Dauzat v. Weeks Marine, Inc. et al, No. 2:2014cv03008 - Document 80 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 56 Motion in Limine to Exclude Any Evidence of Subsequent Remedial Measures. Signed by Judge Susie Morgan on 6/7/2016. (bwn)
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Dauzat v. Weeks Marine, Inc. et al Doc. 80 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MARVIN D AU ZAT, Pla in tiff CIVIL ACTION VERSU S N o . 14 -3 0 0 8 W EEKS MARIN E, IN C., e t al., D e fe n d an ts SECTION “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is Defendants’ m otion in lim ine to exclude any evidence of subsequent rem edial m easures. 1 BACKGROU N D This is a m aritim e personal injury case. Plaintiff Marvin Dauzat (“Dauzat”) alleges that on August 14, 20 14, he was hired by Defendant Atlantic Sounding Co., In c. (“Atlantic”) as an oiler and m em ber of the crew of the cutter dredge G.D. MORGAN, which was owned by Weeks Marine, Inc. (“Weeks”). 2 Dauzat alleges that on August 28, 20 14, while in the course an d scope of his em ploym ent and service on the G.D. MORGAN, he slipped while descen ding a stairwell aboard the G.D. MORGAN. 3 Dauzat alleges he injured his leg, back, and hip as a result of the fall. 4 On Decem ber 31, 20 14, Dauzat brought suit against Weeks, Atlantic, 5 and the G.D. MORGAN (collectively, “Defendants”). Dauzat brings claim s for unseaworthiness, 1 R. Doc. 56. R. Doc. 19 at ¶¶ 4– 5; R. Doc. 24 at ¶¶ 4– 5. 3 R. Doc. 19 at ¶¶ 8 – 12. 4 Id. at ¶ 12. 5 Atlantic was nam ed as a defendant in the First Am ended Com plaint. Id. at ¶ 4(B). 2 1 Dockets.Justia.com negligence, and vessel negligence under the general m aritim e law, and alleges he has not received the m aintenance and cure to which he is entitled. 6 On May 4, 20 16, Defendants filed a m otion in lim ine to exclude eviden ce of subsequent rem edial m easures. 7 Dauzat filed an opposition on May 23, 20 16. 8 On J une 6, 20 16, Defendants filed an objection to any depositions or exhibits to the extent they relate to Defendants’ m otion in lim ine. 9 LAW AN D AN ALYSIS Defendants state in their m otion that after Dauzat’s alleged August 28, 20 14, accident, “the stairway was m odified by adding additional grating over the area where Plaintiff alleges his accident occurred.”10 Defendants argue this is a subsequent rem edial m easure an d that evidence thereof is barred under Rule 40 7 of the Federal Rules of Evidence. Rule 40 7 governs the adm issibility of eviden ce of subsequent rem edial m easures: When m easures are taken that would have m ade an earlier injury or harm less likely to occur, evidence of the subsequent m easures is not adm issible to prove: • • • • negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. But the court m ay adm it this evidence for another purpose, such as im peachm ent or—if disputed—proving ownership, control, or the feasibility of precautionary m easures. 11 6 Id. at ¶¶ 18– 23. R. Doc. 56. 8 R. Doc. 68. 9 R. Doc. 73. 10 R. Doc. 56-1 at 2. 11 F ED . R. E VID . 40 7. 7 2 The goal underlying Rule 40 7 is to “encourag[e] people to take, or at least not [to discourage] them from taking, steps in furtherance of added safety.”12 “The rule also seeks to ensure that negligence is properly determ ined according to what the defendant knew or should have known prior to the accident, not what the defendant knew as a result of the accident.”13 Courts recognize, however, “that evidence of a subsequent rem edial m easure is adm issible when the post-accident change is taken by a third party or m ade pursuant to a m an datory regulatory regim e.”14 Dauzat argues Rule 40 7 is inapplicable to evidence of the additional grating because the grating was added “at the request of Stephen Bienkowski, a third-party safety m an” aboard the GD MORGAN during the Corps of Engin eers dredging work. 15 Bienkowski testified in his deposition that he asked the captain of the GD MORGAN, J am es Bullock, to install the additional grating for safety purposes. 16 In Thornton v. Diam ond Offshore Drilling, Inc., another section of this court considered a sim ilar argum ent. 17 The plaintiff in Thornton argued that Rule 40 7 did not apply to evidence of the defendant’s subsequent rem edial m easures because the plaintiff changed its product only at a third-party’s insistence. 18 The court found the eviden ce in 12 F ED. R. E VID. 40 7 advisory com m ittee’s note to 1972 proposed rule. See also Adam s v. Chevron USA, Inc., 383 F. App’x 447, 452 (5th Cir. 20 10 ). 13 Adam s, 383 F. App’x at 452 (internal quotation m arks om itted). 14 Thornton v. Diam ond Offshore Drilling, Inc., No.0 7-1839, 20 0 8 WL 2315845, at *7 (E.D. La. May 19, 20 0 8) (Vance, J .). See also Grenada Steel Indus., Inc. v. Alabam a Oxy gen Co., 695 F.2d 8 83, 8 89 (5th Cir. 1983) (“[N]either the text of rule 40 7 nor the policy un derlying it excludes evidence of subsequent repairs m ade by som eon e other than the defendant.”). 15 R. Doc. 68 at 1, 3. 16 R. Doc. 68-1 at 2 (“Q. Now, did you ask the Captain to put, you know, som e gratin g down there? A. Based on m y evaluation of what I saw there, there was—yeah, possibly we could—we could im prove that a little bit and add a little m ore gratin g.”). 17 Thornton, 20 0 8 WL 23158 45, at *7. 18 Id. 3 support of the plaintiff’s argum ent was “weak,” noting that, “[u]nlike the cases that have recognized the superior authority exception, this case does not involve a regulatory change or investigative report prepared by a governm ent authority.”19 The plaintiff principally relied on a statem ent of the defendant’s safety supervisor, who said that the third-party’s representative was “real adam ant about changing” the product at issue. 20 The court explain ed that, without evidence of the third party’s authority over the defendant or threats of sanctions or penalties from the third party, the court could not conclude that the defendant “m ade the change only as a result of a directive from a higher authority.”21 Sim ilarly, Dauzat has not presented evidence that Bienkowski had any authority over Weeks, Atlantic, the GD MORGAN, or Captain Bullock. Merely showing that Defendants im plem en ted a subsequent rem edial m easure at the suggestion of a third party is insufficient to establish the third-party exception to Rule 40 7. The Court finds Rule 40 7 ren ders the evidence of Defendants’ subsequent rem edial m easure in adm issible to prove negligence, culpable conduct, or the need for a warning or instruction. 22 Dauzat also argues that m otions in lim ine are “unnecessary in judge-tried cases and have been uniform ly rejected.”23 Motions in lim ine, however, are not lim ited to jury trials. Indeed, “[m ]otions in lim ine m ay be as useful in bench trials as they are in jury trials. The authority for the rulings is not lim ited to jury trials.”24 19 Id. Id. 21 Id. 22 F ED . R. E VID . 40 7. 23 R. Doc. 68 at 3. 24 David F. Herr, Roger S. Haydock and J effrey W. Stem pel, “Authority,” M OTION P RAC. § 18.0 4. 20 4 CON CLU SION For the foregoing reasons; IT IS ORD ERED that Defendants’ m otion in lim ine to exclude eviden ce of subsequent rem edial m easures is GRAN TED . 25 N e w Orle an s , Lo u is ian a, th is 7th d ay o f Ju n e , 2 0 16 . ____________ ________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 25 Accordingly, Defendants’ objection to any depositions or exhibits that relate to this m otion is SU STAIN ED . R. Doc. 73. 5
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