Atlantic Specialty Insurance Company et al v. Porter, Inc., No. 2:2015cv00570 - Document 89 (E.D. La. 2016)

Court Description: ORDER & REASONS granting 29 Motion in Limine. Signed by Judge Sarah S. Vance on 11/4/2016. (mmm)

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Atlantic Specialty Insurance Company et al v. Porter, Inc. Doc. 89 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ATLANTIC SPECIALTY INSURANCE COMPANY AND NICHOLAS CHAD GONZALEZ VERSUS CIVIL ACTION NO. 15-570 PORTER, INC., D/ B/ A FORMULA BOATS SECTION “R” (4) ORD ER AN D REASON S Before the Court is Defendant Porter, Inc.’s m otion in lim ine and Daubert m otion to strike the report of plaintiffs’ expert witness, Captain Guy Plaisance, and to prohibit Plaisance from testifying at trial. 1 Defendant additionally m oves to strike certain “hose-test” demonstration videos prepared by Plaisance and to prohibit the videos from being introduced into evidence. 2 For the following reasons, the Court GRANTS defendant’s m otions. I. BACKGROU N D This lawsuit arises out of a fire onboard the Budget Bender, a recreational boat owned by plaintiff Nicholas Chad Gonzalez. The fire 1 2 R. Doc. 29. Id. Dockets.Justia.com occurred on or about December 21, 20 13 and rendered the boat a total loss. The boat was insured by Atlantic Specialty Insurance Com pany, which paid Gonzalez $ 280 ,0 0 0 on his insurance claim . Plaintiffs assert claims against the boat’s m anufacturer, Porter, Inc., for redhibition, breach of contract, products liability, and negligence. 3 Plaintiffs allege that the fire was caused by an electrical m alfunction attributable to corroded wiring in the port side of the boat. 4 According to plaintiffs, a gap along the edge of a wet bar in the boat’s cockpit allowed water to flow downward and onto the wiring below, causing the corrosion. 5 Plaintiffs allege that this corrosion caused a short circuit that energized wires, causing them to overheat and eventually ignite a fire. 6 To support this theory, plaintiffs retained three experts: Captain Guy Plaisance, a marine surveyor; Gary J ones, a fire causation consultant; and Troy Little, an electrical engineer. On Decem ber 27, 20 13, Captain Plaisance inspected the boat for the first tim e. 7 He returned for a follow-up inspection on J anuary 9, 20 14. 8 Plaisance wrote two sum m aries of his inspections for the plaintiffs on 3 4 5 6 7 8 R. Doc. 1-2 at 3-4. Id. at 2. Id. Id. R. Doc. 29-1 at 2. Id. 2 December 31, 20 13, and J anuary 17, 20 14, respectively. 9 In April 20 14, Plaisance conducted an additional investigation of the boat. This tim e, he conducted a “hose test,” in which he placed a garden hose on the boat’s wet bar and hosed it down to see if water leaked onto the electrical wiring harness below. 10 Two years later, Plaisance conducted a sim ilar test on a different boat named Lost My Mind, which is also m anufactured by defendant and is sim ilar to the Budget Bender. 11 Plaisance film ed both tests. On April 15, 20 16, plaintiffs subm itted Plaisance’s expert report and the videos of the hose tests. 12 Plaisance’s report notes plaintiffs’ theory that water entered the boat’s electrical system and caused a short circuit. 13 Plaisance reported that he perform ed two “hose tests” to test how water could intrude into the electrical system. 14 From his tests, Plaisance reported that if the wet bar of the boat was exposed to water, the water would “flow to an opening at the outboard edge of the top and down a path . . . into the port forward m achinery space.”15 9 Id. R. Doc. 29-2 at 2. 11 Id. 12 R. Doc. 29-1 at 3. 13 R. Doc. 29-2 at 2. 14 Id. The methodology and substance of the hose tests, as well as their potential inadm issibility will be discussed below. 15 Id. 3 10 The water would then drip onto the “DC wiring harnesses directly below in the same area where term inal connections which shorted and m elted are located.”16 Plaisance concluded that this type of water intrusion should not occur on a seaworthy vessel and that it was the result of a defective design by defendant. 17 Porter seeks to exclude Plaisance’s report and testim ony because his report does not satisfy the technical requirements of Federal Rule of Civil Procedure 26 and this Court’s scheduling order, and because Plaisance does not base his proffered expert testim ony on reliable data and sound m ethodologies, as required by Federal Rule of Evidence 70 2 and Daubert v. Merrell Dow Pharm aceuticals, Inc., 50 9 U.S. 579 (1993). 18 Additionally, defendant seeks to exclude the “hose-test” videos film ed by Plaisance because they fail to sim ulate conditions substantially sim ilar to those on the Budget Bender and because Plaisance did not provide critical inform ation 16 17 18 Id. Id. at 3. See R. Doc. 29-1. 4 regarding how the tests were conducted. 19 Plaintiffs responded on J une 14, 20 16, 20 and defendant replied. 21 II. LEGAL STAN D ARD A district court has considerable discretion to adm it or exclude expert testim ony under Federal Rule of Evidence 70 2. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 20 0 F.3d 358, 371 (5th Cir. 20 0 0 ). Rule 70 2 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education m ay testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testim ony is based on sufficient facts or data; (c) the testim ony is the product of reliable principles and m ethods; and (d) the expert has reliably applied the principles and m ethods to the facts of the case. Fed. R. Evid. 70 2. In Daubert v. Merrell Dow Pharm aceuticals, Inc., the Supreme Court held that Rule 70 2 requires the district court to act as a gatekeeper to ensure 19 Id. at 4. Defendant also argues that the hose-test videos risk unfair prejudice because of their potential to m islead the jury. However, after this m otion was filed, this Court granted defendant’s m otion to withdraw its dem and for a jury trial. R. Doc. 32. As this case is now scheduled for a bench trial, this argument is m oot. 20 R. Doc. 37. 21 R. Doc. 50 . 5 that “any and all scientific testim ony or evidence adm itted is not only relevant, but reliable.” 50 9 U.S. at 589; see also Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert gatekeeping function applies to all form s of expert testimony). The Court’s gatekeeping function thus involves a two-part inquiry into reliability and relevance. First, the Court m ust determ ine whether the proffered expert testim ony is reliable. The party offering the testim ony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chem . Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires the Court to assess whether the reasoning or m ethodology underlying the expert’s testim ony is valid. See Daubert, 50 9 U.S. at 592-93. The aim is to exclude expert testim ony based merely on subjective belief or unsupported speculation. See id. at 590 . The Court in Daubert articulated a flexible, non-exhaustive, five-factor test to assess the reliability of an expert’s m ethodology: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and m aintenance of standards and controls; and (5) the degree to which the 6 technique or theory has been generally accepted in the scientific com m unity. Id. at 593-95. The Supreme Court has emphasized, however, that these factors “do not constitute a ‘definitive checklist or test.’” Kum ho, 526 U.S. at 150 (quoting Daubert, 50 9 U.S. at 593). Rather, district courts “m ust have considerable leeway in deciding in a particular case how to go about determ ining whether particular expert testim ony is reliable.” Id. at 152. Courts have also considered whether experts are “proposing to testify about m atters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying,” Daubert v. Merrell Dow Pharm s., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). They also have looked to whether the expert has adequately accounted for obvious alternative explanations, see Claar v. Burlington N .R.R., 29 F.3d 499 (9th Cir. 1994), and whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form , Inc., 10 4 F.3d 940 , 942 (7th Cir. 1997). The Court also recognizes that this case involves a nonjury trial. In Daubert, the Suprem e Court's overriding concern was with the problem of exposing the jury to confusing and unreliable expert testimony. See 50 9 U.S. at 595-97. In the wake of Daubert, several courts have observed that in the 7 context of a bench trial, the Daubert gatekeeping obligation is less urgent, because the gatekeeper and trier of fact are the sam e. See, e.g., Volk v. United States, 57 F.Supp.2d 888, 896 n.5 (N.D. Cal. 1999); Seaboard Lum ber Co. v. United States, 30 8 F.3d 1283, 130 1-0 2 (Fed. Cir. 20 0 2) (explaining that in a bench trial the Daubert standard m ust still be applied but the concerns about expert evidence m isleading a jury “are of lesser im port”); Gibbs v. Gibbs, 210 F.3d 491, 50 0 (5th Cir. 20 0 0 ) (“Most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.”). As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its adm issibility and should be left for the [finder of fact]’s consideration.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty ., Miss., 80 F.3d 10 74, 10 77 (5th Cir. 1996) (quoting Viterbo v. Dow Chem . Co., 826 F.2d 420 , 422 (5th Cir. 1987)). Nonetheless, expert testim ony “m ust be reliable at each and every step or else it is inadm issible. The reliability analysis applies to all aspects of an expert’s testim ony: the m ethodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 20 0 7) (citation om itted). “Where the expert’s opinion is based on 8 insufficient inform ation, the analysis is unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 20 0 9). In Joiner, the Supreme Court explained that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to adm it opinion evidence that is connected to existing data only by the ipse dixit of the expert.” 522 U.S. at 146. Rather, “[a] court m ay conclude that there is sim ply too great an analytical gap between the data and the opinion proffered.” Id.; see also LeBlanc v. Chevron USA, Inc., 396 F. App’x 94, 98 (5th Cir. 20 10 ). If the Court is satisfied that the expert’s testim ony is reliable, the Court m ust then determ ine whether the expert’s analysis is relevant. The question here is whether the reasoning or methodology “fits” the facts of the case and will thereby assist the trier of fact to understand the evidence. See Daubert, 50 9 U.S. at 591. “[F]undam entally unsupported” opinions “offer[] no expert assistance to the [trier of fact]” and should be excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir. 20 0 5) (citing Viterbo, 826 F.2d at 422). 9 III. D ISCU SSION A. Mo tio n to Strike Plais an ce ’s Re p o rt The Court first addresses defendant’s argum ent that Plaisance’s expert report should be stricken because it does not comply with Federal Rule of Civil Procedure 26 and this Court’s scheduling order. The scheduling order requires that expert reports fully set forth “all m atters about which [the expert witness] will testify and the basis therefor” and “be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than April 15, 20 16.”22 Rule 26(a)(2)(B) provides that, “unless otherwise stipulated or ordered by the court,” a party m ust disclose its expert witnesses along with a written report prepared and signed by the witness that contains: (i) a com plete statem ent of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in form ing them ; (iii) any exhibits that will be used to sum m arize or support them ; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the com pensation to be paid for the study and testim ony in the case. Fed. R. Civ. P. 26(a)(2)(B). Because Plaisance’s report does not include m any of these requirem ents, defendant argues the report m ust be stricken. 22 R. Doc. 18. 10 Defendant’s argument that plaintiff has violated Rule 26(a)(2)(B) fails to recognize that the Court has “otherwise stipulated or ordered” that an expert report m ust m erely set forth “all m atters about which they will testify and the basis therefor” and be delivered to defendant by April 15, 20 16. 23 See Knorr v. Dillard’s Store Services, Inc., No. 0 4-320 8, 20 0 5 WL 20 60 90 5, at *2 (E.D. La. Aug, 22, 20 0 5) (rejecting sim ilar argument of technical noncom pliance with Rule 26 because of Court’s scheduling order). Here, Plaisance’s report inform s defendant that he will testify as to plaintiffs’ theory of how water could enter the boat’s electrical system and whether a vessel that allows water intrusion in this m anner is seaworthy. 24 Additionally, Plaisance notes that his conclusions are based on the hose-test videos he conducted and his m ore than 38 years of experience in vessel m anagement, construction, repair, and inspection. 25 Any confusion or questions that defendant had over the basis for Plaisance’s conclusions could be addressed in a deposition or through other discovery m eans. See Kirkland v. Marriott International Inc., 416 F. Supp. 2d 480 , 486 n. 2 (E.D. La. 20 0 6) (refusing to strike report with inform ation that was difficult to understand because inform ation was clarified in subsequent deposition); Stahl v. 23 24 25 R. Doc. 18 at 2. R. Doc. 29-2 at 2-3. Id. at 1. 11 N ovartis Pharm aceuticals Corp., No. 99-10 48, 20 0 0 WL 33915847, at *2 (E.D. La. Nov. 29, 20 0 0 ) (same). Finally, plaintiff subm itted Plaisance’s report on April 15, 20 16, the deadline for expert reports. 26 Therefore, Plaisance’s report is tim ely and adequately sets forth the matters about which he will testify and the basis for his opinions. Furtherm ore, although Plaisance’s report did not include inform ation like the exhibits used to support his conclusions, his resume, his com pensation, or a list of other cases in which he has provided expert testim ony, plaintiffs later gave defendant the photographic exhibits that Plaisance relied on, as well as copies of the hose-test videos. 27 Plaintiffs also gave defendant docum entation of Plaisance’s com pensation and his resume, which includes his qualifications and a list of cases in which Plaisance has testified as an expert either at trial or by deposition. 28 Defendant had all of this inform ation before Plaisance’s scheduled deposition and was not prejudiced by the absence of this inform ation from Plaisance’s report. For all of the foregoing reasons, plaintiff’s technical noncom pliance with Rule 26 does not warrant this Court striking Plaisance’s report. See Knorr, 20 0 5 WL 20 60 90 5 at *2. 26 27 28 R. Doc. 29 at 2. R. Doc. 37 at 14. R. Doc. 37-13. 12 B. Ad m is s ibility o f H o s e -Te s t Vid e o s Because the resolution of defendant’s Daubert m otion is dependent in part on the validity and adm issibility of Plaisance’s hose-test videos, the Court will address the videos first. This Court has broad discretion to adm it evidence of experimental tests. See W illiam s v. Briggs Co., 62 F.3d 70 3, 70 70 8 (5th Cir. 1995); Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977). The standard by which the Court determ ines the adm issibility of experim ental evidence depends upon whether it is being offered to reenact an event that occurred or to dem onstrate general scientific principles. See W allace v. Gen. Motors Corp., No. 94-2627, 1997 WL 269498, at *1 (E.D. La. May 19, 1997) (citing McKnight By & Through Ludw ig v. Johnson Controls, Inc., 36 F.3d 1396, 140 2 (8th Cir. 1994)); Gilbert v. Cosco, Inc., 989 F.2d 399, 40 2 (10 th Cir. 1993). If the experim ental evidence is a sim ulation or recreation of the event in question, then the recreation and the event it seeks to replicate m ust be substantially sim ilar. W illiam s, 62 F.3d at 70 7. The conditions of experim ental tests need not be identical to the case at hand, but should be “nearly the same in substantial particulars as to afford a fair com parison in respect to the particular issue to which the test is directed.” Barnes, 547 F.2d at 277. The purpose behind the substantial sim ilarity requirement is to avoid 13 the risk of m isleading members of the jury who m ay attach exaggerated significance to the evidence. See McKnight, 36 F.3d at 140 2 (citing Fusco v. Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993)). If the proffered evidence is not m eant to recreate an event but instead sim ply dem onstrate scientific principles, then the substantial sim ilarity requirement does not apply. See McCune v. Graco Children’s Products, Inc., 495 F. App’x 535, 540 (5th Cir. 20 12) (“if a party offers the dem onstrative evidence only as an illustration of general scientific principles . . . it need not pass this ‘substantial sim ilarity’ test” (quoting Muth v. Ford Motor Co., 461 F.3d 557, 566 (5th Cir. 20 0 6))). Demonstrative evidence that is offered only as an illustration of abstract scientific principles m ust not too closely resemble the actual events and circum stances of the case, Riley v. Ford Motor Co., No. 0 9-148, 20 11 WL 323610 9, at *4 (S.D. Miss. J uly 27, 20 11), and the dem onstrative test m ust be properly conducted. See generally 1 McCorm ick On Evid. § 20 2 (7th ed.). Additionally, the scientific principles that the evidence seeks to dem onstrate m ust be relevant to the case, Scordill v. Louisville Ladder Group, LLC, No. 0 2-2565, 20 0 4 WL 30 7475, at *7 (E.D. La. Feb. 17, 20 0 4), and the dem onstration m ust not be misleading. Muth, 461 F.3d at 566. 14 Defendant m aintains that the hose-test videos should be excluded because they do not pass the substantial sim ilarity test. 29 Plaintiffs respond that the videos are offered to dem onstrate general scientific principles—such as the direction water travels when it splashes on the boat—and therefore need not satisfy the sim ilarity requirem ent to be adm itted. 30 Although plaintiffs contend that the hose-test videos are not offered as exact sim ulations, the question is not one of “labels.” See McKnight, 36 F.3d at 140 2. The Court, rather than the plaintiffs’ self-serving characterization of the evidence, must determ ine what category the proffered evidence falls under. See id. at 140 2-0 3 (rejecting proponent’s characterization of evidence as dem onstrating scientific principles and instead finding that evidence sought to recreate events that gave rise to trial”); see also Muth, 461 F.3d at 566-67 (affirm ing district court’s rejection of proponent’s characterization of evidence as only dem onstrating scientific principles, not as recreation); Dunn v. N exgrill Industries, Inc., 636 F.3d 10 49, 10 56 (8th Cir. 20 11) (same). Plaisance’s report states that he conducted the hose-test videos to “determ ine how water was entering the m achinery space wire harness,” and 29 30 R. Doc. 29-1 at 18-20 . R. Doc. 37 at 18. 15 that he viewed the results of his test as “evidence of how the water was entering” the boat’s m echanical system. 31 These statements and plaintiffs’ theory of the case that the water intrusion occurred in part due to routine washing of the boat’s wet bar, 32 establish that this evidence is offered not as a dem onstration of general scientific principles but instead as a recreation of the events that gave rise to this case. 33 Therefore, the test m ust satisfy the substantial sim ilarity requirement to be adm issible. A com parison of the facts of this case and the hose-test videos reveals that the videos fail the substantial sim ilarity test. As Barnes establishes, the conditions of the test and the occurrence it seeks to reenact do not have to be “precisely reproduced,” but they m ust be sim ilar enough to “afford a fair com parison in respect to the particular issue to which the test is directed.” 547 F.2d at 277. The burden is on the party offering the experiments to lay a “proper foundation dem onstrating a sim ilarity of circum stances and conditions.” Id. Plaisance’s test on the Budget Bender applies a continuous stream of water from a garden hose directly at the junction between the back 31 R. Doc. 29-2 at 2. See, e.g., R. Doc. 29-2 at 2; R. Doc. 36 at 4. 33 Even if the Court agreed that this evidence was m eant to dem onstrate general scientific principles, the dem onstrations would not be helpful to the trier of fact. Here, the scientific principle is apparently that water will flow downward, which is also known as gravity. The Court does not need a video dem onstration of gravity to understand how it works. 16 32 of the wet bar and the boat’s wall. The videos do not indicate how long the hose has been running, if any water was applied before film ing began, the pressure of the water com ing out of the hose, if the pressure was increased or decreased before film ing began, or the edits that have been m ade to the videos. 34 The videos and Plaisance’s report also do not detail any inform ation on how the Budget Bender was washed, including the length of tim e it is washed, the type of hose used, or the water pressure applied. These critical m issing details m ake a “fair com parison” im possible. Barnes, 547 F.2d at 277; Burchfield v. CSX Transp., Inc., 636 F.3d 1330 , 1337 (11th Cir. 20 11) (noting that the lack of specifics about the tests on the videos m ade it “im possible to assess whether the video was fairly and honestly m ade under circum stances and conditions substantially sim ilar” to plaintiff’s accident (internal quotation om itted)). Therefore, because plaintiffs have not satisfied their burden in establishing substantial sim ilarity, the hose-test videos are excluded. C. Da ub ert Finally, defendant m oves this Court to prohibit Plaisance from testifying under Federal Rule of Evidence 70 2 and Daubert. Plaisance’s 34 When asked for inform ation in his deposition on how he conducted the test, Plaisance gave a ram bling response that failed to answer the question or supply the m issing details. R. Doc. 49-1 at 9. 17 report opines that based on the hose tests and his physical observations of the Budget Bender, “water entering the DC wiring harness over tim e . . . , was a direct result of a defective design and workm anship by Form ula.”35 This defective design resulted in “electrical shorting which lead to the fire.”36 He also opines that the entry of water into the DC wiring harness in the m anner he described renders the Budget Bender unseaworthy and dangerous. 37 Daubert requires that expert testim ony be reliable at each and every step to be adm issible, and this reliability analysis applies to all aspects of the expert’s testim ony. Knight, 482 F.3d at 355. This includes not only the m ethodology behind the expert’s opinion but also the connection of the facts and/ or data to the opinion itself. Id. Plaisance bases his opinion of the alleged defect on the hose tests. The Suprem e Court in Daubert noted that the existence and m aintenance of standards and controls bears on whether a scientific test is reliable. 50 9 U.S. at 594. Viewing the hose-test videos m akes clear that these tests lacked any form of m eaningful standards and controls. As described above, Plaisance does not supply any of the critical inform ation necessary to assess the tests’ reliability, m ost im portantly how long the hoses had been running, the 35 36 37 R. Doc. 29-2 at 3. Id. Id. 18 pressure of the water applied to the wet bar, what edits were m ade to the videos, and if any water was applied to the wet bar before film ing began. Not controlling for these factors or identifying critical standards for these tests indicates that the m ethodology behind these tests is unreliable. Therefore, the Court will prohibit any of Plaisance’s testim ony based on the hose tests. Plaisance’s second opinion that the boat’s propensity to allow water intrusion renders the boat unseaworthy and dangerous is likewise excludable because the opinion is based on the unreliable hose tests. The Court does not quarrel with the proposition that if a vessel allows for water intrusion into its m echanical system during norm al operation and regular m aintenance, it would be unseaworthy and potentially dangerous. But what is absent here is any reliable methodology establishing the predicate facts for the unseaworthiness conclusion. Given that the Court has excluded the hosetest evidence, there is sim ply no reliable m ethodology to support Plaisance’s opinion, and there is no evidentiary basis for his testim ony. 19 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant’s m otion to exclude the hose-test videos and to prohibit Captain Guy Plaisance from testifying. 4th New Orleans, Louisiana, this _ _ _ _ _ day of November, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 20

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