Expert Witness Blog
Plaintiff filed suit against defendant for non-payment of overtime wages. Defendant hired two forensic accounting expert witnesses to provide testimony. The plaintiff filed motions to exclude, one of which was granted in its entirety and one of which was granted in part.
Facts: This case (Acosta v. Team Environmental – United States District Court – Southern District of West Virginia – December 29th, 2017) involves wages paid to employees who work at the defendants company (“Team”). After complaints were received by the United States, the Secretary of Labor filed suit against Team for unpaid overtime hours and also seeks liquidated damages pursuant to the Fair Labor Standards Act (FLSA), and injunctive relief. To assist in proving their case, Team hired Donald Nestor and Kevin A. Highlander both forensic accounting expert witnesses. The government has filed a motion to exclude the testimony of these expert witnesses.
Discussion: Mr. Nestor’s report will be used as part of the defense against imposing liquidated damages. The court opined that since it already granted liquidation damages earlier in the current opinion. And, since the scope of the opinion is confined only to industry standards, the report is does bear on the remaining issues of the case. Thus, the court granted the motion to exclude Mr. Nestor’s opinion.
Mr. Highlander’s report discusses the calculations that should be made of overtime allegedly due or owing. Mr. Highlander’s report states that the Secretary’s overtime calculations contain errors and does not account for numerous mitigating factors. Mr. Highlander provides four basic overtime calculations of his own.
The Secretary first alleges that Mr. Highlander is not qualified to calculate the amount owed according to the FLSA, emphasizing his unfamiliarity with the FLSA. The court disagreed, stating that the expert only needs to have sufficient knowledge to assist the trier of fact and that Secretary does not provide any support to support its argument. Second, the Secretary alleges that the overtime calculations are straightforward and that Mr. Highlander’s report is not needed. Team responds that Mr. Highlander’s report will help the court in proving or disproving core issues in the case. The court agree with Team, stating that Mr. Highlander’s report will be necessary to understand key issues in this case. Specifically, his testimony is helpful because he explains Team’s position on damages, shows errors in the Secretary’s calculations, and can serve as a useful reference point on damages.
Third, the Secretary argues that Mr. Highlander’s report makes legal conclusions and are thinly veiled legal conclusions disguised in mathematics. Team responds that Mr. Highlander’s report and testimony are nevertheless helpful since he provides four separate overtime calculations. The court ruled that it will not allow the portions of his testimony that command a finding of the underlying issues.
Last, the Secretary argues that Mr. Highlander’s report is not reliable. The court disagreed, stating that these arguments are best suited during cross examination.
Conclusion: The motion to exclude the expert witness testimony of Mr. Nestor is granted and the motion to exclude the testimony of Mr. Highlander is granted in part and denied in part.