’s testimony to be admissible
under this Rule, however, it must be directed to matters within the witness’ scientific, technical, or
specialized knowledge and not to lay matters which a jury is capable of understanding and deciding
without the expert’s help”).
10 Fed. R. Evid. 704; Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). See also Goodman v.
Harris Cnty., 571 F.3d 388, 399 (5th Cir. 2009) (“[A]n expert may never render conclusions of law . . .
nor, may an expert go beyond the scope of his expertise in giving his opinion.”); United States v. Lueben,
812 F.2d 179, 183–84 (5th Cir. 1987) (“[T]he major surviving exception” to Rule 704(a) is that “an expert
may not express an opinion on a conclusion of law.”).
11 Cf. Blythe v. Bumbo Int'l Trust, No. 6:12-CV-36, 2013 WL 6190284, at *4 (S.D. Tex. Nov. 26, 2013)
("[C]ourts do not allow experts to invade the province of the jury . . . .") (collecting cases). See Lackey v.
SDT Waste & Debris Servs., LLC, No. 11-1087, 2014 WL 3866465, at *7 (E.D. La. Aug. 6, 2014) ("It is the
job of the Court—not the expert—to instruct the jury on the applicable law."); Askanase v. Fatjo, 130 F.3d
657, 673 (5th Cir. 1997) (“[O]ur legal system reserves to the trial judge the role of deciding the law for the
benefit of the jury.”).
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conclusion in this case and will be helpful to the jury.12 Accordingly, both experts may
give their opinions on these topics.
In light of this ruling, the Court considers Plaintiffs’ specific request to exclude
testimony regarding Opinion II in Gonzalez’s report, which states: “Foreign nationals
seeking an H-2B visa are considered to have committed immigration fraud if they
deliberately conceal their intent to remain permanently in the United States from a U.S.
consular or immigration officer.” The Court finds Gonzalez may testify about Opinion II
because it discusses actions generally inconsistent with immigration law, which will be
helpful to the jury in evaluating Plaintiffs’ claims and Signal’s cross-claim. Plaintiffs will
have the opportunity to cross-examine Gonzalez and may also request a limiting
instruction if they believe one is needed.
Plaintiffs also seek to exclude testimony that references Plaintiffs’ actions since
Gonzalez admitted under oath that he did not look into Plaintiffs’ conduct. The Court
finds Gonzalez is prohibited from testifying as to whether Plaintiffs did certain acts and
whether their conduct constituted immigration fraud. Likewise, he may not testify about
whether it was Plaintiffs’ or any Defendant’s intent for the workers to remain in the U.S.
permanently.
The Court also considers Burnett’s request that Mehta’s opinions regarding
Burnett’s actions be excluded. Mehta’s opinions in his report go far beyond the H-2B
program, green card process, and what actions are consistent or consistent with

See Mobil Exploration & Producing v. A-Z/Grant Int'l Co., 91-3124, 1996 WL 194931, at *3 (E.D. La.
Apr. 22, 1996) (“In the Court's opinion, Hill's proposed testimony regarding the existence and
applicability of certain regulations—Coast Guard's regulations, CFRs—to the Rowan Paris and whether
the alleged mislabeling was consistent or inconsistent with these regulations does not amount to a legal
conclusion. However, whether such action violated the terms of the contract or whether such action
caused the alleged damage is a conclusion best left for the jury. Accordingly, defendants' motion is
DENIED.”).

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immigration laws. Mehta provides opinions that Burnett’s actions were “deceptive” and
that Burnett may have caused the plaintiffs to misrepresent to consular officers their
true intentions. These conclusions are within the province of the jury because they go to
the ultimate issues in this case, and the jury can “adeptly assess [the evidence] using
only their common experience and knowledge.”13 Because his expert testimony takes the
extra step of opining on what Burnett’s actions mean in this case legally speaking—i.e.,
makes legal conclusions as to whether they were fraudulent or misrepresentations—this
testimony is prohibited.
Testimony about the Standard of Care for Immigration Attorneys
In this action, Signal brings a cross-claim against Burnett for breach of fiduciary
duty and legal malpractice. Both experts’ reports include opinions about Burnett’s
conduct as an attorney, including his duty as an immigration lawyer, the standard of
care, and whether Burnett breached the standard of care. Regardless of which state’s law
this Court applies to Signal’s malpractice cross-claims, expert testimony is necessary to
establish the duty owed by Burnett as an immigration attorney and the standard of care
required of him.14 Signal’s expert Gonzalez may testify on the duty owed as an
immigration attorney, the standard of care, and his opinion as to whether Burnett
breached this standard of care. Notably, Plaintiffs do not bring a claim for legal
malpractice against Burnett. Thus, Plaintiffs’ expert Mehta may not testify as to the duty

Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990).
See Bradford v. Gauthier, Houghtaling & Williams, LLP, 13-2407, 2014 WL 4425743, at *2 (E.D. La.
Sept. 8, 2014) (“Typically, Louisiana courts require a plaintiff to retain an expert witness to establish both
the duty and breach elements of a legal malpractice claim.”); Stevens v. Lake, 615 So. 2d 1177, 1185 (Miss.
1993) (quotation marks omitted) (“In cases involving [Mississippi] legal malpractice [claims], this Court
has held that the generally accepted rule is that expert testimony is ordinarily necessary to support an
action for malpractice of a professional man in those situations where special skills, knowledge,
experience, learning or the like are required.”).

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owed as an immigration lawyer, the standard of care, or his opinion as to whether
Burnett breached this duty.
Conclusion
While both experts may testify about the factual issues dealing with immigration
law and the general process for obtaining H-2B visas and green cards, and whether
conduct in general was consistent or inconsistent with immigration law, neither can go
so far as to determine whether any particular party’s actions were deceptive or
fraudulent or opine on how certain conduct impacted the Plaintiffs’ actions or caused
them damages. These are questions for the jury to decide. Only Gonzalez may testify as
to the duty, standard of care, and best practices of attorneys practicing immigration law
and whether Burnett’s actions breached that duty.
Accordingly;
IT IS ORDERED that the Motions are GRANTED IN PART and DENIED IN
PART as detailed above.

11th
New Orleans, Louisiana, this ____ day of January, 2015.
______________ _________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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