Sims v. Baker Hughes et al

Filing 73

ORDER and REASONS granting in part and denying in part 25 Motion for Summary Judgment, as stated within document. Signed by Judge Kurt D. Engelhardt on 4/1/2013. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BRANDON SIMS

CIVIL ACTION

VERSUS

NO. 12-421

BAKER HUGHES, ET AL

SECTION "N" (2)
ORDER AND REASONS

Before the Court is a “Motion for Summary Judgment” (Rec. Doc. 25), filed by
defendant ENSCO Offshore Company (“ENSCO”). Opposition and reply memoranda are at
Rec. Docs. 30 and 42.
Plaintiff alleges that he was injured while working as a roustabout aboard a jack-up rig
when a pressurized hose threw him to the deck and splashed him with a chemical liquid.
ENSCO seeks summary judgment dismissing the claims against it on the basis of Brandon Sims’
own deposition testimony, wherein he repeatedly answers “No” to questions by counsel
inquiring as to whether ENSCO personnel “did anything wrong.” Rec. Doc. 25-1 at 3-5.
According to ENSCO, it is entitled to judgment as a matter of law because Sims “admitted under
oath that his co-employees did not cause or contribute to his accident and that the equipment
worked properly.” Rec. Doc. 25 at 1. ENSCO argues that Sims “in his own deposition,
absolved his ENSCO co-workers of any and all liability for the accident.” Rec. Doc. 25-1 at 5.
Plaintiff opposes the motion, arguing that Sims was unaware at the time of his deposition of
several acts and omissions by ENSCO personnel about which he could not have had personal,
first-hand knowledge.

Plaintiff is correct that Sims’ deposition testimony is not entitled to the conclusive legal
effect advocated by ENSCO. Assuming without deciding that the testimony in question is an
“admission” in the evidentiary sense,1 it is not a judicial admission entitled to conclusive effect.
“A judicial admission is a formal concession in the pleadings or stipulations by a party or
counsel that is binding on the party making them.” Martinez v. Bally's Louisiana, Inc., 244 F.3d
474, 476 (5th Cir. 2001). It “may not be controverted at trial or on appeal.” Keller v. United
States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995). “Although a judicial admission is not itself
evidence, it has the effect of withdrawing a fact from contention.” Id. It “is conclusive, unless
the court allows it to be withdrawn.” Id. at 477. “A statement made by counsel during the
course of trial may be considered a judicial admission if it was made intentionally as a waiver,
releasing the opponent from proof of fact.” Id. at 476. “By contrast, an ordinary evidentiary
admission is merely a statement of assertion or concession made for some independent purpose,
and it may be controverted or explained by the party who made it.” Id. at 476-77 (citations and
internal quotations omitted). “When a party testifying at trial or during a deposition admits a
fact which is adverse to his claim or defense, it is generally preferable to treat that testimony as
solely an evidentiary admission.” Keller, 58 F.3d at 1199 n.8 (citing MICHAEL H. GRAHAM,
FEDERAL PRACTICE AND PROCEDURE § 6726, at 536-37); see also Siegrist v. Kleinpeter, 2004
WL 797723 *2 (E.D. La. 2004) (Vance, J.) (“The deposition statement by Dr. Kleinpeter is an
evidentiary admission, not a judicial admission. There is no indication that he made the
1

Although certain aspects of the deposition testimony in question are directed to factual
issues, the testimony is in other respects in the nature of lay opinion.
2

statement as a formal concession with the intention of relieving plaintiff of the burden of proving
the standard of care.”); cf. Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 776 F. Supp. 2d
375, 392 n.11 (S.D. Tex. 2011) (“A Rule 30(b)(6) deposition is admissible against the party
designating the representative but is not ‘binding’ on the entity for which the witness testifies in
the sense of preclusion or judicial admission....Testimony given in a Rule 30(b)(6) deposition is
evidence, which, like other deposition testimony, can be contradicted and used for impeachment
purposes.”). Thus, plaintiff is entitled to submit other evidence to demonstrate that a genuine
dispute exists regarding ENSCO’s liability, although it may be contrary to the beliefs expressed
by Brandon Sims at his deposition.
Regarding the negligence claim against ENSCO, the Court finds that the plaintiff has
pointed to sufficient evidence to demonstrate a genuine dispute as to whether an ENSCO
employee breached his duty of care and thereby caused injury to Sims. In particular, plaintiff
has submitted deposition testimony tending to show that the deck foreman may have erred in
following and/or relaying orders regarding the procedure for disconnecting the hose. Rec. Doc.
30-4 at pp. 28-32 of 35. As to the unseaworthiness claim, however, the plaintiff has submitted
no evidence demonstrating a genuine dispute as to whether the vessel was unseaworthy. Indeed,
plaintiff concedes that “all involved equipment was functioning properly.” Rec. Doc. 30 at 5.
Accordingly,

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IT IS ORDERED that ENSCO’s Motion for Summary Judgment” (Rec. Doc. 25) is
hereby GRANTED IN PART, in that it is granted as to unseaworthiness, and DENIED IN
PART, in that it is denied as to negligence.
New Orleans, Louisiana, this 1st day of April, 2013.

____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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