Matthiews et al v. Crosby Tugs, LLC, No. 2:2015cv05985 - Document 35 (E.D. La. 2016)

Court Description: ORDER & REASONS granting in part and denying in part 25 Motion to Exclude. Signed by Judge Sarah S. Vance on 11/18/2016. (mmm)

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Matthiews et al v. Crosby Tugs, LLC Doc. 35 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TROY MATTHIEWS CIVIL ACTION VERSUS NO. 15-5985 CROSBY TUGS, LLC SECTION “R” (5) ORD ER AN D REASON S Plaintiff Troy Matthiews m oves to exclude several opinions offered by two experts for the defendant Crosby Tugs, LLC on grounds that the opinions are unreliable or irrelevant. Matthiews’ m otion is granted in part and denied in part. I. BACKGROU N D Plaintiff Troy Matthiews is a tugboat captain. 1 On November 30 , 20 14 Matthiews was working on his ship, the MORGAN RAY, while docked in the Harvey Canal in Harvey, Louisiana. Matthiews alleges that, on that day, he suffered injuries after falling while attem pting to walk between the MORGAN RAY and another tug. Matthiews further alleges that at the time of his fall the M/ V CROSBY RAMBLER, owned and operated by defendant 1 R. Doc. 1 at 1. Dockets.Justia.com Crosby Tugs, LLC, passed the MORGAN RAY at a speed that caused “excessive wave wash.”2 This wash allegedly caused the MORGAN RAY and the other tug to m ove apart just as Matthiews was stepping between them and therefore, according to Matthiews, caused his injury. 3 Matthiews brings claim s against Crosby under maritim e law, and seeks damages for lost wages, im paired wage earning capacity, physical and m ental pain and suffering, loss of enjoym ent of life and lifestyle, disability, scarring, and medical expenses. 4 II. LEGAL STAN D ARD When expert testim ony offered by one party is subject to a Daubert challenge, the Court m ust act as a “gatekeeper” under Federal Rule of Evidence 70 2. A district court has considerable discretion to adm it or exclude expert testim ony under Rule 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, which governs the admissibility of expert witness testim ony, 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 2 Id. Id. 4 Id. at 2. Matthiews’ claim for loss of consortium on behalf of his wife has been voluntarily dism issed. R. Doc. 27. 2 3 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 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 . 3 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 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), 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 4 litigation consulting,” Sheehan v. Daily Racing Form , Inc., 10 4 F.3d 940 , 942 (7th Cir. 1997). The Court also considers this m otion recognizing 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 testim ony. See 50 9 U.S. at 595-97. In the wake of Daubert, several courts have recognized that in the context of a bench trial “the Daubert gatekeeping obligation is less pressing,” because the gatekeeper and trier of fact are the same. Volk v. United States, 57 F.Supp.2d 888, 896 n.5 (N.D. Cal. 1999); see also 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.”). Nevertheless, Daubert still applies in bench trials, and this Court m ust still ensure that the proffered testim ony is reliable. See id. 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 methodology, the facts underlying the expert’s opinion, the 5 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 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). 6 III. D ISCU SSION Matthiews challenges several opinions offered by two of Crosby’s expert witnesses: Captain Marc Fazioli and Captain Tim Anselm i. The Court considers these objections in turn. A. Captain Marc Fazio li 1. Matth ie w s ’ Co as t Gu ard Lice n s e In his report, Fazioli describes Matthiews U.S. Coast Guard-issued m erchant m ariner credential. 5 Fazioli further opines that Matthiews was not, in fact, licensed to serve as m aster of the MORGAN RAY, or even to stand watch at the tim e of his injury. 6 Crosby argues that this evidence is irrelevant and m ay therefore be excluded under Rule 40 2 of the Federal Rules of Evidence. As explained in Rule 40 1, evidence is relevant if (1) “it has any tendency to m ake a fact m ore or less probable than it would be without the evidence” and (2) “the fact is of consequence in determ ining the action.” Fed. R. Evid. 40 1. This Court “is afforded broad discretion in determ ining relevancy.” United States v. Spivey , 50 6 F. App’x 332, 333 (5th Cir. 20 13) (internal quotation om itted). Evidence need not be highly probative to be relevant. 5 6 R. Doc. 25-7 at 6. Id. 7 See United States v. Marshall, 487 F. App’x 895, 90 0 (5th Cir. 20 12) (upholding finding of relevance where evidence was “not particularly probative” and had only a “slight” tendency to dem onstrate a fact of consequence); see also Pub. Em ploy ees Ret. Sy s. of Mississippi, Puerto Rico Teachers Ret. Sy s. v. Am edisy s, Inc., 769 F.3d 313, 321 (5th Cir. 20 14) (“[T]he standard of relevance in an evidentiary context is not a steep or difficult one to satisfy.”). Finally, in bench trials, such as this one, “a relevancy inquiry under Fed. R. Evid. 40 1 is less significant . . . because there is no danger that a judge, unlike a jury, will be m isled by irrelevant or prejudicial evidence.” W illiam s v. City Police Abbeville, 19 F.3d 14 (5th Cir. 1994). Here, Crosby offers three argum ents supporting the relevance of Matthiews’ Coast Guard license: (1) because Matthiews was not properly licensed he “at least arguably ought not have even been aboard” the MORGAN RAY when he was injured; (2) his license status is relevant to his ability to properly secure the MORGAN RAY when docked; and (3) Matthiews’ license is relevant to determ ining his earning capacity and lost wages. 7 7 R. Doc. 28 at 5-6. 8 Crosby’s first argum ent is unpersuasive. Even if Matthiews “ought not” to have been on the MORGAN RAY, Crosby cites no authority suggesting that this fact would excuse Crosby’s alleged negligence. Whether Matthiews was properly licensed to serve as captain is therefore not “of consequence in determ ining the action,” Fed. R. Evid. 40 1, and the challenged evidence’s relationship with this fact does not support adm itting it. See 1 McCorm ick On Evid. § 185 (7th ed. 20 16) (evidence should be excluded when “the truth or falsity of the proposition that the evidence is offered to prove has no im plications for an element of the claim or offense charged or to a recognized defense.”). Crosby’s two remaining arguments fare better. Crosby has raised as a defense that Matthiews did not adequately secure the MORGAN RAY at the tim e of his injury, and is therefore him self responsible for the tug’s m ovement and the resulting injury. The status of Matthiews’ Coast Guard license is relevant to Matthiews’ skill and ability in securing the MORGAN RAY. The license is also directly relevant to Matthiews’ future earning capacity, and therefore to his claim ed dam ages. exclude this evidence is therefore denied. 9 Matthiews’ m otion to 2 . Failu re to Tim e ly Re p o rt In cid e n t Fazioli’s report also contains an opinion concerning Coast Guard incident reporting requirements. 8 Fazioli opines that Matthiews’ failure to com plete Coast Guard Form 2692, an accident-report form , within five days of the incident and failure to subm it to drug and alcohol testing following the incident violated Coast Guard regulations. Matthiews’ maintains that any failure to properly report the incident is irrelevant and m ust be excluded. Crosby contends that Matthiews’ failure to report is relevant because Crosby intends to argue at trial that Matthiews fabricated his injury, or at least the exact m anner in which he was injured. The Court finds that Matthiews’ alleged failure to follow Coast Guard protocol in reporting his injury is relevant to Crosby’s defense. Although certainly far from dispositive, Matthiews’ tardy disclosure, when contrasted with the prom pt reporting required by law, tends to underm ine Matthiews’ veracity and reliability. Matthiews’ m otion to exclude this evidence is therefore denied. 3 . Matth ie w s ’ s e cu rin g o f th e MORGAN RAY Fazioli also opines that Matthiews had failed to adequately secure the MORGAN RAY at tim e of his alleged injury. 9 Fazioli bases his opinion 8 9 R. Doc. 25-7 at 9. Id. at 4,9. 10 prim arily on Matthiews’ deposition transcript and related exhibits. 10 In his deposition, Matthiews described how he secured the MORGAN RAY and the type of lines he used. 11 Specifically, Matthiews stated that he used two inch nylon lines to tie the bow and the stern of the MORGAN RAY to an adjacent tug. 12 Matthiews drew a diagram showing how the MORGAN RAY was tied. 13 Matthiews also stated in deposition that, when the CROSBY RAMBLER passed, the MORGAN RAY m oved twelve to eighteen inches apart from the tug it was tied to, and that the other vessels the MORGAN RAY was tied to did not m ove. 14 Based on Matthiews’ testim ony, Fazioli offers four basic opinions: (1) Matthiews tied the MORGAN RAY using only two “breast lines,” and “[t]he use of breast lines alone can lead to, or greatly increase, the risk of lateral or twisting m otion of a m oored vessel”; (2) a twelve- to eighteen- inch separation suggests that there was excessive slack in the lines securing the MORGAN RAY; (3) because the other vessels tied with the MORGAN RAY did not m ove, they were adequately secured to the dock and each other; and (4) Matthiews “failed to secure the M/ V MORGAN RAY in a reasonable or 10 11 12 13 14 Id. at 1,3,4. R. Doc. 25-3 at 17. Id. R. Doc. 25-5. R. Doc. 25-3 at 41, 45. 11 prudent m anner.” Matthiews argues that all of these opinions are unreliable because they are based on Matthiews’ testim ony, rather Fazioli’s personal observations of the scene of the accident. Matthiews’ argument attem pts to enforce a nonexistent requirement that experts personally observe an accident scene. In fact, Rule 70 3 explicitly contem plates expert opinions based on facts or data not personally observed or gathered by the expert. Fed. R. Evid. 70 3 (“An expert m ay base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” (em phasis added)). Furthermore, “deposition testim ony is routinely recognized as appropriate evidence on which experts m ay rely in form ulating their opinions.” Chesapeake Louisiana, L.P. v. Innovative W ellsite Sy s., Inc., No. 12-2963, 20 14 WL 4388256, at *2 n.1 (W.D. La. Sept. 5, 20 14). There is, further, no indication that Matthiews’ deposition does not provide “sufficient facts or data” to support Fazioli’s opinion, or that Fazioli has not “reliably applied” his expertise to these facts. Fed. R. Evid. 70 2; see also Metrejean v. REC Marine Logistics, L.L.C., No. 0 8-50 49, 20 0 9 WL 30 62622, at *3 (E.D. La. Sept. 21, 20 0 9) (rejecting Daubert challenge to expert opinion—based, in part, on review of deposition testim ony—concerning conditions of a barge at the tim e plaintiff slipped and fell). Matthiews’ motion to exclude this evidence is therefore denied. 12 4 . Th e s p e e d o f th e CROSBY RAMBLER Matthiews’ fourth challenge concerns Fazioli’s opinion that the CROSBY RAMBLER transited the Harvey Canal “in a reasonable prudent and safe m anner.”15 Fazioli bases his opinion on Autom atic Identification System (AIS) records. AIS is an electronic ship tracking system that uses radio technology to determ ine and broadcast a vessel’s location, speed, heading, and other attributes. Using a com mercial AIS database, Fazioli concluded that the CROSBY RAMBLER passed the MORGAN RAY at a speed of approxim ately 3.2 knots on the day of Matthiews’ injury. 16 Fazioli also found that in the days surrounding the incident, 39 AIS-equipped vessels travelled past the MORGAN RAY’s position, and that these vessels travelled at an average speed of 4.8 knots. 17 Matthiews contends that the AIS data is insufficient to support Fazioli’s conclusion that the CROSBY RAMBLER transited the canal safely. Matthiews does not challenge the AIS-based speed and location data as unreliable. Rather, Matthiews provides a laundry-list of inform ation not recorded in AIS data, and argues that because Fazioli did not consider these other factors, his opinion is unreliable. The list includes wind and current 15 16 17 R. Doc. 25-7 at 10 . Id. at 5. Id. 13 conditions, the physical characteristics of the barge the CROSBY RAMBLER was pushing, and the RAMBLER’s engine specifications. The Court finds that these purported deficiencies in the data underlying Fazioli’s opinion provide fodder for cross exam ination rather than grounds for exclusion. It is true that “[w]here the expert’s opinion is based on insufficient inform ation, the analysis is unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 n.8 (5th Cir. 20 0 9). But it is equally true that lim itations of tim e, m oney, and opportunity to observe constrain the data available to experts in every case. The mere assertion that other inform ation m ight be relevant to an expert’s conclusion does not suffice to render the conclusion unreliable. Matthiews does not provide evidence of the relevance of the factors he cites or explain how they could affect the creation of surge. Here, the Court’s review of Fazioli’s m ethods and data does not support excluding the opinion on grounds of insufficient inform ation. This conclusion is further supported by the reduced im portance of the gatekeeping function in bench trials. See, e.g., Volk v. United States, 57 F.Supp.2d 888, 896 n.5 (N.D. Cal. 1999). Finally, Matthiews argues that evidence concerning the speed of other vessels that passed the MORGAN RAY’s position in the days surrounding this incident is not relevant. Actions of third parties are not dispositive as to 14 whether the defendant in this case acted reasonably. See e.g. McCorm ack v. N oble Drilling Corp., 60 8 F.2d 169, 174 (5th Cir. 1979) (“[W]hat ought to be done is fixed by a standard of reasonable prudence, whether it usually is com plied with or not.”) Nonetheless, the actions or custom s of third parties in analogous situations are generally relevant in determ ining whether a specific defendant acted reasonably. See Restatem ent (Second) of Torts § 295A (20 16) (“In determ ining whether conduct is negligent, the custom s of the com m unity, or of others under like circum stances, are factors to be taken into account, but are not controlling where a reasonable m an would not follow them .”). Matthiews’ m otion to exclude this evidence is therefore denied. 5. Th e Vo catio n al Re h abilitatio n Re p o rt Finally, Matthiews challenges Fazioli’s opinions concerning a “vocational rehabilitation report” prepared by Matthiews’ expert Nancy Favaloro. In her report, Favaloro opines that Matthiews will likely suffer a loss in earnings based on his injury. 18 Favaloro bases her opinion, in part, on an opinion from Dr. David Elias, Matthiews’ treating physician. According to Favaloro, Dr. Elias has restricted Matthiews from lifting m ore 18 R. Doc. 28-3 at 2. 15 than twenty pounds. 19 In response, Fazioli notes that Matthiews com pleted a Coast Guard physical in J une 20 15, and that in order to pass the physical Matthiews was required to dem onstrate the ability to, am ong other tasks, lift forty pounds from the ground. 20 Matthiews argues that Fazioli is not vocational therapist, and is therefore not qualified to critique Favaloro’s expert opinion. “To qualify as an expert, ‘the witness m ust have such knowledge or experience in [his] field or calling as to m ake it appear that his opinion or inference will probably aid the trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 20 0 4) (quoting United States v. Bourgeois, 950 F.2d 980 , 987 (5th Cir. 1992)). “A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.” Huss v. Gay den, 571 F.3d 442, 452 (5th Cir. 20 0 9) (quoting W ilson v. W oods, 163 F.3d 935, 937 (5th Cir. 1999)). Matthiews is correct in asserting that Fazioli has dem onstrated no expertise in vocational therapy. However, even a cursory review of Fazioli’s report reveals that his critique of Favaloro is not based on her m ethods. Rather, Fazioli challenges a key assum ption m ade by Favaloro: that Matthiews cannot, or should not, 19 20 Id. R. Doc. 25-7 at 8. 16 lift m ore than twenty pounds. In doing so, Fazioli relies on Coast Guard records and regulations which, unlike vocational therapy, sit com fortably within the bounds of his expertise. Fazioli’s opinion therefore “will probably aid the trier in his search for truth,” Hicks, 389 F.3d at 524, and is properly adm itted. B. Captain Tim An s e lm i 1. Th e s p e e d o f th e CROSBY RAMBLER Anselm i, like Fazioli, concludes based on AIS data that the CROSBY RAMBLER travelled past the MORGAN RAY at 3.2 knots. 21 Anselm i further opines that this speed is not excessive and was not a factor in causing Matthiews’ fall. 22 Matthiews’ objection here m irrors his objection to Fazioli’s sim ilar opinion. It is overruled for the same reasons. 2 . W h e th e r Matth ie w s s h o u ld h ave e xp e cte d m o ve m e n t cau s e d by th e CROSBY RAMBLER th e Anselm i’s also offers a second opinion: that Matthiews’ should have expected vessels transiting the canal to cause the MORGAN RAY to m ove, and that Matthiews’ failure to appreciate this fact before crossing between vessels is “considered to be the cause of his alleged incident.”23 This opinion 21 22 23 R. Doc. 25-8 at 3. Id. at 2. Id. at 3. 17 is based on Anselmi’s observations that Matthiews: (1) “was an experienced captain aware of the hazards” of crossing between ships; (2) “should have been aware of his surroundings” and “should and could have seen the effects of an approach vessel”; and (3) “could have and should have tightened the m ooring lines of his vessel prior to attem pting to cross.”24 As noted, expert testim ony is adm issible only when it is likely to assist the trier of fact. Hicks, 389 F.3d at 524. Unless an expert offers a “specialized understanding of the subject involved in the dispute” his testim ony is unhelpful and m ay be excluded. See Fed. R. Evid. 70 2, advisory com m ittee’s notes. Here, Anselm i concludes that Matthiews caused his own accident based on his opinion that Matthiews should have been aware of his surroundings and seen the effect of an approaching vessel. These are com m on sense observations that do not require expert testim ony. They am ount to an application of the truism “look before you leap.” Further, Anselm i’s opinion that Matthiews could have tightened the m ooring lines is cum ulative of Fazioli’s m ore detailed opinion. Anselm i’s opinion that Matthiews caused his own accident is therefore excluded as unhelpful to the trier of fact and unnecessarily cum ulative of other experts. See Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990 ) (upholding exclusion 24 Id. 18 of expert testim ony where “the jury could adeptly assess this situation using only their com m on experience and knowledge.”); see also W illiam s v. Eckstein Marine Servs., Inc., No. 91-30 26, 1992 WL 373616, at *1 (E.D. La. Dec. 9, 1992) (excluding expert opinions that, consistent with “com m on trend,” offer little m ore than the experts’ “conclusion as to what the law is or ought to be, as far as fixing responsibility for the accident”). Matthiews’ objection to this opinion is therefore sustained. IV. CON CLU SION For the foregoing reasons, Matthiews’ m otion to exclude is DENIED as to the opinions of Captain Marc Fazioli, DENIED as to Captain Tim Anselm i’s opinion regarding the speed of the CROSBY RAMBLER, and GRANTED as to Anselm i’s opinion regarding Matthiews’ role in causing his own injury. 18th New Orleans, Louisiana, this _ _ _ _ _ day of November, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 19

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