Howard v. Offshore Liftboats, LLC et al, No. 2:2013cv04811 - Document 798 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 345 Motion in Limine to Exclude the Proposed Testimony of Dr. John Thompson. Signed by Judge Susie Morgan. (Reference: all cases)(bwn)
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Howard v. Offshore Liftboats, LLC et al Doc. 798 U N ITED S TATES 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 REAS ON S Before the Court is m otion in lim ine to lim it or exclude the proposed expert testim ony of Dr. J ohn Thom pson. 1 Dr. Thom pson is an expert psychiatrist retained by the K&K Defen dants 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 Conten der was owned and/ or operated by K&K Offshore, LLC. 7 As a result of the accident, both 1 R. Doc. 345. 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 Com pany; Un ited States Fire In surance Com pany; Lloyds Underwriters; and Torus Insurance Com pany (UK), Lim ited. They are referred to herein, collectively, as “the K&K Defendants.” 3 See R. Docs. 345, 375, 383. 4 R. Docs. 375, 383. 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 eviden ce 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 prin ciples 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 opin ion m ust show by a preponderance of the eviden ce that the expert’s testim ony satisfies Rule 70 2. 9 Courts, as “gatekeepers,” are tasked with m aking a prelim inary assessm en t 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 in ations. 11 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the eviden ce 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 eviden ce.”13 The Court is not concerned with whether the opinion is correct, but whether the preponderan ce of the eviden ce 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., 28 8 F.3d 239, 243– 44 (citin g 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. N at’l Am . Ins. Co., 38 2 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 eviden ce.”15 D ISCU SSION First, Plaintiffs challenge Dr. Thom pson’s qualifications, generally, as well as the m ethodology he em ployed in concluding that Calvin Howard is m alingering. 16 Plaintiffs contend Dr. Thom pson failed to “develop and proffer his own opinions” and in stead “choose to parrot the opinion of Dr. Kevin Greve,” which “triggers concerns about Dr. Thom pson’s qualifications and the reliability of his m ethodology.”17 Plaintiffs note, specifically, that “Dr. Thom pson placed wholesale reliance on Dr. Greve’s report to form his opinion.”18 As a result, Plaintiffs contend “Dr. Thom pson’s proposed testim ony about m alingering should be excluded because it is not an indepen dent opinion he form ed from exam ining the facts or data detailing Dr. Greve’s m ethodology.”19 Federal Rule of Eviden ce 70 3 provides: “An expert m ay base an opin ion on facts or data in the case that the expert has been m ade aware of or personally observed.”20 Courts have held, under Rule 70 3, that an expert m ay “rely on inform ation supplied by another expert witness.”21 “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.”22 “[W]hen 14 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). Prim rose, 38 2 F.3d at 562. 16 R. Doc. 345-1 at 10 . 17 R. Doc. 345-1 at 13. 18 R. Doc. 345-1 at 14. 19 R. Doc. 345-1 at 13. 20 F ED . R. E VID . 70 3. 21 N at’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) (quotin g 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., 8 66 F. Supp. 10 86, 10 95 (N.D. Ill. 1994)). See also Vien ne 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). 22 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 som eone else)). See also Bonds v. Padlock, No. 0 6-7830 , 20 0 8 WL 48 89794, at *3– 4 (E.D. La. Nov. 10 , 20 0 8). 3 15 an expert relies on the opinion of another, such reliance goes to the weight, not the adm issibility of the expert’s opinion.”23 The Court has inform ed the parties that Dr. Greve will be allowed to testify with respect to the report he rendered. Therefore, the abovelisted critiques of Dr. Thom pson’s opinions should be addressed, not via m otion in lim ine, but on cross-exam in ation in light of the factual record developed at trial. Second, Plaintiffs argue Dr. Thom pson’s proposed testim ony with respect to m alingering should be excluded because it “does not assist the jury and, on the contrary, invades the jury’s exclusive province of m aking credibility determ in ations.”24 The Court disagrees. As recognized by the Defendants, several courts in this district have allowed experts to testify with respect to m alingering and whether a certain in dividual was, or was not, m alingering. 25 This Court likewise finds that such testim ony on m alingering from Dr. Thom pson will not invade the province of the jury but would be helpful in m aking factual determ inations with respect to Calvin Howard’s past, present, and future m edical condition. Third, Plaintiffs contend “Dr. Thom pson’s opinion that Calvin Howard is m alingering is not based on sufficient facts or data so as to be reliable.”26 In support, Plaintiffs note that “Dr. Thom pson’s deposition testim ony revealed that he had not reviewed a substantial am ount of critical inform ation relating to Calvin Howard’s m edical treatm ent.”27 The Defen dants, in response, point to Dr. Thom pson’s deposition testim ony that he felt Calvin’s treating physicians produced reports which, without m ore, enabled 23 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) (quotin g Ferrara & DiMercurio v. St. Paul Mercury In s. Co., 240 F.3d 1, 9 (1st Cir. 20 0 1)). 24 R. Doc. 345-1 at 18 . 25 See R. Doc. 375 at 12 (citing Bonds v. Padlock, No. 0 6-7830 , 20 0 8 WL 48 89794 (E.D. La. Nov. 10 , 20 0 8); Guilbeau v. W .W . Hen ry Co., 85 F.3d 1149 (5th Cir. 1996); Tate v. Zapata Gulf Marine Corp., No. 93-5, 1993 WL 379561 (E.D. La. Sept. 13, 1993); Araujo v. Treasure Chest Casino, LLC, No. 97-30 43, 1999 WL 219771 (E.D. La. Apr. 14, 1999)). 26 R. Doc. 345-1 at 19. 27 R. Doc. 345-1 at 19. 4 him to understand their opinions. 28 Furtherm ore, Dr. Thom pson’s expert report reveals he relied on a substantial num ber of m edical records, depositions, and other docum ents in form ing his opinions. 29 Whether Dr. Thom pson relied on adequate inform ation goes to the weight to be assigned his testim ony, as it involves the bases an d sources upon which Dr. Thom pson relied in reaching his conclusions in this case. This is a m atter appropriately dealt with on cross-exam ination at trial. Fourth, Plaintiffs contend Dr. Thom pson’s testim ony would be cum ulative of the testim ony to be offered by Dr. Greve. 30 Plaintiffs argue that “[a]llowing m ultiple experts to provide a shared opinion on the sam e subject is unduly cum ulative, repetitive, an d a waste of the Court’s tim e, as no new inform ation will be presented to the jury.”31 In sum , Plaintiffs contend the “Defendants have no justification for calling two experts to echo one another’s opinions,” and that such cum ulative testim ony should be excluded under Federal Rule of Eviden ce 40 3. 32 In response, the Defendants note that Dr. Thom pson is an expert psychiatrist, while Dr. Greve is an expert neuropsychologist. 33 Thus, Defendants m aintain that Drs. Thom pson and Greve are “involved in different m edical 28 See R. Doc. 375 at 13; R. Doc. 375-1. However, the Defendants failed to attach the relevant portion of Dr. Thom pson’s deposition. The Defendants did attach certain pages of Dr. Thom pson’s deposition, but the attached pages are not those which the Defendants refer to in their opposition m em orandum . R. Doc. 375 at 13; R. Doc. 375-1. 29 See R. Doc. 375-3 at 2 (Expert Report of Dr. J ohn Thom pson). Dr. Thom pson’s expert report states he relied on inform ation from : (1) Acadian Am bulance; (2) Christus St. Elizabeth Hospital; (3) River Parishes Hospital; (4) UT Physician s – Zoran Cupic, MD; (5) Brignac Physical Therapy – Chantel Brignac, PT; (6) Mem orial MRI & Diagnostic; (7) A. David Axelrad, MD & Associates, PA; (8) Ralph Lilly, MD – Neurology of Acquired Brain Injury; (9) Larry Pollock, PhD – Project Reentry – Brain Injury Rehabilitation Program s; (10 ) Mem orial Herm ann Radiology; (11) Christopher Cenac, MD; (12) SBS – Southern Brain and Spin e – Everett Robert, MD; (13) University General Hospital; (14) Touchstone Neurorecovery Center; (15) Pharm acy Records; (16) Rodney Isom , PhD; (17) US Coast Guard Report of Marine Accident; (18) Offshore Liftboats, LLC Vessel Accident Report; (19) K&K Offshore, LLC – Incident Report; (20 ) Pin nacle Engineerin g, Inc. – Report of Injury; (21) J efferson Neurobehavioral Group – Kevin Greve, PhD; (21a) Statem ents by Captain and coworkers the date of the in cident; (21b) Dr. Shelley Savant; (21c) Dr. Gorm an; (22) Deposition of Calvin H oward. See R. Doc. 375-3 at 2 (Expert Report of Dr. J ohn Thom pson). 30 R. Doc. 345-1 at 21. 31 R. Doc. 345-1 at 21. 32 R. Doc. 345-1 at 21– 22. 33 R. Doc. 375 at 13. 5 disciplines,” and will testify with respect to different aspects of Calvin Howard’s psychological condition and treatm ent. 34 The Court agrees with the Defendants and finds the testim ony would not be cum ulative. CON CLU SION For the foregoing reasons, IT IS ORD ERED that the Plaintiffs’ m otion in lim ine 35 to exclude the proposed testim ony of Dr. J ohn Thom pson be and hereby is D EN IED . N e w Orle a n s , Lo u is ian a, th is 5th d ay o f Fe bru ary, 2 0 16 . _________ _ _______ __ _______ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 34 Moreover, OLB represents that it “does not intend to offer duplicative testim ony from Dr. Thom pson and Dr. Greve.” R. Doc. 383 at 6. 35 R. Docs. 345. 6
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