Lewis v. Chet Morrison Contractors, LLC
Filing
50
ORDER & REASONS re dft Chet Morrison Contractors, LLC's 44 Motion in Limine to Exclude Report and Testimony of Robert E. Borison: for the reasons stated, IT IS HEREBY ORDERED that Defendant's Motion in Limine to Exclude Report and Testimony of Robert E. Borison is DENIED. Signed by Judge Nannette Jolivette Brown on 7/18/2013. (rll, ) Modified on 7/18/2013 to edit doc type (rll, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TYRONE LEWIS
CIVIL ACTION
VERSUS
NO. 12-2788
CHET MORRISON CONTRACTORS, LLC
SECTION: “G”(3)
ORDER AND REASONS
Before the Court is Defendant Chet Morrison Contractors, L.L.C.'s ("Defendant") Motion
in Limine to Exclude Report and Testimony of Robert E. Borison.1 After considering the complaint,
the pending motion, the memorandum in support, the opposition , the record, and the applicable law,
the Court will deny the pending motion.
I. Background
A. Factual Background
According to Plaintiff Tyrone Lewis ("Plaintiff"), at all relevant times, Defendant was owner
and operator of CM 11 pipelay barge as well as the companion barge on which Plaintiff was
employed as a rigger.2 Plaintiff claims that on November 5, 2012, he was wrapping a buoy on CM
11 pipe lay-bury barge while working on a smaller companion barge, when one of the buoys fell out
of place. Plaintiff walked along a catwalk in an attempt to retrieve the buoy, but allegedly the tubing
along the catwalk was broken and caught the pant leg of Plaintiff, causing him to trip and fall onto
a piece of cable and then into the water.3 Plaintiff seeks damages against Defendant under general
1
Rec. Doc. 44.
2
Rec. Doc. 1 at ¶ 2.
3
Id. at ¶ 4.
1
maritime law, claiming that the incident was caused by Defendant's negligence and failure to provide
a seaworthy vessel with a repaired catwalk and/or a non-skid grating on the catwalk.4
B. Procedural Background
Plaintiff filed the complaint in this action on November 16, 2012.5 On June 17, 2013,
Plaintiff filed an amended witness list, wherein he lists Robert E. Borison ("Borison") as "a marine
safety expert who will offer professional opinions regarding the cause of the incident and the
Defendant's safety violations" which Plaintiffs contend amounted to negligence.6 On July 2, 2013,
Defendant filed the pending motion in limine.7 On July 9, 2013, Plaintiff filed an opposition to the
pending motion.8
II. Parties' Arguments
A. Defendant's Arguments in Support
In support of the pending motion, Defendant contends that Borison's report and testimony
should be excluded from trial pursuant to Federal Rule of Evidence 702, which governs the
admissibility of expert testimony.9 Specifically, Defendant argues that Borison's report and proposed
testimony are "not based on reliable data as [they are] not supported by valid facts."10 Defendant
avers that Borison "only reviewed [Defendant's] Incident report, photographs of the alleged scene,
4
Id. at ¶ 5.
5
Id.
6
Rec. Doc. 33 at p. 5.
7
Rec. Doc. 44.
8
Rec. Doc. 45.
9
Rec. Doc. 44-1 at p. 2.
10
Id. at p. 3.
2
and incorporated, into his report, plaintiff's self-serving statements made to him during an
interview."11 Defendant stresses that Borison did not "conduct any sort of meaningful investigation
such as, at the very least, interviewing any witnesses or performing a visual inspection of the
stinger."12 Defendant also notes that the photographs reviewed by Borison do not show any holes
in the grating or any tripping hazards in the work area Borison opines was the cause of Plaintiff's
injury; therefore, Defendant alleges that it is clear that Borison "based this opinion solely on
plaintiff's self-serving statements which are not sufficient."13
Further, Defendant argues that Borison's opinion regarding the possible need for fall
protection "is nothing more than speculative and wholly unsupported," because he "conducted no
investigation as to the height of the platform and states he does not know how high off the water it
was situated."14 Finally, Defendant argues that because Borison "was not armed with sufficient facts
regarding the condition of the stinger, including the grating, his opinion regarding plaintiff's
supervisors not exercising Stop Work Authority is unsupported," and further claim that it is "worth
noting that Mr. Borison fails to mention plaintiff's own right to exercise Stop Work Authority and
his failure to do same."15
B. Plaintiff's Arguments in Opposition
As an initial matter, Plaintiff notes that Borison has been accepted as a safety expert in other
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
3
maritime personal injury cases by other sections on this Court.16 Plaintiff also notes that in Borison's
expert report dated May 2, 2013, he concludes that two of Defendant's supervisors failed to provide
Plaintiff with a safe work place when they ordered him to work from the stinger that had holes in
the grating and had a tripping hazard, and opined that if Plaintiff was at least four feet above water,
the stinger should have had handrails installed.17
Plaintiff acknowledges that the pending motion does not challenge Borison's qualifications
or credentials, but rather focuses on Borison's written report.18 Further, Plaintiff explains that
Borison's report does not include statements from Defendant's employees because those employees
have not been presented for deposition yet, but that such depositions are scheduled to occur on July
22, 2013.19 Thereafter, Plaintiff claims that "[i]t is entirely possible that Borison's written opinions
will be supplemented or amended once Defendant's employees have been deposed."20
Regarding Defendant's argument that Borison's report relied on the "self-serving" statements
of Plaintiff, Plaintiff argues that an expert is allowed to consider his account of the events in
question.21 In response to Defendant's argument that Borison did not conduct "any sort of meaningful
investigation," Plaintiff argues that this:
ignores the facts that 1-an expert is not permitted to interview the employees of an
adverse party without its counsel being present, 2-Borison will consider the
statements of witnesses as soon as the Defendant presents them for depositions, and
16
Rec. Doc. 45 at p. 2 (citing Montgomery v. Parker Towing Co., No. 07-3218, 2008 WL 559569 (E.D. La.
Feb. 26, 2008) (Africk, J.) (denying a motion in limine seeking to exclude Borison as an expert witness)).
17
Id.
18
Id. at p. 5.
19
Id.
20
Id.
21
Id. at pp. 5-6.
4
3-the condition of the stinger in question changed immediately after the incident,
thereby making any inspection by Borison meaningless and of no use in forming his
opinions.22
Similarly, Plaintiff refutes Defendant's arguments that there is no support for Borison's opinions as
to the condition of the stinger and its height at the time of the alleged incident:
The photocopies of the photographs in question were produced in discovery by
Defendant. The testimony of Plaintiff in this case refute the photos fairly and
accurately depict the condition of the stinger at the time of his injury. To the extent
that Plaintiff’s statements conflict with the evidence presented by CMC, Borison is
permitted to rely on the statements of Plaintiff. Similarly, Defendant’s contention
that Borison’s opinions should be excluded because he conducted no investigation
as to height of the platform, ignores the fact that the height of the stinger from the
water will never be known because it wasn’t recorded at the time of the incident.
Borison is permitted to rely on the Plaintiff’s estimate of how far he fell to the water
from the stinger in formulating his opinions.23
As Defendant does not challenge Borison's credentials, Plaintiff argues that the pending motion is
inappropriate and Defendant's contentions are simply grounds for cross-examination, and it will be
the jury's role to resolve disputes between conflicting opinions.24
III. Law and Analysis
Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
22
Id. at p. 6.
23
Id.
24
Id. at pp. 7-8
5
The United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals,25
"provides the analytical framework for determining whether expert testimony is admissible under
Rule 702."26 In Pipitone v. Biomatrix, Inc.,27 the Fifth Circuit noted that:
In Daubert, the Supreme Court offered an illustrative, but not an exhaustive, list of
factors that district courts may use in evaluating the reliability of expert testimony.
These factors include whether the expert's theory or technique: (1) can be or has been
tested; (2) has been subjected to peer review and publication; (3) has a known or
potential rate of error or standards controlling its operation; and (4) is generally
accepted in the relevant scientific community.28
The Supreme Court emphasized that the Daubert analysis is a "flexible" one, and that "the factors
identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature
of the issue, the expert's particular expertise, and the subject of his testimony."29 With regard to the
determination of relevancy pursuant to Rule 702, the testimony must not simply be relevant under
Rule 402, but also must assist the trier of fact to understand or determine a fact at issue.30
District courts have "wide latitude in determining the admissibility of expert testimony,"31
25
509 U.S. 579 (1993).
26
Pipitone v. Biomatrix, 288 F.3d 239, 243 (5th Cir. 2002). The Court notes that Daubert and many on its
progeny were decided before the 2011 Amendments to Rule 702, which altered the rule's language. However, this
changes have no substantive effect on the standard to be applied when considering the admissibility of expert
testimony because "[t]he language of Rule 702 has been amended as part of the restyling of the Evidence Rules to
make them more easily understood and to make style and terminology consistent throughout the rules. These
changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence
admissibility." Fed. R. Evid. 702, 2011 Amendments.
27
288 F.3d 239.
28
Id. at 244 (footnote omitted).
29
Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).
30
Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
31
Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997).
6
and the "decision to admit expert testimony will not be disturbed absent an abuse of discretion."32
In exercising this discretion, district courts should be mindful that, "[a]s the Court in Daubert makes
clear, [] the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary
system: 'Vigorous 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.'"33 In Viterbo v. Dow Chemical Co.,34 the Fifth Circuit explained that:
The district court should, initially, approach its inquiry with the proper deference to
the jury's role as the arbiter of disputes between conflicting opinions. As a general
rule, questions relating to the bases and sources of an expert's opinion affect the
weight to be assigned that opinion rather than its admissibility and should be left for
the jury's consideration.35
Here, as Plaintiff has noted, Defendant does not challenge Borison's qualifications as an
expert, or his methodology. Instead, Defendant generally argues that Borison's conclusions are
unfounded from the evidence he reviewed.36 However, as the Supreme Court articulated in Daubert,
in determining the admissibility of expert testimony "[t]he focus, of course, must be solely on
principles and methodology, not on the conclusions that they generate."37 While Defendant also
argues that Borison "based [his] opinion solely on plaintiff's self-serving statements,"38 as this Court
previously noted "questions relating to the bases and sources of an expert's opinion affect the weight
32
Carroll v. Morgan, 17 F.3d 787, 789 (5th Cir. 1994).
33
United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., State of Miss., 80 F.3d
1074, 1078 (5th Cir. 1996) (quoting Daubert, 509 U.S. at 596).
34
826 F.2d 420 (5th Cir. 1987).
35
Id. at 422. While Viterbo was decided before Daubert, subsequent Fifth Circuit opinions after Daubert
have cited this language from Viterbo as good law. See 14.38 Acres of Land, 80 F.3d at 1077.
36
See Rec. Doc. 44-1 at p. 3.
37
509 U.S. at 595.
38
Rec. Doc. 44-1 at p. 3.
7
assigned to the opinion rather than its admissibility and should be left for the jury's consideration."39
Therefore, these arguments do not present adequate grounds to exclude Borison's report or testimony
at trial.
Finally, to the extent that Defendant argues that Borison's report and testimony are not based
on sufficient facts or data, and therefore run afoul of Rule 702(b), the Court finds these arguments
unpersuasive. First, as Plaintiff explains, the condition of the stinger changed immediately after the
incident, rendering any inspection meaningless because there was no way to know the height of the
stinger on the date of the alleged incident.40 Second, any claim that Borison's opinion relies on
insufficient facts or data because he does not consider other employees' perspectives is premature
at best, because the depositions of these individuals are scheduled for July 22, 2013.41
As Defendant has not challenged Borison's expertise in this area, and at least one other court
has found him qualified as a safety expert in maritime personal injury cases,42 the Court finds that
Borison has the appropriate "knowledge, skill, expertise, training or education" to testify as an
expert in this matter. Further, Defendants have not challenged Borison's methodology, but only his
conclusions, which is an issue that can be explored on cross-examination, but must ultimately be
resolved by the jury, not the Court upon the pending motion.43 Therefore, the Court finds that
Borison is not only qualified as an expert in marine safety, but also that his testimony would be
39
Viterbo, 826 F.2d at 422.
40
Rec. Doc. 45 at p. 6
41
Id. at p. 5.
42
See Montgomery, 2008 WL 559569.
43
Daubert, 509 U.S. at 595-96.
8
helpful to the jury in understanding or deciding a fact at issue in this matter.44
IV. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant's Motion in Limine to Exclude Report and
Testimony of Robert E. Borison45 is DENIED.
NEW ORLEANS, LOUISIANA, this ______ day of July, 2013.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
44
See Bocanegra, 320 F.3d at 584.
45
Rec. Doc. 44.
9
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