Thibodeaux v. Wellmate, No. 2:2012cv01375 - Document 177 (E.D. La. 2016)
Court Description: ORDER AND REASONS re 146 Objections filed by Pentair Water Treatment OH Company and 150 Objections filed by Joel C. Thibodeaux. Signed by Judge Susie Morgan.(bwn)
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Thibodeaux v. Wellmate Doc. 177 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEL C. TH IBOD EAU X, Plain tiff CIVIL ACTION VERSU S N O. 12 -13 75 W ELLMATE, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court are the parties’ objections to exhibits. 1 The Court has considered the parties’ respective objections and responses 2 and rules as follows: I. DEFENDANT’S OBJ ECTIONS A. Exhibits 187, 188, 190 , 192, 195– 20 2, 20 6– 216, and 219 Plaintiff has withdrawn Exhibits 187, 188, 190 , 192, 195– 20 2, 20 6– 216, and 219. Therefore, Defendant’s objections are OVERRU LED AS MOOT. B. Exhibit 18 6 Exhibit 186 contains photographs of Plaintiff’s injuries. The Court has addressed the adm issibility of the photographs contain ed in Exhibit 186 in the Court’s order on Defendant’s m otion in lim ine. 3 For the reasons set forth therein, Defendant’s objection to Exhibit 18 6 is OVERRU LED . C. Exhibit 18 9 Exhibit 18 9 is the 20 0 8 owner’s m anual for the Pro-Source Com posite water pressure tank, a different brand and m odel of water pressure tank from the subject tank 1 R. Doc. 146 (Defendant’s objection s to Plaintiff’s exhibits); R. Doc. 150 (Plaintiff’s objections to Defendant’s exhibits). 2 R. Doc. 153 (Defendant’s response to Plaintiff’s objections); R. Doc. 163 (Plaintiff’s response to Defendant’s objections). 3 R. Doc. 168 (Order); R. Doc. 128 (Defendant’s m otion in lim ine). 1 Dockets.Justia.com at issue. Chevron installed the Pro-Source Com posite tank at one of its facilities after Thibodeaux’s accident. “[N]either the text of rule 40 7 nor the policy underlying it excludes evidence of subsequent repairs m ade by som eone other than the defendant.”4 Therefore, Thibodeaux’s argum ent that the evidence of Pro-Source’s subsequent tank design is inadm issible under Rule 40 7 is unavailing. Nevertheless, “[a]ny evidence not excluded by Rule 40 7, of course, m ust still be relevant and its probative value m ust, under Rule 40 3, outweigh any dangers associated with its adm ission.”5 In the Court’s order on Defendant’s m otion in lim ine regarding subsequent rem edial m easures, 6 the Court found that evidence of the warnings and procedures im plem ented by Chevron after the accident is not relevant to whether Defen dant’s warnings were adequate “at the tim e the product left its m anufacturer’s control.”7 The Court sim ilarly finds that evidence regarding a tank m anufactured by a different com pany and installed by Chevron on one of its facilities after Plaintiff’s accident is not relevant to whether the Pentair tank at issue was unreasonably dangerous “at the tim e the product left the control of its m anufacturer.”8 The Fifth Circuit “ha[s] held in several product liability cases . . . that eviden ce of subsequent changes by third parties is properly excludable because of its tendency to ‘confuse the jury by diverting its attention from whether the product was defective at the relevant tim e [i.e., the tim e of m anufacture] to what was done later.’”9 Like the Fifth Circuit in Grenada Steel Industries, Inc. v. Alabam a 4 Grenada Steel Indus., Inc. v. Alabam a Oxy gen Co., 695 F.2d 883, 889 (5th Cir. 1983). Dixon v. Int’l Harvester Co., 754 F.2d 573, 584 (5th Cir. 1985). 6 R. Doc. 167 at 4– 5 (Order); R. Doc. 126 (Motion in lim ine). 7 LA. R EV. STAT. § 9:28 0 0 .57. 8 LA. R EV. STAT. § 9:28 0 0 .54. 9 Middleton v. Harris Press & Shear, a Subsidiary of Am . Hoist & Derrick Co., 796 F.2d 747, 752 (5th Cir. 1986) (quotin g Grenada Steel, 695 F.2d at 8 88 , 8 89). 5 2 Oxy gen Co., this Court “fail[s] to see how an alternative design, developed by another person years after the product in question was m anufactured, is relevant to whether the product was reasonably safe at the tim e it was m ade.”10 The probative value of Exhibit 18 9 is substantially outweighed by the risk of prejudice, confusing the issues, and m isleading or confusing the jury. 11 Accordingly, Defendant’s objection to Exhibit 189 is SU STAIN ED . D. Exhibits 191, 221 Exhibits 191 and 221 contain photographs of warning signs Chevron put in place after the accident at issue. The Court addressed the adm issibility of such eviden ce in its order on Defendant’s m otion in lim ine regarding subsequent rem edial m easures. 12 For the reasons stated therein, Defen dant’s objections to Exhibits 191 and 221 are SU STAIN ED . E. Exhibit 193 Exhibit 193 is a video dem onstrating the replacem ent procedure for a Pentair water tank that was designed after the m anufacture of the tank at issue but before Plaintiff’s accident. 13 The Fifth Circuit has m ade clear that Rule 40 7 does not apply to eviden ce of changes, even rem edial m easures, m ade before the accident giving rise to the litigation. “By definition, the rule excludes only post-accident rem edial m easures.”14 “The adm ission of evidence of changes m ade m erely to im prove a product, as distinguished from rem edial 10 Grenada Steel, 695 F.2d 8 83, 8 89 (5th Cir. 1983). R. E VID. 40 3. 12 R. Doc. 167 (Order); R. Doc. 126 (Motion in lim ine). 13 See R. Doc. 146 at 12; R. Doc. 163 at 9. 14 Brazos River Auth. V. GE Ionics, Inc., 469 F.3d 416, 429– 30 (5th Cir. 20 0 6). 11 F ED . 3 m easures that m ake an ‘injury or harm less likely to occur,’ is not barred by the rule.”15 The advisory com m ittee notes underscore that Rule 40 7 applies only to evidence of postaccident rem edial m easures: “Evidence of m easures taken by the defendant prior to the ‘event’ causing ‘injury or harm ’ do not fall within the exclusionary scope of Rule 40 7 even if they occurred after the m anufacture or design of the product.”16 Therefore, Rule 40 7 does not render Exhibit 193 inadm issible. Plaintiff’s counsel inform ed the Court that Plaintiff seeks to introduce Exhibit 193 only for im peachm ent purposes. Accordingly, the Court D EFERS ruling on Defendant’s objection to Exhibit 193. F. Exhibit 194 Exhibit 194 constitutes screenshot im ages taken on February 26, 20 16, of the Frequently Asked Questions portion of Wellmate’s website as it appeared on February 26, 20 16. There is no evidence to suggest that the screenshot im ages reflect Wellm ate’s website at the tim e of Plaintiff’s accident. The exhibit contains answers to questions such as “How do you check the air cell pressure?” and “Can the air cell be replaced in the WELLMATE pressure tank?” The Court finds Exhibit 194 is irrelevant because Plaintiff’s accident occurred on J uly 5, 20 11, but the im age reflects Wellm ate’s website as it was on February 26, 20 16. 17 The exhibit does not pertain to any issue in this case, in cluding whether the Wellm ate 12 tank at issue was unreasonably dangerous “at the tim e the product left its m anufacturer’s control.”18 Accordingly, Defendant’s objection to Exhibit 194 is SU S TAIN ED . 15 Id. at 428 . F ED. R. E VID. 40 7 advisory com m ittee’s note to 1997 am endm ents. 17 See F ED . R. E VID . 40 1. 18 LA. R EV. STAT. § 9:28 0 0 .57. 16 4 G. Exhibits 20 3, 20 4, 20 5, 217, 218 , and 220 Exhibits 20 3, 20 4, 20 5, 217, and 220 contain photographs of the design of tanks m anufactured after the tank at issue but before Plaintiff’s accident. 19 Exhibit 218 contains photographs, specifications, and other docum ents regarding Wellm ate tanks. Defen dant objects to Exhibit 218 only insofar as it contains docum ents that post-date J anuary 20 0 6, the date by which the parties stipulate the tank at issue was m anufactured. 20 The Court has addressed the adm issibility of evidence of Defen dant’s design changes to Wellm ate tanks after the date of m anufacture but before Plaintiff’s accident in the Court’s order on Defendant’s m otion in lim ine. 21 For the reasons stated therein, such eviden ce is not excluded under Rule 40 7. Moreover, the Court finds that such eviden ce is relevant to the m atters at issue and its probative value is not substantially outweighed by any risk of prejudice, confusing the issues, or m isleading the jury. 22 Defendant’s objections to Exhibits 20 3, 20 4, 20 5, 217, 218 , and 220 are OVERRU LED . II. P LAINTIFF ’S OBJ ECTIONS A. Exhibits 222, 223, 224 Exhibit 222 contains the accident investigation report issued by the Bureau of Safety and Environm ental Enforcem ent (“BSEE”). Exhibits 223 and 224 contain attachm ents to the BSEE report. The Court has addressed the adm issibility of Exhibits 222 and 223 in its order on Paragraph 29 of Plaintiff’s om nibus m otion in lim ine. 23 19 See R. Doc. 146 at 13; R. Doc. 163 at 10 . See R. Doc. 146 at 17; R. Doc. 114 at 7. 21 R. Doc. 167 at 3– 4 (Order); R. Doc. 126 (Motion in lim ine). 22 F ED . R. E VID . 40 3. 23 R. Doc. 67. 20 5 In part, the Court’s order on Paragraph 29 of Plaintiff’s om nibus m otion in lim ine excluded the paragraph that begins “INC G-110 is issued ‘After the Fact’ to docum ent that . . .” on Bates No. 4637 of Exhibit 222. This paragraph also appears on Bates No. 4642 of Exhibit 223. 24 During the telephone status conference on May 26, 20 16, the Court clarified that this paragraph is excluded on both Bates Nos. 4637 and 4642. The Court also clarified that the rem ainder of both Bates No. 4637 and Bates No. 4642 is not excluded. The Court clarified that Bates Nos. 4636 and 4641 are not excluded. For the reasons set forth in the Court’s order, 25 Plaintiff’s objection to Exhibit 222 with respect to Paragraphs 8, 18, 19, and 24 of the Accident Investigation Report and Paragraph 7 of the Accident/ Incident Form , as well as the paragraph on Bates No. 4637 that begins “INC G-110 is issued ‘After the Fact’ to docum ent that . . . ” is SU STAIN ED . Plaintiff’s objection to Exhibit 222 is otherwise OVERRU LED . Plaintiff’s objection to Exhibit 223 is S U STAIN ED IN PART and OVERRU LED IN PART. The Court sustains the objection to Exhibit 223 with respect to the paragraph that begins “INC G110 is issued ‘After the Fact’ to docum ent that . . .” on Bates No. 4642. Plaintiff’s objection to Exhibit 223 is otherwise overruled. Exhibit 224 details Chevron’s subsequent rem edial m easures taken after BSEE issued its investigative findings. The Court addressed the adm issibility of evidence of Chevron’s subsequent rem edial m easures in the Court’s Order on Defendant’s m otion in lim ine regarding subsequent rem edial m easures. 26 For the reasons set forth therein, Exhibit 224 is not adm issible, and Plaintiff’s objection to Exhibit 224 is SU STAIN ED . 24 See R. Doc. 171 at 8– 10 . Id. 26 See R. Doc. 167 at 4– 5. 25 6 B. Exhibit 226 Exhibit 226 is a notice to lessees and operators of federal oil and gas leases in the Outer Continental Shelf, Gulf of Mexico OCS region titled “Guidelines for Tie-downs on OCS Production Platform s for Upcom ing Hurricane Seasons.” Defendant’s counsel inform ed the Court that Defendant seeks to introduce Exhibit 193 only for im peachm ent purposes. Accordingly, the Court D EFERS ruling on Plaintiff’s objection to Exhibit 193. C. Exhibits 231, 232, and 235 Exhibit 231 contains the file for Defendant’s proffered engineering expert Thom as Proft. Defendant seeks to adm it Proft’s entire file, which contains docum ents he received, reviewed, and relied on when form ing his opinions. 27 The Court ordered that Defendant identify which portions of Exhibit 231 Defendant intends to introduce at trial and explain why those portions are adm issible under the Federal Rules of Evidence. 28 Defendant apparently intends to introduce the entirety of Exhibit 231. 29 Defendant relies on Rule 70 2 of the Federal Rules of Eviden ce and Louisiana law. Rule 70 2 gen erally governs the adm issibility of testim ony by an expert witness and does not provide a basis for adm itting the files on which an expert relies. Further, Defendant’s reliance on Louisiana law is unavailing, as the Federal Rules of Eviden ce governs the adm issibility of eviden ce. 30 Plaintiff’s objection to Exhibit 231 is SU STAIN ED . Proft m ay testify as to what files and docum ents he relied on to form his opinions, but Exhibit 231 is not adm issible. 27 R. Doc. 153 at 7. R. Doc. 169. 29 See R. Doc. 170 . 30 F ED . R. E VID . 110 1(b); Reed v. Gen . Motors Corp., 773 F.2d 660 , 663 (5th Cir. 198 5). 28 7 Exhibit 232 contains the file for Defendant’s proffered hum an factors expert Stephen Young. The Court has ruled that Young is prohibited from testifying as an expert in this m atter. 31 Plaintiff’s objection to Exhibit 232 is OVERRU LED AS MOOT. Defendant has withdrawn Exhibit 235. Therefore, Plaintiff’s objection to Exhibit 235 is OVERRU LED AS MOOT. D. Exhibits 233 and 234 Exhibits 233 and 234 are invoices from Bryan Durig to Provost Um phrey Law Firm . Durig has been withdrawn as an expert witness in this m atter and will not render expert opinions at trial. His report will not be adm itted into evidence. Durig has been redesign ated as a fact witness but will not be called to testify at trial. 32 Accordingly, invoices Durig sent to Provost Um phrey Law Firm are irrelevant and thus inadm issible. Plaintiff’s objections to Exhibits 233 and 234 are SU STAIN ED . N e w Orle a n s , Lo u is ian a, th is 2 6 th d ay o f May, 2 0 16 . __________ __ ________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 31 See 32 R. Doc. 165 at 6. See R. Doc. 118 at 4. 8
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