Thompson v. Yellow Fin Marine Services, LLC, No. 2:2015cv00311 - Document 53 (E.D. La. 2016)
Court Description: ORDER AND REASONS - Thompsons 24 motion in limine to exclude Yellow Fins counterclaims is GRANTED IN PART AND DENIED IN PART. Thompsons 27 motion to exclude reference to charges filed by the U.S. Coast Guard is GRANTED to the extent it seeks to exclude mention of the U.S. Coast Guard Report. Thompsons objections to Exhibits 52, 55, and 56 are SUSTAINED, and his objections to Exhibits 53 and 54 are OVERRULED. Yellow Fins objection to Exhibits 50 and 51 are SUSTAINED, and its objections to Exhibits 32 through 46, 48, and 49 are OVERRULED. Signed by Judge Sarah S. Vance. (bwn)
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Thompson v. Yellow Fin Marine Services, LLC Doc. 53 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA RICHARD J . THOMPSON VERSUS CIVIL ACTION NO. 15-311 YELLOW FIN MARINE SERVICES, LLC SECTION “R” (2) ORD ER AN D REASON S In anticipation of trial in this J ones Act case, the parties have filed m otions in lim ine and objections. Plaintiff Richard J . Thom pson has filed a m otion in lim ine to exclude defendant Yellow Fin Marine Services, LLC’s counterclaim s. 1 Thom pson has also filed a m otion in lim ine to exclude references to charges filed against Thom pson by the U.S. Coast Guard. 2 Both parties have objected to several proposed trial exhibits. 3 The Court resolves the parties’ m otions and objections as follows. 1 2 3 R. Doc. 24 R. Doc. 27 R. Doc. 31; R. Doc. 32. Dockets.Justia.com A. Th o m ps o n ’s Mo tio n in Lim in e Re gard in g Ye llo w Fin ’s Co u n te rclaim s . Thom pson argues that Yellow Fin’s counterclaim s lack legal basis and evidence of them should therefore be excluded entirely. In W ithhart v. Otto Candies, L.L.C., the Fifth Circuit held that “no statutory prohibition in the FELA, and consequently in the J ones Act, prohibits a shipowner-employer from pursuing a claim against its negligent seaman-em ployee for property dam age.” 431 F.3d 840 , 845 (20 0 5). Thom pson attem pts to resist this conclusion by citing a Seventh Circuit decision that questioned the W ithhart result. See Deering v. N at’l Maint. & Repair, Inc., 627 F.3d 10 39, 10 46 (7th Cir. 20 10 ). This Court is bound by Fifth Circuit precedent, and Thom pson’s argument is therefore a nonstarter with regard to Yellow Fin’s property dam age claim s. Unlike the defendant in W ithhart, however, Yellow Fin also seeks indem nity for personal injury claims by Thom pson’s fellow em ployee Kenneth Lacour. There is no right of contribution or indem nity under adm iralty law unless the third-party defendant is directly liable to the plaintiff. See Sim eon v. T. Sm ith & Son, Inc., 852 F.2d 1421, 1434 (5th Cir. 1988) (following, in a J ones Act case, the “traditional view” that “there can be no contribution between concurrent tort-feasors unless they share a ‘com m on legal liability’ toward the plaintiff.” (quoting F. Harper, F. J ames, 2 O. Gray, 3 The Law of Torts § 10 .2 at 46 (2d ed. 1986)). Under the J ones Act, a seaman cannot sue a fellow em ployee for negligence. Pullm an v. Bouchard Transp. Co., No. 99-30 0 8, 20 0 0 WL 1818496, at *3 (E.D. La. Dec. 11, 20 0 0 ); see also Roth v. Cox, 210 F.2d 76, 78 (5th Cir. 1954), aff’d, 348 U.S. 20 7 (1955) (“[T]here is nothing in the J ones Act which grants to seam an a right to bring an action against anyone except his em ployer . . . .”) Because Thom pson cannot be directly liable to Lacour under the J ones Act, Yellow Fin is barred from seeking indem nification from Thom pson for Lacour’s personal injury claim s. The Ninth Circuit reached an identical result in California Hom e Brands, Inc. v. Ferreira. 871 F.2d 830 , 835 (9th Cir. 1989) (holding that “[s]ince indem nity is only available where the would be indem nitor is independently liable to the injured party, a shipowner-employer has no right to be indem nified by its employee for dam ages paid to another crewm ember under the J ones Act”). In W ithhart, the Fifth Circuit distinguished Ferreira, but did not disagree with its holding. 431 F.3d at 845. The Court therefore finds Yellow Fin’s counterclaim for indem nification from Lacour’s personal injury claim s to be legally m eritless. Evidence tending only to support this claim , and not Yellow Fin’s defenses or counterclaim s for property dam age, 3 is therefore irrelevant and properly excluded under Federal Rule of Evidence 40 1. Thom pson also argues that Fieldwood Energy LLC’s Receipt and Release is hearsay. In the Receipt and Release, Fieldwood agrees to hold Yellow Fin harm less for dam ages to the West Delta 70 L Platform in exchange for receipt of $ 764,o0 0 . Yellow Fin answers Thom pson’s charge of hearsay by representing that Michael Bailey, Yellow Fin’s president, will testify regarding the negotiations and paym ents associated with the release. The Court finds that the docum ent is hearsay. The release is an out of court statement offered to prove the truth of its contents, nam ely that Yellow Fin paid Fieldwood $ 764,0 0 0 to settle its claim s. A release, like a contract, m ay constitute a non-hearsay verbal act, and be properly adm itted if the legal effect of that act is relevant. See, e.g., Rom beiro v. Unum Ins. Co. of Am ., 761 F. Supp. 2d 862, 868 n.3 (N.D. Cal. 20 10 ) (“The Court agrees with the Next Level defendants that the release form is a verbal act and not hearsay.”); see also Fed. R. Evid. 80 1, Note to Subdivision (c) (noting that hearsay does not include “the entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in which the statem ent itself affects the legal rights of the parties or is a circum stance bearing on conduct affecting their rights.”). Here, however, Yellow Fin has not shown how the legal effect of the release—namely, 4 lim iting Fieldwood’s right sue to Yellow Fin—is relevant to any claim . Instead, Yellow Fin appears to offer the release as proof of the dam age sustained by the West Delta 70 L Platform . The release is therefore not a verbal act and is properly excluded as hearsay. See U.S. v. Markopoulos, 848 F.2d 10 36, 10 39 (10 th Cir. 1988) (holding that a car rental contract and credit card voucher are excludable hearsay if offered to prove the identity of the person who rented the car). Finally, Thom pson asserts that the counterclaim s fail because Yellow Fin cannot m eet its burden of proof. These arguments are not properly presented in a m otion in lim ine, and the Court therefore does not address them . See Sabre Int’l Sec. v. Torres Advanced Enter. Sols., LLC, 72 F. Supp. 3d 131, 139 (D.D.C. 20 14) (“[A] m otion in lim ine is not the proper vehicle to address the sufficiency of the evidence in support of a claim .”). B. Th o m ps o n ’s Mo tio n in Lim in e Re gard in g Ch arge s File d by th e U .S. Co as t Gu ard Thom pson seeks to exclude any reference or evidence pertaining to charges filed against Thom pson by the U.S. Coast Guard. This argum ent is grounded in 46 U.S.C. § 630 8, which provides: 5 Notwithstanding any other provision of law, no part of a report of a [U.S. Coast Guard] m arine casualty investigation . . . , including findings of fact, opinions, recomm endations, deliberations, or conclusions, shall be adm issible as evidence . . . in any civil or adm inistrative proceedings, other than an adm inistrative proceeding initiated by the United States. Courts have interpreted this provision broadly. See, e.g., Am . S.S. Co. v. Hallett Dock Co., No. 0 9-2628, 20 13 WL 30 890 7, at *6 (D. Minn. J an. 25, 20 13) (“[T]he portion of any expert opinion that relies on or is substantially based on the Coast Guard Report is inadm issible, although the rest of the expert opinion is still adm issible. The Coast Guard Report itself m ay not be used to refresh a witness’s recollection or for im peachm ent.”) (citation om itted); Baker Hughes Oilfield Operations, Inc. v. Seabulk Tankers, Inc., No. 0 3-1230 , 20 0 4 WL 859199, at *1 (E.D. La. Apr. 20 , 20 0 4) (“This Court intends to enforce 46 U.S.C § 630 8(a) by striking any portion of the Coast Guard report, however it m ay be presented.”). Accordingly, the Coast Guard report referenced in the parties’ proposed J oint Pre-Trial Order 4 is inadm issible, and Yellow Fin m ay not em ploy it at trial for any purpose, including im peachm ent. 4 R. Doc. 18 at 10 . 6 This ruling does not exclude Yellow Fin from questioning Thom pson regarding the status of his Coast Guard license, if the questioning is grounded in something other than the Coast Guard report. C. Th o m ps o n ’s Obje ctio n s to Ye llo w Fin ’s Exh ibits Thom pson has filed objections to certain exhibits offered by Yellow Fin. The Court resolves these objections as follows. i. Exhibit 52 – U.S. Coast Guard Report of Marine Casualty Sustained. As discussed above, Exhibit 52 is inadm issible under 46 U.S.C. § 630 8. ii. Exhibit 53 – Crim inal Records Overruled for the reasons offered in the Court’s prior ruling on this issue. 5 iii. Exhibit 54 – Invoices and Checks Overruled. The invoices and checks are relevant to Yellow Fin’s counterclaim for dam age to the K MARINE XI. The invoices, given a proper foundation, fall under the business records exception. See Theriot v. Bay Drilling Corp., 783 F.2d 527, 533 (5th Cir. 1986). The checks constitute verbal acts, and are therefore not hearsay. See U.S. v. Pang, 362 F.3d 1187, 1192 (9th Cir. 20 0 4), cert. denied, 543 U.S. 943 (20 0 4). The Court further 5 R. Doc. 48. 7 finds that, given Yellow Fin’s previous disclosures, Thom pson was not prejudiced by Yellow Fin’s late production of these documents. iv. Exhibit 55 – Fieldw ood Energy LLC Receipt and Release Sustained for the reasons discussed above. v. Exhibit 56 – Kenneth Lacour Receipt and Release Sustained for the reasons discussed above. D . Ye llo w Fin ’s Obje ctio n s to Th o m p s o n ’s Exh ibits Yellow Fin has filed objections to certain exhibits offered by Thom pson. The Court resolves these objections as follows. i. Exhibits 32-46 and 48-49 – Medical Records and Bills Yellow Fin appears to object to these exhibits on the grounds that m edical expenses which have been paid by the injured plaintiff’s medical insurance are not recoverable and these bills are therefore not relevant. Yellow Fin m isunderstands the law. The collateral source rule, “bars a tortfeasor from reducing the dam ages it owes to a plaintiff by the am ount of recovery the plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor.” Johnson v. Cenac Tow ing, Inc., 544 F.3d 296, 30 4 (5th Cir. 20 0 8) (internal quotations om itted). The rule is “plainly applicable in J ones Act negligence cases.” Davis v. Odeco, Inc., 18 F.3d 1237, 1243 n.20 (5th Cir. 1994). Because Yellow Fin has m ade 8 no showing that it is the source of Thom pson’s com pensation for m edical treatm ent, Thom pson m ay recover these costs under his negligence claim . See Scotto v. Long Island R.R., No. 0 5-4757, 20 0 7 WL 894332, at *4 (S.D.N.Y. Mar. 20 , 20 0 7) (“Mr. Scotto’s m edical expenses are a portion of his claim ed dam ages, and m edical bills would seem em inently relevant to establishing the cost of his m edical expenses.”). The bills are therefore relevant, and Yellow Fin’s objections to these exhibits are overruled. ii. Exhibit 50 – Blue Cross Pay m ent Sum m ary In addition to the relevance objection rejected above, Yellow Fin objects that this exhibit contains hearsay and is unauthenticated. Thom pson provides no response, and his witness list does not appear to include anyone able to authenticate these records. Yellow Fin’s objection is therefore sustained. iii. Exhibit 51 – Excerpt from U.S. Coast Guard Report The U.S. Coast Guard report is inadm issible for the reasons described above. The objection is therefore sustained. 9 E. Co n clu s io n For the reasons described above, Thom pson’s m otion in lim ine to exclude Yellow Fin’s counterclaims is GRANTED IN PART AND DENIED IN PART. Thom pson’s m otion to exclude reference to charges filed by the U.S. Coast Guard is GRANTED to the extent it seeks to exclude m ention of the U.S. Coast Guard Report. Thom pson’s objections to Exhibits 52, 55, and 56 are SUSTAINED, and his objections to Exhibits 53 and 54 are OVERRULED. Yellow Fin’s objection to Exhibits 50 and 51 are SUSTAINED, and its objections to Exhibits 32 through 46, 48 , and 49 are OVERRULED. 26th New Orleans, Louisiana, this _ _ _ _ _ day of J uly, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 10
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