Bergeron v. Great Lakes Dredging & Dock Co, No. 6:2017cv00002 - Document 30 (W.D. La. 2018)
Court Description: ORDER AND REASONS granting in part and denying in part 14 Daubert Motion to preclude the testimony of Great Lakes liability expert, 3D Marine. Signed by Judge Susie Morgan on 10/9/2018. (crt,Dauterive, C)
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Bergeron v. Great Lakes Dredging & Dock Co Doc. 30 U N ITED S TATES D ISTRICT COU RT W ESTERN D ISTRICT OF LOU ISIAN A TEX JAMES BERGERON , Pla in tiff CIVIL ACTION VERSU S N O. 17-0 0 0 2 GREAT LAKES D RED GE AN D D OCK COMPAN Y, D e fe n d a n t SECTION : “E” ( 2 ) ORD ER AN D REAS ON S Before the court is a m otion in lim ine filed by Plaintiff Tex J am es Bergeron to exclude the testim ony of Defendant Great Lakes Dredge and Dock Com pany’s (“Great Lakes”) liability expert, Marc A. Fazioli. 1 Great Lakes opposes this m otion. 2 For the reasons that follow, Plaintiff’s m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D Plaintiff Tex J am es Bergeron alleges he was injured on J anuary 5, 20 14, while working on the booster barge ALCO, also known as the R-0 31. 3 At that tim e, Plaintiff was em ployed by Great Lakes as a watch engineer aboard the dredge PONTCHARTRAIN. 4 The ALCO is a support (or “booster”) vessel for the dredge PONTCHARTRAIN. 5 Plaintiff alleges that freezing rain an d wind caused him to slip and fall on the ALCO’s icy deck. 6 Bergeron alleges his injuries are the result of Great Lakes’s negligence and the unseaworthiness of the ALCO. 7 1 R. Doc. 14. Plaintiff origin ally filed his Motion in Lim ine as R. Doc. 13 but subsequently replaced that m otion with this Am ended Motion. 2 R. Doc. 18 . 3 R. Doc. 1. 4 R. Doc. 14-6 at 3. 5 R. Doc. 1. 6 Id. 7 R. Doc. 1 at 4-5. 1 Dockets.Justia.com Defendant’s liability expert, Marc. A. Fazioli, provided his expert report on J anuary 15, 20 18. 8 In his report, Fazioli opin es, Mr. Bergeron him self was respon sible for m onitoring the conditions an d safety of the Barge R-0 31 deck, including obtaining and spreading ice m elt or rock salt as n ecessary to prevent the accum ulation of ice on the deck. It was not the direct responsibility of personnel on board Dredge PONTCHARTRAIN to m onitor the deck conditions of the Barge R-0 31, which was located som e distance away from the dredge. In addition, we are of the opinion that Mr. Bergeron was directly responsible for m onitoring his own safety while transiting the decks of Barge R-0 31, in cluding avoiding stepping onto ice accum ulations. 9 Fazioli further opines, “neither Great Lakes, Barge R-0 31, nor Dredge PONTCHARTRAIN violated any regulations, requirem ents, nor in dustry custom ary practices and procedures . . . the alleged incidents, if they occurred as testified to by Mr. Bergeron, could have been avoided by actions an d decisions of Mr. Bergeron alone.”10 Fazioli also offers the opinion “that the icy conditions present on board Barge R-0 31 on 5 th J anuary 20 14 were easily predictable given the recent weather conditions.”11 Plaintiff m oves to exclude the testim ony of Mr. Fazioli on the grounds that his m ethodologies and reasoning are not reliable because he overlooks the negligent acts of Great Lakes which led to the accident and relies on an in correct application of m aritim e law. 12 Defendant opposes the m otion and suggests that Plaintiff’s argum ents would be m ore appropriately used as fodder for cross-exam ination. 13 8 R. Doc. 14-3. Id. at 4. 10 Id. at 5. 11 Id. at 4. 12 R. Doc. 14. 13 R. Doc. 18 at 9. Additionally, Defendant m istakenly argues this case is set for a bench trial. Id. at 6. To be clear, this case has always been set for a jury trial. Before the reassign m ent of the case to this section , the m atter was set for a trial by jury. R. Doc. 7. The confusion as to whether this case is, in fact, set for a jury trial appears to stem from the order vacatin g the origin al scheduling order, which states “IT IS ORDERED that the bench trial of this m atter is continued without date.” R. Doc. 17. On August 24, 20 18, the Court denied as m oot Plaintiff’s ex parte m otion to set the m atter for a trial by jury, as the m atter was already set as such. R. Doc. 27 (Plaintiff’s ex parte m otion); R. Doc. 29 (Order denyin g as m oot). 9 2 LAW AN D AN ALYSIS Federal Rule of Evidence 70 2 perm its 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 (1) “the testim ony is based upon sufficient facts or data,” (2) “the testim ony is the product of reliable principles and m ethods,” an d (3) “the expert has reliably applied the prin ciples and m ethods to the facts of the case.”14 Under Daubert v. Merrell Dow Pharm aceuticals, Inc., courts, as “gatekeepers,” are tasked with m aking a prelim inary assessm ent of whether expert testim ony is both relevant and reliable. 15 Ultim ately, a court m ust m ake “a prelim inary assessm ent of whether the reasoning or m ethodology underlying the testim ony is scientifically valid and of whether that reasoning or m ethodology properly can be applied to the facts in issue.”16 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 inations or offer conclusions of law. 17 Federal Rule of Eviden ce 70 4 clarifies that an opin ion is not objectionable m erely because it em braces an ultim ate issue to be decided by the trier of fact. 18 However, the Fifth Circuit has repeatedly held that Rule 70 4 does not authorize experts to render legal opin ions or reach legal con clusions. 19 Moreover, 14 F ED. R. E VID. 70 2. See Pipitone v. Biom atrix, Inc., 28 8 F.3d 239, 243-44 (5th Cir. 20 0 2) (citing Daubert v. Merrell Dow Pharm aceuticals, Inc., 50 9 U.S. 597, 592– 93 (1993)). 16 Daubert, 50 9 U.S. at 592-93. 17 F ED . R. E VID. 70 4. 18 F ED . R. E VID. 70 4. 19 See, e.g., Goodm an v. Harris Cnty ., 571 F.3d 388, 399 (5th Cir. 20 0 9); United States v. $ 9,0 41,598.68, 163 F.3d 238, 255 (5th Cir. 1998); Snap-Drape, Inc. v . C.I.R., 98 F.3d 194, 198 (5th Cir. 1996); Ow en v. Kerr-McGee, 698 F.2d 236, 239 (5th Cir. 1983); see also Lackey v. SDT W aste and Debris Servs., LLC, No. 11-10 87, 20 14 WL 3866465, at *7– 8 (E.D. La. Aug. 6, 20 14) (“It is the job of the Court—not the expert—to instruct the jury on the applicable law). See Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997) (“[O]ur legal system reserves to the trial judge the role of deciding the law for the benefit of the jury.”). 15 3 testim ony that tells the jury what conclusion to reach or m erely states a legal conclusion is not helpful to the jury. 20 Generally, “questions relating to the bases and sources of an expert’s opinion affect the weight of the evidence rather than its adm issibility an d should be left for the finder of fact.”21 “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the adm issibility of the expert opinion.”22 As such, expert opinions which overlook certain data are not typically excluded on that basis. 23 Rather, they are adm itted to allow the jury to fulfill its role as the proper arbiter of disputes between conflicting opinions. 24 “Vigorous cross-exam in ation, presentation of contrary eviden ce, an d careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible evidence.”25 Plaintiff argues that the m ethodology em ployed by Fazioli is defective. 26 Specifically, Plaintiff points to five acts of Great Lakes’s negligen ce that Fazioli overlooks in form ing his opin ion s. 27 Additionally, Plaintiff argues that Fazioli’s opinions contradict 20 See, e.g., Snap-Drape, 98 F.3d at 197– 98 (notin g that certain expert reports im properly contained legal conclusions, which “would be of no assistance in m akin g findings of fact”); Metrejean v. REC Marin e Logistics, L.L.C., No. 0 8 -50 49, 20 0 9 WL 30 62622, at *2 (E.D. La. Sept. 21, 20 0 9) (citin g Burkhart v. W ashington Metro. Area Transit Auth., 112 F.3d 120 7, 1212 (D.C. Cir. 1997) (“‘Expert testim ony that consists of legal conclusions cannot properly assist the trier of fact’ in understanding evidence or determ in in g facts in issue.”)). 21 United States v. 14.38 Acres of Land, 80 F.3d 10 74, 10 77 (5th Cir.1996); see also Rosiere v. W ood Tow ing, LLC, No. 0 7-1265, 20 0 9 WL 982659, at *1 (E.D. La. Apr. 8, 20 0 9). 22 Rosiere, 20 0 9 WL 98 2659, at *1 (citin g 14.38 Acres of Land, 8 0 F.3d at 10 77). 23 Moss v. Ole South Real Estate, LLC, 933 F.2d 130 0 , 130 7 (5th Cir. 1991); Matador Drilling Co. v . Post, 662 F.2d 1190 , 1199 (5th Cir. 1981). 24 14.38 Acres of Land, 8 0 F.3d at 10 77. 25 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 26 R. Doc. 14. 27 R. Doc. 14-2 at 13-14. These acts of negligence include: (1) schedulin g safety m eetings that Plaintiff and other booster crews could not attend; (2) the Multiple Cause Incident Analysis’ adm ission that a contributin g cause of the accident was that the booster crew could not take part in a m ornin g m eeting discussing the falling tem perature; (3) keepin g the booster ALCO in such poor condition that Plaintiff and his co-workers had to try to shelter them selves and the vessel’s pum ps with visqueen; (4) reusing a job safety analysis, in violation of Great Lakes’s own accident prevention plan, that did not address the falling term perature; and (5) failing to keep the booster ALCO’s deck free of hazards, as required by OSHA and Great Lakes’s accident prevention plan. Id. 4 statutory, J ones Act, and general m aritim e law, interpreting Fazioli’s report to opine that Great Lakes had no responsibility to m aintain the booster ALCO in a seaworthy condition. 28 Defendant responds that Plaintiff’s argum ents go to the weight of Fazioli’s opinions, not their adm issibility. 29 The Court finds these purported deficien cies in the data underlying Fazioli’s opinion m ay be raised in cross exam ination but are not grounds for exclusion. 30 The acts of negligence purportedly overlooked by Fazioli in form ing his opin ion go to the weight of his testim ony, not its reliability. 31 Plaintiff fails to dem onstrate that Fazioli’s testim ony will m eet the unreliability standard of Daubert. While an expert m ay testify on the standard of care owed by a party, an expert m ay not opin e that a party was n egligent or contributorily negligent. 32 Instead, Fazioli m ay testify on the standard of care for issues within his expertise an d whether the parties m et that standard. However, the Court will exercise its discretion under Federal Rule of Eviden ce 70 5 to require Fazioli to first testify to the underlying facts, assum ptions, and data on which he relied before expressing his opinions. 33 Obviously, the facts or data m ust com ply with Federal Rule of Eviden ce 70 3. It is assum ed that opposing counsel will vigorously crossexam ine Fazioli on the bases for his opin ions, in cluding whether his opin ions would 28 Id. at 14. R. Doc. 18 at 8 . 30 See Daubert, 50 9 U.S. at 596 (“Vigorous cross-exam ination , presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate m eans of attackin g shaky but adm issible evidence.”). 31 R. Doc. 14-2 at 12-1; see 14.38 Acres of Land, 80 F.3d at 10 77. 32 Kovaly v. W al-Mart Stores Tx., LLC, 627 Fed. App’x 28 8, 291 (5th Cir. 20 15) (perm ittin g a qualified expert to testify as to the proper standard of care); Ow en 698 F. 2d at 240 (preventing an expert from testifying on the legal conclusion of whether the plaintiff was contributorily n egligent). 33 F ED . R. E VID. 70 5; See, e.g., U.S. v. Perocier, 269 F.R.D. 10 3, 10 9, 115 (D.P.R. 20 0 9) (finding it is within the court’s discretion “to require an expert to testify to the underlying facts and data before givin g opin ion testim ony”); United States v. Brien , 59 F.3d 274, 278 (1st Cir 1995); Univ. of Rhode Island v. A.W . Chesterton Co., 2 F.3d 120 0 , 1218 (1st Cir. 1993). 29 5 change if the trier of fact finds the facts to be otherwise. The Court finds this to be the appropriate rem edy for Plaintiff’s concerns an d declines to exclude Fazioli’s testim ony on this ground. The Court rem inds the parties that an expert is not perm itted to give his opin ion on legal conclusions to be drawn from the evidence, nor m ay an expert usurp the role of the Court to instruct the jury on the law. 34 Fazioli does not appear to have any form alized training or particular experience with the law. Fazioli will not be perm itted to testify on the applicable law, nor m ay he give legal conclusions concerning the parties’ com plian ce with the law or legal duties. Additionally, the Court finds that Fazioli is not qualified to render an opinion that the icy con ditions on J anuary 5, 20 14 were easily predictable given the recent weather conditions. 35 Fazioli’s experience as a ship’s officer, tankerm an, captain, m aritim e instructor, m arine surveyor, an d consultant do not qualify him to opin e on m eteorological conditions. Additionally, such testim ony will not assist the trier of fact, as it is based on com m on sense rather than an y techn ical or scientific knowledge. 36 CON CLU SION IT IS ORD ERED that Plaintiff’s m otion in lim ine 37 is GRAN TED IN PART an d D EN IED IN PART. N e w Orle an s , Lo u is ian a, th is ;th d ay o f Octo be r, 2 0 18 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 34 F ED. R. E VID. 70 4; Ow en, 698 F.2d at 240 ; Lackey , 20 14 WL 38 66465, at *7– 8. R. Doc. 14-3 at 4. 36 See F ED . R. E VID. 70 2. 37 R. Doc. 14. 35 6
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