David v. C and G Boats, Inc., No. 2:2015cv01655 - Document 72 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 64 and 65 Motions in Limine. For the foregoing reasons, plaintiff's motion to exclude David Scruton is DENIED. Plaintiff's motion to exclude James Pritchett is DENIED as moot. Signed by Judge Sarah S. Vance on 9/8/2017. (cg)
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David v. C and G Boats, Inc. Doc. 72 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CARLOS DAVID CIVIL ACTION VERSUS NO. 15-1655 C AND G BOATS, INC. SECTION “R” (2) ORD ER AN D REASON S Before the Court are plaintiff’s two m otions in lim ine to exclude defense experts David Scruton 1 and J am es Pritchett. 2 For the following reasons, the Court denies plaintiff’s motion to exclude David Scruton. The Court denies as m oot plaintiff’s m otion to exclude J ames Pritchett. I. BACKGROU N D This case arises out of an accident aboard the M/ V MS J ANE, a vessel owned by Defendant A & A Boats, Inc. 3 Plaintiff Carlos David alleges that he was employed by Defendant M N M Boats, Inc. as a deckhand on the M/ V MS J ANE when he was struck by a personnel basket and seriously injured. 4 Plaintiff’s accident allegedly occurred while he was helping to guide and land 1 2 3 4 R. Doc. 64. R. Doc. 65. R. Doc. 13 at 3. Id. at 2; R. Doc. 64-1 at 1-2. Dockets.Justia.com the personnel basket on the deck of the M/ V MS J ANE. 5 Plaintiff asserts that the captain of the vessel and the crane operator each failed to follow proper and safe procedures in perform ing the personnel basket transfer, and that their negligence directly caused his injuries. 6 On May 15, 20 15, plaintiff filed a seam an’s complaint for dam ages. 7 This m atter is set for trial beginning October 2, 20 17. 8 Plaintiff now m oves to exclude defense experts J ames Pritchett and David Scruton on the basis that som e of their opinions are either unreliable or constitute im proper legal conclusions. 9 Defendants have withdrawn Pritchett as a testifying expert. 10 The Court therefore considers only plaintiff’s m otion to exclude Scruton. II. LEGAL STAN D ARD Federal Rule of Evidence 70 2 gives the district court considerable discretion to adm it or exclude expert testim ony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997). Rule 70 2 provides that a witness “qualified as an expert by knowledge, skill, experience, training, or education” m ay 5 6 7 8 9 10 R. Doc. 64-1 at 1-2. Id. at 2. R. Doc. 1. R. Doc. 59. R. Doc. 64-1; R. Doc. 65-1. R. Doc. 66. 2 provide opinion testim ony when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determ ine a fact in issue.” Fed. R. Evid. 70 2. To be admissible, Rule 70 2 requires that (1) the testim ony be based on sufficient facts or data, (2) the testim ony be the product of reliable principles and m ethods, and (3) the witness apply the principles and m ethods reliably to the facts of the case. Id. 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 that “any and all scientific testim ony or evidence adm itted is not only relevant, but reliable.” 50 9 U.S. 579, 589 (1993). See also Kum ho Tire Co. 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 therefore involves a two-part inquiry. First, the Court m ust determ ine whether the expert testim ony is reliable. The party offering the testim ony has the burden to establish reliability by a preponderance of the evidence. See Moore v. Ashland Chem . Inc., 151 F.3d 269, 276 (5th Cir.1998). The Court m ust assess whether the reasoning or methodology underlying the expert’s testim ony is valid. See Daubert, 50 9 U.S. at 590 . The aim is to exclude expert testim ony based m erely on subjective belief or unsupported speculation. See id. The Court’s inquiry into the reliability of 3 expert testim ony is flexible and necessarily fact-specific. See Seatrax, Inc. v. Sonbeck Int’l, Inc., 20 0 F.3d 358, 372 (5th Cir. 20 0 0 ). Second, the Court m ust determ ine whether the expert’s reasoning or m ethodology “fits” the facts of the case and whether it will assist the trier of fact to understand the evidence. See Daubert at 591. This is prim arily an inquiry into the relevance of the expert testim ony. See id; see also Bocanegra v. Vicm ar Services, Inc., 320 F.3d 581, 584 (5th Cir. 20 0 3). Expert testim ony is unnecessary if the court finds that “the jury could adeptly assess [the] situation using only their com m on experience and knowledge.” Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990 ). III. D ISCU SSION A. Exp e rt Qu alificatio n s an d Re liability Scruton is a m arine consultant with over 16 years of experience at sea, including service as a vessel safety officer and captain, and 27 years of experience as a marine consultant and surveyor. 11 He has experience overseeing the training of crewm embers in vessel handling, m aneuvering, towing, pushing of barges, and line handling. 12 Scruton also serves as an 11 12 R. Doc. 64-2 at 17. Id. 4 arbitrator in m aritim e disputes. 13 The Court finds that Scruton is sufficiently qualified to testify as a marine safety expert. Plaintiff does not contest Scruton’s general m aritim e expertise, but argues that Scruton lacks specific experience in offshore crane operations and is not qualified to offer opinions from the perspective of a crane operator. 14 Scruton’s report includes three opinions related to crane operations. 15 The Court finds that these opinions relate prim arily to the general safety practices and procedures that a crane operator should follow during personnel basket transfers and do not require personal experience as a crane operator. Scruton’s report indicates that he has experience with the type of Billy Pugh personnel basket that injured plaintiff and is fam iliar with recom mended safety practices for personnel basket transfers. 16 Moreover, plaintiff acknowledges that Scruton is sufficiently qualified to testify about personnel basket transfers from the perspective of a vessel captain or crewmem ber. 17 Scruton’s report describes the respective roles of the vessel’s 13 Id. R. Doc. 64-1 at 5-6. Plaintiff also argues that Scruton’s testim ony on crane operations is cum ulative and duplicative of the proposed testim ony of J ames Pritchett. Because defendants no longer plan to call Pritchett as an expert, the Court does not address this argument. See R. Doc. 64-1 at 7; R. Doc. 66. 15 R. Doc. 64-2 at 15. These opinions are num bered 14, 15, and 17. 16 Id. at 13. 17 R. Doc. 64-1 at 5-6. 5 14 captain and deckhand in ensuring that personnel basket transfers are conducted safely. 18 The Court finds that Scruton has sufficient expertise to testify about whether the crane operator involved in plaintiff’s accident followed proper practices and procedures, and that Scruton’s opinions are outside the com m on understanding of the jury. See Metrejean v. REC Marine Logistics, L.L.C., No. 0 8-50 49, 20 0 9 WL 30 62622, at *3 (E.D. La. 20 0 9) (finding that expert was sufficiently qualified to testify about the safety hazards of m oving tugboats and barges even though he lacked experience with deckhands such as the plaintiff). Plaintiff also contends that Scruton’s opinions are unreliable because Scruton cites to a federal regulation that does not apply to offshore operations. 19 Scruton references the Occupational Safety and Health Adm inistration (OSHA) definition of a “danger zone” contained in 29 C.F.R. § 1917.2. 20 Scruton’s report acknowledges that this regulation does not apply to offshore operations but explains that OSHA’s definitions are widely understood in the offshore industry. 21 The Court finds that Scruton has 18 19 20 21 R. Doc. 64-2 at 4, 6-7. R. Doc. 64-1 at 6. R. Doc. 64-2 at 12. Id. 6 sufficient experience to testify about how a term such as “danger zone” is understood in m aritim e operations, and that this testim ony m ay assist the trier of fact. Because Scruton does not assert that the regulation is binding, there is little risk that his opinion will confuse the jury. To the extent that plaintiff believes that Scruton is unqualified to offer certain opinions or that his testim ony is otherwise unreliable, he m ay crossexam ine Scruton at trial. In assessing an expert’s qualifications, the Court’s gatekeeping function does not replace the traditional role of crossexam ination in the adversary system . See Daubert, 50 9 U.S. at 596. In general, “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 jury’s consideration.” United States v. 14.38 Acres of Land, More or Less Situated in Lefore County , Mississippi, 80 F.3d 10 74, 10 77 (5th Cir. 1996); see also Rushing v. Kansas City S. Ry . Co., 185 F.3d 496, 50 7 (5th Cir. 1999) (explaining that, “as long as some reasonable indication of qualifications is adduced, the court m ay adm it the evidence without abdicating its gate-keeping function”). 7 B. Le gal Co n clu s io n s Plaintiff asserts that several of Scruton’s opinions offer improper legal conclusions. 22 The Federal Rules of Evidence do not perm it expert witnesses to offer conclusions of law. See C.P. Interests, Inc. v. Ca. Pools, Inc., 238 F.3d 690 , 697 (5th Cir. 20 0 1) (citing Ow en v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983)). An opinion is a legal conclusion if it “would supply the jury with no inform ation other than the expert’s view of how its verdict should read.” Ow en, 698 F.2d at 240 . To be adm issible, an expert’s opinion should “assist the trier of fact to understand the evidence or to determ ine a fact in issue” and “bring to the jury m ore than the lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 30 5 (5th Cir. 1992) (internal citations om itted); see also Fed. R. Evid. 70 2. The Court finds that Scruton’s challenged opinions are not legal conclusions and will assist the jury to understand the evidence in this m atter. Scruton’s opinion that the captain operated the vessel in conform ity with industry practices and com pany policies is a factual conclusion outside the com m on understanding of the jury. See Ow en, 698 F.2d at 240 (explaining that the question of whether an “individual was following proper practices, seeks a factual, not a legal, conclusion”); How ard v. Offshore Liftboats, LLC, 22 R. Doc. 64-1 at 7-8. 8 No. 13-4811, 20 16 WL 232238, at *3 (E.D. La. 20 16) (adm itting testim ony on the appropriate standard of care). Similarly, Scruton’s opinion that plaintiff is an experienced deckhand who should have been fam iliar with his responsibilities and with the appropriate hand signals is a factual rather than a legal conclusion. 23 To the extent that plaintiff disputes Scruton’s characterization of his experience, he will have the opportunity to crossexam ine Scruton at trial. Additionally, Scruton’s opinions that there was adequate space on the deck of the M/ V MS J ANE to safely land the personnel basket, that the weather and sea conditions were favorable to personnel basket transfers, and that lighting conditions did not contribute to the incident are factual conclusions that draw on Scruton’s expertise. 24 It is unlikely that the jury’s com m on experience and knowledge would encom pass the appropriate physical and weather conditions for a personnel basket transfer. See Peters, 898 F.2d at 450 (explaining that the reasonableness of using a ship’s crane to transfer m achinery between two ships in heavy seas was outside the average juror’s knowledge); Fenim ore v. Am . River Transp. Co., No. 0 41495, 20 0 5 WL 10 6776, at *3 (E.D. La. 20 0 5) (finding that an expert’s 23 24 R. Doc. 64-2 at 15. R. Doc. 64-2 at 14-15. 9 opinions on the proper positioning of vessel lines, proper vessel rigging, job safety, and proper training were beyond a layperson’s general understanding and were not sim ply legal conclusions). IV. CON CLU SION For the foregoing reasons, plaintiff’s m otion to exclude David Scruton is DENIED. Plaintiff’s m otion to exclude J am es Pritchett is DENIED as m oot. New Orleans, Louisiana, this _ _8th _ day of Septem ber, 20 17. __ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 10
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