Biscayne Towing & Salvage, Inc. v. M/Y Backstage, Hull ID XAX80051L506 et al

Filing 37

ORDER granting 29 Motion to Exclude or Limit the Expert Testimony of Timothy M. Morgan. Signed by Magistrate Judge John J. O'Sullivan on 3/31/2014. (mms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-20041-CIV-LENARD/O'SULLIVAN
BISCAYNE TOWING & SALVAGE,
Plaintiff,
v.
M/Y BACKSTAGE, HIN xax80051L506,
in rem and PRIVATE MARINE VENTURES,
LLC, in personam,
Defendants.
/
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion to Exclude or Limit
the Expert Testimony of Timothy M. Morgan (DE# 29, 1/21/14). Having reviewed the
motion, response and reply, and being otherwise duly advised in the premises, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Exclude or Limit the
Expert Testimony of Timothy M. Morgan (DE# 29, 1/21/14) is GRANTED.
INTRODUCTION
This action arises from the alleged maritime salvage of the M/Y BACKSTAGE
following a fire event at the marina where she was berthed. The defendant contends
that the plaintiff did not touch the M/Y BACKSTAGE or render services to the M/Y
BACKSTAGE in any way. Instead, the defendant maintains that the plaintiff claims an
after-the-fact incidental benefit to the M/Y BACKSTAGE because the plaintiff allegedly
created a “fire break” from towing the adjacent vessel that was on fire despite the fact
that the M/Y BACKSTAGE’s owner and captain were within feet of the vessel and were
ready, willing and able to move her should the fire pose a threat.
The plaintiff seeks to exclude or limit the expert Testimony of Timothy M. Morgan

on the following grounds: 1) the defendant has not complied with the expert disclosure
requirements in Fed. R. Civ. P. 26(a)(2), which requires a written report, prepared and
signed by the witness; 2) Captain Morgan’s testimony should be excluded under Rule
702 of the Federal Rules of Evidence because his testimony is speculative and
conclusory and thus, is neither relevant nor reliable; and 3) Captain Morgan should not
be permitted to testify regarding the Blackwell factors to determine the salvage award or
to assess the level of danger Captain Hargreaves confronted. The plaintiff further
argues that Captain Morgan never inspected the subject marina where the fire occurred
and is personally unfamiliar with it. Captain Morgan only recalls a single salvage case
involving a boat fire that was handled by Sea Tow in his approximately twenty years
with Sea Tow. Captain Morgan and his company, Sea Tow, have never been involved
in a fire event at a marina, have never removed a vessel from a marina fire, and have
never attempted to create a fire break in a marina. Additionally, Captain Morgan has no
fire fighting training or education. Captain Morgan has never authored any paper or
article relating to salvage.
In its response, the defendant argues that Captain Morgan is a salvage captain
like the plaintiff and an owner of a salvage and towing business like the plaintiff.
Previously, this Court has qualified Captain Morgan to provide expert opinions in
salvage cases. The defendant maintains that Captain Morgan has a substantial
amount of personal salvage experience and qualifications and that he has been in the
commercial salvage business for more than thirty years. The defendant states that
Captain Morgan has conducted nearly one hundred salvage operations in the past
three years.
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I.

LEGAL STANDARDS
A.

Daubert

Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993), and Rule 702 of
the Federal Rules of Evidence, the Court serves as a gatekeeper to the admission of scientific
evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir.
2003) (citing Daubert, 509 U.S. 579, 589 (1993); and McCorvey v. Baxter Healthcare Corp.,
298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005).
To determine the admissibility of expert testimony under Rule 702, the Court must undertake
the following three-part inquiry:
(1) [T]he expert is qualified to testify competently regarding the matters he
intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry mandated
by Daubert; and (3) the testimony assists the trier of fact, through the application
of scientific, technical, or specialized expertise, to understand evidence or to
determine a fact in issue.
Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems., Inc., 158
F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation omitted). The
Eleventh Circuit cautioned that although some overlap among the inquiries regarding expert
qualifications, reliability and helpfulness exist, “these are distinct concepts that courts and
litigants must take care not to conflate.” Id. at 1341.
To determine reliability, the court considers:
(1) whether the expert’s theory can be and has been tested; (2) whether the
theory has been subjected to peer review and publication; (3) the known and
potential rate of error of the particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.
Id. (citing McCorvey, 298 F.3d at 1256 (citing Daubert, 509 U.S. at 593-94)). “‘A district court’s
gatekeeper role ‘is not intended to supplant the adversary system or the role of the jury.’” Id.
(citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d

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1300, 1311 (11th Cir. 1999)). “Quite the contrary, ‘[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’” Id. (quoting Daubert, 509 U.S.
at 596).
“The real purpose of a Motion In Limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence which may irretrievably affect
fairness of the trial. A court has the power to exclude evidence in limine only when evidence is
clearly inadmissible on all potential grounds.” Stewart v. Hooters of America, Inc., No. 8:04-CV40-T-17-MAP, 2007 WL 1752843, *1 (M.D. Fla. 2007) (citing Luce v. United States, 469 U.S.
38, 41 (1984)). District courts have broad discretion in deciding to admit or exclude expert
testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997).

B.

Rule 26(a)(2)(B)

Rule 26(a)(2) governs the disclosure of expert testimony and prescribes:
Unless otherwise stipulated or ordered by the court, this disclosure must
be accompanied by a written report–prepared and signed by the witness–
if the witness is one retained or specially employed to provide expert
testimony in the case....
Fed. R. Civ. P. 26(a)(2)(B).
II.

Captain Morgan Is Not an Appropriate Expert to Address Marine Peril
Involving Marina Fires
The plaintiff contends that Captain Morgan should be excluded as an expert

witness if this Court determines that he is not experienced in the particular field at
issue. The plaintiff relies on Certain Underwriters at Lloyd’s, London v. Inlet Fisheries,
Inc., 389 F. Supp. 2d 1145 (D. Alaska 2005), aff’d 518 F.3d 645 (9th Cir. 2008)(involving
a marine insurance dispute). In Inlet Fisheries, the court excluded the plaintiff’s expert
witness even though the witness had 45 years of experience in the marine insurance
industry. Id. at 1154. The court reasoned that the proposed expert witness could not
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testify because he had little to no experience in the claims at issue. Id..
In the present case, although Captain Morgan has experience in salvage, he has
little to no experience on salvage involving marina fires. The defendant’s reliance on
this Court’s prior qualification of Captain Morgan as an expert is misplaced because
that case involved a vessel that ran aground, not a vessel threatened by a marina fire.
See Key Tow, Inc. v. M/V Just J’s, Case No. 04-22310-CIV-CMA, 2005 WL
3132454,*1, 12 (S.D. Fla. Nov. 1 2005). Like the expert in Inlet Fisheries, in the present
case, Captain Morgan lacks the experience regarding salvage involving marina fires to
be qualified as an expert under Daubert.
Additionally, the defendant’s failure to comply with the expert disclosure
requirements of Fed. R. Civ. P. 26(a)(2)(B), namely that the written report be prepared
and signed by the expert witness, warrants exclusion of Captain Morgan’s expert
testimony regarding salvage involving a vessel threatened by a marina fire.
Accordingly, it is ORDERED AND ADJUDGED that the Plaintiff’s Motion to
Exclude or Limit the Expert Testimony of Timothy M. Morgan (DE# 29, 1/21/14) is
GRANTED. Captain Morgan may not testify as an expert in this case regarding salvage
involving a vessel threatened by a marina fire.
DONE AND ORDERED in Chambers at Miami, Florida this 31st day of March,
2014.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All counsel of record

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