Wallis v. Hornbeck Offshore Services, L.L.C. et al
Filing
139
ORDER AND REASONS denying 84 Motion in Limine; denying 85 Motion in Limine; denying 87 Motion in Limine; denying 88 Motion in Limine; denying 93 Motion in Limine; denying 94 Motion in Limine; denying 96 Motion in Limine; denying 99 Motion in Limine. Signed by Judge Susie Morgan. (Reference: 12-536)(bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARIAN WALLIS,
CIVIL ACTION
Plaintiff
VERSUS
NO. 12-536
HORNBECK OFFSHORE
OPERATORS, et al.
SECTION "E"
Defendants
ORDER AND REASONS
The Court has pending before it an excess of motions to strike expert testimony.
Plaintiff moves to exclude: (1) Dr. Mariusz Ziejewski, a biomechanics expert,1 (2)
Captain Richard L. Frenzel, a liability expert,2 (3) Carla D. Seyer, a vocational
rehabilitation expert,3 and (4) Kenneth J. Boudreaux, an economist.4
Royal Eagle
moves to exclude G. Randolph Rice, an economist.5 Hornbeck move to exclude Thomas
J. Meunier, Jr., a vocational rehabilitation expert.6 Both Royal Eagle and Hornbeck
filed separate motions to exclude Geoff Webster and Steve Nolte, liability experts.7 The
Court has reviewed the motions and denies them all.8
Plaintiff was a seaman employed by Royal Eagle, a supplier of riggers to offshore
vessels. Royal Eagle supplied Plaintiff to work as a rigger aboard a vessel owned by
Defendant Hornbeck Offshore Trinidad and Tobago, L.L.C., and operated by Defendant
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2
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4
5
6
7
8
R. Doc. 87.
R. Doc. 88.
R. Doc. 94.
R. Doc. 96.
R. Doc. 85.
R. Doc. 99.
R. Docs. 84, 93.
Two other motions to exclude expert testimony will be addressed in a separate order and reasons.
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Hornbeck Offshore Services, L.L.C. (collectively, "Hornbeck").
While asleep on
Hornbeck's vessel, Plaintiff allegedly rolled out of a top bunk and injured his back.
Plaintiff filed suit against Royal Eagle and Hornbeck, alleging their negligence caused
his injuries.
The Federal Rules of Evidence permit an expert witness with “scientific, technical
or other specialized knowledge” to testify if such testimony “will help the trier of fact to
understand the evidence or to determine a fact in issue,” so long as “the testimony is
based upon sufficient facts or data," "the testimony is the product of reliable principles
and methods," and "the expert has reliably applied the principles and methods to the
facts of the case.” Fed. R. Evid. 702. The party offering the expert opinion must show
by a preponderance of the evidence that the expert’s testimony satisfies Rule 702.
Mathis v. Exxon Corp., 302 F.3d 448, 459-60 (5th Cir. 2002). Courts, as “gatekeepers,”
are tasked with making a preliminary assessment whether expert testimony is both
reliable and relevant. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)). But "[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).
As a general rule, questions relating to the bases and sources of an expert’s
opinion affect the weight of the evidence rather than its admissibility, and should be left
for the finder of fact. See Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546,
562 (5th Cir. 2004). Thus, "'[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.'" Pipitone, 288 F.3d at
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250 (quoting Daubert, 509 U.S. at 596). The Court is not concerned with whether the
opinion is correct, but whether the preponderance of the evidence establishes that the
opinion is reliable. See Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012). "It
is the role of the adversarial system, not the court, to highlight weak evidence."
Primrose, 382 F.3d at 562.
The Court has reviewed the motions and finds no basis to exclude any expert
from testifying at the upcoming bench trial. With respect to the motions challenging
economists and vocational rehabilitation experts, the parties merely dispute the
premises and assumptions utilized by the experts. These critiques can be addressed on
cross-examination in light of the factual record developed at trial. If the facts as found
by the Court do not support any expert's assumptions regarding Plaintiff's earnings
history or other matters, the Court will accordingly disregard those opinions as
irrelevant. The motions9 are denied.
With respect to the motion to exclude Defendants' biomechanics expert, Plaintiff
moves to exclude Dr. Ziejewski because he offers a "medical causation" opinion.10 This
assertion is not supported by the present record; it appears from his report that Dr.
Ziejewski opines based on his experience and expertise regarding the biomechanical
impossibility of Plaintiff's account of the alleged fall without venturing into testimony
requiring qualification as a medical doctor. Plaintiff's other complaints regarding his
opinions can be addressed through cross-examination. The motion is denied.
Finally, the motions to exclude Plaintiff's liability experts Geoff Webster and
Steve Nolte11 and the motion to exclude Defendant's liability expert Richard Frenzel are
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10
11
R. Docs. 85, 94, 96, 99.
R. Doc. 87.
R. Docs. 84, 93. Webster and Nolte issued a joint expert report, R. Doc. 93-10, and both are listed
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denied at this time.12 The Court does not imply that each of these witnesses is qualified
to offer every opinion in their respective reports, or that every opinion will be admitted
at trial or given any weight by the Court. At trial, the Court will apply the Rules of
Evidence and, for example, exclude testimony which does nothing more than offer legal
conclusions, see Francois v. Diamond Offshore Co., 2013 WL 1654635, at *2 (E.D. La.
Feb. 21, 2013), or which expressly vouches for the credibility of a witness, see United
States v. Moore, 997 F.2d 55, 59 (5th Cir. 1993). The Court also will apply common
sense and will ignore unhelpful and conclusory opinions regarding ultimate issues of
fact. But because this is a bench trial in which the Court will not base its written
findings of fact and conclusions of law on inadmissible evidence, the Court declines to
exclude these witnesses categorically at this time. See Government of Canal Zone v.
Jimenez G., 580 F.2d 897, 898 (5th Cir. 1978).
For the foregoing reasons, the pending motions to exclude are DENIED.
New Orleans, Louisiana, this 1st day of August, 2014
___________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
in Plaintiff's amended witness and exhibit list, R. Doc. 79 at 5.
12
R. Doc. 88.
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