Mike Hooks Dredging Co., Inc. v. Eckstein Marine Service, Inc. et al

Filing 267

ORDER & REASONS denying 250 Motion in Limine to Strike Supplemental and Reply Expert Reports and to Exclude Opinion Testimony. Signed by Judge Helen G. Berrigan on 8/1/11. (mm, ) Modified doc type on 8/1/2011 (mm, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MIKE HOOKS DREDGING CO., INC,

CIVIL ACTION

VERSUS

NO. 08-03945

ECKSTEIN MARINE SERVICE, INC.,
in personam, M/V PAT MCDANIEL, in rem,
MEMCO BARGE LINE, LLC, in personam,
INGRAM BARGE CO., in personam,
BARGE SARAH E 203, in rem, BARGE LTD
113B, in rem, BARGE IB 1010, in rem,
BARGE IB 981, in rem, BARGE MEM 2160,
in rem, and BARGE MBL 971, in rem

SECTION “C” (1)

ORDER AND REASONS1
Before this Court is Defendant Eckstein Marine Service, Inc.’s (“Eckstein”) Motion In
Limine to Strike Supplemental and Reply Expert Reports and to Exclude Opinion Testimony. (Rec.
Doc. 250). Plaintiff, Mike Hooks Dredging Co., Inc. (“Hooks”) opposes this Motion. (Rec. Doc.
254). After reviewing Defendant’s Motion, the parties’ memoranda, and applicable law, this Court
DENIES Defendant’s Motion for the following reasons.

I. BACKGROUND
This lawsuit arises out of a multi-vessel allision that occurred between May 29 and 31, 2008,
when vessels owned by Defendant attempted to pass and allided with the dredge “Mike Hooks,”
owned by the Plaintiff. (Rec. Docs. 250-1 at 2; 254 at 2). Hooks filed its complaint on July 16,

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Max Weiss, a second-year student at Tulane University Law School, assisted in preparing this Order.

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2008. (Rec. Doc. 1). On November 4, 2010, pursuant to Federal Rule of Civil Procedure 16, this
Court entered a scheduling order, which provided, inter alia, that:
Written reports of experts, as defined by Federal Rules of Civil Procedure
26(a)(2)(B), who may be witnesses for Plaintiffs fully setting forth all matter about
which they will testify and the basis therefor shall be obtained and delivered to
counsel for Defendant as soon as possible, but in event no later than Wednesday,
April 13, 2011.
Written reports of experts, as defined by Federal Rules of Civil Procedure
26(a)(2)(B), who may be witnesses for Defendants fully setting forth all matter about
which they will testify and the basis therefor shall be obtained and delivered to
counsel for Plaintiff as soon as possible, but in event no later than Friday, May 13,
2011.
(Rec. Doc. 170 at 2). The same order required that “[a]ll pretrial motions, including . . . in limine
regarding the admissibility of expert testimony, shall be filed and served in sufficient time to permit
hearing thereon no later than Wednesday, June 8, 2011," and that “ . . . all discovery shall be
completed not [sic] later than Monday, June 13, 2011.” Id. at 1.
By April 13, 2011, Hooks submitted the reports of its expert marine surveyors, Spencer
Rhoden (“Rhoden”) and Tim Anselmi (“Anselmi”). (Rec. Docs. 250-5; 250-6). In these reports,
damages or potential damages to the dredge were attributed to the allision that occurred when
Eckstein’s vessels struck the dredge. (Rec. Docs. 250-5; 250-6). By May 13, 2011, Eckstein
submitted the report of its expert surveyor, Fred Budwine (“Budwine”), who opined that the
dredge’s dangerous positioning contributed to the allisions, and alleged numerous shortcomings in
the documentation of damage expenses by Hook and its experts. On June 8, 2011, Eckstein received
from Hooks a supplemental file to Rhoden’s initial report consisting of roughly forty pages of
documents, mostly invoices, not included in Rhoden’s original submission.2 (Rec. Doc. 250-2).

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The cover letter of this submission reads: “Enclosed herewith are copies of Spencer Rhoden’s file in
connection this matter. Please allow this production to serve as a supplement to Spencer Rhoden’s earlier expert
report.” (Rec. Doc. 250-2 at 1).

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On June 13, 2011, Eckstein received from Hooks two reply expert reports of Rhoden and Anselmi.
(Rec. Docs. 250-3; 250-4).
Eckstein claims that Rhoden and Anselmi’s supplemental and reply reports are untimely
because “the invoices relied on by each surveyor proves Hooks had all of the information contained
in each Reply over three years ago but chose not to include it in their designations as mandated by
the Court’s Scheduling Order,” which set the plaintiff’s expert report deadline of April 13, 2011.
(Rec. Docs. 250-1 at 1; 170 at 2). Eckstein further claims that the submission of the supplemental
and reply reports is merely an attempt to remedy the deficient initial reports and “an obvious attempt
to rely on the documents to prove damages at trial through new opinions, contrary to Federal Rules
of Civil Procedure (“FRCP”) 26(a)(2) and 37, and this Court’s Scheduling Order.” (Rec. Docs. 2501 at 2; 170 at 2). Additionally, Eckstein claims that the documents in Rhoden’s file imply that
Hooks will attempt to rely on the testimony of its operations manager, Arthur Sonnier, to prove
damages, and that “Sonnier lacks the personal knowledge under Federal Rules of Evidence (“FRE”)
602 and 701 to testify on what caused specific damages and is not qualified as a[n expert] surveyor
to express such an opinion under FRE 702. (Rec. Doc. 250-1 at 2).
In response, Hooks claims that the supplemental and reply reports do not raise new issues,
but rather, are a rebuttal to what they view as a flawed, inaccurate report by Budwine. (Rec. Doc.
254 at 4, 8). As additional time is allowed for supplementing disclosures and rebutting evidence
under FRCP 26(a), Hooks claims that its supplemental and reply reports are timely and should not
be excluded. Id. at 4-8. Furthermore, Hooks claims that Sonnier is not testifying as an expert
witness, but rather, as a lay witness, who’s opinions and inferences as such are permitted under FRE
701 and thus should not be excluded. Id. at 2-3.

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II. LAW & ANALYSIS
A. Exclusion of Supplemental and Reply Expert Reports
Both the Court’s November 4, 2010 scheduling order and FRCP 26(a)(2)(B) require timely
production of expert reports. (Rec. Doc. 170 at 2); Van Baelen v. Sabine Transp. Co., 2001 WL
474273, at *2 (E.D. La. May 2, 2001) (Clement, J.). A district court has the discretion to exclude
expert testimony and evidence if a party does not produce expert reports within the appropriate
deadlines. Fed. R. Civ. P. 37(c)(1); Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546, 572 (5th
Cir. 1996). Under FRCP 26(a)(D)(ii):
A party must make [the] disclosures [of the content of an expert’s written report] at
the time and in the sequence that the court orders. Absent a stipulation or a court
order, the disclosures must be made . . . [i]f 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.
Rule 26(e)(1)(A) provides that:
A party who has made a disclosure under Rule 26(a) . . . must supplement or correct
its disclosure or response . . . in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other
parties during this discovery process . . .
“While Rule 26(e) does create a duty to supplement, a party cannot use that provision to circumvent
deadlines imposed by Rule 26(a) or a court’s scheduling order.” Van Baelen, 2001 WL 474273, at
*2. As the Fifth Circuit stated in Sierra Club v. Cedar Point Oil Co., Inc.,:
[T]he discovery order and Rule 26(a) clearly require that the initial disclosures be
complete and detailed. The purpose of rebuttal and supplementary disclosures is just
that– to rebut and supplement. These disclosures are not intended to provide an
extension of the deadline by which a party must deliver the lion’s share of its expert
information.
73 F.3d at 572.
A comparison between Rhoden and Anselmi’s initial reports and their supplemental and
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reply reports shows that the latter better articulate and offer more justification for their expert
opinions, and indeed contain some new information. (Rec Docs. 1-5). While the initial reports may
appear anemic in light of the concerns articulated in Sierra Club, the supplemental and reply reports
cannot be characterized as providing the “lion’s share” of their opinions. Sierra Club, 73 F.3d at
372. Additionally, the supplemental and reply reports cannot be said to raise new issues or cover
“wholly uncharted territory.” Van Baelen, 2001 WL 474273, at *2. For example, Eckstein claims
that “Hooks . . . failed to produce key portion of Rhoden’s file that discussed damages to the dredge
spuds during its initial designation on April 13, 2011,” and that Hooks provided these documents
for the first time on June 8, 2011. (Rec. Doc. 250-1 at 5). Although it could be reasonably inferred
that a delay in receiving such information contained in the June 8 and 10, 2011 submissions would
somehow prejudice Eckstein’s trial preparation, Eckstein has not made such a showing. That Hooks
would discuss spud damages in its later submissions should not come as a surprise, and it does not
appear that these submissions contain any “shocking revelations” to the extent that Eckstein “cannot
adequately prepare to defend against [Rhoden and Anselmi’s] opinions before trial.” Van Baelen,
2001 WL 474273, at *3.
Indeed, trial is scheduled for August 22, 2011, and thus Eckstein will have had over two
months from the time of Rhoden and Anselmi’s submitted their supplemental and reply report to
prepare a defense to their opinions. If Eckstein can show that “its trial preparation has been
materially impeded or that [it] has been forced to incur unreasonable expenses because of the delay,”
this Court may be willing to revisit and reconsider this issue. Id. Accordingly, Eckstein’s Motion
In Limine to Strike Supplemental and Reply Expert Reports of Surveyors Rick Rhoden and Timothy
Anselmi is DENIED. (Rec. Doc. 250).

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B. Exclusion of Opinion Testimony of Arthur Sonnier
Eckstein claims that Sonnier in not qualified and lacks firsthand knowledge to offer opinion
testimony of what collision caused damage under the FRE. (Rec. Doc. 250-1 at 11). Rule 602 of
the FRE provides that “[a] witness may not testify to a matter unless evidence is introduced to
support a finding that the witness has personal knowledge of the matter,” proof of which may be
demonstrated by the witness’ own testimony. Fed. R. Evid. 602. Rules 702 and 703 govern
testimony by expert witnesses. Rule 701, which governs opinion testimony by lay witnesses
provides:
If a witness is not testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those opinions and inferences which are (a)
rationally based on the perception of the witness, and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.
Fed. R. Evid. 701.
Hooks claims that it intends to call Sonnier not as an expert, but rather, as a lay and fact
witness “to testify as to the day-to-day operations of [Hooks] and his personal observations of the
location of the damages to the dredge.” (Rec. Doc. 254 at 2). Hooks alleges that Sonnier personally
observed the physical location if the damages to the spuds. Id. at 3. Testimony from lay witnesses
regarding their observations of an event or physical object or area can be “relevant, material, and
quite probative.” Young v. Ill. Cent. Gulf R.R. Co., 618 F.2d 332, 337 (5th Cir. 1980). “While it
is true that Rule 701 of the [FRE] limits opinion testimony by lay witnesses, that rule allows such
testimony when it is ‘(a) rationally based on the perception of the witness and (b) helps to a clear
understanding of the witness’ testimony or the determination of a fact in issue.’” Id. (citing Fed. R.
Evid. 701). At trial, this Court is capable, as Hooks correctly argues, of differentiating between
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whether Sonnier is testifying as an expert, basing his opinions on “scientific, technical, or other
specialized knowledge within the scope of Rule 702,” or merely offering lay testimony that is
rationally based on his perceptions and personal observations of the location of the spud damage and
the damage to the dredge. Fed. R. Evid. 701, 702; (Rec. Doc. 254 at 3). Therefore, Eckstein’s
Motion In Limine to Exclude Opinion Testimony of Arthur Sonnier is DENIED. (Rec. Doc. 250).

III. CONCLUSION
Accordingly,
IT IS ORDERED that Eckstein’s Motion In Limine to Strike Supplemental and Reply Expert
Reports and to Exclude Opinion Testimony is DENIED. (Rec. Doc. 250).
New Orleans, Louisiana, this 1st day of August, 2011.

HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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