Fontenot v. Safety Council of Southwest Louisiana
ORDER denying 129 Motion in Limine. Signed by Judge Nannette Jolivette Brown on 10/3/2017. (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 Defendant Safety Council of Southwest Louisiana’s (“Safety Council”)
“Motion in Limine to Exclude Opinions and Legal Conclusions of Robert Bertrand,”1 wherein
Safety Council requests the Court to exclude the opinions and legal conclusions of Plaintiff Joni
Fontenot’s (“Fontenot”) fact witness, Robert Bertrand (“Bertrand”), or in the alternative to exclude
Bertrand’s testimony in its entirety. Having considered the motion, the memoranda in support and
in opposition, the record, and the applicable law, the Court will deny the pending motion.
Fontenot is the Chief Operating Officer (“COO”) of Safety Council.2 Fontenot filed suit
against Safety Council on January 19, 2016, alleging that Safety Council paid her differently than
her male predecessor 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 On August 11, 2016,
the matter was set for a jury trial on May 22, 2017, in Lake Charles, Louisiana, before Judge
Rec. Doc. 129.
Joint Pretrial Statement (Rec. Doc. 101) at 2–3.
Id. at 3.
Minaldi.4 On March 14, 2017, the Court entered a Scheduling Order, resetting the trial in this
matter for August 21, 2017.5 The Scheduling Order provides that the plaintiff shall furnish to the
defendant the names of expert witnesses no later than seventy-five days before trial.6 The
Scheduling Order further provides that the parties shall identify all witnesses in their pretrial
statements, due twenty-eight days before trial.7 On March 15, 2017, the case was reassigned to
Judge Brown of the Eastern District of Louisiana with an Order that the Local Rules of the Western
District of Louisiana continue to apply to the case.8 On July 14, 2017, the trial was continued to
August 28, 2017, with pretrial deadlines unchanged.9
With leave of Court, the parties submitted their Joint Pretrial Statement on July 27, 2017,
in which Fontenot listed Bertrand as a “will call” fact witness.10 Fontenot provided a paragraph
Robert Bertrand was formerly employed by the Safety Council. He
worked with both Fontenot and McCorquodale and has knowledge
of the facts and circumstances, including but not limited to, their job
duties, roles and responsibilities, as well as the growth of the Safety
Council since Fontenot took over as Chief Officer of the Council, as
well as statements made by Mason Lindsay and information
regarding Sherelyn Kight.11
Rec. Doc. 10.
Rec. Doc. 18.
Rec. Doc. 18-1 at 2.
Rec. Doc. 19.
Rec. Doc. 66.
Rec. Doc. 101 at 16.
On August 14, 2017, Safety Council filed the instant motion in limine to exclude opinions and
legal conclusions of Bertrand.12 Fontenot filed an opposition to the motion on August 22, 2017.13
With leave of Court, Safety Council filed a reply thereto on August 24, 2017.14
On August 25, 2017, due to exigencies associated with Hurricane Harvey, the trial of this
matter was continued to October 23, 2017.15
A. Safety Council’s Arguments in Support of the Motion in Limine
Safety Council moves the Court to issue an Order excluding the opinions and legal
conclusions of Fontenot’s designated fact witness, Bertrand,16 asserting that his testimony consists
of inadmissible lay opinions and improper legal conclusions.17 In the alternative, Safety Council
moves the Court to exclude the entirety of Bertrand’s testimony, arguing that Bertrand “possesses
little or no first-hand knowledge of any facts relevant to this matter.”18
Based on Bertrand’s deposition testimony, Safety Council contends that Bertrand may
offer expert opinions on discrimination.19 Safety Council asserts that a lay witness may not offer
expert witness testimony or legal conclusions,20 and further asserts that the testimony of a Human
Rec. Doc. 129.
Rec. Doc. 137.
Rec. Doc. 141.
Rec. Doc. 143.
In November 2014, Robert Bertrand started as Human Resources and Training Manager at Safety Council.
Deposition of Robert Bertrand (Rec. Doc. 129-2) at 8 (hereinafter “Bertrand Deposition”).
Rec. Doc. 129 at 1–2.
Id. at 2.
Rec. Doc. 129-1 at 2, 4, 5.
Id. at 6 (citing United States v. El-Mezain, 664 F.3d 467, 511–12 (5th Cir. 2011)).
Resources expert generally will not help the trier of fact because human resources issues are within
the understanding of the average lay person.21 Safety Council argues that Bertrand was not
designated as an expert, and any testimony he might offer on discrimination would not assist the
trier of fact, but would only provide impermissible legal conclusions.22
Safety Council further contends that Bertrand does not have personal knowledge of facts
listed by Fontenot in her description of Bertrand’s anticipated testimony, as set forth in the Joint
Pretrial Statement.23 Safety Council claims that Fontenot incorrectly described Bertrand as having
worked with Fontenot’s predecessor, Robert McCorquodale (“McCorquodale”), and having
information relating to Sherelyn Kight (“Kight”).24 Safety Council further suggests that Fontenot’s
description is incorrect as to Bertrand’s information regarding McCorquodale because Bertrand
admitted at his deposition that he did not have personal knowledge of “McCorquodale’s duties,
responsibilities, or salary, the change in duties and responsibilities during the transition from Wills
to McCorquodale, or the financial irregularities that occurred during the latter portion of
McCorquodale’s tenure.”25 Safety Council asserts that pursuant to Federal Rule of Evidence 701,
a lay witness may only offer opinions that are rationally based on the perception of the witness.26
Safety Council claims that Bertrand does not have personal knowledge relating to McCorquodale
and Kight, and further, that the information he has relating to Mason Lindsay (“Lindsay”) is
Id. at 8–9 (citing Wilson v. Muckala, 303 F.3d 1207, 1218 – 19 (10th Cir. 2002); Naeem v. McKesson Drug
Co., 444 F.3d 593, 608 (7th Cir. 2006); Brink v. Union Carbide Corp., 41 F. Supp. 2d 402, 405 (S.D.N.Y. 1997);
Neely v. PSEG Tex., LP, MO-10-CV-030, 2012 WL 12877923, at *2, *3 (W.D. Tex. May 29, 2012)).
Id. at 9.
Id. at 7–8.
Id. at 7 (citing Joint Pretrial Statement (Rec. Doc. 101 at 16)).
Id. at 6 (citing Fed. R. Evid. 701).
hearsay.27 Therefore, Safety Council contends that Bertrand lacks knowledge of facts as to these
issues, and any opinions he may offer on these issues are inadmissible as they are not “based on
the perception of the witness.”28
B. Fontenot’s Arguments in Opposition to the Motion in Limine
In opposition, Fontenot asserts that she is not offering Bertrand as an expert witness, but
as a fact witness to testify as to facts of which he has personal knowledge.29 Fontenot claims that
the inadmissible legal conclusions that Bertrand offered at his deposition were responses to
questions asked by Safety Council.30 However, Fontenot asserts that, due to the position he held
as Human Resources and Training Manager of Safety Council, Bertrand has personal knowledge
of relevant facts, including employee contracts, Fontenot’s job responsibilities and performance,
and “occurrences” at Safety Council.31
Fontenot further argues that Bertrand should be allowed to offer lay opinions that are based
on his perception.32 Fontenot asserts that a lay witness may offer testimony in the form of an
opinion that is “rationally based on the witness’s perception;” “helpful to clearly understand the
witness’s testimony or to determine a fact at issue;” and “not based on scientific, technical, or other
specialized knowledge[.]”33 Fontenot asserts that a lay witness’s testimony is rationally based
Id. at 7–8 (citing Bertrand Deposition (Exh. 1) at 13–15, 31, 40–41, 46, 69, 70–71).
Rec. Doc. 137 at 2.
Id. at 2–3.
Id. at 3.
Id. (citing Fed. R. Evid. 701).
“where it is based upon personal observation and recollection of concrete facts”34 and that a lay
witness may give descriptive testimony “which necessarily incorporates judgment as to
characteristics of environment, objects, or persons.”35 According to Fontenot, Bertrand acquired
relevant information through his regular job duties as Human Resources and Training Manager of
Safety Council, including testimony as to training, employee contracts, Fontenot’s job
responsibilities and performance, and other information he acquired from employee files, and
should, therefore, be allowed to offer his lay opinions and testimony regarding such information.36
C. Safety Council’s Arguments in Further Support of the Motion in Limine
Safety Council claims that Fontenot seeks to introduce Bertrand’s lay opinions which are
drawn from employee files and are, therefore, not based on personal perception.37 Safety Council
claims that a fact witness’s lay opinions may not be “merely inferred from other evidence.”38
Safety Council re-asserts its argument that Bertrand “possesses almost no first-hand, personal
knowledge of any relevant facts.”39 Therefore, Safety Council argues, Bertrand’s opinions that are
based on employee files should be excluded because they will not assist the trier of fact as the jury
is in as good a position as Bertrand to determine the significance of any documentary evidence.40
Id. (citing United States v. Beck, 418 F.3d 1008 (9th Cir. 2005)).
Id. at 3–4 (citing Gov’t of Virgin Islands v. Caines, 512 F.2d 311 (3d Cir. 1975)).
Id. at 4.
Rec. Doc. 141 at 1.
Id. (citing United States v. Jackson, 849 F.3d 540, 554 (3d Cir. 2017)).
Id. at 2.
Id. (citing United States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997)).
Law & Analysis
A. Legal Standard
Pursuant to Federal Rule of Evidence 701, a witness, who is not testifying as an expert,
may offer testimony in the form of opinions that are:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
(c) not based on scientific, technical, or other specialized knowledge within the scope of
The difference between “lay and expert witness testimony is that lay testimony ‘results
from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a
process of reasoning which can be mastered only by specialists in the field.”42 “It is generally
prohibited for a lay witness to interpret statutes and to give legal opinions.”43
Safety Council moves the Court to issue an Order excluding the lay opinions and legal
conclusions of Fontenot’s fact witness, Bertrand.44 Safety Council contends that Bertrand was not
designated as an expert and, moreover, that the testimony of a discrimination or human resources
expert will not assist the trier of fact, but will instead provide impermissible legal conclusions.45
Fed. R. Evid. 701.
U.S. v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (citing Fed. R. Evid. 701 advisory committee’s notes)
(internal quotations omitted).
El-Mezain, 664 F.3d at 511.
Rec. Doc. 129.
Rec. Doc. 129-1 at 8–10.
In the alternative, Safety Council suggests that Bertrand’s entire testimony should be excluded
because he possesses little personal knowledge of the facts on which he opines.46 Safety Council
also asserts that Bertrand’s opinions that are inferred from employee files will not assist the trier
of fact because the jury is in as good a position as Bertrand to determine the significance of
In opposition, Fontenot argues that she is not offering Bertrand as an expert witness and
that any inadmissible legal conclusions Bertrand offered at his deposition were in response to
Safety Council’s questions.48 However, Fontenot asserts that Bertrand may properly give opinion
testimony as to information personally acquired through his regular job duties as Human Resources
and Training Manager of Safety Council, which includes information relating to employee files,
training, employee contracts, and Fontenot’s job responsibilities and performance.49
First, although Safety Council asserts that Bertrand offered expert opinions and legal
conclusions in his deposition testimony,50 Fontenot claims that Bertrand offered such testimony in
response to Safety Council’s questions.51 Fontenot has stated that she does not intend to call
Bertrand to offer expert opinions or legal conclusions.52 Accordingly, the Court will deny Safety
Council’s motion to the extent it seeks the exclusion of Bertrand’s expert opinions and legal
Id. at 7–8, 10.
Rec. Doc. 141 at 1–2.
Rec. Doc. 137 at 2.
Id. at 4.
Rec. Doc. 129-1 at 2–4.
Rec. Doc. 137 at 2.
Second, Safety Council asserts that Bertrand will testify as to opinions that are not based
on his personal perception and will not assist the trier of fact, thus suggesting that his testimony
should be excluded entirely.53 In response, Fontenot claims that Bertrand will testify to facts and
offer his lay opinions based on his personal knowledge and perception gained through his position
as Human Resources and Training Manager of Safety Council.54 A lay witness may testify in the
form of an opinion if that opinion is rationally based on his perception and is helpful to the jury to
understand the witness’s testimony or to determine a fact in issue.55 Despite Fontenot’s description
in the Joint Pretrial Statement of Bertrand’s anticipated testimony, Bertrand testified at his
deposition that he has no information relating to Kight and that he did not work with
McCorquodale.56 As cited by Safety Council, Bertrand also stated that he did not have personal
knowledge of how McCorquodale’s duties, responsibilities, and salary compared with his
predecessor’s, nor of any financial irregularities just before McCorquodale left his position.57
However, Fontenot’s description of Bertrand’s information regarding McCorquodale did
not specify that he had personal knowledge of McCorquodale’s starting salary and job
responsibilities or of any financial irregularities associated with McCorquodale.58 Further, beyond
any reference to McCorquodale or Kight, Fontenot’s description of Bertrand’s anticipated
testimony includes that Bertrand worked with Fontenot and has “knowledge of the facts and
circumstances, including but not limited to, [her] job duties, roles and responsibilities, as well as
Rec. Doc. 129-1 at 7–8, 10; Rec. Doc. 141 at 1–2.
Rec. Doc. 137 at 2.
Fed. R. Evid. 701(a).
See Bertrand Deposition (Rec. Doc. 129-2) at 13–15, 69.
See id. at 13–15, 40–41, 47.
See Joint Pretrial Statement (Rec. Doc. 101) at 16.
the growth of the Safety Council since Fontenot took over as Chief Officer of [Safety Council].”59
Safety Council has not challenged Bertrand’s testimony in those areas. Accordingly, while
cautioning the parties that lay witness testimony must comport with the Federal Rules of Evidence,
the Court will not exclude Bertrand’s testimony in its entirety. If Bertrand offers opinions or
testimony outside of the parameters of Federal Rule of Evidence 701, or any other rule, the Court
will consider objections to his testimony at that time.
The Court finds that the issue of excluding Bertrand’s expert opinions and legal
conclusions is moot because Fontenot does not intend to call Bertrand to offer such testimony.
Moreover, the Court will not exclude Bertrand’s testimony in its entirety because the Court finds
that Bertrand may have personal knowledge of matters as described in the parties’ Joint Pretrial
IT IS HEREBY ORDERED that Safety Council’s “Motion in Limine to Exclude
Opinions and Legal Conclusions of Robert Bertrand”60 is DENIED.
New Orleans, Louisiana, this ___ day of October, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Rec. Doc. 129.
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