Fontenot v. Safety Council of Southwest Louisiana
ORDER denying 58 Motion in Limine to Exclude Portions of John McDonald's Expert Report. Signed by Judge Nannette Jolivette Brown on 8/14/2017. (crt,Whidden, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
* CIVIL ACTION NO. 2:16-CV-84
* JUDGE BROWN
SAFETY COUNCIL OF SOUTHWEST
* MAGISTRATE JUDGE KAY
Before the Court is Plaintiff Joni Fontenot’s (“Fontenot”) “Motion in Limine to Exclude
Portions of John McDonald’s Expert Report.”1 Having considered the motion, the memoranda in
support and in opposition, the record, and the applicable law, the Court will deny the pending
Fontenot is the Chief Operating Officer (“COO”) of Defendant Safety Council of
Southwest Louisiana (“Safety Council”).2 Fontenot filed suit against Safety Council on January
19, 2016, alleging that Safety Council paid her differently than her male predecessor, Robert
McCorquodale (“McCorquodale”), in violation of the Equal Pay Act (“EPA”), 29 U.S.C.
§ 206(d)(1), and that Safety Council retaliated against her after she complained of discrimination.3
Safety Council has responded that McCorquodale paid himself unauthorized amounts and that
Rec. Doc. 58.
Joint Pretrial Statement (Rec. Doc. 101) at 2–3.
Id. at 3.
those amounts were not based on the terms of his contract.4 On June 28, 2017, the Court granted
Fontenot’s motion for partial summary judgment, finding that Fontenot had established a prima
facie case of wage discrimination under the EPA.5 On July 7, 2017, Fontenot filed the instant
motion in limine.6 Safety Council filed an opposition to the motion on July 21, 2017.7
II. Parties’ Arguments
Fontenot’s Arguments in Support of her Motion in Limine
Fontenot moves the Court to issue an Order excluding portions of the expert report and
testimony of Safety Council’s expert, John McDonald, a CPA.8 Specifically, Fontenot moves for
the exclusion of the portion of Safety Council expert John McDonald’s (“McDonald”) report and
McDonald’s testimony that projects what McCorquodale’s salary might have been under a 0% and
a 3% annual salary increase based on the salary set forth in McCorquodale’s 2005 employment
contract.9 Fontenot first contends that these projections are irrelevant and will not help the jury
understand evidence or an issue in dispute because “comparing or tethering” Fontenot’s payments
to McCorquodale’s payments is improper.10 Second, Fontenot argues that McDonald’s projections
See e.g., Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment (Rec. Doc. 33)
Rec. Doc. 49 at 24.
Rec. Doc. 58.
Rec. Doc. 84.
Rec. Doc. 58-1 at 1.
Id. at 2–3.
Id. at 2. In support of this argument, Fontenot adopts and incorporates her memorandum in support of her
“Motion in Limine to Exclude Comparing or Tethering Joni Fontenot’s Payments to Her Predecessor” (the “Tethering
Motion in Limine”). Id. (adopting Rec. Docs. 57-1—57-12). Similar to the instant motion, the Tethering Motion in
Limine challenged the relevance of evidence relating to projections of what McCorquodale might have been paid
pursuant to his 2005 employment contract. See Rec. Doc. 57. The motion also challenged the relevancy of comparing
those projections to the payments that Fontenot received. Id. Because the Court has already considered the arguments
and evidence presented in Fontenot’s Tethering Motion in Limine when ruling on that motion, filed
contemporaneously with the instant Order, the Court need not duplicate its summary and analysis in the instant Order.
are not based on fact and, thus, Safety Council seeks to introduce them for the purpose of
improperly bolstering its case.11
Fontenot argues that these projections are not properly admitted as expert testimony.12
Fontenot cites Federal Rule of Evidence 702 for the proposition that “a witness who is qualified
as an expert by knowledge, skill, experience, training or education may testify in the form of an
opinion or otherwise if … the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue[.]”13 Fontenot also
asserts that an expert’s testimony should be excluded when it is “not based upon facts in the record
but on altered facts and speculation designed to bolster [a party’s] position[.]”14
Fontenot claims that McCorquodale was not paid a salary that was based on a 0% or a 3%
annual salary increase.15 Therefore, Fontenot argues, McDonald’s projections are not relevant and
are not supported by facts, but are used merely to bolster Safety Council’s case.16 Fontenot further
contends that any probative value of these projections is outweighed by prejudice and confusion
of the jurors.17 For these reasons, Fontenot moves the Court to exclude McDonald’s testimony and
expert report regarding projections of what McCorquodale’s salary might have been assuming a
0% and a 3% annual salary increase.18
Rec. Doc. 58-1 at 2.
Id. at 1–2.
Id. at 1 (citing Fed. R. Evid. 702).
Id. at 1–2 (citing Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 515 (5th Cir. 2013) (internal quotation
and citation omitted)).
Id. at 2–3.
Id. at 3.
Safety Council’s Arguments in Opposition to Fontenot’s Motion in Limine
In opposition, Safety Council contends that Fontenot is attempting to mislead the jury “by
suggesting that undisputedly unapproved payments that McCorquodale made to himself should
be treated as McCorquodale’s correct salary.”19 Safety Council contends that the “undisputed”
evidence in this case, other than the W-2 and 990 forms showing McCorquodale’s pay, confirm
that McCorquodale’s salary was subject to his 2005 contract.20 Safety Council claims that
McDonald’s expert report is based on “undisputed facts,” such as the fact that McCorquodale’s
last approved contract was dated 2005 and that there was no approval of salary increase or other
payments after 2005.21 Safety Council further claims that McDonald’s expert report presents “pay
scenarios” based on “McCorquodale’s actual, approved contract.”22 Safety Council asserts that
McCorquodale himself has conceded that payments he made to himself were not approved, and
that Fontenot’s expert, Israel Lowery (“Lowery”), has acknowledged that he has no basis for
disputing McDonald’s findings that the payments were not approved.23 Thus, Safety Council
argues, it is “undisputed” that McDonald’s report includes proper comparisons of the approved
salaries of McCorquodale and Fontenot.24
Safety Council further argues that McDonald’s expert report presents the “only accurate
and relevant information that would allow the jury to understand what McCorquodale’s approved
Rec. Doc. 84 at 2. Safety Council adopts and incorporates its memorandum in opposition to Fontenot’s
Tethering Motion in Limine. Id. at 1 (adopting Rec. Doc. 83). The Court has already considered Safety Council’s
arguments in that memorandum relating to Fontenot’s Tethering Motion in Limine. See n. 9, supra.
Rec. Doc. 84 at 2.
Id. at 2–3.
Id. at 3.
salary was.”25 Safety Council claims it is “fundamentally wrong” to allow Fontenot to present
evidence of McCorquodale’s pay that reflects unapproved amounts “in violation” of
McCorquodale’s contract.26 For these reasons, Safety Council argues, Fontenot’s motion should
III. Law & Analysis
Legal Standard for Relevant Evidence
Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency
to make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Under Federal Rule of Evidence 402, relevant evidence
is admissible unless the United States Constitution, a federal statute, the Federal Rules of Evidence
or other rules prescribed by the Supreme Court provide otherwise, and irrelevant evidence is not
admissible. Pursuant to Federal Rule of Evidence 403, “[t]he 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.” The Fifth Circuit instructs that “[t]he exclusion of
evidence under Rule 403 should occur only sparingly[.]”28 “Relevant evidence is inherently
Id. The Court notes that Safety Council raises an argument as to the admissibility of the pay scenario
comparisons provided in Lowery’s expert report. Id. This is the subject of a separate Daubert motion. Rec. Doc. 52.
As Safety Council’s arguments regarding Lowery do not impact the Court’s ruling in the instant matter, the Court will
not consider those arguments at this time.
Rec. Doc. 84 at 3–4.
Id. at 4.
United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).
prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which
permits exclusion of relevant matter under Rule 403.”29
Legal Standard for Admission of Expert Testimony
The district court has considerable discretion to admit or exclude expert testimony under
Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.30 Rule
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.31
In Daubert v. Merrell Down Pharmaceuticals, Inc., the Supreme Court held that Rule 702 requires
the district court to act as a “gatekeeper” to ensure that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.”32 The overarching goal “is to make certain that an
expert, whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862
See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d
358, 371 (5th Cir. 2000).
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that
the court's gatekeeping function applies to all forms of expert testimony).
relevant field.”33 The court must also determine whether the expert’s reasoning or methodology
“fits” the facts of the case and whether it will thereby assist the trier of fact to understand the
evidence – in other words, whether it is relevant.34
A court’s role as a gatekeeper does not replace the traditional adversary system,35 and “[a]
review of the case law after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”36 “[W]hile exercising its role as a gatekeeper, a trial court must take care not
to transform a Daubert hearing into a trial on the merits.”37 When facts are in dispute, the factfinder is entitled to hear an expert’s testimony and decide what weight, if any, to accord it, which
includes a consideration of whether the facts on which the expert relied are accurate.38 As the
Supreme Court noted in Daubert, “[v]igorous 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.”39
Fontenot moves the Court to issue an Order excluding the portion of McDonald’s expert
report and related testimony that projects what McCorquodale’s salary would have been if he had
received annual salary increases of 0% and 3%.40 First, Fontenot argues that these projections are
Kumho Tire, 526 U.S. at 152.
See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.
See Daubert, 509 U.S. at 596.
Fed. R. Evid. 702 advisory committee's note to 2000 Amendments.
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002).
Id.; see also Fed. R. Evid. 702 advisory committee’s notes.
Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
Rec. Doc. 58-1 at 2–3.
irrelevant and should be excluded under Rule 402.41 Second, Fontenot argues that the projections
are not based on fact and should be excluded under Rule 703(c).42 In opposition, Safety Council
argues that such evidence is relevant, as it relates to the approved salary of McCorquodale, based
on the terms of his contract, and the fact that no salary increase was authorized after 2005.43
The Court first considers whether McDonald’s projections are relevant. In a prior Order,
the Court has already held that evidence of what McCorquodale would have made under the terms
of his contract may be relevant to Safety Council’s affirmative defense.44 McCorquodale’s contract
includes a provision of a minimum 3% annual salary increase.45 Thus, McDonald’s projections of
a 3% annual salary increase may be relevant to Safety Council’s affirmative defense that
McCorquodale was paid more than he should have been under the terms of his contract. The
provision of a 3% annual salary increase in McCorquodale’s employment contract also includes
the language “upon approval by the President of the Executive Board.”46 Safety Council has argued
that it never approved an increase in salary after the year 2005, and thus, contends that projections
of a 0% annual salary increase are relevant.47 The Court also notes that Safety Council has
previously argued, in support of its affirmative defense that Fontenot’s pay was based on factors
other than sex, that Safety Council’s hiring committee may have discussed what McCorquodale
Id. at 2.
Id. at 3.
Rec. Doc. 84 at 2–3.
See the Court’s Order denying Fontenot’s “Motion in Limine to Exclude Comparing or Tethering Joni
Fontenot’s Payments to Her Predecessor” (Rec. Doc. 57).
See McCorquodale’s Employment Contract (Rec. Doc. 27-13) at 2.
Rec. Doc. 84 at 2–3.
should have been making when considering what Fontenot should be paid.48 Fontenot has not
shown that the probative value of this evidence is substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.49
Next, the Court considers whether McDonald’s testimony is admissible under Rule 703.
Fontenot does not argue that McDonald lacks the knowledge, skill, experience, training, or
education to testify as an expert witness in this case. Moreover, as discussed supra, it may be
necessary for the trier of fact to consider payments which were made over the course of several
years. Thus, the Court finds that expert testimony which projects payment amounts may assist the
trier of fact in understanding the evidence and determining the facts relating to Safety Council’s
Fontenot contends that McDonald’s projections are not based on sufficient facts as required
by Rule 702(b).51 McCorquodale’s 2005 employment contract, which has been produced, includes
the provision that he will receive a minimum 3% annual increase in salary.52 Thus, McDonald
relied on facts in the record when making projections as to what McCorquodale might have earned
under the scenario of a 3% annual salary increase. The employment contract also includes language
that an increase is made “upon approval by the President of the Executive Board.”53 McDonald
See Rec. Doc. 82 at 7.
See Fed. R. Evid. 403.
See Fed. R. Evid. 702(a).
See Fed. R. Evid. 702(b).
See McCorquodale Employment Contract (Rec. Doc. 27-13) at 2.
further relies on the outcome of a 2011 investigation into Safety Council’s 2010 accounting, during
which McDonald’s firm found no “documentation or other information” that Safety Council
authorized any salary increase for McCorquodale after 2005.54 Thus, McDonald relied on facts in
the record when making projections as to what McCorquodale might have earned under the
scenario of a 0% annual salary increase.55
The Court notes that the parties dispute whether, and to what extent, McCorquodale’s
actual pay was authorized by Safety Council; however, McDonald’s projections are based on
evidence submitted in the record. When facts are in dispute, the factfinder is entitled to hear an
expert’s testimony and decide what weight, if any, to accord it, which includes a consideration of
whether the facts on which the expert relied are accurate.56 Accordingly, the Court will not exclude
McDonald’s projections of a 0% and a 3% annual salary increase.
For the reasons stated above, the Court finds that McDonald’s projections of
McCorquodale’s pay under a 0% annual salary increase and a 3% annual salary increase are
relevant to Safety Council’s affirmative defense, and will assist the trier of fact to understand the
evidence or to determine a fact in issue. The Court also finds that the projections are based on
sufficient facts in the record. Accordingly,
See Rec. Doc. 57-3.
Pipitone, 288 F.3d at 250.
IT IS FURTHER ORDERED that Fontenot’s “Motion to Exclude Portions of John
McDonald’s Expert Report”57 is DENIED.
NEW ORLEANS, LOUISIANA, this14thday of August, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 58.
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