Howard v. Offshore Liftboats, LLC et al, No. 2:2013cv04811 - Document 760 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part Calvin Howard's 756 Motion for Reconsideration of the Court's previous rulings re 753 Order on K&K's 589 Objections to Plaintiffs' Deposition Designations of Tim Lawrence and 754 Order on OLB's 623 Objections to Deposition Excerpts of Captain Timothy Lawrence, as stated herein. Signed by Judge Susie Morgan on 1/26/2016. (Reference: All Cases) (tsf)
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Howard v. Offshore Liftboats, LLC et al Doc. 760 U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CALVIN H OW ARD , ET AL. CIVIL ACTION VERSU S N O. 13 -4 8 11 c/ w 13 -6 4 0 7 an d 14 -118 8 OFFSH ORE LIFTBOATS, LLC, ET AL. SECTION "E" ( 5) ORD ER AN D REASON S Before the Court is Plaintiff Calvin Howard’s m otion for reconsideration of the Court’s previous rulings on Defendants’ objections to Plaintiffs’ deposition designations of Captain Tim othy Lawrence. 1 BACKGROU N D The Plaintiffs originally inform ed the Court that they wished to read Captain Lawrence’s deposition to the jury during their case-in-chief. The Court found that Captain Lawrence was a m anaging agent of Offshore Liftboats, LLC (“OLB”), and thus that his deposition could be used in this m anner under Federal Rule of Evidence 32. 2 Thereafter, the Plaintiffs provided their designations of Captain Lawrence’s deposition to the Defendants, and the Defendants filed various objections to those designations. 3 The Court ruled on the Defendants’ objections on J anuary 26, 20 16. Now, the Plaintiffs intend to call Captain Lawrence as a live witness during their case-in-chief. Plaintiffs have asked the Court to re-exam ine som e its rulings in connection with the designations of Captain Lawrence’s deposition and the Defendants’ objections thereto. 1 R. Doc. 756. See R. Doc. 647 at 2– 3. 3 R. Docs. 589, 623. 2 1 Dockets.Justia.com Plaintiffs wish to ask som e questions of Captain Lawrence during his live testim ony that the Court ruled could not be read from his deposition. LAW AN D AN ALYSIS The Plaintiffs have asked the Court to revisit its rulings that Captain Lawrence m ay not testify as to his opinions about various weather conditions at the tim e of the incident, including wind speed and wave height. Plaintiffs also contend, contrary to the Court’s rulings, that Lawrence should be perm itted to opine on whether Sylvester Richardson should have been operating the crane under those weather conditions, the com m unications that should have taken place between Richardson and the other vessel, and the safety procedures that should have been followed during the personnel-basket transfer. Captain Lawrence was not designated as an expert witness. Thus, his testim ony, because it is opinion testim ony, and because Lawrence is not an expert witness, m ust be adm issible pursuant to Federal Rule of Evidence 70 1. Rule 70 1 provides: If a witness is not testifying as an expert, testim ony in the form of an opinion is lim ited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testim ony or to determ ining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 70 2. Moreover, “[a]n opinion is rationally based on perception if the opinion is the sort that a norm al person would form and ‘no irrational leaps of logic’ are required to sustain it.”4 Rule 70 1 dem ands “m ore than a finding that the witness has perceived som ething firsthand; rather, it requires that the witness’s perception provide a truly rational basis for the opinion.”5 4 Graves ex rel. W .A.G. v. Toy ota Motor Corp., No. 2:0 9cv169KS-MTP, 20 11 WL 4590 772, at *8 (S.D. Miss. Sept. 30 , 20 11) (quoting Ly nch v. City of Boston, 180 F.3d 1, 15 (1st Cir. 1999)). 5 Id. 2 As an initial m atter, Plaintiffs rely heavily on In re Antill Pipeline Construction Co. 6 In that case, the court applied Federal Rule of Evidence 70 1, noting that lay witnesses m ay only provide opinion testim ony if it is “rationally based on [their] perception[s].”7 The testim ony in that case involved the opinion of a lay witness with respect to the speed of a certain vessel. 8 The court held: “Lay witnesses who offer an opinion regarding speed m ust . . . be percipient witnesses, that is, they m ust them selves observe the object in m otion in order to be allowed to offer an opinion as to its speed.”9 Although Captain Lawrence’s proposed testim ony in the present case does not involve the speed of the involved vessels, the In re Antill Pipeline Construction Co. decision is instructive with respect to what is required for a lay witness to offer opinion testim ony pursuant to Federal Rule of Evidence 70 1. The Court has revisited its prior rulings with respect to the adm issibility of Captain Lawrence’s testim ony to determ ine if certain of his opinions are adm issible as perm issible opinion testim ony from a lay witness under Rule 70 1 and the applicable jurisprudence. I. OPINION # 1 – W IND SPEED In his deposition, Captain Lawrence testified that the wind speed at the tim e of the incident was “15 m ile[s] an hour, roughly.”10 Captain Lawrence went on to opine that 15 m iles per hour is classified as a “light” wind. 11 Wind speed is typically determ ined through the use of an anem om eter or some other device capable of gauging wind speed. If Captain Lawrence will testify that he had access to and actually consulted such a device at the time of the incident, and that is the basis of his testim ony, Captain Lawrence will be allowed to 6 Nos. 0 9– 3646, 0 9– 3646, 10 – 2633, 20 13 WL 231569 (E.D. La. J an. 22, 20 13). Id. at *1. 8 See id. 9 Id. 10 See R. Doc. 756 at 3; R. Doc. 623-1 at 12 (Deposition of Tim othy Lawrence). 11 R. Doc. 756 at 3. 3 7 offer his opinion that the wind speed was “15 m ile[s] an hour, roughly,” at the tim e of the incident, provided his testim ony satisfies Rule 70 1’s other requirem ents. With respect to the second requirem ent of Rule 70 1, the Court finds that Captain Lawrence’s testim ony as it relates to wind speed, so long as it is based on his reading of a wind m easurem ent device, is not the kind of testim ony that would require “scientific, technical, or other specialized knowledge.” Instead, Captain Lawrence’s testim ony is based on his perceptions from reading an anem om eter or other wind-speed gauge. With respect to the third requirem ent of Rule 70 1, the Court notes that Captain Lawrence’s testim ony in this regard would be helpful to the jury in determ ining certain facts in issue. Therefore, Captain Lawrence will be perm itted to testify that the wind speed was “15 m ile[s] an hour, roughly,” if Plaintiffs establish (1) that Captain Lawrence had an anem om eter—or som e other device capable of gauging wind speed—available to him at the tim e of the accident; (2) that Captain Lawrence consulted the device at the tim e of the incident; and (3) that he is testifying based on his recollection of the wind-speed reading. If, on the other hand, Captain Lawrence is m erely estim ating that the wind speed was “15 m ile[s] an hour” at the tim e of the incident, he cannot be considered a percipient witness pursuant to Rule 70 1, as his testim ony would not be based on having observed the exact wind speed. Under those circum stances, Captain Lawrence m ay not offer testim ony with respect to his opinion that the wind speed was “15 m ile[s] an hour, roughly.” Furtherm ore, Captain Lawrence m ay not testify that a wind speed of 15 m iles-perhour is considered to be a “light” wind. This term is vague, undefined, and would not be helpful to the jury. 4 II. OPINION # 2 – W AVE H EIGHT Captain Lawrence also testified in his deposition that, in his opinion, the seas were three (3) feet at the tim e of the incident. 12 Captain Lawrence further testified that he considers “3-foot” seas to be “calm .”13 The basis of Captain Lawrence’s testim ony on the wave height at the tim e of the incident is not clear. If Captain Lawrence is fam iliar with wave heights and, at the tim e of the incident, visually perceived the waves and concluded, based on his rational perceptions, that the waves were “3 foot,” Captain Lawrence will be perm itted to testify to this, provided the other requirem ents of Rule 70 1 are satisfied. In m aritim e cases, lay witnesses often are allowed t0 testify as to wave height. The Court finds that this testim ony does not require “scientific, technical, or other specialized knowledge.” Further, the Court believes such testim ony from Captain Lawrence, the captain in charge of the L/ B J anie on the night of the incident, will be helpful to the jury in understanding the conditions under which the personnel-basket transfer was attem pted. This testim ony regarding the wave height at the tim e of the incident will satisfy Rule 70 1 and be allowed, provided Plaintiffs establish (1) that Captain Lawrence is fam iliar with wave heights; and (2) that Captain Lawrence visually perceived the waves at the tim e of the incident. However, Captain Lawrence m ay not testify that the seas were “calm .” Whether the seas were “calm ” or “rough” at the tim e of the incident requires specialized, scientific knowledge. These are term s of art which are often the subject of expert testim ony. 14 12 R. Doc. 756 at 3. R. Doc. 623-1 at 16– 17 (Deposition of Tim othy Lawrence). 14 See, e.g., Collins v. Cottrell Contracting Corp., 733 F. Supp. 2d 690 , 70 1 (E.D.N.C. 20 10 ) (“The m agistrate judge found the proposed testim ony of Mr. Harned, a m eteorologist with m ore than forty years of experience, regarding wind and wave conditions at the Marion to be both reliable and relevant to whether there were ‘rough seas’ at the tim e of the accident.”); Cham pion v. Globalsantafe Drilling Co., No. 0 6-180 0 , 20 0 7 WL 20 78763, at *2 (E.D. La. J uly 13, 20 0 7); Bennett v. Gilco Supply Boat, Inc., No. 0 0 -2826, 20 0 1 WL 1426682, at *2 (E.D. La. Nov. 14, 20 0 1). In fact, the Court notes there will be expert testim ony about this very m atter from Dr. Lee Branscome, an expert m eteorologist retained by Defendants. 5 13 Furtherm ore, these term s are vague and undefined, and they will not be helpful to the jury. As a result, Captain Lawrence m ay not testify that the seas were calm , as such testim ony is outside the scope of perm issible lay-witness opinion testim ony contem plated by Federal Rule of Evidence 70 1. III. OTHER M ISCELLANEOUS OPINIONS Despite the Court’s previous rulings, Plaintiffs contend Captain Lawrence should be perm itted to offer his opinion as to (1) whether Sylvester Richardson should have been operating the crane given the weather conditions; (2) the com m unications practices that should have been em ployed during the personnel-basket transfer; and (3) the safety procedures that should have been followed during the transfer. 15 Plaintiffs essentially ask that Captain Lawrence be allowed to give lay opinion testim ony with respect to whether the personnel-basket transfer was perform ed correctly, the standard of care applicable to personnel-basket transfers, and whether the Defendants acted within that standard of care. In Barron v. BP Am erica Production Co., the Fifth Circuit confronted the issue of whether a lay witness—the owner of an offshore vessel—could testify with respect to his opinion on whether the vessel should have been operating in the Mississippi Sound under certain weather conditions, when an em ployee of the vessel was injured. 16 The Fifth Circuit held that “[d]eterm ining whether the [vessel] should have operated in the Mississippi Sound when Barron was injured requires ‘scientific, technical, or other specialized knowledge’ of boats, the Mississippi Sound, and the weather conditions of the 15 R. Doc. 756 at 1– 2. See, e.g., Barron v. BP Am . Prod. Co., 590 F. App’x 294, 297 (5th Cir. 20 14) (finding that the determ ination of whether a vessel should have operated in the Mississippi Sound under certain weather conditions “requires scientific, technical, or other specialized knowledge of boats . . . beyond what is known by the average person.”); 6 16 Gulf of Mexico beyond what is known by the average person.”17 The Fifth Circuit affirm ed the trial court’s decision to exclude the proposed testim ony, holding that the testim ony was correctly excluded as an inadm issible lay opinion. 18 The Barron decision is factually sim ilar to the present case. Captain Lawrence’s proposed testim ony concerns, in part, his opinions on (1) whether the personnel-basket transfer was perform ed correctly; (2) whether the transfer should have even been attem pted given the weather; (3) the standard of care applicable to personnel-basket transfers; and (4) whether the Defendants acted within that standard of care. As the Fifth Circuit held in Barron, issues such as this require specialized knowledge “beyond what is known by the average person.” In this case, the parties have retained experts with respect to these very issues, including David Cole, 19 Robert Watson, 20 J ack Madeley, 21 and Mitchell Stoller. 22 Therefore, opinion testim ony from Captain Lawrence on these issues is not warranted. IV. ADDITIONAL CONSIDERATIONS: SPECULATIVE TESTIMONY The Court also is aware that, when exam ining Captain Lawrence, Plaintiffs wish to ask him various speculative, hypothetical questions. For exam ple, during Captain Lawrence’s deposition, he was asked questions such as: 17 Id. Id. 19 As stated in the Pretrial Order, Robert Watson—Plaintiffs’ liability expert—is a “retired coast guard com m ander and form er coast guard m arine accident investigator who will testify per his report and deposition with regard to the safety issues, policies, procedures, regulations and facts and circum stances as set forth in the evidence concerning the negligence and unseaworthiness of Defendants em ployees involved in the failed personnel transfer.” R. Doc. 757 at 88. 20 Robert Watson is an expert in crane safety, crane operations, crane inspection, and the training of riggers and operators. R. Doc. 757 at 10 3. 21 J ack Madeley is an expert witness on liability for the Plaintiffs. R. Doc. 757 at 88 – 89. Madeley is a “professional engineer who will opine on failings of the crane operator, deck signalm an and overall negligence and unseaworthiness of the crews of the two vessels involved in the failed personnel transfer which is the subject of this case.” R. Doc. 757 at 89. 22 Mitchell Stoller is another liability expert retained by Plaintiffs who will testify “regarding the cause of the accident, the standards of care and violations of the standards of care by the Defendants, negligence of the Defendant’s and seaworthiness of the vessel.”R. Doc. 757 at 10 2. 7 18 • • “Had the seas been rough you wouldn’t have put Sylvester Richardson in the crane on May 16th, right?” “[I]f the seas were rough on May 16, 20 13, the safest thing to do and the right thing to do in your opinion, as the captain, would have been to put a m ore experienced crane operator in the crane, right?” Such questions are intended to do nothing m ore than have Captain Lawrence speculate on different aspects of the incident-in-question and how the incident could have been prevented. “[A] lay opinion witness m ay not testify based on speculation.”23 “[A] lay witness’s opinion testim ony which constitutes speculation as to what m ight have been done or what m ight have occurred is not based on his first-hand perception of actual events, and thus does not satisfy the requirem ents” of Federal Rule of Evidence 70 1. 24 As a result, the Plaintiffs will not be perm itted to ask questions requiring Captain Lawrence to offer speculative testim ony. Captain Lawrence m ay not speculate or give his opinion with respect to how his actions, or the actions of other individuals involved in the incident, would have been different under different factual scenarios. CON CLU SION IT IS SO ORD ERED that Plaintiffs’ m otion for reconsideration of the Court’s rulings on the Defendants’ objections to Plaintiffs’ designations of Captain Lawrence’s deposition be and hereby is GRAN TED IN PART and D EN IED IN PART. N e w Orle an s , Lo u is ian a, th is 2 6 th d ay o f Jan u ary, 2 0 16 . ______________ ________ ________ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 23 United States v. Lloy d, 80 7 F.3d 1128, 1154 (9th Cir. 20 15) (quoting United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 20 14)) (internal quotation m arks om itted). Federal Rule of Evidence 70 1 “does not perm it speculation by lay witnesses.” Davis v. Brow n & Root Int’l, Inc., No. 91-1214, 1994 WL 340 45, at *2 (E.D. La. J an. 28, 1994). “Under the Federal Rules of Evidence, speculative opinion testim ony by lay witnesses— i.e., testim ony not based upon the witness’s perception—is generally considered inadm issible.” W ashington v. Dep’t of Transp., 8 F.3d 296, 30 0 (5th Cir. 1993) (F ED. R. E VID. 70 1). 24 Phillips v. Duane Morris, LLP, No. 13-cv-0 110 5-REB-MJ W, 20 15 WL 72336, at *2 (D. Colo. J an. 5, 20 15). 8
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