Wiley v. Marquette Transportation Company, LLC

Filing 45

MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 7/16/2021. Granting in part and denying in part 36 Motion to Exclude. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT COURT OF KENTUCKY
PADUCAH DIVISION
Case No.: 5:19-cv-00149-TBR

KEVIN WILEY

PLAINTIFF

v.
MARQUETTE TRANSPORATION COMPANY,
LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant Marquette Transportation Company,
LLC’s (“Marquette”) Motion to Exclude Plaintiff’s Expert. [DN 36]. Plaintiff, Kevin Wiley
(“Wiley”), has responded [DN 38]. Marquette has replied. [DN 41]. As such, this matter is ripe for
adjudication. For the reasons that follow, IT IS HEREBY ORDERED that Marquette’s Motion
to Exclude Plaintiff’s Expert [DN 36] is GRANTED IN PART and DENIED IN PART.
I. Background
This suit arises out of injuries occurring October 4, 2018. On October 4, 2018, Wiley was
working on the Mary Kay Eckstein vessel. He was tasked with packing rigging material. [DN 39
at 2]. Wiley was lifting and carrying barge cables, ratchets, and chains alone. [Id. at 3]. While
working, Wiley experienced neck pain. [Id.]
After finishing with the wires, Wiley went to help “face the boat up.” [Id. at 148]. While
facing the boat up, the captain began tightening the winch. [Id. at 149]. As the winch was
tightening, Wiley and his coworker, Cory, decided they needed to distance themselves from the
winch. [Id. at 152]. Wiley was walking at a fast pace down the tow knee steps with his right hand
on the handrail and felt his shoulder dislocate. [Id. at 153].

Wiley retained John Pierce of Range Line Maritime Consulting, LLC as his liability expert.
Marquette seeks to exclude Pierce’s testimony because it argues Pierce is unqualified to offer
testimony.
II. Legal Standard
When a party challenges an opponent's expert witness, this Court must assume “a
gatekeeping role” to ensure the relevance and reliability of the expert's testimony. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999) (extending Daubert to nonscientific expert testimony). Federal Rule of
Evidence 702 guides the Court through this inquiry. The plain language of Rule 702 says, first,
that an expert must be qualified to testify on account of his “knowledge, skill, experience, training,
or education.” Fed. R. Evid. 702; see also Bradley v. Ameristep, Inc., 800 F.3d 205, 208 (6th Cir.
2015). The Court does “not consider ‘the qualifications of a witness in the abstract, but whether
those qualifications provide a foundation for a witness to answer a specific question.’” Burgett v.
Troy-Bilt LLC, 579 Fed.Appx. 372, 376 (6th Cir. 2014) (quoting Berry v. City of Detroit, 25 F.3d
1342, 1351 (6th Cir. 1994)). A qualified expert may then testify so long as his opinions will aid
the factfinder and are reliable, meaning the opinions are based on sufficient data, reliable methods,
and the facts of the case. Fed. R. Evid. 702(a)–(d); see also Clark v. W & M Kraft, Inc., 476
Fed.Appx. 612, 616 (6th Cir. 2012); Adler v. Elk Glenn, LLC, 986 F.Supp.2d 851, 854 (E.D. Ky.
2013).
Where a party challenges the testimony of a proffered expert for insufficient “factual basis,
data, principles, methods, or their application...the trial judge must determine whether the
testimony has a reliable basis in the knowledge and experience of [his or her] discipline.” Kumho
Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592). Although a Daubert hearing is not a

2

prerequisite, the court must ensure that the disputed testimony is both relevant and reliable. See
Clay v. Ford Motor Co. 215 F.3d 663, 667 (6th Cir. 2000). In any case, the Court has considerable
leeway over where to draw the line. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671–72 (6th Cir.
2010) (“[W]here one person sees speculation, we acknowledge, another may see knowledge,
which is why the district court enjoys broad discretion over where to draw the line.” (citing Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997))). The proponent of the expert testimony must
establish its admissibility by a preponderance of the evidence. Sigler v. Am. Honda Motor Co., 532
F.3d 469, 478 (6th Cir. 2008).
III. Discussion
A. Medical Causation
Marquette first argues Pierce is unqualified to testify to medical causation. Wiley states
Pierce does not intend to offer testimony on medical causation, but he may properly allude “to
logical causation because there is more than ‘some support in the record.’” [DN 38 at 6]. Although
Wiley is correct that Pierce may rely on underlying facts, he may not allude to causation. It is clear,
based on Pierce’s attached curriculum vitae, that he has no experience that would qualify him to
offer testimony on medical causation. [See DN 37-5]. This Court ruled similarly in a prior case.
In Webb v. Crounse Corporation, the court held the expert lacked
“the necessary qualifications to opine about what weight is ‘safe’ to lift, or whether
the weight Webb lifted caused his injuries. Though Captain Stoller might have
experience in implementing safety policies and procedures for maritime companies,
he has no background in medicine, biomechanics, or ergonomics…Such limited
experience is insufficient to qualify him as an expert in the field of ergonomics.
2016 WL 3406515, at *2 (W.D. Ky. June 17, 2016). Due to Pierce’s lack of qualifications, he may
not allude to or testify to the medical cause of Wiley’s injuries.
B. Lifting Restriction

3

Marquette next argues Pierce should not be allowed to testify to the 52-pound lifting
restriction that is used in the maritime industry. Marquette argues the restriction is not applicable
to the inland river towing industry and is therefore, not relevant. Pierce opines that the maritime
industry has adopted various lifting standards provided by the National Institute for Occupational
Safety and Health, American Society for Testing and Material, and the American Bureau of
Shipping. He points to several companies who have adopted these standards. Both Marquette and
Wiley rely on Webb to support their case.
In Webb, Webb’s expert sought to testify about the failure of Crounse to include the
maximum lifting limitations in its training materials. Id. Webb’s expert also sought to testify
regarding the safety of the weight Webb was required to lift. Id. The court held:
In the main, the Court sees no reason to preclude Captain Stoller from testifying
about the supposed prevalence of maximum lifting standards or practices in the
maritime industry. To recover under the Jones Act, for example, a seaman must
demonstrate that his employer’s negligence (i.e., duty and breach of that duty)
played some part in producing the injury for which he seeks damages. See Rannals
v. Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001); Perkins v. Am. Elec.
Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001). Though not dispositive,
common industry practice has long been relevant to resolving that question. See
Tindle v. Hunter Marine Transp., Inc., No. 5:14-CV-00110-TBR-LLK, 2016 WL
270481, at *9 (W.D. Ky. Jan. 21, 2016); Johnson v. Cenac Towing Inc., No.
CIV.A.06-0914, 2006 WL 5499506, at *3 (E.D. La. Nov. 21, 2006); cf. Garza v.
Norfolk S. Ry. Co., 536 Fed.Appx. 517, 520 (6th Cir. 2013). Here, Captain Stoller’s
testimony regarding other maritime employers' practices illustrates, arguably, a
general acceptance of maximum lifting standards in the maritime industry. In that
respect, then, the Court finds that Captain Stoller’s testimony may assist the jury in
its task.
Nothing in Taylor v. TECO Barge Line, Inc., 642 F. Supp. 2d 689 (W.D. Ky. 2009),
upon which Crounse relies, casts doubt on that conclusion. In Taylor, the Court
precluded an expert from testifying about maximum lifting standards promulgated
by the National Institute for Occupational Safety and Health (NIOSH). Id. at 691–
92. The reason was simple: There was no evidence presented that those standards
had garnered any acceptance in the maritime industry, and the expert’s cursory
application of them was questionable. Id. at 692. In this case, however, Captain
Stoller relies on other maritime employers' practices and other standards that, at
first blush, appear to be accepted in the maritime industry. See R. 37-2 at 12–13.
4

Accordingly, the Court sees no reason to preclude Captain Stoller from testifying
about the supposed acceptance of maximum lifting standards in the maritime
industry.
Id. Nonetheless, Marquette argues this testimony is inadmissible in the present case because this
standard is not recognized in the inland towing industry. However, Pierce stated in his deposition
that this standard is recognized by inland towing companies. The Court here, like in Crounse, will
allow Pierce to testify “about the supposed prevalence of maximum lifting standards or practices
in the maritime industry.” Id. Marquette is free to cross-examine Pierce on the acceptance of the
standard within the inland towing industry specifically.
However, as in Crounse, the Court will not allow Pierce to testify about the safety of certain
lifts. Pierce’s curriculum vitae shows a lack of expertise in ergonomics. Pierce cannot testify to
the impact of “repetitive lifts” or “excessive lifts” and the potential fatigue it caused Wiley’s body.
Pierce is not qualified to offer any testimony regarding the safety of lifting the amount of weight
Wiley was required to lift and how that may have impacted his injuries.
C. Job Safety Analyses (JSAs)
Pierce opines that Marquette should have completed a JSA prior to Wiley repeatedly lifting
cables and other rigging materials. Pierce states a JSA would have revealed Wiley’s tasks were
hazardous and a different method could have been used. Marquette argues this testimony should
be excluded because 1) whether a JSA was performed is a disputed fact, 2) Pierce is unqualified
to make statements regarding ergonomics and biomechanics, and 3) “swapping tow” is a nonhazardous task.
“The failure to conduct a job hazard analysis for a ‘routine, non-hazardous task does not
violate a maritime employer’s duty to exercise ordinary care.’” Webb, 2016 WL 3406515 at 3
(quoting Harrison v. Seariver Maritime, 61 Fed. Appx. 119, 2003 WL 342266, at *7 (5th Cir.

5

2003)). Here, the parties disagree on whether Wiley was completing a hazardous task. Wiley
argues, and Pierce opines, that the entire process of lifting heavy materials alone was hazardous.
Marquette views the issue more broadly and argues the process of “swapping tow” is common and
therefore, not a hazardous activity. Marquette disputes Wiley’s argument that he was asked to
make repetitive lifts alone while swapping tow. The parties’ dispute regarding the facts and
circumstances surrounding the tasks Wiley was required to complete does not render Pierce’s
testimony inadmissible.
“Where an expert’s testimony amounts to ‘mere guess or speculation,’ the court should
exclude his testimony, but where the opinion has a reasonable factual basis, it should not be
excluded. Rather, it is up to opposing counsel to inquire into the expert’s factual basis.” United
States v. L.E. Cooke Co., Inc., 991 F.2d 336, 342 (6th Cir. 1993). Pierce’s opinion has a reasonable
factual basis. Further, the fact there is a dispute regarding whether a JSA was done is also not basis
to exclude Pierce’s testimony. These disputes go to the weight of Pierce’s testimony not the
admissibility. Due to the dispute regarding whether Wiley was completing a hazardous activity
and whether a JSA was completed, the Court cannot exclude Pierce’s testimony on these bases.
Pierce’s report regarding the performance of a JSA provides, in part:
Before requiring its deckhands to work for several hours straight making repetitive,
heavy lifts and long carries on the barges, maritime companies should have assessed
the risks and considered safer alternatives. In this case, such alternatives could have
included staffing its tugs with enough deckhands to provide Mr. Wiley with the
assistance that he requested; and/or replacing older, heavier deck equipment—such
as ratchets and cables—with readily available lighter alternatives. While more
research is needed to identify safer, lighter alternatives, I look forward to testimony
from Marquette’s managers on what JSAs, if any, were done to assess the risks of
extended, heavy manual-lifting operations to its deckhands.
[DN 37-6 at 12]. The Court agrees with Marquette that Pierce is not qualified to give testimony
regarding any causal link between the failure to perform a JSA and Wiley’s injury. Pierce is not

6

qualified to testify about the cause of Wiley’s injuries or about the likelihood of injury if a JSA
would have been performed. However, Pierce is qualified to testify about the potential options a
JSA would have revealed and how they would have differed from the activities Wiley was required
to perform. Wiley has shown by a preponderance of the evidence that Pierce’s testimony on JSAs
is admissible.
D. Zone of Danger
Pierce opines that Captain Helton and Terry Solomon prematurely, and without warning,
began tightening the winch which caused Wiley to rush down the tow knee steps to avoid danger.
[DN 37-6 at 16]. Marquette first argues this testimony is inadmissible because it is based on
Wiley’s disputed version of the incident. However, as the Court has already stated, a dispute in the
underlying facts does not render Pierce’s testimony inadmissible. Cory Tolley testified in his
deposition that a warning was given prior to the winch being activated. Wiley argues no warning
was given. This dispute is grounds for cross-examination and consideration by the jury. “When
the parties dispute the facts underlying the expert’s opinions, they may address these issues on
cross-examination in light of the facts that emerge at trial.” Boudreaux v. Scott’s Boat Rentals,
LLC, 2016 WL 9406087, at *4 (E.D. La. Apr. 20, 2016). Pierce’s testimony cannot be excluded
on this basis.
Marquette next argues this testimony is inadmissible because Pierce never visited the Mary
Kay Eckstein and his opinion is based on photographs of a different vessel and one photograph of
the Mary Kay Eckstein. In a declaration, Pierce states his opinion is based on his experience with
similar vessels, pictures of the Mary Kay Eckstein, and deposition testimony. [DN 38-4 at 11-12].
Marquette also points to the fact Pierce “mistakes Plaintiff’s path down the tow knee steps as going
from the front of the boat to the back of the boat.” [DN 37 at 10]. However, “[v]igorous cross-

7

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.” Daubert, 509
U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44,61 (1987)). Pierce’s incorrect opinion regarding
the direction of the tow knee steps does not render his opinion that Wiley was in a “zone of
danger”—based on deposition testimony, experience, and photographs—inadmissible. Crossexamination is the proper forum to argue that discrepancy and Pierce’s failure to visit the vessel.
Marquette also cites to Webb to argue Pierce merely recites Wiley’s opinion. In Webb, the
court held, “[w]here an expert merely offers his client’s opinion as his own, that opinion may be
excluded.” 2016 WL 3406515, at *3. However, as this Court found above, Pierce’s opinion is
based on more than Wiley’s testimony. Therefore, the Court finds this testimony admissible.
E. Stop Work Authority (SWA)
Pierce opines that Wiley properly used his SWA when he asked for assistance with lifting
cables and continued to perform his tasks as instructed. Marquette first argues this testimony
should be excluded because the testimony does not require special knowledge and the opinion is
based on Wiley’s disputed account. The Court agrees with Wiley that a jury would not be familiar
with SWA or how a worker is supposed to invoke it. A jury would be assisted by having an expert
testify to this matter. Therefore, Marquette’s argument that this testimony does not require any
specialized knowledge is incorrect.
Marquette argues again that this testimony is inadmissible because there is a dispute
regarding whether Wiley was alone completing his work. Marquette is correct that the jury must
make a credibility determination regarding whether Wiley was alone or reported his concerns to
his supervisor. However, this dispute does not render Pierce’s testimony inadmissible. The jury is

8

entitled to ascertain the credibility of the underlying fact witnesses and subsequently consider the
credibility of Pierce’s testimony regarding the process of SWA.
Marquette next argues “the remainder of Pierce’s opinion regarding stop work authority is
based on conclusions regarding ergonomics, biomechanics and medicine that he is unqualified to
make.” [DN 37 at 12]. The Court has already held that Pierce is unqualified to testify regarding
safe lifting weights. Therefore, Pierce may not offer any testimony regarding safe lifting
weight/techniques with regard to SWA.
Pierce offers a variety of statements arguing Marquette is attempting to “blame the victim”
and it is unreasonable for Marquette to assert contributory negligence. Marquette argues these
statements are inadmissible because they prejudice the jury and invade “the province of the jury
regarding Plaintiff’s contributory negligence.” [Id.] Wiley does not respond to these arguments.
The Court agrees with Marquette. These statements do nothing to assist the jury and essentially
offer a legal conclusion. The Court will instruct the jury on contributory negligence and it is the
jury’s duty to determine if it is a reasonable defense. See Webb, 2016 WL 3406515, at 4.
Finally, Marquette argues Pierce’s opinion on the “Offshore Industry’s Ultimatum to Its
Workers” is not relevant to this case because Marquette is not in the offshore industry. Wiley,
again, does not respond to this argument. The Court agrees with Marquette that practices within
the offshore industry are not relevant to Marquette. This differs from customs in the maritime
industry in general because Marquette is a part of that industry even if it does have its own customs
within its specialized industry. Therefore, this statement will be excluded.

9

IV. Conclusion
For the above stated reasons, IT IS HEREBY ORDERED that Marquette’s Motion to
Exclude [DN 36] is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.

July 16, 2021

cc: counsel

10