Howard v. Offshore Liftboats, LLC et al, No. 2:2013cv04811 - Document 785 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying Calvin Howard's 344 Motion in Limine Strike and/or Limit Opinions and Tesimony of Carla D. Seyler, as stated herein. Signed by Judge Susie Morgan on 2/2/2016. (Reference: All Cases) (tsf) (Main Document 785 replaced on 2/2/2016 to correct footnote 25-3) (tsf).
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Howard v. Offshore Liftboats, LLC et al Doc. 785 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 m otion in lim ine to lim it or exclude the proposed expert testim ony of Carla Seyler. 1 Seyler is a vocational rehabilitation expert retained by the K&K Defendants 2 and Offshore Liftboats, LLC (“OLB”) (collectively, “Defendants”). 3 The K&K Defendants and OLB oppose Plaintiffs’ m otion in lim ine. 4 The Court has considered the briefs, the record, and the applicable law, and now issues its ruling. For the reasons that follow, the m otion is D EN IED . BACKGROU N D This is a m aritim e personal injury case. It is undisputed that, on May 16, 20 13, Plaintiffs Raym ond Howard (“Raym ond”) and Calvin Howard (“Calvin”) were injured during a personnel-basket transfer from the M/ V Contender to the deck of the L/ B J anie. 5 At the tim e of the accident, both Raym ond and Calvin were em ployed by Offshore Liftboats, LLC (“OLB”), the owner and/ or operator of the L/ B J anie. 6 The M/ V Contender was owned and/ or operated by K&K Offshore, LLC. 7 As a result of the accident, both 1 R. Doc. 344. The K&K Defendants consist of K&K Offshore, LLC, and its m any insurers—P&M Marine, LLC; Atlantic Specialty Insurance Com pany; Markel Am erican Insurance Com pany; ProCentury Insurance Com pany; Navigators Insurance Company; United States Fire Insurance Company; Lloyds Underwriters; and Torus Insurance Com pany (UK), Lim ited. They are referred to herein, collectively, as “the K&K Defendants.” 3 R. Doc. 344. 4 R. Docs. 366, 367. 5 See R. Doc. 321. 6 See generally R. Doc. 321. 7 See generally R. Doc. 321. 1 2 Dockets.Justia.com Raym ond and Calvin filed suit against OLB—their J ones Act em ployer—and K&K Offshore, am ong others. LEGAL STAN D ARD The Federal Rules of Evidence perm it an expert witness with “scientific, technical or other specialized knowledge” to testify if such testim ony “will help the trier of fact to understand the evidence or to determ ine a fact in issue,” so long as “the testim ony is based upon sufficient facts or data,” “the testim ony is the product of reliable principles and m ethods,” and “the expert has reliably applied the principles and m ethods to the facts of the case.”8 The party offering the expert opinion m ust show by a preponderance of the evidence that the expert’s testim ony satisfies Rule 70 2. 9 Courts, as “gatekeepers,” are tasked with m aking a prelim inary assessm ent whether expert testim ony is both reliable and relevant. 10 The district court is offered broad latitude in m aking such expert testim ony determ inations. 11 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the evidence rather than its adm issibility, and should be left for the finder of fact. 12 Thus, “[v]igorous cross-exam ination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible evidence.”13 The Court is not concerned with whether the opinion is correct, but whether the preponderance of the evidence establishes that the 8 F ED. R. E VID. 70 2. Mathis v. Exxon Corp., 30 2 F.3d 448, 459– 60 (5th Cir. 20 0 2). 10 See Pipitone v. Biom atrix, Inc., 288 F.3d 239, 243– 44 (citing Daubert v. Merrell Dow Pharm ., Inc., 50 9 U.S. 579, 592– 93 (1993)). 11 Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 151– 53 (1999). 12 See Prim rose Operating Co. v. Nat’l Am . Ins. Co., 382 F.3d 546, 562 (5th Cir. 20 0 4). 13 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 2 9 opinion is reliable. 14 “It is the role of the adversarial system , not the court, to highlight weak evidence.”15 D ISCU SSION First, Plaintiffs challenge the m anner in which Seyler form ulated her opinions, as well as the bases underlying her findings and opinions. 16 According to Plaintiffs, Seyler relied “too heavily” on the opinions of other defense experts—in particular, Dr. Kevin Greve—“without independently evaluating or verifying their opinions.”17 Moreover, Plaintiffs contend Seyler, in relying solely on defense experts, failed to afford the proper weight to Plaintiffs’ treating physicians. 18 Courts have held, however, that an expert m ay “rely on inform ation supplied by another expert witness.”19 “An expert can [even] rely upon otherwise inadm issible evidence as long as it is of a type reasonably relied upon by experts in the particular field.”20 “[W]hen an expert relies on the opinion of another, such reliance goes to the weight, not the adm issibility of the expert’s opinion.”21 Therefore, the above-listed critiques of Seyler and Seyler’s opinions should be addressed, not via m otion in lim ine, but on cross-exam ination in light of the factual record developed at trial. Sim ilarly, Plaintiffs also argue that Seyler, in form ing her opinions, relied on “incom plete or otherwise inadequate records.”22 According to Plaintiffs, Seyler “reviewed 14 See Johnson v. Arkem a, Inc., 685 F.3d 452, 459 (5th Cir. 20 12). Prim rose, 382 F.3d at 562. 16 R. Doc. 344-1 at 6– 8. 17 R. Doc. 344-1 at 13– 14. 18 R. Doc. 344-1 at 14. 19 Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Sm ith Tank & Steel, Inc., No. 3:11-CV-0 0 830 , 20 14 WL 5794952, at *4 (M.D. La. Nov. 6, 20 14) (quoting BP Exploration & Prod., Inc. v. Callidus Tech., L.L.C., No. 0 2-2318, 20 0 3 WL 261180 97, at *2 (E.D. La. Apr. 8, 20 0 3)) (internal quotation m arks om itted) (citing Janopoulos v. Harvey L. W alner & Assocs., Ltd., 866 F. Supp. 10 86, 10 95 (N.D. Ill. 1994)). See also Vienne v. Am . Honda Motor Co., No. 99-3716, 20 0 1 WL 83260 , at *2– 3 (E.D. La. J an 26, 20 0 1). 20 Sm ith Tank & Steel, 20 14 WL 5794952, at *4 (citing F ED . R. E VID . 70 3; Monsanto Co. v. David, 516 F.3d 10 0 9, 10 15– 16 (5th Cir. 20 0 8) (finding an expert could rely upon a report prepared by someone else)). See also Bonds v. Padlock, No. 0 6-7830 , 20 0 8 WL 4889794, at *3– 4 (E.D. La. Nov. 10 , 20 0 8). 21 Cedar Ridge, LLC v. Landm ark Am . Ins. Co., No. 13-672, 20 14 WL 722219, at *3 (E.D. La. Feb. 21, 20 14) (quoting Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 9 (1st Cir. 20 0 1)). 22 R. Doc. 344-1 at 16. 3 15 only two depositions in this case” and ignored other m edical records and deposition testim ony available to her. 23 Plaintiffs cite Federal Rule of Evidence 70 2(b), which requires expert testim ony to be “based on sufficient facts or data,” in support of their argum ent that Seyler’s opinions are based on incom plete and inadequate inform ation. 24 The record is clear, however, that Seyler independently reviewed various m edical records and reached conclusions based upon her review of those records, her education, and her experience. 25 Moreover, whether Seyler relied on adequate inform ation goes to the weight to be assigned her testim ony, as it involves the bases and sources upon which Seyler relied in reaching her conclusions in this case. This is a m atter appropriately dealt with on crossexam ination at trial. Second, Plaintiffs contend Seyler was not designated as an expert who would prepare a rebuttal life care plan. 26 Plaintiffs argue Seyler, nevertheless, created a life-care plan in response to the life-care plan prepared by Plaintiffs’ experts, Drs. Savant and Gorm an. 27 In so doing, according to Plaintiffs, Seyler did not give “proper weight to the diagnoses and recom m endations of Calvin Howard’s treating physicians,” as Drs. Savant and Gorm an did, but relied “exclusively on Dr. Greve to suggest that Calvin Howard’s 23 R. Doc. 344-1 at 16. R. Doc. 344-1 at 17– 18. 25 R. Doc. 366 at 7; R. Doc. 367 at 6. See also R. Doc. 344-7 (Expert Report of Carla Seyler). Seyler states in her expert report that she relied on: (1) Deposition of Calvin J . Howard, J r.; (2) Deposition of Zoran Cupic, MD; (3) Report of Cornelius E. Gorm an, PhD; (4) Report of Shelly N. Savant, MD; (5) Report of Rodney Isom , PhD, CRC; (6) Report of Acadian Am bulance Service; (7) Medical records of Christus St. Elizabeth Hospital; (8) Medical records of River Parishes Hospital; (9) Medical reports of Zoran Cupic, MD; (10 ) Medical reports of Ralph B. Lilly, MD; (11) Medical reports of Larry Pollock, MD; (12) Medical report of A. David Axelrad, MD; (13) Medical report of Christopher E. Cenac, Sr., MD; (14) Medical report of Everett G. Robert, MD; (15) Medical records of University General Hospital; (16) Records of Memorial Herm ann Im aging; (17) Records of Brignac Physical Therapy; (18) Medical records of Mem orial MRI & Diagnostic; (19) Medical records of Mem orial Herm an-Texas Medical Center; (20 ) Records of CVS Pharm acy; (21) Records of Durham Pharm acy Mem orial; (22) Records of Dream Pharm acy; (23) Personnel records of Offshore Liftboats, LLC; (24) Records of Touchstone Neurorecovery Center. R. Doc. 344-7 at 2– 3 (Expert Report of Carla Seyler). Seyler “also consulted with Dr. Kevin Greve, PhD and Dr. Chris Cenac, M.D. regarding Mr. Howard’s future needs and restrictions/ functional capabilities.” R. Doc. 344-7 at 3. 26 R. Doc. 344-1 at 20 . See also R. Doc. 344-5 at 3– 4. 27 R. Doc. 344-1 at 17– 18. 4 24 traum atic brain injury requires only one m onth of speech therapy.”28 In contrast to Seyler’s life-care plan, Drs. Savant and Gorm an concluded Calvin “will require lifetime physical therapy as well as lifetim e occupational therapy and cognitive rem ediation therapy for a period of at least two years.”29 Based on the foregoing, Plaintiffs contend Seyler prepared a rebuttal, or alternative, life-care plan to the plan prepared by Drs. Savant and Gorm an. Because Seyler was not designated as an expert who would prepare such a plan, Plaintiffs contend Seyler’s report “should not be presented to the jury.”30 The Court disagrees. Seyler was properly designated as a vocational rehabilitation expert, or an expert life-care planner, who would offer testim ony regarding Calvin’s future m edical needs. 31 Plaintiffs were on notice that Seyler would offer such testim ony. CON CLU SION For the foregoing reasons, IT IS ORD ERED that the Plaintiffs’ m otion in lim ine 32 to exclude Carla Seyler be and hereby is D EN IED . N e w Orle an s , Lo u is ian a, th is 2 n d d ay o f Fe bru ary, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 28 R. Doc. 344-1 at 21– 22. R. Doc. 344-1 at 22. 30 R. Doc. 344-1 at 23. 31 R. Doc. 366-4 at 2– 3 (OLB’s Expert Designation). 32 R. Docs. 344. 29 5
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