Thompson v. Yellow Fin Marine Services, LLC, No. 2:2015cv00311 - Document 55 (E.D. La. 2016)

Court Description: ORDER AND REASONS regarding the parties' objections to designation deposition testimony.. Signed by Judge Sarah S. Vance on 8/1/16.(jjs)

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Thompson v. Yellow Fin Marine Services, LLC Doc. 55 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA RICHARD J . THOMPSON CIVIL ACTION VERSUS NO. 15-311 SECTION “R” (2) YELLOW FIN MARINE SERVICES, LLC ORD ER AN D REASON S In anticipation of trial in this J ones Act case, the parties have filed objections to designated deposition testim ony.1 The Court resolves the parties’ objections as follows. A. Th o m p s o n ’s D e p o s itio n Obje ctio n s to D o n ald Rid d le h o o ve r’s 1. Page 16, Lines 3 through 4 – Hearsay OVERRULED. Line 3 does not contain hearsay because the testim ony describes a question, not a statem ent. See United States v. Lew is, 90 2 F.2d 1176, 1179 (5th Cir. 1990 ) (“The questions asked by the unknown caller, like m ost questions and inquiries, are not hearsay because they do not, and were not intended to, assert anything.”). Line 4—in which the deponent testifies that he said “I don’t know, Ken”—falls under the hearsay exception for 1 R. Doc. 33; R. Doc. 38. 1 Dockets.Justia.com present sense im pressions. See Fed. R. Evid. 80 3(2); Conboy v. W y nn Las Vegas, LLC, No. 11-1649, 20 13 WL 170 10 73, at *5 (D. Nev. Apr. 18, 20 13) (holding that statem ents including “I don’t know what happened” constituted present sense im pressions). 2. Page 18, Lines 24 through 25 and Page 19, Lines 1 through 3 – Hearsay OVERRULED. The statem ent of an opposing party is not hearsay. See Fed. R. Evid. 80 1(d)(2). An “opposing party statem ent” includes a statem ent m ade by a nam ed party to the litigation. Fed. R. Evid. 80 1(d)(2)(A). 3. Page 20 , Lines 10 through 16 and Page 21, Lines 12 through 19 – Im proper Lay Opinion SUSTAINED. “Under Fed. R. Evid. 70 1, a lay opinion m ust be based on personal perception, m ust be one that a norm al person would form from those perceptions, and m ust be helpful to the jury.” United States v. Riddle, 10 3 F.3d 423, 428 (5th Cir. 1997) (internal quotations om itted). Here, the witness is drawing inferences about this case based on his “specialized knowledge” regarding when and how ship captains delegate control of a vessel. Fed. R. Evid. 70 1. The testim ony m ust therefore be excluded. See United States v. Carm ona-Ram os, 638 F. App’x 351, 359 (5th Cir. 20 16), cert. denied, No. 15-930 8, 20 16 WL 2840 678 (U.S. J une 20 , 20 16) (stating 2 that opinions “regarding how alien sm ugglers typically act” constituted im proper lay witness testim ony). 4. Page 32, Lines 12 through 15 – Leading, Counsel Testify ing OVERRULED. Here, plaintiff objects to his own attorney’s question as leading. Setting aside whether this sort of self-objection is proper, counsel did not contem poraneously object to his own question and the objection is therefore waived. 5. Page 33, Lines 11 through 16 – Im proper Lay Opinion OVERRULED. The witness is not opining, he is describing the K MARINE XI’s features. 6. Page 42, Lines 7 through 14 – Cum ulative OVERRULED, for sam e reasons as objection 4 above. 7. Page 60 , Lines 12 through 15 – Irrelevant, Im proper Lay Opinion OVERRULED. The testim ony is relevant because Yellow Fin has raised the witness’s pay as a source of bias. Further, the answer is proper lay testim ony based on the witness’s own experience. 3 B. Th o m p s o n ’s Obje ctio n s to Jo s e p h Tu cke r’s D e p o s itio n . 1. Page 35, Lines 8 through 19 – Leading, Assum es Facts Not In Evidence, Misstates Testim ony , Counsel Is Testify ing OVERRULED. Leading questions are perm itted on cross-exam ination and the question assum es only facts to which the witness had already testified. C. Ye llo w Fin ’s Obje ctio n s to D o n ald Rid d le h o o ve r’s D e p o s itio n 1. Page 38, Lines 19 through 20 – Speculation SUSTAINED. The witness’s response is not “rationally based on [his] perception.” Fed. R. Evid. 70 1. 2. Page 45, Lines 1 through 3 – N o Answ er to Question. SUSTAINED. Counsel withdrew his question before the witness could answer. 3. Page 45, Lines 13 through 15 – Cum ulative SUSTAINED. Question was asked and answered on page 28. 4. Page 57, Lines 13 through 16 – Relevancy OVERRULED. The witness has given m ultiple statem ents and his perception of the relative quality of his recollection at the tim e that he gave each statem ent is therefore relevant. 4 5. Page 58, Line 5– Relevancy SUSTAINED. Whether Riddlehoover’s back has healed is not relevant to Thom pson’s claim . D . Ye llo w Fin ’s Obje ctio n s to Jo s e p h Tu cke r’s D e p o s itio n 1. Page 15, Lines 5 through 7 – N o Answ er SUSTAINED. Counsel rephrased his question before the witness could answer. E. Ye llo w Fin ’s D e p o s itio n Obje ctio n s to Ke n n e th Laco u r’s 1. Page 61, Line 20 through Page 62, Line 7– Hearsay SUSTAINED. Lacour’s testim ony regarding Tucker’s statem ents contains hearsay; Tucker’s statem ents were m ade out of court and are being offered for the truth of the m atter asserted. Thom pson concedes as m uch, but argues that three hearsay exceptions apply: (1) statem ent against interest under Rule 80 4(b)(3); (2) excited utterance under Rule 80 3(2); and (3) present sense im pression under 80 3(1). The exception for statem ent against interest applies only where “the statem ent’s proponent has not been able, by process or other reasonable m eans, to procure . . . the declarant’s attendance or testim ony .” Fed. R. Evid. 80 4(5) (em phasis added). Here, the parties have subm itted Tucker’s deposition testim ony, and the exception therefore does not apply. Grace 5 United Methodist Church v. City Of Chey enne, 451 F.3d 643, 665 n.11 (10 th Cir. 20 0 6); Cam pbell by Cam pbell v. Colem an Co., 786 F.2d 892, 896 (8th Cir. 1986). In addition, Tucker’s statem ents are neither present sense im pressions nor excited utterances. To qualify as a present sense im pression a statem ent m ust be “m ade while or im m ediately after the declarant perceived” the thing he is describing. Fed. R. Evid. 80 3(2). Sim ilarly, a statem ent is not an excited utterance unless it was “m ade while the declarant was under the stress of excitem ent” caused by the event he is describing. Fed. R. Evid. 80 3(3). Lacour does not say exactly when Tucker m ade the challenged statem ents. Lacour does, however, testify that he heard the statem ents “in the atrium at the hotel.”2 Riddlehoover describes a m eeting with the four K MARINE XI crew m em bers at a hotel “[a] couple of days” after the allision.3 Because the evidence before the Court suggests Tucker’s statem ents were m ade days after the allision, the statem ents lack the “circum stantial guarantees of trustworthiness” required to qualify under the Rule 80 3 exceptions. Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 280 (5th Cir. 1991) (holding that accident report filed two days after incident did not qualify 2 3 Deposition of Kenneth Ray Lacour, Feb. 12, 20 15 at 61:21. Deposition of Donald Riddlehoover, Oct. 2, 20 15 at 25:10 -26:11. 6 under present sense im pression exception ). Because Tucker’s statem ents are hearsay and fall under no hearsay exception, Yellow Fin’s objection is sustained. F. Co n clu s io n The parties’ deposition objections are resolved as described above. New Orleans, Louisiana, this 1st day of August, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 7

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