Rhodes v. Genesis Marine, LLC of Delaware et al, No. 2:2018cv00746 - Document 124 (E.D. La. 2019)
Court Description: ORDER AND REASONS denying 71 Motion in Limine to Exclude the Proffered Testimony of Bollinger Shipyards, LLC's Safety Expert Robert E. Borison. Signed by Judge Susie Morgan on 7/19/2019. (sbs)
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Rhodes v. Genesis Marine, LLC of Delaware et al Doc. 124 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 proffered testim ony of Defendant Bollinger Shipyards, LLC’s (“Bollinger’s) safety expert, Robert Borison. 1 Bollinger opposes this m otion. 2 Genesis filed a reply. 3 For the reasons that follow, Genesis’s m otion 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 Gen esis Barge 1110 3, which is owned by Defendant Genesis. 4 The parties agree Plaintiff is a longshorem an, not a seam an, 5 and the Genesis Barge 1110 3 is an inspected vessel. 6 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. 7 As part of the repair work, Genesis contracted with Com plete Marine to in stall 1 R. Doc. 71. R. Doc. 78 . 3 R. Doc. 94. 4 R. Doc. 1. at ¶ III. 5 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,.”) 6 Com pare R. Doc. 69-1 at 5 (describing Gen esis Barge 1110 3 as “Un ited 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”). 7 R. Doc. 1. at ¶ III. 2 1 Dockets.Justia.com electrical system s related to a new ballast water treatm ent system . 8 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. 9 “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.”10 To go through the opening, Plaintiff had to place the piece of grating (hereinafter the “hatch cover”) on the deck. 11 Only then could Plaintiff descend the ladder. Once he cleared the en trance, Plaintiff had to reposition the hatch cover over the access hole. 12 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. 13 Plaintiff pushed him self back from the ladder to avoid being struck by the hatch cover. 14 Plaintiff fell off the ladder, sustaining various bodily injuries. 15 Plaintiff filed this action against Genesis and Bollinger on J anuary 24, 20 18, bringing “negligence” and “vessel negligence” causes of action against Genesis and a “negligen ce” cause of action against Bollinger. 16 LAW AN D AN ALYSIS Genesis seeks to exclude Borison’s proffered testim ony that: The ladderway was unsafe in its construction and design because the hatch cover should have been hinged or should have either been protected by perm anent or tem porary guardrails or by a tem porary cover. 17 8 Id. Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 See R. Doc. 1. 17 R. Doc. 71-1 at 2. 9 2 Genesis argues this testim ony is unreliable under Federal Rule of Evidence 70 2 because “Borison is being offered as a safety expert, not a m arine engin eer/ naval architect” and Borison “com pletely disregards” the testim ony of Plaintiff, Robert Schenkenberg, and Townsend Hardee in form ulating his opinion. 18 Bollinger argues: “Borison is not being offered as an expert in m arin e engineering or naval architecture, nor is such a qualification a necessary prerequisite for the opinions offered in his report.”19 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 opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence 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. 20 Courts, as “gatekeepers,” are tasked with m aking a prelim in ary assessm ent whether expert testim ony is both reliable and relevant. 21 The Court has broad latitude in m aking such expert testim ony determ inations. 22 The party seeking to offer expert 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.”23 18 Id. at 4. R. Doc. 78 at 5. 20 Fed. R. Evid. 70 2. 21 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)). 22 Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 151– 53 (1999). 23 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) (citin g Daubert v . M errell Dow Pharm ., Inc., 50 9 U.S. 579, 590 – 91 (1993)). 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 propon ents of the expert evidence 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 opin ions are both reliable and relevant.”). 19 3 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the eviden ce rather than its adm issibility, and should be left for the finder of fact. 24 Thus, “‘[v]igorous cross-exam ination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible evidence.’”25 The Court is not concerned with whether the opinion is correct, but whether the preponderance of the eviden ce establishes that the opinion is reliable. 26 “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”27 In Montgom ery v. Parker Tow ing Co., J udge Africk addressed a sim ilar challenge to Borison’s expert testim ony as the ones Gen esis raises in this case. 28 There, J udge Africk denied a vessel owner’s m otion in lim ine to exclude safety expert Borison’s opin ion on the causes of an accident involving a crew m em ber whose foot was “was crushed between a hydraulic cylinder and a stop point. 29 Borison listed in the report several preventative m easures, in cluding: “(1) installing guards over the m echanism that injured plaintiff; (2) installing a raised deck covered with grating; (3) installing a guard rail, gates, warnings, and presence sensors; and (4) instituting a lock out/ tag out procedure.”30 The vessel owner argued: “Borison is not qualified to give expert testim ony as to the engine room operations and design because Borison is not a naval architect nor a m echan ical engineer.”31 J udge Africk held: “Borison is not seeking to be qualified as a naval architect 24 See Prim rose Operating Co. v. N at’l Am . Ins. Co., 38 2 F.3d 546, 562 (5th Cir. 20 0 4). Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596). 26 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). 27 Prim rose, 38 2 F.3d at 562. 28 No. CIV. A. 0 7-3218 , 20 0 8 WL 559569 (E.D. La. Feb. 26, 20 0 8 ). 29 Id. at *1. 30 Id. 31 Id. at *2. 25 4 or a m echanical engineer, but rather as a safety expert, for which he has sufficient qualifications” and “[t]he strength of Borison's credentials goes to the weight of his testim ony and not its adm issibility.”32 In this case, Borison is not qualified as an expert in m arine engineering or naval architecture, and accordingly will not be allowed to testify with respect to the design or m anufacture of the hatch cover. However, Bollinger is offering Borison as a safety expert, not as an expert in m arine engineering or naval architecture. Borison m ay properly testify as a safety expert. CON CLU SION Genesis’s m otion in lim ine is D EN IED . IT IS SO ORD ERED . 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 32 Id. (citin g Curry v. EN SCO Offshore Co., 54 Fed. App'x 40 7 (5th Cir. 20 0 2) (holdin g that a safety director was qualified to testify as an expert in m arin e safety, despite defendant's argum en ts that the expert was not qualified as a biom echan ical engin eer or any other relevant discipline); W illiam s v. W arren, 253 F.3d 70 0 (5th Cir. 20 0 1) (holdin g that an expert was qualified to discuss broken bones even though he was not an orthopedic surgeon and that the strength of his “credentials go to the weight, not the adm issibility” of his testim ony)). 5
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