Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1989)

MEMORANDUM^* 

Plaintiff Robert Romero appeals the jury's verdict against him on claims of negligence and unseaworthiness. Romero argues that the district court erred in excluding one of his expert witnesses, his photographs of the accident site, and his sample mooring line. We affirm.

* Romero was employed by defendant, Phoenix Marine Services, Inc. ("Phoenix") as a deck hand on a fuel barge. Romero claims that on January 4, 1988, he injured his right shoulder while throwing a mooring line from the barge to a dock. He filed suit against Phoenix for negligence and for the unseaworthiness of the barge. The purported negligence was the failure to provide shoreside line handlers and heaving lines¹  aboard the barge. Romero also alleged the barge was unseaworthy for want of heaving lines. Phoenix denied these allegations.

After a jury trial, a judgment was entered on March 23, 1989 in favor of Phoenix. The jury found that Phoenix had not been negligent. It also found that although the barge was unseaworthy, that unseaworthiness was not a proximate cause of Romero's injury. Romero filed a timely notice of appeal on April 13, 1989.

II

Romero argues that the district court erred in granting Phoenix's motion to exclude Captain Robert Bonner's testimony as an expert witness. This argument lacks merit.

Under the Local Rules of the Central District of California, twenty-one days before the pretrial conference date Romero was required to serve and file a list of witnesses that were to be called at trial twenty-one days before the pretrial conference date. See Rules 9.5 and 9.6. He failed to meet this requirement by serving and filing his list over two weeks late. Romero also failed to comply with Local Rule 9.4.6 which requires service of a "short narrative statement of the qualifications of the expert and the testimony expected to be elicited at trial."

Local Rule 9.6 provides that "except for good cause shown, the testimony of any such expert proffered at trial who is not listed upon a party's witness list shall be precluded." Additionally, Local Rule 7.9 provides that "papers not timely filed by a party including any memorandum or other papers required to be filed under this rule will not be considered...." Moreover, we have held that " [t]he district court may, in its discretion, exclude expert witnesses not disclosed in pre-trial as required by local rules." Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1382 (9th Cir. 1984); accord, Miller v. Fairchild Indus., Inc., 876 F.2d 718, 731 (9th Cir. 1989). In fact, in both Sealy and Miller we affirmed the district court's decision to exclude an expert's testimony where a party failed to satisfy Local Rule 9.4.6's requirement of an exchange of a short narrative statement of the testimony expected to be elicited at trial.

Romero has offered no justification for his failure to comply with Local Rules 9.4.6, 9.5 and 9.6. Although Phoenix had notice of Captain Bonner's involvement in the case, it had no forewarning that he would actually be called as an expert, of what type of expert he would be presented as, of what his qualifications are to be used as such an expert, and most importantly, of the substance of his testimony. Consequently, the district court did not abuse its discretion in excluding Captain Bonner's use as an expert witness.² 

III

Romero also argues that the district court erred in excluding his photographs of the accident site from admission into evidence. This argument also fails.

We review the district court's decision to exclude evidence for an abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 847 (1981). Here, the photographs offered into evidence were of a different barge which had completed mooring at the dock in question and was in the process of receiving fuel. Although the court expressed its satisfaction with the similarity between the barge in the photographs and that on which Romero worked, it nevertheless excluded the photographs because of the "tremendous differences in exhibit 5 as to what is the described situation between the relative positions of the barge in the pictures and that described in this incident...."

At the time of the incident in question, the barge was approaching the dock at an angle while in the process of mooring. In the photographs, however, a different barge was completely moored alongside the dock and was receiving fuel through bunker hoses running from the barge to the pier. The district court determined that these differences were significant and distorted the scene to the extent that the photographs should be excluded. Additionally, there was already substantial testimony regarding the description of the dock at the time of the incident. Under these circumstances, the district court did not abuse its discretion in excluding the photographs.

IV

Finally, Romero argues that the district court erred in excluding his sample mooring line from admission into evidence. He contends that the weight and awkwardness of the mooring line were relevant to the need for a heaving line, a key liability issue in the case, and that he had established an adequate foundation for admitting the sample into evidence.

In attempting to lay a foundation for the admission of the sample mooring line, Romero asked Clifford Johnson, tankerman on the barge at the time of the alleged accident, if the sample was similar to the mooring line used on the barge at the time in question. Johnson replied, "They're similar. We have different types of lines, but that would be a general type of line." However, the court held that this was insufficient foundation to admit the sample:

As to the mooring line, exhibit no. 1, there is no foundation laid to assume that that is the type of mooring line that was on the barge. There are various types and pursuant to the plaintiff's own testimony there are various weights.

Further, there was already substantial testimony regarding the description of the mooring line actually used at the time of the alleged incident. Under these circumstances, the district court did not abuse its discretion in excluding the sample mooring line.

V

We have carefully and severally considered Romero's assignments of error and we have sustained the district court's decision on each of the disputed issues. In doing so, we have given the required deference to the exercise of discretion by an experienced district court judge. If we were permitted to exercise our discretion concerning some of the evidentiary questions presented, we may have been less restrictive in our rulings than the district court. The judgment entered on the jury verdict is

AFFIRMED.