Deloach Marine Services, LLC v. Marquette Transportation Company, LLC, No. 2:2017cv02970 - Document 55 (E.D. La. 2019)
Court Description: ORDER AND REASONS regarding 34 Motion to Strike. For the foregoing reasons, defendant's motion to exclude Tom Stakelum is DENIED. Defendant's objection to Tom Stakelum's Rose Point data is OVERRULED. Defendant's objection to the Budwine documents is SUSTAINED. Defendant's objection to the Randy Bullard email is SUSTAINED. Signed by Judge Sarah S. Vance on 2/8/2019. (cg)
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Deloach Marine Services, LLC v. Marquette Transportation Company, LLC Doc. 55 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DELOACH MARINE SERVICES, LLC VERSUS CIVIL ACTION NO. 17-2970 MARQUETTE TRANSPORTATION COMPANY, LLC SECTION “R” (3) ORD ER AN D REASON S Before the Court are defendant Marquette Transportation Com pany’s m otion to strike plaintiff Deloach Marine Services’ witness Tom Stakelum and defendant’s objections to three of plaintiff’s exhibits. Because defendant has not dem onstrated that it is prejudiced by plaintiff’s late disclosure of Tom Stakelum as a witness, the Court denies defendant’s m otion to exclude him . For the following reasons, the Court overrules two of defendant’s objections and sustains one. I. BACKGROU N D This case arises out of an accident that occurred between two towing vessels and their cargo on the Mississippi River. 1 Plaintiff’s vessel, the VANPORT, was pushing four barges down the river on J anuary 26, 20 16 1 R. Doc. 1. Dockets.Justia.com when defendant’s vessel, the J USTIN PAUL ECKSTEIN, allegedly m oved into the path of the VANPORT, causing a collision. 2 Plaintiff filed a com plaint on April 6, 20 17 alleging negligence, unseaworthiness, and contribution. 3 Defendant denies plaintiff’s allegations and has counterclaim ed, inter alia, that the VANPORT was unseaworthy and that plaintiff was contributorily negligent. 4 Trial is set for February 11, 20 19. 5 In anticipation of trial, defendant has filed one m otion in lim ine and three objections. 6 Plaintiff opposes the m otions. 7 II. D ISCU SSION A. Mo tio n to Exclu d e To m Stake lu m Defendant argues that plaintiff’s witness Stakelum should not be perm itted to testify because plaintiff did not properly disclose him as a witness until the parties’ proposed pretrial order. 8 The deadline to disclose 2 3 4 5 6 7 8 Id. at 2 ¶ 4. Id. at 3-4 ¶¶ 7, 10 . R. Doc. 5. R. Doc. 33. R. Doc. 34; R. Doc. 38. R. Doc. 47. R. Doc. 34-1 at 1. 2 witnesses for trial was December 28, 20 18, 9 and the pretrial order was filed on J anuary 28, 20 19. 10 “When a party fails to tim ely disclose inform ation required by Federal Rule of Civil Procedure 26(a), ‘the party is not allowed to use that inform ation . . . at a trial, unless the failure was substantially justified or is harm less.’” In re Com plaint of C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 20 16) (quoting Fed. R. Civ. P. 37(c)(1)). In Geiserm an v. MacDonald, the Fifth Circuit described four factors to determ ine whether “to exclude evidence that was not properly designated”: (1) the explanation for the failure to adhere to the deadline; (2) the im portance of the proposed m odification of the scheduling order; (3) the potential prejudice that could result from allowing the m odification; and (4) the availability of a continuance to cure that prejudice. 893 F.2d 787, 791 (5th Cir. 1990 ); see also Hooks v. N ationw ide Housing Sy stem s, LLC, No. 15-729, 20 16 WL 3667134, at *4 (applying the Geiserm an test to a m otion in lim ine). Defendant has not explained how it is prejudiced by plaintiff’s failure to include Stakelum on its initial witness list. For instance, defendant does not say how plaintiff’s decision to call Stakelum negatively im pacts its 9 10 R. Doc. 23 at 3. R. Doc. 31. 3 strategy or trial preparations. In addition, while plaintiff does not give a reason for its failure to identify Stakelum initially, it disclosed him as a witness before the pretrial conference. Defendant has had adequate tim e to adjust its arguments before trial, to the extent that such adjustm ents have been necessary. Finally, Stakelum’s testim ony serves to authenticate Rose Point navigational data that gives the positions and m ovem ents of the two vessels before the collision, inform ation that is central to the m erits of the case. The Geiserm an factors therefore weigh against exclusion of Stakelum ’s testim ony despite plaintiff’s late disclosure. Defendant further asserts that Stakelum is an expert witness and has not filed an expert report. 11 Plaintiff responds that it does not intend to offer Stakelum as an expert witness, nor will he offer opinions of any kind. 12 Stakelum would m erely authenticate the Rose Point navigational data that plaintiff seeks to introduce as an exhibit. 13 Stakelum personally entered inform ation into the Rose Point program to generate the depiction at issue. 14 His testim ony authenticating the depiction is therefore within his personal 11 12 13 14 Id. R. Doc. 47 at 2-3. Id. Id. at 2. 4 knowledge under Federal Rule of Evidence 60 2, and his lay testim ony is therefore adm issible. B. D e fe n d an t’s Obje ctio n s 1. Tom Stakelum Rose Point Navigational Data Defendant objects to the Rose Point data created by Tom Stakelum because it was not tim ely disclosed. 15 But defendant has not shown how this evidence is prejudicial or unexpected. Rose Point data is often adm itted in cases such as this one. See, e.g., In re Settoon Tow ing, LLC, No. 14-499, 20 16 WL 9447753, at *2 (E.D. La. Mar. 21, 20 16); Marquette Transportation Co., LLC v. M/ V Century Dream , No. 16-522, 20 17 WL 677814, at *2 (E.D. La. Feb. 21, 20 17) (calling the Rose Point navigational system “the industry standard” that “autom atically and objectively record[s] vessel location and m ovement on a proven industry standard electronic chart.”). Defendant included other Rose Point data in the parties’ joint bench book. 16 The underlying Rose Point data used to create this depiction was tim ely exchanged during discovery, and this exhibit is merely a display setting within the program that shows additional inform ation about the water conditions and m ovem ents of the vessels. Evaluating defendant’s m otion 15 16 R. Doc. 38 at 1. See J oint Exhibits 2, 4. 5 under the Geiserm an factors, defendant has failed to show that this evidence is prejudicial, and the evidence has probative value as a detailed depiction of the vessels’ locations leading up to the collision. The Court therefore OVERRULES the objection. 2. Budw ine & Associates Survey Report Defendant objects to records by the m arine survey firm Budwine & Associates estim ating dam ages to the VANPORT’s cargo because they were not tim ely disclosed, and because they are hearsay. 17 Plaintiff contends that these records are not hearsay because they fall under the business records exception. 18 The docum ents are not within the business records exception because they were not prepared as part of a regular business activity. Fed. R. Evid. 80 3(6) (record m ust be “kept in the course of a regularly conducted activity of a business” and m aking the record m ust be “a regular practice of that activity”). Instead, these docum ents appear to have been prepared in anticipation of litigation against either the owner of Deloach’s cargo or the 17 R. Doc. 38 at 1. R. Doc. 47 at 5. Plaintiff also argues that these docum ents are adm issible under Federal Rule of Evidence 10 0 6. But there is no evidence that the docum ents in this exhibit summ arize other voluminous docum ents. They do not refer to other docum ents, and they include findings, com m ents, and conclusions that appear to be original to the reports subm itted as evidence. They are therefore not adm issible under Rule 10 0 6. 6 18 defendant. “The absence of trustworthiness is clear . . . when a report is prepared in the anticipation of litigation because the docum ent is not for the system atic conduct and operations of the enterprise but for the prim ary purpose of litigating.” Certain Underw riters at Lloy d’s, London v. Sinkovich, 232 F.3d 20 0 , 20 5 (4th Cir. 20 0 0 ). The Fifth Circuit has noted of m arine survey reports that “their objectivity is suspect because of their intended use in litigation.” Colorificio Italiano Max Mey er, S.P.A. v. S/ S Hellenic W ave, 419 F.2d 223, 225 (5th Cir. 1969). Indeed, the first page of Budwine’s report certifies that the purpose of its employm ent by Deloach “was to ascertain the nature and extent of dam ages to the subject vessels that stem med from this incident.”19 The docum ents are not m erely part of Deloach’s regularly conducted business, but instead were created for the purpose of assessing dam ages related to this specific accident for use in litigation or settlement. Nor do the Budwine docum ents qualify as business records of Budwine & Associates, because they lack trustworthiness as docum ents created prim arily for future litigation. See Sinkovich, 232 F.3d at 20 5 (“Litigants cannot evade the trustworthiness requirem ent of Rule 80 3(6) by simply hiring an outside party to investigate an accident and then arguing that the 19 Objected to Exhibit 2 at 1. 7 report is a business record because the investigator regularly prepares such reports as part of his business.”). Because the Budwine docum ents were not created in the course of a regularly conducted business activity, they are inadm issible as business records. But during Mr. Budwine’s testim ony, he m ay use these docum ents to refresh his recollection. See Fed. R. Evid. 612. Defendant’s objection is SUSTAINED. 3. Randy Bullard Em ail Finally, defendant objects to an email sent by one of the m arine surveyors at Budwine & Associates docum enting the dam age to plaintiff’s vessel and cargo because it was not listed as an exhibit in plaintiff’s initial exhibit list. 20 Plaintiff argues that this em ail was produced during discovery, and that it was included within an entry on its initial exhibit list identifying as exhibits a group of docum ents from Budwine & Associates. 21 Regardless of whether this exhibit was tim ely disclosed, it is hearsay. Plaintiff points to no applicable exception to the rule against hearsay, and the Court sees none. Plaintiff’s witness from Budwine & Associates can testify to the inform ation contained in this em ail rather than requiring the Court to rely on hearsay 20 21 R. Doc. 38 at 2. R. Doc. 47 at 6. 8 evidence to establish these facts. Accordingly, defendant’s objection is SUSTAINED. III. CON CLU SION For the foregoing reasons, defendant’s m otion to exclude Tom Stakelum is DENIED. Defendant’s objection to Tom Stakelum ’s Rose Point data is OVERRULED. Defendant’s objection to the Budwine documents is SUSTAINED. Defendant’s objection to the Randy Bullard em ail is SUSTAINED. New Orleans, Louisiana, this _ _8th _ _ _ day of February, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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