Rhodes v. Genesis Marine, LLC of Delaware et al, No. 2:2018cv00746 - Document 123 (E.D. La. 2019)

Court Description: ORDER AND REASONS denying 69 Motion in Limine to Exclude the Proffered Testimony of Plaintiff's Expert Marine Engineer and Expert Economist. Signed by Judge Susie Morgan on 7/19/2019. (sbs)

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Rhodes v. Genesis Marine, LLC of Delaware et al Doc. 123 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KEVIN J . RH OD ES Plain tiff CIVIL ACTION VERSU S N O. 18 -74 6 GEN ESIS MARIN E, LLC OF D ELAW ARE, D e fe n d an t SECTION : “E” ( 2 ) ORD ER AN D REAS ON S Before the Court is a Motion in Lim ine, filed by Defendant Genesis Marine, LLC of Delaware (“Genesis”), to exclude the proferred testim ony of Plaintiff’s expert m arin e engineer, J ohn Tylawsky, and expert econom ist, Kenneth McCoin. 1 Plaintiff Kevin Rhodes opposes this m otion. 2 Genesis filed a reply. 3 On J uly 11, 20 19, the Court ruled, in part, with respect to McCoin, that he “will not be allowed to testify: (1) that Plaintiff’s annual wages would increase by 0 .8% annually throughout his worklife expectancy or (2) with respect to the costs of household services.”4 For the reasons that follow, Genesis’s m otion to exclude the testim ony of Tylawsky is D EN IED . BACKGROU N D Plaintiff Kevin Rhodes alleges he was injured on J une 23, 20 17 while working as a m arine electrician for his em ployer, Com plete Marine Services, LLP (“Com plete Marine”), aboard the Genesis Barge 1110 3, which is owned by Defendant Genesis. 5 The parties agree Plaintiff is a longshorem an, not a seam an, 6 and the Genesis Barge 1110 3 is an inspected 1 R. Doc. 69. R. Doc. 86. 3 R. Doc. 10 1. 4 R. Doc. 10 9. 5 R. Doc. 1. at ¶ III. 6 R. Doc. 10 7 (Pre-trial Order) at 12 (Uncontested Material Facts) (“On J une 23, 20 17, Kevin Rhodes was a worker covered under the Longshore and Harbor Workers’ Com pensation Act, 33 U.S.C. § 90 1, et seq,.”) 2 1 Dockets.Justia.com vessel. 7 At the tim e of the alleged incident, the Genesis Barge 1110 3 was undergoing repairs perform ed by Defendant Bollinger at Bollinger’s dry dock facility in Am elia, Louisiana. 8 As part of the repair work, Genesis contracted with Com plete Marine to install electrical system s related to a new ballast water treatm ent system . 9 Because the ballast water treatm ent system was to be installed below the deck of the barge, to perform his work Plaintiff had to descend a ladder to access the lower level of the barge. 10 “In order to access and descend the ladder, Plaintiff had to rem ove a grated opening to enter the bilge of the barge. The opening consisted of a cut-off piece of the grating.”11 To go through the opening, Plaintiff had to place the piece of grating (hereinafter the “hatch cover”) on the deck. 12 On ly then could Plaintiff descend the ladder. Once he cleared the entrance, Plaintiff had to reposition the hatch cover over the access hole. 13 On the date of the incident, as Plaintiff attem pted to reposition the hatch cover, “it got snagged on welding lead cables that were laid out across the walkway by em ployees of Defendant, Bollinger” and the hatch cover fell into the hole. 14 Plaintiff pushed him self back from the ladder to avoid being struck by the hatch cover. 15 Plaintiff fell off the ladder, sustaining various bodily injuries. 16 Plaintiff filed this action against Genesis and 7 Com pare R. Doc. 69-1 at 5 (describing Genesis Barge 1110 3 as “United States Coast Guard inspected vessel”) (citin g R. Doc. 69-7, United States Coast Guard Certificate of Inspection dated February 2, 20 15) w ith R. Doc. 86 at 4-6 (describing Gen esis Barge 1110 3 as an “inspected vessel”). 8 R. Doc. 1. at ¶ III. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 2 Bollinger on J anuary 24, 20 18, bringing “n egligence” and “vessel negligence” causes of action against Genesis and a “negligen ce” cause of action against Bollinger. 17 Plaintiff retained Tylawsky to render a report as a m arin e engin eer and liability expert. 18 Genesis seeks to exclude Tylawsky’s testim ony under Federal Rule of Evidence 70 2, and argues two bases for exclusion. First, Genesis argues Tylawsky’s testim ony is unreliable because he considered OSHA regulations—rather than U.S. Coast Guard rules—in reaching his opinions. 19 Second, Genesis argues Tylawsky’s testim ony is not based on sufficient facts or data because Tylawsky “fails to consider any depositions, including that of plaintiff, in form ulating his conclusory opinions.”20 LAW AN D AN ALYSIS Federal Rule of Evidence 70 2, which governs the adm issibility 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 opin ion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the eviden ce or to determ ine a fact in issue; (b) the testim ony is based upon 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. 21 Courts, as “gatekeepers,” are tasked with m aking a prelim in ary assessm ent whether expert testim ony is both reliable and relevant. 22 The Court has broad latitude in m aking such expert testim ony determ inations. 23 The party seeking to offer expert 17 See R. Doc. 1. R. Doc. 10 7 at 29. 19 R. Doc. 69-1 at 5. 20 Id. 21 Fed. R. Evid. 70 2. 22 See Pipitone v. Biom atrix, Inc., 28 8 F.3d 239, 243– 44 (citing Daubert v. Merrell Dow Pharm ., Inc., 50 9 U.S. 579, 592– 93 (1993)). 23 Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 151– 53 (1999). 18 3 testim ony bears the burden of establishing, by a preponderance of the eviden ce, that “(1) the expert is qualified; (2) the testim ony is relevant to an issue in the case; and (3) the testim ony is reliable.”24 While an expert witness is perm itted to give his opin ions on an “ultim ate issue” of fact, assum ing he is qualified to do so, he is not perm itted to m ake credibility determ ination s or offer conclusions of law. 25 As a general rule, questions relating to the bases an d sources of an expert’s opinion affect the weight of the evidence rather than its adm issibility, and should be left for the finder of fact. 26 Thus, “‘[v]igorous crossexam ination, presentation of contrary evidence, an d careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible eviden ce.’”27 The Court is not concerned with whether the opinion is correct, but whether the preponderance of the evidence establishes that the opinion is reliable. 28 “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”29 I. OSH A Re gu latio n s Genesis seeks to exclude Tylawsky’s testim ony with respect to these two opinions: 1. That the lack of a hinged access cover was in violation of: “Guarded by hinger floor opening cover equipped with standard railings or perm anently attached 29 CFR § 1910 .23(a)(3).” 24 Motio, Inc. v. BSP Softw are, LLC, No. 4:12-CV-647, 20 16 WL 10 5299, at *1 (E.D. Tex. J an. 8, 20 16) (citing Daubert, 50 9 U.S. at 590 – 91). See also Mathis v. Exxon Corp., 30 2 F.3d 448 , 459– 60 (5th Cir. 20 0 2); AMW Sports, LLC v . State Farm Fire and Cas. Co., No. 10 -651, 20 12 WL 39380 , at *1 (M.D. La. J an . 9, 20 12) (“Plaintiffs, the proponents of the expert eviden ce at issue, have the burden of dem onstrating that their expert is qualified to testify in the field that he is offered and that his opinions are both reliable and relevant.”). 25 Fed. R. Evid. 70 4; see also Goodm an v. Harris County , 571 F.3d 388 , 399 (5th Cir. 20 0 9) (“[A]n expert m ay never render conclusions of law . . . nor, m ay an expert go beyond the scope of his expertise in givin g his opinion ”); Ow en v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983) (“Fed. R. Evid. 70 4 abolished the per se rule against testim ony regardin g ultim ate issues of fact. . . . Rule 70 4, however, does not open the door to all opinions.”). 26 See Prim rose Operating Co. v. N at’l Am . Ins. Co., 38 2 F.3d 546, 562 (5th Cir. 20 0 4). 27 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596). 28 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). 29 Prim rose, 38 2 F.3d at 562. 4 2. That the alternative lack of a guard railing is in violation of: “Covers and guardrails – Shall be provided to protect workers from the hazards of open pits, tanks, vats, ditches, etc. 29 CFR § 1910 .22(c).”30 Genesis argues testim ony with respect to these opin ions is unreliable, and therefore inadm issible under Federal Rule of Evidence 70 2, because “application of such OSHA regulations is im proper in this case as the Barge was a United States Coast Guard inspected vessel.”31,32 According to Gen esis, the Suprem e Court ruled in Chao v. Mallard Bay Drilling, Inc., a case exam ining whether OSHA had jurisdiction to issue citations for violations of the OSH ACT, that “the Coast Guard’s regulations pre-em pt OSHA’s regulations with regard to inspected vessels.”33 Genesis further argues that cases from this district court, including Francois v. Diam ond Offshore Co., 34 and Carbo v. Chet Morrison Servs., LLC, 35 “have previously excluded expert testim ony regarding inapplicable OSHA regulations when dealing with a Coast Guard inspected vessel.”36 Genesis further argues “29 C.F.R. §1915.2 provides that OSHA regulations do not apply to m atters under the control of the Coast Guard, including the construction and m aintenan ce of the vessel and its gear and equipm ent.”37 Plaintiff argues the Suprem e Court held in Chao, “pursuant to the Mem orandum of Understanding (MOU) between OSHA and the U.S. Court Guard,” that OSHA “m ay not 30 R. Doc. 69-5 at 9. 31 Id. 32 Applying the U.S. Coast Guard regulations, Genesis argues “[t]he Barge at issue in this case was a tan k barge classed by [Am erican Bureau of Shippin g (“ABS”)] and inspected by the Coast Guard”; “the Coast Guard regulations and ABS class rules do not require hin ged deck access covers”; and “both Coast Guard and ABS have inspected this Barge num erous tim es, including the hatch cover and area in question , and have found no deficiency regardin g the hatch cover design .” Id. at 6. U.S. Coast Guard regulations require a vessel to “be constructed, m aintain ed, and operated so as to m eet the highest classification , certification , rating, and inspection standards for vessels of the sam e age and type im posed by” one of several classification societies, including “the Am erican Bureau of Shipping (ABS).” 46 CFR § 298.11(c). 33 Id. at 5-6 (citin g Chao v. M allard Bay Drilling, Inc., 534 U.S. 235, 122 S. Ct. 738, 743 (20 0 2)). 34 Civil Action No. 11– 2956, 20 13 WL 654635 (E.D. La. Feb. 21, 20 13). 35 Civil Action No. 12-30 0 7, 20 13 WL 5774948 (E.D. La. Oct. 24, 20 13). 36 R. Doc. 69-1 at 6. 37 Id. 5 enforce the OSH Act with respect to the working conditions of seam en aboard inspected vessels.”38 Plaintiff points out that, unlike the facts in Francois and Carbo, “Plaintiff was not a seam an at the tim e of the occurrence in question,” and, accordingly, the application of OSHA regulations is proper. Instead, Plaintiff posits the case at hand is m ore sim ilar to W illis v. N oble Drilling (US), Inc., 39 in which the Court of Appeal of Louisiana, Fifth Circuit, “found that OSHA regulations did apply to the occupational accident of a longshorem an on an in spected vessel.”40 Plaintiff argues, in the alternative, “even if [OSHA] regulations do not apply to inspected vessels, it does not follow that these OSHA standards for safety cannot be consulted as a guide [in determ ining standards of care].”41 Genesis replies: “plaintiff’s argum ent that OSHA regulations m ay be consulted as a guide even if not applicable is not appropriate in this case given that this is a jury trial such that there is an increased risk that reference to inapplicable OSHA regulations will m islead/ confuse the jurors and result in prejudice towards Genesis.”42 The Court now considers whether OSHA standards m ay be enforced with respect to the working conditions of non-seam en on an inspected vehicle. The MOU sign ed by the Coast Guard and OSHA on March 17, 1983 im plem ents § 4(b)(1) of the OSHA regulations, 43 which provides: Nothing in this chapter shall apply to working conditions of em ployees with respect to which other Federal agencies, and State agencies acting under section 20 21 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 44 38 R. Doc. 86 at 5 (citing Chao, 122 S. Ct. 738). 10 5 So. 3d 8 28 (La. App. 5 Cir. 11/ 13/ 12). 40 R. Doc. 86 at 4-5. 41 R. Doc. 86 at 6 (citing N ational Marine Service, Inc. v. Gulf Oil Co., 433 F. Supp. 913, 919 (E.D. La. 1977)). 42 R. Doc. 10 1 at 3. 43 29 U.S.C. § 653(b)(1). 44 Id. 39 6 The MOU states “the Coast Guard has issued com prehensive standards and regulations concern ing the working conditions of seam en aboard inspected vessels. These com prehensive standards and regulations include extensive specific regulations governing the working conditions of seam en aboard inspected vessels.”45 In light of this, the MOU concludes the following regarding the authority of OSHA: Based on OSHA's interpretation of section 4(b)(1), and as a result of the Coast Guard's exercise of its authority, described above, OSHA has concluded that it m ay not enforce the OSH Act with respect to the working conditions of seam en aboard inspected vessels. 46 Notably, the MOU facially gives the U.S. Coast Guard full authority to enforce its regulations with respect to the safety and health of seam en aboard inspected vessels, but does not do the sam e for non-seam en. Various OSH Review Com m ission (the “Com m ission”) opinions and court decisions lend additional support to Plaintiff’s argum ent that em ployers of non-seam en on inspected vehicles m ay be cited for OSHA violations. For instance, in Secretary of Labor v. California Stevedore & Ballast Co., the Com m ission held an em ployer whose stevedores were discharging cargo from the hold of a ship was not entitled to § 4(b)(1) exem ption from OSHA regulations. 47 The Com m ission addressed whether, under § 4(b)(1), “the Coast Guard has statutory authority to ‘prescribe or enforce standards or regulations' applicable to the working conditions of longshorem en.”48 The Com m ission found the Coast Guard lacks the authority to enforce its regulations with respect to the working conditions of longshorem en: “the provision s 45 “Authority To Prescribe an d Enforce Standards or Regulations Affectin g Occupational Safety and Health of Seam en Aboard Vessels Inspected and Certificated by the Un ited States Coast Guard; Mem orandum of Understandin g,” 48 FR 11365-0 1, 1983 WL 1260 57(F.R.) (Mar. 17, 1983). 46 Id. 47 8 OSAHRC 811, OSH RC Docket No. 1132, 1974 WL 4153 (May 28, 1974). 48 Id. at *1. 7 of the [Coast Guard] Shipping Code as they relate to occupational safety appear to apply to seam en as a class to the exclusion of longshorem en as a class.”49 In so holding, the Com m ission explained: Indeed, were this not the case there would have been no necessity to am end the Longshorem en's and Harbor Worker's Com pensation Act so as to authorize the Secretary of Labor to prom ulgate and enforce safety standards relating to longshoring operations. Nor would there have been any necessity for Congress to adopt longshoring standards issued under the Com pensation Act as occupation al safety standards under section 4(b)(2) of this Act. 50 Conversely, courts have found OSHA does not have authority to cite em ployers of seam en on inspected vessels for violations of OSHA regulations. In Donovan v. Texaco, Inc., a case involving an incident predating the signing of the MOU, the Fifth Circuit considered whether § 11(c) of OSHA could be enforced against an em ployer of a “seam an.”51 The Court found under the language of § 4(b)(1), OSHA regulations do not apply to working conditions of seam en on vessels in navigation. 52 The Fifth Circuit explain ed: “Section 4(b)(1) [of OSHA] declares that ‘[n]othing in this Chapter shall apply to working conditions of em ployees with respect to which other federal agen cies . . . exercise statutory authority . . .’”; “w ith respect to seam en[,] the Coast Guard is such an agency”; an d, therefore, “[n]othing in OSHA shall apply to working conditions of seam en on vessels.”53 The Second Circuit has taken the sam e approach, holding that OSHA m ay not enforce its regulations with respect to seam en on in spected vessels. In Donovan v. Red 49 Id. Id. 51 720 F.2d 8 25 (5th Cir. 198 3). 52 Id. at 827. 53 Id. (em phasis added). 50 8 Star Marine Services, Inc., one of the issues presented was the m eaning of “working conditions” as used in § 4(b)(1) of OSHA. 54 In dicta, the Second Circuit noted: In accordance with a “Mem orandum of Understanding” signed by the Com m andant of the Coast Guard and the Assistant Secretary for Occupation al Safety and Health, Departm ent of Labor, the Secretary has taken the position, that “the Coast Guard has issued com prehensive standards and regulations concerning the working conditions of seam en aboard inspected vessels,” and that OSHA m ay not enforce its regulations w ith respect to “seam en” aboard inspected vessels. 55 Plaintiff points out the Court of Appeal of Louisiana, Fifth Circuit has held in W illis that OSHA regulations do not apply to em ployers of seam en on an inspected vessel, but do apply to longshorem en: § L of OSHA Directive CPL 2– 1.20 , 56 which was in effect that the tim e of this incident, provided that, although the U.S. Coast Guard exercises full authority over the safety and health of seam en aboard ‘inspected’ vessels, OSHA m ay exercise its authority over em ployers, other than those that only em ploy seam en, for the working conditions on vessel within OSHA's geographical jurisdiction. ‘OSHA requirem ents which rem ain enforceable on inspected vessels for em ployees other than seam en are . . . long shoring operations, . . . m arine construction activities, . . . general working conditions not otherwise regulated, [and] . . . Identified recognized hazardous situations that are causing or are likely to cause death or serious physical harm .”57 The Court finds OSHA m ay enforce its regulations against em ployers of nonseam en such as Plaintiff aboard inspected vessels. Tylawsky m ay testify that certain conditions on Gen esis Barge 1110 3 violated OSHA regulations. The Court notes, however, that Tylawsky m ay not testify regarding legal conclusions. “Federal Rule of Evidence 70 2 perm its the district court to adm it expert testim ony that will assist the trier of fact in either understanding the evidence or 54 739 F.2d 774, 775 (2d Cir. 1984). Id. at 778 n.2 (em phasis added). 56 OSHA Directive CPL 2-1.20 “provides current policy, inform ation and guidance with respect to OSHA/ U.S. Coast Guard authority over inspected vessels, com m ercial uninspected fishing vessels, and com m ercial uninspected vessels in accordance with Section 4(b)(1) of the OSH Act, 29 U.S.C. Section 653(b)(1).” OSHA Directive CPL 2-1.20 at Abstract-2. 57 W illis, 10 5 So. 3d at 837 (quoting OSHA Directive CPL 0 2– 1.20 § L(2)) (em phasis in original). 55 9 determ ining a fact in issue.”58 Federal Rule of Eviden ce 70 4 states that “[a]n opinion is not objectionable just because it em braces an ultim ate issue.”59 “The rule was enacted to change the old view that the giving [of] an opinion on an ultim ate issue would ‘usurp the function’ or ‘invade the province’ of the jury.”60 The rule, however, does not “open the door to all opinions,”61 and neither Rule 70 2 nor Rule 70 4 “perm its expert witnesses to offer conclusions of law.”62 “The Advisory Com m ittee notes m ake it clear that questions which would m erely allow the witness to tell the jury what result to reach are n ot perm itted. Nor is the rule intended to allow a witness to give legal conclusions.”63 “[T]he task of separating im perm issible questions which call for overbroad or legal responses from perm issible questions is not a facile one,” and requires district courts to exclude questions or answers from experts that “would supply the jury with n o inform ation other than the expert’s view of how its verdict should read.”64 The parties should anticipate that the Court will not adm it expert testim ony at trial that am ounts to nothing m ore than a legal conclusion. 65 The Court offers the following guidance: The exam ple given in the Advisory Com m ittee Notes to Rule 70 4 is helpful. The question “Did T have capacity to m ake a will?” should be excluded. The question “Did T have sufficient m ental capacity to know the nature and extent of his property and the natural objects of his bounty and to form ulate a rational schem e of distribution?” is perm issible. The first question is phrased in such broad term s that it could as readily elicit a legal as well as a fact based response. A direct response, whether it be negative or affirm ative, would supply the jury with no inform ation other than the expert’s view of how its verdict should read. Moreover, 58 C.P. Interests, Inc. v . Cal. Pools, Inc., 238 F.3d 690 , 697 (5th Cir. 20 0 1). Fed. R. Evid. 70 4. 60 Ow en, 698 F.2d at 240 . 61 Id. 62 Id. 63 Id. 64 Id. 65 See Ow en , 698 F.2d at 240 . 59 10 allowing an expert to give his opinion on the legal conclusions to be drawn from the eviden ce both invades the court’s province and is irrelevant. 66 In this case, for exam ple, Tylawsky m ay not express an opinion that Genesis’s failure to include a hinged hatch cover, in violation of OSHA regulations, constitutes negligence per se. However, Tylawsky m ay testify that the failure to provide a hinged hatch cover violated OSHA regulations and that Genesis’s conduct in failing to provide a hinged hatch cover fell below the required standard of care. II. Fa ilu re to Co n s id e r D e p o s itio n s Second, Genesis seeks to exclude Tylawsky’s testim ony that “the hatch cover design was defective, unreasonably dangerous, and ren dered the vessel unfit for service because it lacked a hinge.”67 Genesis argues this testim ony is unreliable, and therefore inadm issible under Federal Rule of Evidence 70 2, because Tylawsky “fails to consider an y depositions, including that of plaintiff, in form ulating his conclusory opinions.”68 Plaintiff argues “as noted in his report, J ohn Tylawsky perform ed an inspection of the particular barge aboard which the Plaintiff was injured” and “[h]is expert report contains photographs of the unhinged hatch cover in question, which were obtained during this inspection.”69 Therefore, Plaintiff argues, Tylawsky’s opinions “are based on sufficient facts and data as well as Mr. Tylawsky’s relevant educational background, experience, training, and expertise.”70 The crux of Genesis’s argum ent is Tylawsky’s opinion is unreliable because he failed consider and rely on any depositions in form ulating his opinion. However, Federal 66 Id. R. Doc. 69-1 at 6. 68 Id. at 5. 69 R. Doc. 86 at 6. 70 Id. at 7. 67 11 Rule of Eviden ce of 70 2 does not m andate that an expert consider depositions in form ing his opin ion. Instead, Rule 70 2 only requires an expert’s testim ony be “based upon sufficient facts or data.”71 This requires exclusion of opinions based on “‘insufficient, erroneous inform ation.’”72 As Plaintiff argues, Tylawsky inspected the barge aboard which Plaintiff was allegedly injured, and during this inspection Tylawsky observed the access to the bilge area and the particular hatch cover involved in the incident at issue. Tylawsky’s expert report contains photographs of the hatch cover obtained during this inspection. The Court concludes that Genesis’s criticism s go to the weight of Tylawsky’s testim ony and not to its adm issibility. Accordingly; CON CLU SION Genesis’s m otion in lim ine with respect to the testim ony of Tylawsky is D EN IED . N e w Orle an s , Lo u is ian a, th is 19 th d ay o f Ju ly, 2 0 19 . ______________ _______ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 71 Fed. R. Evid. 70 2(b). Moore v. Int'l Paint, L.L.C., 547 F. App'x 513, 515 (5th Cir. 20 13) (quoting Paz v. Brush Engineered Materials, Inc., 482 F.3d 383, 389 (5th Cir. 20 0 9)). 72 12

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