Thibodeaux v. Wellmate

Filing 177

ORDER AND REASONS re 146 Objections filed by Pentair Water Treatment OH Company and 150 Objections filed by Joel C. Thibodeaux. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOEL C. THIBODEAUX,
Plaintiff

CIVIL ACTION

VERSUS

NO. 12-1375

WELLMATE, ET AL.
Defendants

SECTION: “E” (5)
ORDER AND REASONS

Before the Court are the parties’ objections to exhibits. 1 The Court has considered
the parties’ respective objections and responses 2 and rules as follows:
I.

DEFENDANT’S OBJECTIONS
A. Exhibits 187, 188, 190, 192, 195–202, 206–216, and 219
Plaintiff has withdrawn Exhibits 187, 188, 190, 192, 195–202, 206–216, and 219.

Therefore, Defendant’s objections are OVERRULED AS MOOT.
B. Exhibit 186
Exhibit 186 contains photographs of Plaintiff’s injuries. The Court has addressed
the admissibility of the photographs contained in Exhibit 186 in the Court’s order on
Defendant’s motion in limine. 3 For the reasons set forth therein, Defendant’s objection to
Exhibit 186 is OVERRULED.
C. Exhibit 189
Exhibit 189 is the 2008 owner’s manual for the Pro-Source Composite water
pressure tank, a different brand and model of water pressure tank from the subject tank

R. Doc. 146 (Defendant’s objections to Plaintiff’s exhibits); R. Doc. 150 (Plaintiff’s objections to
Defendant’s exhibits).
2 R. Doc. 153 (Defendant’s response to Plaintiff’s objections); R. Doc. 163 (Plaintiff’s response to
Defendant’s objections).
3 R. Doc. 168 (Order); R. Doc. 128 (Defendant’s motion in limine).
1

1

at issue. Chevron installed the Pro-Source Composite tank at one of its facilities after
Thibodeaux’s accident.
“[N]either the text of rule 407 nor the policy underlying it excludes evidence of
subsequent repairs made by someone other than the defendant.” 4 Therefore,
Thibodeaux’s argument that the evidence of Pro-Source’s subsequent tank design is
inadmissible under Rule 407 is unavailing. Nevertheless, “[a]ny evidence not excluded by
Rule 407, of course, must still be relevant and its probative value must, under Rule 403,
outweigh any dangers associated with its admission.” 5
In the Court’s order on Defendant’s motion in limine regarding subsequent
remedial measures, 6 the Court found that evidence of the warnings and procedures
implemented by Chevron after the accident is not relevant to whether Defendant’s
warnings were adequate “at the time the product left its manufacturer’s control.” 7 The
Court similarly finds that evidence regarding a tank manufactured by a different company
and installed by Chevron on one of its facilities after Plaintiff’s accident is not relevant to
whether the Pentair tank at issue was unreasonably dangerous “at the time the product
left the control of its manufacturer.” 8 The Fifth Circuit “ha[s] held in several product
liability cases . . . that evidence of subsequent changes by third parties is properly
excludable because of its tendency to ‘confuse the jury by diverting its attention from
whether the product was defective at the relevant time [i.e., the time of manufacture] to
what was done later.’” 9 Like the Fifth Circuit in Grenada Steel Industries, Inc. v. Alabama

Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695 F.2d 883, 889 (5th Cir. 1983).
Dixon v. Int’l Harvester Co., 754 F.2d 573, 584 (5th Cir. 1985).
6 R. Doc. 167 at 4–5 (Order); R. Doc. 126 (Motion in limine).
7 LA. REV. STAT. § 9:2800.57.
8 LA. REV. STAT. § 9:2800.54.
9 Middleton v. Harris Press & Shear, a Subsidiary of Am. Hoist & Derrick Co., 796 F.2d 747, 752 (5th Cir.
1986) (quoting Grenada Steel, 695 F.2d at 888, 889).
4
5

2

Oxygen Co., this Court “fail[s] to see how an alternative design, developed by another
person years after the product in question was manufactured, is relevant to whether the
product was reasonably safe at the time it was made.” 10 The probative value of Exhibit
189 is substantially outweighed by the risk of prejudice, confusing the issues, and
misleading or confusing the jury. 11 Accordingly, Defendant’s objection to Exhibit 189
is SUSTAINED.
D. Exhibits 191, 221
Exhibits 191 and 221 contain photographs of warning signs Chevron put in place
after the accident at issue. The Court addressed the admissibility of such evidence in its
order on Defendant’s motion in limine regarding subsequent remedial measures. 12 For
the reasons stated therein, Defendant’s objections to Exhibits 191 and 221
are SUSTAINED.
E. Exhibit 193
Exhibit 193 is a video demonstrating the replacement procedure for a Pentair water
tank that was designed after the manufacture of the tank at issue but before
Plaintiff’s accident. 13
The Fifth Circuit has made clear that Rule 407 does not apply to evidence of
changes, even remedial measures, made before the accident giving rise to the litigation.
“By definition, the rule excludes only post-accident remedial measures.” 14 “The admission
of evidence of changes made merely to improve a product, as distinguished from remedial

Grenada Steel, 695 F.2d 883, 889 (5th Cir. 1983).
FED. R. EVID. 403.
12 R. Doc. 167 (Order); R. Doc. 126 (Motion in limine).
13 See R. Doc. 146 at 12; R. Doc. 163 at 9.
14 Brazos River Auth. V. GE Ionics, Inc., 469 F.3d 416, 429–30 (5th Cir. 2006).
10
11

3

measures that make an ‘injury or harm less likely to occur,’ is not barred by the rule.” 15
The advisory committee notes underscore that Rule 407 applies only to evidence of postaccident remedial measures: “Evidence of measures taken by the defendant prior to the
‘event’ causing ‘injury or harm’ do not fall within the exclusionary scope of Rule 407 even
if they occurred after the manufacture or design of the product.” 16 Therefore, Rule 407
does not render Exhibit 193 inadmissible.
Plaintiff’s counsel informed the Court that Plaintiff seeks to introduce Exhibit 193
only for impeachment purposes. Accordingly, the Court DEFERS ruling on Defendant’s
objection to Exhibit 193.
F. Exhibit 194
Exhibit 194 constitutes screenshot images taken on February 26, 2016, of the
Frequently Asked Questions portion of Wellmate’s website as it appeared on February 26,
2016. There is no evidence to suggest that the screenshot images reflect Wellmate’s
website at the time of Plaintiff’s accident. The exhibit contains answers to questions such
as “How do you check the air cell pressure?” and “Can the air cell be replaced in the
WELLMATE pressure tank?”
The Court finds Exhibit 194 is irrelevant because Plaintiff’s accident occurred on
July 5, 2011, but the image reflects Wellmate’s website as it was on February 26, 2016. 17
The exhibit does not pertain to any issue in this case, including whether the Wellmate 12
tank at issue was unreasonably dangerous “at the time the product left its manufacturer’s
control.” 18 Accordingly, Defendant’s objection to Exhibit 194 is SUSTAINED.

Id. at 428.
FED. R. EVID. 407 advisory committee’s note to 1997 amendments.
17 See FED. R. EVID. 401.
18 LA. REV. STAT. § 9:2800.57.
15

16

4

G. Exhibits 203, 204, 205, 217, 218, and 220
Exhibits 203, 204, 205, 217, and 220 contain photographs of the design of tanks
manufactured after the tank at issue but before Plaintiff’s accident. 19 Exhibit 218 contains
photographs, specifications, and other documents regarding Wellmate tanks. Defendant
objects to Exhibit 218 only insofar as it contains documents that post-date January 2006,
the date by which the parties stipulate the tank at issue was manufactured. 20
The Court has addressed the admissibility of evidence of Defendant’s design
changes to Wellmate tanks after the date of manufacture but before Plaintiff’s accident in
the Court’s order on Defendant’s motion in limine. 21 For the reasons stated therein, such
evidence is not excluded under Rule 407.
Moreover, the Court finds that such evidence is relevant to the matters at issue and
its probative value is not substantially outweighed by any risk of prejudice, confusing the
issues, or misleading the jury. 22 Defendant’s objections to Exhibits 203, 204, 205, 217,
218, and 220 are OVERRULED.
II.

PLAINTIFF’S OBJECTIONS
A. Exhibits 222, 223, 224
Exhibit 222 contains the accident investigation report issued by the Bureau of

Safety and Environmental Enforcement (“BSEE”). Exhibits 223 and 224 contain
attachments to the BSEE report. The Court has addressed the admissibility of Exhibits
222 and 223 in its order on Paragraph 29 of Plaintiff’s omnibus motion in limine. 23

See R. Doc. 146 at 13; R. Doc. 163 at 10.
See R. Doc. 146 at 17; R. Doc. 114 at 7.
21 R. Doc. 167 at 3–4 (Order); R. Doc. 126 (Motion in limine).
22 FED. R. EVID. 403.
23 R. Doc. 67.
19

20

5

In part, the Court’s order on Paragraph 29 of Plaintiff’s omnibus motion in limine
excluded the paragraph that begins “INC G-110 is issued ‘After the Fact’ to document
that . . .” on Bates No. 4637 of Exhibit 222. This paragraph also appears on Bates No. 4642
of Exhibit 223. 24 During the telephone status conference on May 26, 2016, the Court
clarified that this paragraph is excluded on both Bates Nos. 4637 and 4642. The Court
also clarified that the remainder of both Bates No. 4637 and Bates No. 4642 is not
excluded. The Court clarified that Bates Nos. 4636 and 4641 are not excluded.
For the reasons set forth in the Court’s order, 25 Plaintiff’s objection to Exhibit 222
with respect to Paragraphs 8, 18, 19, and 24 of the Accident Investigation Report and
Paragraph 7 of the Accident/Incident Form, as well as the paragraph on Bates No. 4637
that begins “INC G-110 is issued ‘After the Fact’ to document that . . . ” is SUSTAINED.
Plaintiff’s objection to Exhibit 222 is otherwise OVERRULED. Plaintiff’s objection to
Exhibit 223 is SUSTAINED IN PART and OVERRULED IN PART. The Court
sustains the objection to Exhibit 223 with respect to the paragraph that begins “INC G110 is issued ‘After the Fact’ to document that . . .” on Bates No. 4642. Plaintiff’s objection
to Exhibit 223 is otherwise overruled.
Exhibit 224 details Chevron’s subsequent remedial measures taken after BSEE
issued its investigative findings. The Court addressed the admissibility of evidence of
Chevron’s subsequent remedial measures in the Court’s Order on Defendant’s motion in
limine regarding subsequent remedial measures. 26 For the reasons set forth therein,
Exhibit 224 is not admissible, and Plaintiff’s objection to Exhibit 224 is SUSTAINED.

See R. Doc. 171 at 8–10.
Id.
26 See R. Doc. 167 at 4–5.
24
25

6

B. Exhibit 226
Exhibit 226 is a notice to lessees and operators of federal oil and gas leases in the
Outer Continental Shelf, Gulf of Mexico OCS region titled “Guidelines for Tie-downs on
OCS Production Platforms for Upcoming Hurricane Seasons.”
Defendant’s counsel informed the Court that Defendant seeks to introduce Exhibit
193 only for impeachment purposes. Accordingly, the Court DEFERS ruling on Plaintiff’s
objection to Exhibit 193.
C. Exhibits 231, 232, and 235
Exhibit 231 contains the file for Defendant’s proffered engineering expert Thomas
Proft. Defendant seeks to admit Proft’s entire file, which contains documents he received,
reviewed, and relied on when forming his opinions. 27
The Court ordered that Defendant identify which portions of Exhibit 231
Defendant intends to introduce at trial and explain why those portions are admissible
under the Federal Rules of Evidence. 28 Defendant apparently intends to introduce the
entirety of Exhibit 231. 29 Defendant relies on Rule 702 of the Federal Rules of Evidence
and Louisiana law. Rule 702 generally governs the admissibility of testimony by an expert
witness and does not provide a basis for admitting the files on which an expert relies.
Further, Defendant’s reliance on Louisiana law is unavailing, as the Federal Rules of
Evidence governs the admissibility of evidence. 30 Plaintiff’s objection to Exhibit 231 is
SUSTAINED. Proft may testify as to what files and documents he relied on to form his
opinions, but Exhibit 231 is not admissible.

R. Doc. 153 at 7.
R. Doc. 169.
29 See R. Doc. 170.
30 FED. R. EVID. 1101(b); Reed v. Gen. Motors Corp., 773 F.2d 660, 663 (5th Cir. 1985).
27

28

7

Exhibit 232 contains the file for Defendant’s proffered human factors expert
Stephen Young. The Court has ruled that Young is prohibited from testifying as an expert
in this matter. 31 Plaintiff’s objection to Exhibit 232 is OVERRULED AS MOOT.
Defendant has withdrawn Exhibit 235. Therefore, Plaintiff’s objection to Exhibit
235 is OVERRULED AS MOOT.
D. Exhibits 233 and 234
Exhibits 233 and 234 are invoices from Bryan Durig to Provost Umphrey Law
Firm. Durig has been withdrawn as an expert witness in this matter and will not render
expert opinions at trial. His report will not be admitted into evidence. Durig has been redesignated as a fact witness but will not be called to testify at trial. 32 Accordingly, invoices
Durig sent to Provost Umphrey Law Firm are irrelevant and thus inadmissible. Plaintiff’s
objections to Exhibits 233 and 234 are SUSTAINED.
New Orleans, Louisiana, this 26th day of May, 2016.
__________ __ ________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

31
32

See R. Doc. 165 at 6.
See R. Doc. 118 at 4.

8