James G Young, II v. BP Exploration & Production Inc., et al
Filing
91
ORDER & REASONS denying 70 BP's Motion in Limine to Exclude the Expert Testimony of Charles O. Bettinger, III, Ph.D. Signed by Judge Carl Barbier on 6/8/12. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YOUNG
CIVIL ACTION
VERSUS
NO: 11-1003
BP EXPLORATION & PRODUCTION
INC., ET AL
SECTION: “J”(1)
ORDER AND REASONS
Before the Court are Defendant BP Exploration & Production
Inc. (“BP”)’s Motion in Limine to Exclude the Expert Testimony of
Charles O. Bettinger, III, Ph.D. (Rec. Doc. 70), Plaintiff James
G. Young’s opposition to same (Rec. Doc. 78), and BP’s reply
(Rec. Doc. 89).
The motion is set for submission on June 6, 2012
on supporting memoranda and without oral argument.
Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be DENIED.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This civil action arises out of an alleged accident at sea
in which Plaintiff claims he was thrown from a fast response
vessel (“FRV”) during a training exercise.
1
Plaintiff was
employed by Defendant Danos and Curole Marine Contractors, L.L.C.
and was assigned to work on the THUNDER HORSE, a production
drilling and quarters platform owned and operated by BP.
Plaintiff was employed as a marine operation technician aboard
the THUNDER HORSE and was assigned to work on several boats,
including the FRV and other passenger lifeboats.
Plaintiff
alleges that while he was aboard the FRV and participating in a
“man overboard” training drill, the boat’s pilot—a BP
employee—allegedly suddenly turned the vessel into a wave, which
ejected Plaintiff from the FRV, causing him injury.
THE PARTIES’ ARGUMENTS
BP moves the Court to exclude the testimony and report of
Plaintiff’s expert economist, Charles O. Bettinger, III, Ph.D.
BP asserts that Dr. Bettinger calculates Plaintiff’s past lost
wages without identifying the basis for the calculation or
describing any methodology regarding the calculation.
With
respect to Plaintiff’s future economic losses, BP avers that Dr.
Bettinger assumes the value of fringe benefits Plaintiff received
and assumes that the only job Plaintiff is capable of performing
in the future is that of an EMT.
BP argues that Dr. Bettinger is
not qualified to offer expert opinion because he has failed (1)
2
to base his conclusions upon sufficient record evidence and (2)
to explain in any way the methodology he used to reach his
conclusions or to apply a reliable methodology to the facts.
Essentially, BP argues that Dr. Bettinger provides raw numbers
without any stated basis or any basis in the record.
As an
example of what it argues is proof that the opinion is based on
facts that are clearly wrong, BP states that Dr. Bettinger’s
report states that Plaintiff has past fringe benefit losses of
$24,173, has combined past and future fringe benefit losses of
$78,452, and will be able to replace these fringe benefits with
employment as an EMT by September 2013.
BP argues that it is
mathematically impossible for the alleged loss for 23 months of
$24,173 to grow substantially to a total of $78,452 by September
2013.
BP argues that Dr. Bettinger has not demonstrated that his
opinions are the product of reliable principles and methods and
that he applied such principles and methods reliably to the facts
of this case.
Plaintiff argues that BP’s motion should be denied.
He
asserts that Dr. Bettinger’s report provides sufficient
explanation for the expert’s conclusions.
He avers that if BP
would like more details, BP should request clarification through
written discovery or a deposition, rather than wait until over
3
two months after receipt of a report to move to exclude Dr.
Bettinger’s testimony altogether.
Plaintiff argues that whatever
differences exist in the methodologies and conclusions should be
sorted out through the adversarial process, either through
additional discovery or at trial.
Plaintiff asserts that Dr.
Bettinger’s report provides sufficient explanation for his
analysis.
He points out that it appears BP has misinterpreted
the report, in that the report indicates past lost fringe
benefits of $24,173 and future fringe benefits of $78,452, for a
total of $102,625.
Finally, Plaintiff points out that Dr.
Bettinger provided a supplemental report dated April 9, 2012 that
incorporates the findings of a vocational expert, whose analysis
provides a basis for Plaintiff’s future earnings once he
completes his EMT training.
In reply, BP reemphasizes that Dr. Bettinger simply provides
numbers without any explanatory basis.
BP argues that the
vocational rehabilitation report relied upon by Dr. Bettinger in
his supplemental report does not state the values of pre-accident
fringe benefits or post-accident benefits under alternative
employment.
BP also argues that the mere fact that it could have
deposed Dr. Bettinger does not relieve Plaintiff of the
obligation to provide an expert with a report that is valid under
4
Federal Rule of Evidence 702.
Additionally, BP argues that Dr.
Bettinger’s supplemental report was one week late, and that it
fails to cure the defects in the original report.
Finally, BP
asserts that Dr. Bettinger’s reports violate Federal Rule of
Civil Procedure 26(a)(2)(B)(ii), in that they do not contain the
facts or data considered by the witness in forming his opinion.
DISCUSSION
The purpose of investigating the relevance of expert reports
is “to ensure that only reliable and relevant expert testimony is
presented to the jury.”
Rushing v. Kansas City S. Ry. Co., 185
F.3d 496, 506 (5th Cir. 1999) (superseded by rule on other
grounds) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 590-93 (1993)).
Thus, “[m]ost of the safeguards
provided for in Daubert are not as essential in a case such as
this where a district judge sits as the trier of fact in place of
a jury.”
Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
“Daubert requires a binary choice-admit or exclude-and a judge in
a bench trial should have discretion to admit questionable
technical evidence, though of course he must not give it more
weight than it deserves.”
SmithKline Beecham Corp. v. Apotex
Corp., 247 F. Supp. 2d 1011, 1042 (N.D. Ill. 2003).
5
Given that this case is a bench trial, and thus that the
objectives of Daubert, upon which BP’s motion to exclude is
premised, are no longer implicated, the Court finds that the
motion to exclude expert testimony should be denied at this time.
Furthermore, “[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.”
Daubert, 509 U.S. at 596.
As to the
supplemental report, BP does not argue that it is prejudiced in
Plaintiff’s delay of approximately one week in disclosing the
supplemental report.
With respect to BP’s argument under Rule
26, whether Dr. Bettinger’s report sufficiently contains the
facts or data considered by him in forming his opinion is a
proper consideration for this Court in giving whatever weight Dr.
Bettinger’s potential testimony may deserve.
For the foregoing reasons, IT IS ORDERED that BP’s Motion in
Limine to Exclude the Expert Testimony of Charles O. Bettinger,
III, Ph.D. (Rec. Doc. 70) is DENIED.
New Orleans, Louisiana, this 8th day of June, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?