Mascagni v. Schlumberger Tech Corp
MEMORANDUM RULING re 25 DAUBERT MOTION to Exclude Testimony of Plaintiff's Accountant filed by Schlumberger Tech Corp and 47 MOTION in Limine filed by Schlumberger Tech Corp, filed by Schlumberger Tech Corp. Signed by Judge Robert G James on 9/15/2017. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 16-439
JUDGE ROBERT G. JAMES
SCHLUMBERGER TECH CORP
MAG. JUDGE WHITEHURST
Pending before the Court are Defendant Schlumberger Tech Corporation’s (“STC”) Motion
to Exclude the Testimony of John Theriot [Doc. No. 25] and Motion in Limine [Doc. No. 47]. For
reasons that follow, STC’s Motion to Exclude the Testimony of John Theriot is DENIED, and its
Motion in Limine is GRANTED IN PART AND DENIED IN PART.
Facts and Procedural History
Plaintiff Charles Mascagni (“Mascagni”) initiated suit on April 1, 2016, claiming that STC
knowingly, willfully, or in reckless disregard failed to pay him overtime “as required by the Fair
Labor Standards Act (FLSA) and/or state overtime laws.” [Doc. No. 1, pp. 1; 5]. He seeks unpaid
back wages, liquidated damages, attorneys’ fees, and costs. Id. at 5.
Mascagni was initially employed as a Measuring While Drilling (“MWD”) Operator 1. He
was later promoted to MWD II, MWD III, and Logging While Drilling 1 (“LWD”).1 Mascagni
typically worked twelve hours each day for as many as ninety continuous days. Instead of paying
him overtime, STC paid him a base salary plus a day rate.
On August 22, 2017, the Court denied STC’s motion for summary judgment. This case is
set for a bench trial on November 6, 2017.
The Court will use “M/LWD” to refer to Mascagni’s positions.
Motion to Exclude the Testimony of John Theriot
On July 7, 2017, STC moved to exclude the testimony of Mascagni’s expert, John Theriot,
a certified public accountant, arguing that Theriot’s testimony will not assist the trier of fact in
understanding the evidence or determining a fact in issue.2 [Doc. No. 25-1].
Mascagni retained Theriot to prepare a preliminary analysis of his economic losses. [Doc.
No. 25-2]. Theriot calculated that Mascagni’s alleged unpaid overtime pay for salaried hours is
$12,409.00, and Mascagni’s unpaid overtime pay for “rig” hours is $62,376.00. Id. at 2.
According to STC, Theriot performed “nothing more than simple mathematical
calculations.” [Doc. No. 25-1, p. 4]. STC argues, “Should STC be found liable in this case, the jury3
is more than capable of dividing two numbers found on Mascagni’s paystubs to get the appropriate
hourly rate, and then multiplying that sum by the appropriate overtime rate.” Id. STC concludes,
“Because the jury can calculate any overtime due to Mascagni without the assistance of an expert,
Theriot’s testimony is not helpful to the trier of fact and thus, should be excluded pursuant to Federal
Rule of Evidence 702.” Id.
Mascagni opposes the motion. [Doc. No. 35]. According to Mascagni, STC is asking the
Court to “utilize its own strained resources to evaluate approximately One Thousand Four Hundred
(1,400) pages of information on its own in order to make the computations Theriot sets forth in his
report . . . .” Id. at 5. Theriot’s opinion, Mascagni argues, “will assist the trier of fact due to the
volume and complexity of the data produced and relied upon in order to make the sophisticated
calculations and analysis presented” in the expert report. Id. at 11. Mascagni adds that there “is no
STC does not deny that Theriot is an expert in accounting.
Again, this is a bench trial.
jury to protect because this is a bench trial.” Id. at 5.
STC replied to Mascagni’s opposition on August 14, 2017. [Doc. No. 44].
Law and Analysis
Standard of Review
Under Federal Rule of Evidence 702, an expert opinion on scientific, technical, or specialized
knowledge can be admitted only 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.
FED. R. EVID. 702 (emphasis added). When faced with expert testimony, the court must determine
at the outset if the proponent of the evidence has proven its admissibility by a preponderance of the
evidence. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592 n.10 (1993) (citing FED. R.
EVID.104(a) and Bourjaily v. U.S., 483 U.S. 171, 175-76 (1987)). Courts have considerable
discretion in deciding whether to admit or exclude expert testimony. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999) (“[W]e conclude that the trial judge must have considerable
leeway in deciding in a particular case how to go about determining whether particular expert
testimony is reliable.”); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-9 (1997).
Theriot’s Testimony Will Assist the Court.
Theriot’s opinion will assist the Court in understanding the evidence or determining facts in
issue. If STC disagrees with Theriot’s opinions, STC may rebut them utilizing its own expert or
Theriot expended approximately 85 hours analyzing various sources of information spanning
approximately 1,400 pages. [Doc. No. 35-2, p. 3-10]. He performed “unpaid overtime computations
. . . for both Salary and Rig Day Rate paid to Mr. Mascagni[,]” which, according to Theriot, “are two
separate and distinct types of pay with separate and distinct computations” necessitating “explanation
to the trier of fact . . . .” Id. at 10-11. Theriot averred, “The volume and complexity of the
documents and information analyzed in order to compute the damages . . . makes it virtually
impossible for a layperson to perform such calculations and analysis. Id. at 3. “These computations
are . . . sophisticated computations based on my experience in over thirty years practicing public
accounting . . . .” Id. at 10.
“[A]n 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.” 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). 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.4 Id.
See 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
Here, allowing Theriot to utilize his specialized knowledge and experience to calculate
figures from different sources and synthesize his results will aid the Court in ascertaining Mascagni’s
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
To the extent STC opposes Theriot’s calculations, it may oppose them through “vigorous
cross examination, presentation of contrary evidence, and careful instruction on the burden of proof.”
Daubert 509 U.S. at 596. The court will then weigh Theriot’s opinion. Accordingly, STC’s Motion
to Exclude the Testimony of John Theriot is DENIED.
Motion in Limine
On September 5, 2017, STC filed a “Motion in Limine,” seeking “to exclude from trial: (1)
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.”).
Mascagni points out that many of the cases STC cites in support of excluding the expert
opinion were jury trials. In that respect, “Most of the safeguards provided for in Daubert are not
as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.”
See Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000). STC, though, points out that Mascagni
likewise relies on a jury case. [Doc. No. 44]. Specifically, Mascagni cites Solstice Oil for the
proposition that an expert who uses facially inexpert methods may still testify if he presents a
vast quantity of calculations in an understandable format. See Solstice Oil & Gas I LLC, 2015
WL at *5. In this vein, that expert testimony will aid a jury does not necessarily mean that the
same expert testimony will not aid the Court.
the admission of Mascagni’s Internal Revenue Service (“IRS”) Form 1040s; (2) Mascagni’s use of
any witnesses or evidence not sufficiently identified in this matter; and (3) any reference to other
litigation or disputes involving STC or its affiliates.” [Doc. No. 47]. Mascagni opposes the motion
in part. [Doc. No. 49].
Mascagni’s IRS Form 1040s
STC argues that Mascagni’s IRS Form 1040s should be excluded because they are irrelevant.
[Doc. No. 47-1, p. 3]. Mascagni does not oppose excluding this evidence. [Doc. No. 49, p. 1].
Accordingly, to this extent, STC’s motion is GRANTED, and Mascagni’s IRS Form 1040s are
Witnesses Mascagni Failed to Disclose
STC moves to exclude witnesses that Mascagni failed to identify in his initial disclosures.
[Doc. No. 47-1, p. 4]. In his initial disclosures, Mascagni listed the following generic witness
groups: (1) corporate representative(s) of STC; (2) current and former employees of STC; (3) any
witness identified in a prior case against STC, Boudreaux v. Schlumberger Tech. Corp., No. 14-2267
(W.D. La. filed July 8, 2014) (“Boudreaux”); and (4) any person(s) who may be necessary to
authenticate any documents and/or exhibits. [Doc. No. 47-1, p. 4].
Notably, there is no indication that Mascagni ever supplemented his disclosures, and, to date,
Mascagni still fails, with the exception of one witness, to identify the specific witnesses he may call.
Mascagni also fails to provide any explanation for his non-disclosures.
Federal Rule of Civil Procedure 26(a)(1)(A) provides, in pertinent part, “a party must,
without awaiting a discovery request, provide to the other parties: the name and, if known, the
address and telephone number of each individual likely to have discoverable information--along with
the subjects of that information--that the disclosing party may use to support its claims or defenses
. . . .” Rule 37(c), in turn, provides that if a party fails to identify a witness as required by Rule
26(a), “the party is not allowed to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV.
STC argues that Mascagni’s vague disclosures do not sufficiently identify the witnesses and
do not place STC on notice of who might testify. Id. STC emphasizes that the vague disclosures
are prejudicial as STC is unable to depose these witnesses. Id.
Mascagni does not explicitly oppose excluding witnesses other than STC’s employees and
[Doc. No. 49, p. 1-3].
As to STC’s employees and corporate
representatives, Mascagni argues that his failure to disclose is harmless because the potential
witnesses work for STC, and STC can interview them instead of deposing them. Id. at 3. Mascagni
submits that he provided topics of deposition to STC prior to a cancelled deposition.7 Id. at 1.
Mascagni also submits that “the parties’ claims and defenses in this case are clear and obvious to
STC.” Id. at 2.
The Court finds, with respect to STC’s employees and corporate representatives, that
Mascagni’s non-disclosure is, at present, harmless considering that STC can interview its own
personnel. STC is aware of the issues in dispute, and it presumably knows which of its employees
Mascagni “opposes the Motion insofar as STC seeks to exclude a corporate
representative of STC” and “to the extent it seeks to exclude employees of STC . . . .” [Doc. No.
49, p. 1, 3].
STC disputes that Mascagni provided topics for a corporate deposition. [Doc. No. 47-1,
and representatives possess relevant knowledge. Moreover, STC will have sufficient time to
interview its personnel following Mascagni’s identification, in the parties’ joint pretrial order, of any
witnesses he may or will call to testify. If any harm arises thereafter, or if Mascagni fails to identify
witnesses with specificity in the joint pretrial order, STC may move for any necessary action or
In his opposition to the present motion, Mascagni does identify Mitchell Williamson, STC’s
“NAM Compensation Manager,” as a witness he may call. While there is no indication that
Mascagni identified Williamson in his initial disclosures or in any supplement thereto, STC
identified Williamson in its initial disclosures as an individual with discoverable information.
Considering the issues in dispute, as well as STC’s disclosure, the Court is confident that STC was
aware that either it or Mascagni would likely call Williamson to testify. In this respect, Mascagni’s
non-disclosure was substantially justified.
Accordingly, in this regard, STC’s motion is GRANTED IN PART AND DENIED IN
PART. The motion is DENIED as to Williamson and STC’s other employees and corporate
representatives. The motion is GRANTED as to any witness encompassed in Mascagni’s generic
witness groups set forth above.
Documents Mascagni Failed to Disclose
Next, STC moves to exclude documents that Mascagni failed to adequately identify in his
initial disclosures. [Doc. 47-1, p. 5]. In his initial disclosures, Mascagni wrote that he may use
“[a]ny relevant documents produced in” Boudreaux. Id. at 4. There is no indication that Mascagni
ever supplemented this disclosures, and, to date, Mascagni still fails to identify specific documents.
Mascagni also fails to provide any explanation for his non-disclosure.
Federal Rule of Civil Procedure 26(a)(1)(A) provides, in pertinent part, “a party must,
without awaiting a discovery request, provide to the other parties: . . . a copy--or a description by
category and location--of all documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment . . . .” Rule 37(c), in turn, provides that
if a party fails to provide information as required by Rule 26(a), “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1).
STC argues that Mascagni’s “vague and improper identification of documents . . . is highly
prejudicial to STC, who should not, at this late date, be required to verify all of the late-provided
information and martial [sic] opposition evidence of its own.” Id. at 5. Mascagni, however, states
that “every single document [he] intends to introduce into evidence at trial is a STC document.”
[Doc. No. 49, p. 2]. He argues that STC does not explain why it will suffer harm in verifying and
opposing its own documents. Id. at 3.
The Court finds that Mascagni’s non-disclosures are, at present, of little harm to STC
considering that the only documents Mascagni contends he may introduce are STC documents. As
the issues in dispute are relatively definite, STC is likely aware of which documents are relevant and
which documents Mascagni may utilize. Moreover, if Mascagni sufficiently identifies, in the joint
pretrial order, the documents he may utilize, STC will have sufficient time to authenticate and
marshal opposition if necessary. If any harm arises thereafter, or if Mascagni fails to identify the
documents with specificity in the joint pretrial order, STC may move for any necessary action or
Accordingly, STC’s motion is GRANTED IN PART and DENIED IN PART. To the extent
STC moves to exclude non-STC documents produced in Boudreaux, the motion is GRANTED and
the documents are EXCLUDED. To the extent STC moves to exclude STC documents produced
in Boudreaux, the motion is DENIED.
References to Other Cases Involving STC or its Affiliates
STC moves to exclude any reference to other lawsuits involving it or its affiliates on grounds
that the lawsuits are irrelevant and highly prejudicial. [Doc. No. 47-1, p. 6]. Mascagni only opposes
the motion “insofar as it seeks to bar [him] from questioning Williamson about whether Boudreaux
triggered a re-examination and review of STC’s initial exemption determination of the M/LWD job
position and, if so, details about that re-examination and review.” [Doc. No. 49, p. 4].
Considering Mascagni’s tacit lack of opposition to excluding references to cases other than
Boudreaux, as well as the absence of any argument for why referencing cases other than Boudreaux
is relevant, the Court will exclude reference to those cases.
As to Mascagni’s proposed line of questioning concerning Boudreaux, STC argues that the
Court, in a previous Ruling in this proceeding, opined that references to other cases are irrelevant.
[Doc. No. 47-1, p. 6]. Addressing an issue that is no longer before the Court, the Court previously
reasoned that a judgment from another court that STC violated the FLSA does not indicate that STC
violated the FLSA here. [Doc. No. 45, p. 14]. The Court did not, however, rule that references to
other cases were or are irrelevant.
Ultimately, the Court finds that Mascagni’s proposed line of questioning relating to
Boudreaux is relevant.8 At minimum, it is relevant to whether STC acted in good faith in classifying
Mascagni as exempt from overtime compensation provisions . . . a dispute that remains.
Even if the proposed line of questioning is relevant, STC argues that the probative value of
the evidence is substantially outweighed by the potential of unfair prejudice, that the evidence
“presents serious potential for confusion and for decisions on an improper basis, such as
conformance with other cases, rather than upon evaluation of the evidence and arguments in this
case[,]” and that the evidence would waste time and cause undue delay. [Doc. No. 47-1, p. 7].9
The Court finds little risk, if any, of unfair prejudice, confusion, or a decision on an improper
basis, considering that this is a bench trial.10 The Court is capable of distinguishing Boudreaux from
this proceeding and rendering a decision solely on the evidence, arguments, and disputes at bar.
Finally, with respect to undue delay, STC argues that it “would have to devote considerable
time defending itself on matters not actually before the Court.” [Doc. No. 47-1, p. 7]. Mascagni
responds that he “will not devote considerable time questioning STC about Boudreaux[,]” and 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.” FED. R. EVID. 401.
“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.”
FED. R. EVID. 403.
“Rule 403 has no logical application to bench trials. Excluding relevant evidence in a
bench trial because it is cumulative or a waste of time is clearly a proper exercise of the judge’s
power, but excluding relevant evidence on the basis of unfair prejudice is a useless procedure.
Rule 403 assumes a trial judge is able to discern and weigh the improper inferences that a jury
might draw from certain evidence, and then balance those improprieties against probative value
and necessity. Certainly, in a bench trial, the same judge can also exclude those improper
inferences from his mind in reaching a decision.” Gulf States Utilities Co. v. Ecodyne Corp., 635
F.2d 517, 519 (5th Cir. 1981) (internal quotation marks and footnotes omitted).
he “will only ask whether Boudreaux triggered a re-examination of STC’s exemption determination
of the M/LWD job position and, if so, details about that re-examination and review.” [Doc. No. 49,
Considering Mascagni’s limited line of proposed questioning, the Court does not find that
admitting reference to Boudreaux will result in undue delay or a waste or time. The Court does not
anticipate that STC will have to defend itself against the allegations set forth in Boudreaux. All of
this is to say that the risks that STC fears do not substantially outweigh the probative value of the
Accordingly, STC’s motion is GRANTED IN PART and DENIED IN PART. The motion
is GRANTED as to references to cases other than Boudreaux, and this evidence is EXCLUDED.
Mascagni’s proposed line of questioning regarding Boudreaux is, however, admissible, and thus, the
motion is DENIED.
For the foregoing reasons, STC’s Motion to Exclude the Testimony of John Theriot [Doc.
No. 25] is DENIED, and STC’s Motion in Limine [Doc. No. 47] is GRANTED IN PART AND
DENIED IN PART. The following evidence is EXCLUDED: (1) Mascagni’s IRS Form 1040s; (2)
any witness encompassed in the above-described generic groups of witnesses, with the exception of
Mitchell Williamson and STC’s other employees and corporate representatives; (3) non-STC
documents produced in Boudreaux; and (4) any references to cases other than Boudreaux.
Monroe, Louisiana, this 15th day of September, 2017.
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