Ruddell v. Marathon Petroleum Co., L.P., Marine Transportation
Filing
62
ORDER GRANTING 35 Motion to Strike the Report and Bar the Testimony of Robert B. Ancell filed by Defendant Marathon Petroleum Company LP. The rebuttal report is STRICKEN. The 36 Motion to Strike the Report and Bar the Testimony of Howard Altschul e, filed by Defendant Marathon Petroleum Company LP, is DENIED. The 43 Motion to Strike the Report and Bar the Testimony of Liability Expert Kevin Mullen, filed by Plaintiff Ryan Ruddell, is also DENIED. Signed by Judge Nancy J. Rosenstengel on 4/25/2017. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RYAN RUDDELL,
Plaintiff,
vs.
MARATHON PETROLEUM
COMPANY LP,
Defendant.
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Case No. 3:15-CV-1253-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Ryan Ruddell filed this lawsuit pursuant to the Jones Act, 46 U.S.C.
§ 30104, alleging he sustained injuries on August 27, 2014, while employed by Defendant
Marathon Petroleum Company LP (“MPC”) as a crew member aboard its vessel, the
M/V Nashville (Doc. 1). Ruddell claims that inclement weather, including storm and
lightning conditions, contributed to his injuries (Id.).
The matter is now before the Court on the motions to strike the reports and bar
the testimony of Ruddell’s experts Robert B. Ancell, Ph.D., and Howard Altschule, filed
by MPC (Docs. 35, 36). Ruddell also has filed a motion to strike the report and bar the
testimony of Defendant’s liability expert Kevin Mullen (Doc. 43).
I.
MPC’s Motion to Strike the Report and Bar the Testimony of Ruddell’s
Expert Robert B. Ancell, Ph.D.
The Court first addresses the motion to strike the report and bar the testimony of
Ruddell’s purported rebuttal expert, Robert B. Ancell, Ph.D. The scheduling order
entered in this case, as amended by Magistrate Judge Donald G. Wilkerson on July 28,
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2016, required Ruddell to disclose expert witnesses (other than those performing any
physical examination pursuant to Rule 35) and produce a written Rule 26 expert report
on or before October 15, 2016 (Doc. 25). MPC was to disclose its experts and produce
written reports on or before December 16, 2016 1 (Id.). There was no provision in the
scheduling order for the disclosure of rebuttal experts (Id.). Depositions of Plaintiff’s
experts were to be taken by December 16, 2016 (later extended by agreement of the
parties to January 13, 2017), and discovery was to close on January 31, 2017 (Id.; Doc. 35,
p. 1).
On January 13, 2017, MPC served the report of its vocational expert, Scott Gould.
On January 31, 2017, the period for discovery closed. Then, on February 7, 2017, Ruddell
served MPC with an unsigned letter described by Ruddell as a reply to the expert report
of MPC’s retained vocational expert. The letter was prepared by Robert B. Ancell, Ph.D.
(“Ancell Report”) (Doc. 35-1). Six days later, on February 13, 2017, Ruddell served MPC
with additional materials, including a list of the trials in which Dr. Ancell has testified,
his compensation and fees, and his resume (Doc. 35-2).
MPC argues that the Ancell Report is untimely and should be stricken. MPC notes
that while the report would be timely under Rule 26(a)(2)(D), which allows for
disclosure of rebuttal experts within 30 days after the other party’s disclosure, that rule
only applies when there is no scheduling order in place requiring earlier disclosure.
Furthermore, disclosure of a rebuttal expert made after the scheduling order’s discovery
deadline is untimely and subject to a motion to strike. Ruddell denies that the rebuttal
It appears this deadline was extended by agreement of the parties, as Defendant asserts that it timely
served its vocational expert’s report on January 13, 2017. Ruddell does not dispute the timeliness of the
report; therefore, the Court finds it was timely served.
1
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expert disclosure deadline in Rule 26(a)(2)(D) only applies when there is no scheduling
order in place requiring earlier disclosure and argues that the Ancell Report was timely.
Pursuant to Rule 26(a)(2), a party must disclose to the other parties the identity of
any witness it may use at trial to present evidence and must make these disclosures at
the times and in the sequence that the court orders. FED. R. CIV. P. 26(a)(2)(D). Rule
26(a)(2)(B) requires expert witness disclosures to include, inter alia, a complete statement
of all opinions the witness will express and the basis and reasons for them. FED. R. CIV. P.
26(a)(2)(D). Rule 26(a)(2)(D) also requires that, absent a court order, disclosure must be
made “(i) at least 90 days before the date set for trial or for the case to be ready for trial or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject
matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the
other party’s disclosure.” FED. R. CIV. P. 26(a)(2)(D) (emphasis added).
Where the Court’s scheduling order is silent on the matter of rebuttal experts,
rebuttal expert reports are due within 30 days of the other party’s expert disclosures.
Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996) (“The federal civil rules . . .
require disclosure to one’s opponent of expert testimony intended for use as rebuttal
evidence within 30 days of the opponent’s disclosure of his expert testimony, unless the
district court otherwise directs or the parties otherwise stipulate.”); see also Frerck v.
Pearson Educ., Inc., No. 11 C 5319, 2014 WL 477419, at *2 (N.D. Ill. Feb. 6, 2014); Custom
Foam Works, Inc. v. Hydrotech Sys., Ltd., No. 09-CV-0710-MJR, 2011 WL 2161106, at *1 (S.D.
Ill. June 1, 2011).
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Here, the Ancell Report was served on February 7, 2017, which was 25 days after
MPC served its vocational expert’s report. Thus, the rebuttal report was timely under
Rule 26(a)(2)(D)(ii). MPC argues, however, that even if timely under Rule 26(a)(2)(D)(ii)
applies, the Ancell Report was served after the close of discovery on January 31, 2017,
and, thus, is still late and must be stricken.
Under Rule 37(c)(1), a party that fails to identify a witness as required by Rule
26(a) or 26(e) is not allowed to use that witness to supply evidence at a trial “unless the
failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). The
determination of whether a late expert witness disclosure should be allowed is entrusted
to the district court. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The Seventh
Circuit has set forth four factors to guide the district court’s analysis: (1) the prejudice or
surprise to the party against whom the evidence is offered; (2) the ability of the party to
cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or
willfulness involved in not disclosing the evidence at an earlier date. Id.
MPC argues that it would be unfairly prejudiced if Dr. Ancell is permitted to
testify, because discovery has closed and it would be unable to take Dr. Ancell’s
deposition. MPC also contends that Ruddell knew MPC intended to deny his claim for
future loss of earnings, loss of earning capacity, or significant vocational impairment,
and Ruddell should have retained and disclosed a vocational expert as part of his
case-in-chief.
In response, Ruddell argues that the failure to serve the rebuttal report before the
close of discovery was substantially justified because he was duped by MPC into
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believing that its vocational expert’s involvement in the case was an attempt to get him
back to work, not to evaluate him, as a testifying expert. Ruddell presents a number of
emails, the earliest dated September 20, 2016, where counsel for MPC informs counsel
for Ruddell that MPC arranged for him to be evaluated concerning his ability “to get
back to work as soon as he can,” and that MPC was willing to pay for Ruddell’s
vocational services so that he can re-enter the workforce. Counsel for MPC also asks at
least twice in the emails whether Ruddell has met with “the vocational person” yet. It
was not until January 13, 2017, that MPC disclosed that its “vocational person” was
actually a vocational expert whose report MPC intended to use at trial. Ruddell asserts
that these emails evidence his good cause for submitting the late report.
Even if Ruddell was legitimately surprised by MPC’s use of its vocational
“person” as a testifying expert witness, he has failed to state any reason substantially
justifying why he disregarded the discovery deadline in serving the late rebuttal report.
Ruddell had 18 days between service of the expert report and the discovery cutoff to
provide the rebuttal report, request an extension of the discovery period, or otherwise
alert the Court to the issue. Ruddell did not do so, and now discovery has closed. The
Seventh Circuit has made clear that “deadlines have meaning and consequences.” Spears
v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996) (“If the court allows litigants to
continually ignore deadlines and seek neverending extensions without consequence,
soon the court’s scheduling orders would become meaningless.”); Parker v. Freightliner
Corp., 940 F.2d 1019, 1024 (7th Cir. 1991) (discussing barring the use of expert testimony
and stating that “[j]udges must be able to enforce deadlines.”). Because Ruddell did not
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serve the rebuttal report of Dr. Ancell prior to the close of discovery (or even attempt to
ask the Court for an extension of the discovery period), the untimely report must be
stricken. Ruddell is barred from presenting the testimony of Dr. Ancell at trial.
II.
MPC’s Motion to Strike the Report and Bar the Testimony of Ruddell’s Expert
Witness Howard Altschule
MPC also has moved to strike the report and bar the testimony of Howard
Altschule, an expert disclosed by Ruddell to offer opinions concerning the weather in
and around Wood River, Illinois, on August 27, 2014 (Doc. 36). MPC claims that
Altschule’s opinions are unreliable under Rule 702 of the Federal Rules of Evidence, as
well as Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), because he relied on data from
Madison County, Missouri, instead of Madison County, Illinois. MPC also asserts that
the subject of Altschule’s testimony (the weather) is not so technical or complex as to
require explanation by an expert witness. Finally, MPC takes issue with Altschule’s
unwillingness to consider sources outside of historical weather data in preparing his
analysis and opinions. 2
In response, Ruddell denies that the weather is not technical or complex enough
to require explanation by an expert witness, and he asserts that MPC’s remaining
arguments go to the weight and credibility of his testimony rather than its admissibility.
Federal Rule of Evidence 702 provides:
MPC also argues that the Altschule Report failed to contain Altschule’s educational background,
professional experience, qualifications to be an expert, rate of compensation, or a listing of cases in which
he had testified during the past four years, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(iv).
Shortly after MPC filed the instant motion, Ruddell served MPC with Altschule’s prior testimony, his
compensation requirements, and his form retainer agreement (Doc. 38-1). Ruddell did not, however,
provide Defendants with Altschule’s resume or CV stating his educational background and professional
experience. The Court subsequently ordered Ruddell to produce Altschule’s CV (Doc. 61), and Ruddell
complied. Because MPC’s motion does not demonstrate how it is prejudiced by the late disclosure of this
information, the Court declines to strike Altschule’s report on this basis.
2
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If scientific, technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, or training or
education may testify thereto in the form of an opinion or otherwise.
“In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), the Supreme Court held that Rule 702 imposes on the trial court the
obligation, when dealing with expert witnesses, to ensure that scientific testimony is ‘not
only relevant but reliable.’” Barber v. United Airlines, Inc., 17 F. App’x 433, 437 (7th Cir.
2001) (quoting Goodwin v. MTD Products, Inc., 232 F.3d 600, 608 (7th Cir. 2000)). “This
requires a trial judge to determine whether an expert’s opinion was grounded in the
methods and procedures of science, and whether the opinion had sufficient factual
underpinnings.” Id.
When faced with expert scientific testimony, a district court must determine
whether the expert is proposing to testify to scientific knowledge that will assist the trier
of fact in understanding or determining a fact in issue. Daubert, 509 U.S. at 592. “This
entails a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Id. at 592-93. The Supreme Court outlined
four factors that district courts should consider when analyzing of expert testimony,
including whether or not the theory or technique has been (1) tested; (2) subjected to
peer review and publication; (3) analyzed for known or potential error rate; and/or (4) is
generally accepted within the specific scientific field. Daubert, 509 U.S. at 593–94.
“The Rule 702 inquiry is fact-dependent and flexible.” Lapsley v. Xtek, Inc., 689
F.3d 802, 810 (7th Cir. 2012); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
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(1999) (“[A] trial court may consider one or more of the more specific factors that Daubert
mentioned when doing so will help determine that testimony’s reliability.) Daubert’s list
of specific factors neither necessarily nor exclusively applies to all experts or in every
case. Id.
As the Seventh Circuit stated in Schultz v. Akzo Nobel Paints, LLC:
. . . the key to the gate is not the ultimate correctness of the expert’s
conclusions. Instead, it is the soundness and care with which the expert
arrived at her opinion; the inquiry must ‘focus . . . solely on principles and
methodology, not on the conclusions they generate.’
Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) (citing Daubert, 509 U.S.
at 595). “So long as the principles and methodology reflect reliable scientific practice,
“[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). An expert must
explain the methodologies and principles that support his or her opinion; he or she
cannot simply assert a “bottom line” or ipse dixit conclusion. Metavante Corp. v. Emigrant
Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (quoting Minix v. Canarecci, 597 F.3d 824, 835
(7th Cir. 2010)). The district court possesses “great latitude in determining not only how
to measure the reliability of the proposed expert testimony but also whether the
testimony is, in fact, reliable.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009)
(citing Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007)).
According to his report dated July 12, 2016, Altschule, through his company
Forensic Weather Consultants, LLC, was hired by counsel for Ruddell to perform an
in-depth weather analysis and forensic weather investigation in the vicinity of Wood
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River, Illinois, in order to determine the weather conditions on August 27, 2014
(Doc. 36-2, p. 2). Altschule’s resume states that he received a Bachelor of Science degree
in Atmospheric Science from State University of New York at Albany in May 1995 and
served as an on-air television meteorologist for the NBC affiliate in Albany, New York,
from 1997 to 2004. In 1999, Altschule founded his company, Forensic Weather
Consultants, through which he has served as an expert in more than 1,600 cases.
Altschule received the American Meteorological Society’s (“AMS”) Seal of Approval in
2001 and was designated a Certified Consulting Meteorologist by the AMS in February
2014. The Certified Consulting Meteorologist designation is issued by the AMS to
“highly qualified meteorologists providing research and services to a wide variety of
users of weather information” who “demonstrate a broad background in meteorology
together with detailed knowledge in a particular field of specialization.”
To develop his opinions in this case, Altschule used various sources of weather
information and data from the official weather stations closest to the incident area.
Specifically, Altschule reviewed official copies of weather records, including the
National Weather Service Hourly Surface Weather Observations/Quality Controlled
Local Climatological Data from St. Louis Regional Airport in Alton, Illinois; cooperative
observer weather station reports from Alton, Illinois; a publication entitled “Storm Data”
for Illinois and Missouri in August 2014; Super-resolution Reflectivity Doppler Radar
images from the St. Louis, Missouri radar site; various weather bulletins, advisories, and
statements (including “zone forecasts”) issued by the National Weather Service in St.
Louis, Missouri; atmospheric sounding numerical data from Lincoln, Illinois; and a
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STRIKEnet Report for August 27, 2014 (Doc. 36-2, pp. 3-4). He then used that data to
conclude, among other things, that between 3:57 p.m. and 6:45 p.m. on August 27, 2014,
a total of 3,398 cloud-to-ground lightning strikes occurred within 15 miles of the incident
area, with the closest strike occurring 0.9 miles away at 5:50 p.m. (Doc. 36-2, p. 8).
MPC first avers that Altschule’s opinions are unreliable because he relied on zone
forecasts from Madison County, Missouri rather than Madison County, Illinois. In his
report, Altschule copied publicly issued “zone forecasts” from the National Weather
Service in St. Louis, Missouri, which forecast “scattered showers and thunderstorms in
the afternoon” for “Madison MO” on August 27, 2014. Based on these zone forecasts,
Altschule concluded that showers and thunderstorms were “well-forecasted in National
Weather Service publicly issued zone forecasts for the incident area on August 27, 2014
well before the time of the incident.” (Doc. 36-2, p. 8). MPC contends that Altchule’s use
of data for Madison County, Missouri, affects the reliability of his opinions and analysis
and, thus, the report should be stricken.
While Altschule clearly included data from the wrong area in his report, the
Court is not convinced the error so infected the remainder of the report that it should be
stricken in its entirety. Altschule testified at his deposition that his inclusion of data from
Madison County, Missouri, was an error and that he actually reviewed data from
Madison County, Illinois, when performing his analysis. He further testified that the
forecast for Madison County, Illinois, also showed thunderstorms in the forecast
(Doc. 36-1, p. 113). Furthermore, his conclusion based on the zone forecast—that
showers and thunderstorms were forecasted in the incident area well before the time of
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the incident—has no bearing on his other conclusions regarding the number of lightning
strikes that occurred in the area and the radar imagery at the time of the incident. The
Court agrees with Ruddell that the error goes toward the weight and credibility of the
expert’s testimony rather than its admissibility. MPC can cross-examine Altschule
regarding the error at trial.
MPC also argues that the subject on which Altschule is expected to testify is not so
technical or complex as to require explanation by an expert witness. MPC asserts that
there are witnesses who personally observed weather conditions at the incident site that
can provide better and less confusing testimony on the issue than Altschule. MPC
further contends that Altschule’s unwillingness to consider other sources of weather
information other than historical data factors in favor of excluding his report and
testimony.
Again, the Court disagrees. Altschule testified that meteorologists rely upon
official weather records during the normal course of investigations such as this one, and
that such records are “very valuable in recreating and understanding what was going on
at the time of [the] incident.” (Doc. 36-1, p. 10). He also testified that, in his opinion,
weather data is more reliable than eyewitness recollection (Id.). “Unlike an ordinary
witness . . . an expert is permitted wide latitude to offer opinions, including those that
are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592.
Accordingly, the Court finds that Altschule’s testimony regarding the weather
conditions at the time of the incident will “assist the trier of fact to understand or
determine a fact in issue,” as required by Federal Rule of Evidence 702(a). As discussed
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above, MPC can challenge the validity of Altschule’s conclusions at trial. For these
reasons, MPC’s motion to strike the report and bar the testimony of Ruddell’s expert
Howard Altschule is denied.
III.
Ruddell’s Motion to Strike the Report and Bar the Testimony of MPC’s Expert
Liability Witness Kevin Mullen
Lastly, the Court addresses Ruddell’s motion to strike the report of MPC’s
liability expert Captain Kevin Mullen. On January 18, 2017, MPC disclosed Captain
Mullen as an expert who would offer opinions concerning MPC’s liability. Ruddell
claims there are “several flaws with the Mullen Report and the testimony he would be
expected to offer at trial.” (Doc. 43, p. 3). Ruddell further asserts that it is questionable
whether Mullen’s opinions, analysis or data collection will assist the jury in evaluating
weather conditions in the Wood River, Illinois area, as the report’s relevance and
reliability are in question (Id.). Ruddell argues that the report offers nothing but a bottom
line and, thus, supplies nothing of value. The motion does not question Captain Mullen’s
qualifications as an expert.
As an initial matter, the Court notes that Ruddell’s motion is untimely. On
January 14, 2016, the parties were provided with the Court’s Uniform Trial Practice and
Procedures (Doc. 13), which states that the undersigned District Judge has a special
deadline for Daubert motions, i.e., on or before the deadline for dispositive motions. See
Doc. 13, p. 5 (“Any challenges to the testimony of a potential witness brought pursuant
to FED. R. EVID. 702 or FED. R. EVID. 703 (i.e., Daubert motions) shall be filed on or before
the case’s deadline for dispositive motions.”). In this case, the dispositive motion
deadline was February 15, 2017, a deadline that the parties assured Magistrate Judge
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Wilkerson they could meet (see Doc. 34). Furthermore, the scheduling order specifically
states that dispositive motions filed after this date will not be considered (Doc. 25). As a
result, the motion would properly be denied on this basis alone.
Even considering the merits of the motion, the Court finds no basis to strike the
report and bar the testimony of Captain Mullen. According to his report, Captain Mullen
is the owner of S.C.O.R.E. Maritime Services, LLC, which provides “a broad array of
safety and compliance services for the inland towing and passenger vessel industry.”
(Doc. 43-1, p. 11). He previously served as the manager of safety and compliance at
American Commercial Barge Lines, where he developed and implemented vessel safety,
regulatory compliance, and training programs. Captain Mullen is also the Executive
Director of the Steamer Belle of Louisville, Kentucky, and serves as the Captain and Pilot
of the ship during cruising season. Captain Mullen maintains several licenses, including
Merchant Mariner – Master/First Class Pilot – Any Gross Tons, Master – Great Lakes –
1600 Tons, and Mates – Great Lakes – Any Gross Tons. His expertise is in safety
programs for vessels, including regulatory compliance, safety, risk management, and
project management.
In this case, Captain Mullen reviewed transcripts and exhibits from Ruddell’s
deposition, the depositions of MPC crew members, papers submitted by one of
Ruddell’s expert witnesses, MPC’s safety policies and procedures, barge industry safety
policies and procedures, U.S. Coast Guard regulations and The American Waterways
Operators Responsible Carrier Program documents, and various discovery requests and
responses in this case to reach his conclusions (Doc. 43-1, p. 3, 8). In arriving at his
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opinions, Captain Mullen states that he relied upon his years of experience as a Captain
of vessels on inland rivers, his experience as a certified safety auditor, and his experience
in crew training, vessel safety compliance/management, and maritime safety
management and training (Id.).
Specifically, Captain Mullen opined that: (1) MPC is well known in the marine
industry as a company that complies with proper safety standards, operations, and crew
member supervision and training; (2) being a deckhand and working out on the tow is a
physically demanding occupation that often involves working outside in the elements,
sometimes in adverse weather conditions; (3) the vessel on which Ruddell worked was
fit for its intended use and purpose on the day of the incident, it was not “unseaworthy,”
and MPC provided the crew with a safe place to work; (4) assistance from other crew
members would not have prevented or helped to prevent any injury to Ruddell; rather,
the injury could have been avoided had Ruddell lifted and bent properly; (5) weather
conditions at the time of the incident were not severe enough to justify stopping work on
the tow, and the Captain used appropriate weather data to make an informed decision to
perform the work. If Ruddell believed the weather conditions were too severe, he could
have requested that work be stopped, but he did not do so; (6) the crew working on the
tow at the time of the incident was adequate for the tasks being performed, and the work
done by Ruddell is typically handled without assistance from other crew members;
(7) Ruddell used improper bending technique while handling wire by bending at the
waist instead of lifting with his legs as he had been trained and instructed to do;
furthermore, there is no evidence the weather affected his ergonomics, bending, or
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lifting technique; and (8) the wire handled by Ruddell was in fine working condition and
not in need of replacing (Id., p. 7-8).
Despite claiming that the report is flawed, Ruddell does not identify any specific
errors within the report. Instead, he offers objections to each of Captain Mullen’s
conclusions. The Court has reviewed each of Ruddell’s objections and finds them
meritless.
Ruddell objects to several of the conclusions as being “common knowledge,” but
the Court agrees with MPC that it is unlikely the jury will have much (if any) knowledge
or understanding of the river industry, barge industry custom and practice, tow work,
the job functions of deck crews, marine safety, vessel operation, or crew training. Thus,
Captain Mullen may discuss his conclusions with regard to the conclusions Ruddell
claims are “common knowledge.” And while Ruddell claims that Captain Mullen’s
opinion regarding MPC’s reputation in the industry with regard to proper safety
standards, operations, and crew member supervision and training is nothing more than
“personal commentary,” Captain Mullen stated that he has years of experience with
numerous barge line companies, he has performed marine audits on vessel operations as
a safety compliance officer, and he is familiar with the custom and practice of the inland
river business (Doc. 43-1, p. 3). Thus, his opinion regarding MPC’s safety compliance
will be allowed.
Ruddell also claims that Captain Mullen has no medical or ergonomic training to
authoritatively state whether Ruddell used improper bending techniques, contrary to his
training, while handling wire on the day of the incident. However, Captain Mullen’s CV
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is replete with references to his knowledge of vessel safety, crew member training, and
OSHA compliance. Thus, the Court finds that Captain Mullen is qualified to opine on
the topic of crew member safety and training, which may include proper bending and
lifting techniques. For the same reasons, Captain Mullen is qualified to comment on a
crew member’s ability to request that work be stopped if conditions are too severe to
work in, as well whether the vessel was fit for its intended use and purpose on the day of
the incident and whether MPC provided the crew with a safe place to work. Ruddell can,
of course, cross-examine Captain Mullen on any or all of these subjects.
Finally, Ruddell objects to Captain Mullen’s conclusion that the weather
conditions were not severe enough at the time of the incident to justify stopping or
halting work, as well as his conclusion that the Captain of the M/V Nashville used
appropriate data to make an informed decision about whether to perform the work.
Ruddell claims that Captain Mullen should have identified what the weather conditions
were and the data that was used. This argument also fails. “Unless the court orders
otherwise, an expert may state an opinion—and give the reasons for it—without first
testifying to the underlying facts or data.” FED. R. EVID. 705. Ruddell is free question
Captain Mullen regarding the data he used on cross-examination, where he may be
required to disclose such information. See id.
CONCLUSION
For these reasons, the Motion to Strike the Report and Bar the Testimony of
Robert B. Ancell, filed by Defendant Marathon Petroleum Company LP (Doc. 35) is
GRANTED. The Motion to Strike the Report and Bar the Testimony of Howard
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Altschule, filed by Defendant Marathon Petroleum Company LP (Doc. 36), is DENIED.
Plaintiff Ryan Ruddell’s Motion to Strike the Report and Bar the Testimony of Liability
Expert Kevin Mullen (Doc. 43) is DENIED.
IT IS SO ORDERED.
DATED: April 25, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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