Clark v PHI, Inc et al
Filing
136
ORDER AND REASONS ruling on objections to exhibits. Signed by Judge Helen G. Berrigan on 10/25/2013.(kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FERRIS CLARK SR.,
CIVIL ACTION
VERSUS
NO. 12-411
PHI, INC., ET AL.
SECTION: C (5)
ORDER AND REASONS
IT IS ORDERED that:
1.
Energy XXI’s objection to Exhibit 50 ‐ Motor Nerve Conduction Study
Report from Dr. Pervez Mussarat, dated February 10, 2012 ‐ is
OVERRULED, assuming Dr. Mussarat testifies at trial.
2.
Energy XXI’s objection to Exhibit 51 ‐ NTSB Final Report and attachments
‐ is SUSTAINED. See 49 U.S.C. § 1154(b) (“No part of a report of the Board,
related to an accident or an investigation of an accident, may be admitted
into evidence or used in a civil action for damages resulting from a matter
mentioned in the report.”).
3.
Energy XXI’s objection to Exhibit 52 ‐ FAA Accident/Incident Report ‐ is
OVERRULED. The report consists of factual determinations that the FAA
has legal authorization to make. 49 U.S.C. §§ 106(a),1132(c); Fed. R. Evid.
803(8).
4.
Energy XXI’s objections to Exhibits 54, 55, 56, 57, and 58 ‐ Recommended
Practices promulgated by Helicopter Safety Advisory Conference (HSAC)
and the Aeronautical Information Manual (AIM) ‐ are OVERRULED.
PHI’s expert may use them during his testimony. Moreover, the Court will
admit the practices and manual separately under the residual hearsay
exception. Fed. R. Evid. 807.1
5.
PHI’s objection to Exhibit 60 ‐ Training Records from the Personnel File of
Jim Kemper ‐ is SUSTAINED IN PART and OVERRULED IN PART. Mr.
Kemper’s improper performance of autorotations during his training will
not be admitted to show that Mr. Kemper executed autorotation in
similarly improper fashion at the time of the plaintiff’s accident. Fed. R.
Evid. 404(b)(1). Nevertheless, it can be admitted to show that Kemper was
trained to perform proper autorotations. Fed. R. Evid. 404(b)(2). The
plaintiff has argued that Kemper was negligent in his failure to adhere to
this training. Rec. Doc. 120 at 15.
6.
Energy XXI’s objections to Exhibit 64 ‐ Accident Investigations Emails and
1
No party has identified any objection to Exhibit 53 ‐ HSAC Recommended
Practice, 92‐4 ‐ even though it is listed among contested exhibits.
2
Statements ‐ are SUSTAINED IN PART and OVERRULED IN PART as
follows.
Energy XXI specifically objects to emails from Tom Yakubovich to
Jason Adame. Tom Yakubovich is an employee of PHI. Jason Adame is an
FAA investigator. Energy XXI also objects generally to the use of
communications from FAA investigators if they do not testify. The copy of
the exhibit in the court’s possession contains no email from Yakubovich to
Adame, though it contains several from Adame to Yakubovich. The
Adame emails, like the communications of the other FAA investigators,
contain questions posed to Energy XXI employees regarding the plaintiff’s
accident. The employees’ answers are admissible under Fed. R. Evid.
802(d)(2), but only if offered by the plaintiffs. The communications
soliciting those answers provide the appropriate context for the answers,
and are not relevant to proving the truth of any matters asserted therein.
Therefore, they too are admissible on offer by the plaintiffs.
With regard to the statements that may have been made against
Energy XXI’s interest, PHI has not established that the employees making
those statements are unavailable. Fed. R. Evid. 804(a), (b)(3).
3
7.
Energy XXI’s objections to Exhibits 66 and 68 ‐ Medical Record Excerpts
from Dr. Mark Webb and Southern Neurological Spinal Institute ‐ are
OVERRULED, assuming Dr. Webb testifies.
8.
The plaintiff’s objection to Exhibit 67 ‐ Report from Dr. E. Thomas Cullom
‐ is SUSTAINED. Dr. Cullom was not listed as a will/may call witness and
it is now too late to designate him as a witness.
New Orleans, Louisiana, this 25th day of October, 2013.
________________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
4
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