Lee v. Offshore Logistical & Transports, LLC, No. 2:2015cv02528 - Document 74 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 64 Motion in Limine to Exclude J P Jamsion's testimony. Signed by Judge Susie Morgan on 12/19/2017. (clc)
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Lee v. Offshore Logistical & Transports, LLC Doc. 74 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ELW OOD LEE, Pla in tiff CIVIL ACTION VERSU S N O. 15 -2 5 2 8 OFFSH ORE LOGISTICAL & TRAN SPORT, LLC, D e fe n d an t SECTION : “E” ORD ER AN D REAS ON S Before the court is a m otion in lim ine filed by Defendant, Offshore Logistical & Transport, LLC (“Offshore”) to exclude or lim it the testim ony of Plaintiff Elwood Lee’s proffered liability expert, Captain J .P. “Patrick” J am ison. 1 Lee opposes this m otion. 2 BACKGROU N D This is a m aritim e personal injury case. Lee filed a com plaint on J uly 10 , 20 15, pursuant to the J ones Act 3 and general m aritim e law. 4 Lee alleges that on J uly 20 , 20 14, while aboard the M/ V BALTY, he “experienced an accident” on the stern deck resulting in “serious painful injuries” to his knee and other parts of his body. 5 The M/ V BALTY is an offshore supply vessel with a steel deck covered by unpainted, rough deck boards. The vessel transports cargo, which is loaded and stored onto its deck. The parties agree that: (1) the M/ V BALTY was owned, operated, and/ or controlled by Offshore; (2) Lee was an em ployee of Offshore at the tim e of the accident; and (3) Lee was a seam an under the J ones Act at the tim e of the accident. 6 It is undisputed that Lee, as the senior captain 1 R. Doc. 64. R. Doc. 69. 3 46 U.S.C. § 30 10 4. 4 R. Doc. 1. 5 Id. at ¶¶ III– V. 6 Id.; R. Doc. 23-4 at 1, ¶ 3; R. Doc. 27-1 at 1, ¶ 3. 2 1 Dockets.Justia.com aboard the M/ V BALTY, was involved in getting “the boat organized” an d perform ed “generalized m aintenance.” 7 It is undisputed Lee was unaware of a defect that gave him “concern about the ability to walk in [the] area” of the alleged injury. 8 Finally, both parties agree there was no non-skid m aterial on the deck of the M/ V BALTY at the tim e of Lee’s injury. 9 The parties, however, dispute whether Offshore’s failure to apply non-skid paint constituted negligence or rendered the M/ V BALTY unseaworthy 10 and whether the lack of non-skid paint contributed to Lee’s injuries. 11 Lee contends Offshore had the duty to ensure there was a non-skid application on the deck, but Offshore asserts that Lee, as the vessel’s captain, bears this duty. To support his position, Lee sought Captain J am ison’s expert opin ion on these issues. On Novem ber 14, 20 17, Offshore filed the instant m otion in lim ine to exclude or lim it Captain J am ison’s testim ony at trial. 12 On Novem ber 21, 20 17, Lee tim ely filed his opposition. 13 STAN D ARD OF LAW 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 7 R. Doc. 23-2 at 7. Id. at 20 . 9 Id. at 17– 18. 10 R. Doc. 23-4 at 3, ¶ 14; R. Doc. 27-1 at 2, ¶ 14. 11 R. Doc. 23-4 at 4, ¶¶ 28 – 29; R. Doc. 27-1 at 3, ¶¶ 28– 29. 12 R. Doc. 64. 13 R. Doc. 69. 8 2 the case.” 14 The threshold inquiry is whether the expert possesses the requisite qualifications to render an opinion on a particular subject m atter. 15 If the expert’s qualifications are foun d to be sufficient, the court then m ust exam ine whether the expert’s opinions are reliable and relevant. 16 The United States Suprem e Court’s decision in Daubert v. Merrell Dow Pharm aceuticals, Inc., 17 provides the an alytical fram ework for determ ining whether expert testim ony is adm issible under Rule 70 2. Under Daubert, courts, as “gatekeepers,” are tasked with m aking a prelim in ary assessm ent of whether the expert’s testim ony is relevant and reliable. 18 The party offering the expert opinion m ust show by a preponderance of the eviden ce that the expert’s testim ony is reliable and relevant. 19 The reliability of expert testim ony “is determ in ed by assessing whether the reasoning or m ethodology underlying the testim ony is scientifically valid.” 20 In Daubert, the Suprem e Court enum erated several non-exclusive factors that courts m ay consider in evaluating the reliability of expert testim ony. 21 “These factors are (1) whether the expert’s theory can 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 14 F ED. R. E VID. 70 2. W agoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 799 (E.D. La. 20 11). See also W ilson v. W oods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow an expert to testify if it finds that the witness is not qualified to testify in a particular field or a given subject.”). 16 United States v. Valencia, 60 0 F.3d 389, 424 (5th Cir. 20 10 ). 17 50 9 U.S. 579 (1993). 18 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)). 19 Mathis v. Exxon Corp., 30 2 F.3d 448, 459– 60 (5th Cir. 20 0 2). 20 Knight v. Kirby Inland Marine Inc., 48 2 F.3d 347, 352 (5th Cir. 20 0 7). See also Burleson v. Texas Dep’t of Crim inal Justice, 393 F.3d 577, 584 (5th Cir. 20 0 4); Bocanegra v. Vicm ar Servs., Inc., 320 F.3d 581, 584– 85 (5th Cir. 20 0 3). 21 Daubert, 50 9 U.S. at 592– 96. 15 3 and m aintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific com m unity.” 22 The Suprem e Court has cautioned that the reliability analysis m ust rem ain flexible. Various Daubert factors “m ay or m ay not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testim ony.” 23 Thus, “not every Daubert factor will be applicable in every situation . . . and a court has discretion to consider other factors it deem s relevant.” 24 In sum , the district court is offered broad latitude in m aking expert testim ony determ inations. 25 “In addition to reliability, Daubert requires that expert testim ony be relevant.” 26 Under Daubert, expert testim ony is relevant only if it assists the trier of fact in understanding the evidence. 27 Expert testim ony should be excluded if the court finds that “the jury could adeptly assess [the] situation using only their com m on sense experience and knowledge.” 28 D ISCU SSION Offshore seeks to lim it or exclude Captain J am ison’s testim ony at trial. 29 Offshore argues Captain J am ison “is (1) not qualified to address the liability issues on n egligence or the seaworthiness of the offshore supply vessel involved in this suit, and (2) his opin ion is not adm issible under the Daubert standards.” 30 22 Bocanegra, 320 F.3d at 58 4– 85 (citin g Daubert, 50 9 U.S. at 593– 94). Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 150 (1999). 24 Guy v . Crow n Equip. Corp., 394 F.3d 320 , 326 (5th Cir. 20 0 4). 25 See, e.g., Kum ho Tire, 526 U.S. at 151– 53. 26 How ard v. Cal Dive Intern ., Inc., No. , 20 11 WL 63873, at *2 (E.D. La. J an. 6, 20 11). 27 Daubert, 50 9 U.S. at 591. 28 Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990 ). 29 R. Doc. 64. 30 R. Doc. 64-1 at 5. 23 4 In support of its m otion, Offshore attached Captain J am ison’s expert report. 31 In his report, Captain J am ison offers five opin ions. 32 Offshore argues, an d Lee does not dispute, that the opinions offered by Captain J am ison in item s three through five of his report are not relevant to the analysis of Offshore’s alleged negligence or the seaworthiness of the M/ V BALTY. 33 Thus, the Court will consider only Captain J am ison’s qualifications to render the opinions in item s one and two of his report. These opinions focus on the application of non-skid paint on the wooden deck boards of the M/ V BALTY. A. Captain J am ison’s Qualifications Offshore first argues this Court should lim it or exclude Captain J am ison’s testim ony at trial because he is not qualified to address whether Offshore was negligent or whether the M/ V BALTY was unseaworthy. 34 It argues that, although Captain J am ison has extensive experience with tugboats, towboats, and push boats, all inland vessels, he is not qualified to offer an opinion on an offshore supply vessel, such as the M/ V BALTY. 35 Offshore points out that, of all the credentials listed in Captain J am ison’s resum e, not one addresses any qualifications regarding an offshore supply vessel. Additionally, looking to Captain J am ison’s expert report, Offshore points out that Captain J am ison states his “areas of work include the Illinois River, the Upper and Lower Mississippi Rivers, the Ohio River, the Missouri River and the East and West Inter Coastal Waterways at New Orleans, LA.” Offshore subm its that the relevant differences between inland vessels and offshore vessels render Captain J am ison’s experience with inland vessels inapplicable to an 31 R. Doc. 64-5. Id. at 2– 3. 33 R. Doc. 69 at 12– 13. 34 R. Doc. 64-1 at 14. 35 Id. at 14, 17– 18 . 32 5 offshore vessel such as the M/ V BALTY. 36 For exam ple, in his deposition testim ony, Captain J am ison adm itted he has worked only on inland waterways with tugboats, towboats, and push boats, all of which had m etal decks and were not m eant to carry cargo on the deck. 37 He adm itted he was not fam iliar with the kind of friction rough deck boards, such as the deck boards on the M/ V BALTY, have and whether such boards could provide a safe walking surface without non-skid paint. 38 He adm itted he had not been aboard the M/ V BALTY, 39 nor had he seen photos of the vessel. 40 Further, Captain J am ison adm itted he was unfam iliar with the current regulations governing the decks of offshore supply vessels. 41 Finally, in his report, Captain J am ison erroneously referred to the M/ V BALTY as “a non-inspected vessel,” despite the M/ V BALTY having been inspected by the U.S. Coast Guard and operating under the Certificate of Inspection issued by the Coast Guard. 42 In response, Lee argues Captain J am ison is a licensed Any Gross Ton Master and has worked in the m arine industry since 1957. 43 Plaintiff further argues Captain J am ison has over fifty years of experience in the m arine industry, including serving as an expert witness in cases involving offshore supply vessels. 44 Plaintiff asserts that, given Captain J am ison’s several years of experience in the m arine in dustry generally, Offshore’s contention that the differences between river vessels and offshore supply vessels is “far better addressed through cross-exam ination than a m otion in lim ine.” 45 36 Id. at 17– 18. R. Doc. 64-6 at 12. 38 Id. at 46. 39 Id. at 17. 40 Id. 41 Id. at 20 . 42 R. Doc. 64-1 at 5. 43 R. Doc. 69-2 at 4. 44 R. Doc. 69-3 at 2; R. Doc. 69 at 11. 45 R. Doc. 69 at 10 – 11. 37 6 The Court finds Captain J am ison is not qualified by education or experience to testify whether Offshore was n egligent or whether the M/ V BALTY was unseaworthy. Although Captain J am ison has been offered as an expert on offshore vessels in the past, he has never been accepted as an expert regarding offshore supply vessels. Notably, each of the cases in which Captain J am ison was offered as an offshore expert settled before trial, without a challenge to Captain J am ison’s credentials and without a ruling on his qualifications. Captain J am ison’s train ing and experience is lim ited to rivers and inlan d waterways and does n ot include bodies of water on which an offshore vessel prim arily operates. He has not worked on an offshore supply vessel or received train ing related to offshore supply vessels. Further, in his report, Captain J am ison did n ot consider the M/ V BALTY’s U.S. Coast Guard’s Certificate of Inspection, certifying the M/ V BALTY is a vessel fit for the service for which it was in spected, which for the M/ V BALTY is carrying cargo on the Gulf of Mexico. He did not consider, and adm itted he was not aware of, the regulations regarding the design, construction, and operation of offshore vessels, including their decks. Thus, the Court finds Captain J am ison is not qualified by his training or experience to address liability issues on negligen ce or the seaworthiness of the M/ V BALTY. B. Whether Captain J am ison’s opinions are relevant and reliable Even assum ing Captain J am ison were qualified to render an expert opinion on the seaworthiness of the M/ V BALTY or Offshore’s alleged negligence, the opinions rendered in item s one and two of his expert report “intrude on the dom ain of com m on sense m atters upon which jurors require no expert assistance.” 46 46 Jones v. H.W .C. Ltd., No. 0 1-3818 , 20 0 3 WL 42146, at *3 (E.D. La. J an. 3, 20 0 3); see also Peters, 898 F.2d at 450 . 7 Expert testim ony is relevant under Daubert if it assists the trier of fact in understanding the evidence. 47 Expert testim ony does not assist the trier of fact if the court finds “the jury adeptly [can] assess [the] situation using only their com m on experience and knowledge.” 48 “[S]everal courts in the Eastern District of Louisiana have found that no expertise was required to assist the jury in determ ining liability for accidents occurring offshore.” 49 For exam ple, in Peters v. Five Star Marine Service, the Fifth Circuit considered the adm issibility of expert testim ony regardin g the responsibilities of the m aster an d crew in offloading procedures, the obligation to keep the deck clean of fuel, and the need to store cargo properly. 50 The Fifth Circuit found that the proffered expert testim ony would not assist the jury in assessing whether the cargo was im properly stowed, whether it was reasonable for the plaintiff's em ployer to offload the vessel during heavy seas, an d whether diesel fuel m ade the boat deck slippery, given that these opinions derived from com m on sense. 51 Sim ilarly, in Matherne v. MISR Shipping Co., this Court excluded the plaintiff’s expert, finding that the expert’s opinion would intrude on the province of the jury. 52 In Matherne, the plaintiff slipped when he attem pted to board the vessel. 53 The plaintiff’s expert sought “to testify concerning various conditions on Decem ber 23 and 24, 1985, including the safety of the m eans of ingress and egress from the M/ V ALEXANDRIA as 47 Daubert, 50 9 U.S. at 591. Peters, 898 F.2d at 450 . 49 How ard v. Cal. Dive Int’l, Inc., No. 0 9-6265, 20 11 WL 63873, at *3 (E.D. La. J an . 6, 20 11). 50 Id. at 499. 51 Id. at 450 . 52 No. 8 8-2261, 1991 WL 99426, at *1 (E.D. La. May 31, 1991). 53 Id. 48 8 well as other m atters of an expert nature concerning the vessel and its appurtenances.” 54 In granting the defendant’s m otion to exclude the plaintiff’s expert, the Court reasoned that “[i]t is apparent that what the factfinder m ust determ ine in term s of liability is whether or not the plaintiff actually fell and if so, what caused him to fall,” and fin ding that “[a] jury is com petent to determ ine such liability issues and a ‘safety expert’ would not assist the jury in m aking such a determ in ation.” 55 Finally, in Araujo v. Treasure Chest Casino, L.L.C., 56 this Court excluded the plaintiff’s expert, finding that his opinion was not relevant. In Araujo, the plaintiff fell off a ladder on the defendant’s vessel, sustaining injuries. 57 The plaintiff sought to introduce expert testim ony detailing the defendant’s failure to provide safe equipm ent. 58 Although the proffered expert relied on safety regulations and the defendant’s safety m anual, the Court found the expert testim ony was not helpful to the jury because it “relate[d] to issues within the com m on knowledge, experience, and understanding of the average lay juror.” 59 Like the proffered experts in Peters, Matherne, and Araujo, Captain J am ison seeks to testify regarding “issues within the com m on knowledge, experience, an d understanding of the average lay juror.” 60 No expertise is required to determ ine whether the lack of non-slip paint “increase[s] the chances of a slip or twistin g of the knee,” 61 given that such testim ony does not involve any scientific or technical procedures that are 54 Id. Id. 56 No. 97– 30 43, 1999 WL 219771, at *2 (E.D. La. Apr. 14, 1999). 57 Id. at *1. 58 Id. at *2. 59 Id. 60 Id. 61 Id. 55 9 unknown to the jury. Because Captain J am ison’s testim ony will not be helpful to the jury, his opin ions are not relevant. 62 Accordingly; CON CLU SION IT IS ORD ERED that Defendant’s m otion in lim ine 63 is GRAN TED . N e w Orle a n s , Lo u is ian a, th is 19 th d ay o f D e ce m be r, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 62 63 See Peters, 898 F.2d at 450 . R. Doc. 64. 10
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