Carbo v. Chet Morrison Services, LLC
ORDER & REASONS: granting in part and denying in part 55 Defendant Chet Morrison Services, LLC's Motion in Limine to Exclude Plaintiff's Liability Expert, Hector Pazos as set forth in document. Signed by Judge Carl Barbier on 10/23/13. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERALD J. CARBO, JR.
CHET MORRISON SERVICES, LLC
SECTION: "J" (4)
ORDER AND REASONS
Before the Court is Defendant Chet Morrison Services, LLC
Defendant's motion was set for hearing on October 23, 2013, on
memoranda of counsel, the record, and the applicable law, finds
that Defendant's motion should be GRANTED IN PART AND DENIED IN
PART for the reasons set forth more fully below.
LAW & DISCUSSION
negligence under the Jones Act and unseaworthiness under general
Defendant filed two motions to supplement the motion in limine;
however, finding that the supplements were unnecessary, the Court hereby
denies the motions to supplement. (Rec. Docs. 68, 69)
maritime law. Carbo also seeks maintenance and cure benefits. The
injured when he fell on the stairs of Defendant's vessel, the M/V
CAROLINE MORRISON, while retrieving a bowl of grapes from the
galley for the Captain of the vessel.2 During the course of
Hector V. Pazos ("Pazos") to inspect the M/V CAROLINE MORRISON
and prepare a report of his findings. This report is the focus of
the instant motion in limine.
Chet Morrison asks the Court to exclude Pazos' expert report
and his proposed testimony arguing that both are based on onesided statements of facts and inapplicable safety standards. Chet
potentially confuse the jury and are not necessary because they
difficulty comprehending. Further, having argued that much of
Pazos' report must be stricken, Chet Morrison contends that Pazos
because the time for such amendments has elapsed. Chet Morrison
further urges that, at trial, if Pazos is allowed to testify, he
should not be allowed to testify beyond the four corners of his
For a full recitation of the facts, see the Court's Order and Reasons
from August 14, 2013. (Rec. Doc. 25).
A. Irrelevance/Inaccuracy of
Chet Morrison avers that Pazos' report (a) is based on a
one-sided version of the facts, (b) fails to consider the fact
that the M/V CAROLINE MORRISON was a Unites States Coast Guard
(USCG) inspected Offshore Supply Vessel, which designation brings
with it certain regulations that are ignored in the report, and
(c) applies irrelevant and improper standards to the vessel.
credibility of the testimony, not the admissibility, and it is up
Corp. v. S.A.S.E. Military Ltd., No. 2004 WL 5495590 (W.D. Tx.
Oct. 21, 2004)). As such, the Court finds no merit in Chet
Morrison's contention that Pazos' report and proposed testimony
are based on a one-sided version of the facts. Any attack on the
factual basis of Pazos' opinions must be reserved for crossexamination.
Further, though the Court finds merit in Chet Morrison's
argument that Pazos' report applies inapplicable standards at
times, the Court does not find that this merits exclusion of the
entire report and the entirely of Pazos' proposed testimony.3
discussed in more detail below.
1. Admissibility of 46 C.F.R. 72.05-20(n)-(o)/Rise of the
Chet Morrison argues that Pazos' report must not include
information regarding the rise of the stairs because: (a) the
rise of the first and last stairs is irrelevant because Carbo
fell on a middle stair, (b) the middle stairs have a height
difference of about 3/8ths of an inch, which is inconsequential,
improper because it only applies to passenger vessels and the M/V
CAROLINE MORRISON is an Offshore Supply Vessel.
The purpose of Title 46, Chapter I, Subchapter H, which is
the section of the USCG Regulations that contains the regulation
cited to in Pazos' Report, is to "set forth uniform minimum
(emphasis added). The M/V CAROLINE MORRISON is not a passenger
vessel, but rather is an Offshore Supply Vessel subject to the
regulations set forth in Title 46, Chapter I, Subchapter I., and
thus any provision under Subchapter H is irrelevant. 46 C.F.R. §
See Section E below.
90.05–20 (Subchapter I applies to "[e]xisting offshore supply
vessels as defined by § 90.10–40(b), if they are of 100 or more
but of less than 500 gross tons.")
Therefore, the defendant's motion in limine will be granted
inasmuch as it seeks to exclude the application of Subchapter H
of Title 46, specifically, 46 C.F.R. § 72.05–20(n)-(o), in both
Pazos' report and proposed testimony. The defendant's motion will
be denied, however, insofar as it seeks to exclude any mention of
a difference in the rise of the stairs because, regardless of how
slight or on which stairs the variation occurs, is relevant to
aid the jury in determining the overall condition of the stairs.
2. OSHA and ANSI Regulations and Standards
In Pazos' report, he applies a combination of regulations to
determine that the handrails, toeboard, nosing on the stairs, and
Specifically, Pazos applies OSHA standards to the handrails, ANSI
standards to the illumination, ANSI and OSHA standards to the
toeboard, and USAS standards to the nosing.4 Chet Morrison argues
that the application of these standards and guidelines must be
Upon further research, the Court determined that the USAS Standard
cited in Pazos' report is merely an out-of-date version of a current ANSI
standard, thus the Court will treat the USAS Standard as an ANSI standard.
See, The American Society of Safety of Engineers, ANSI/ASSE A1264.1:
http://www.asse.org/publications/standards/a1264/a1264_links.php (last visited
Oct. 22, 2013).
stricken from the Report and excluded from Pazos' trial testimony
because they are inapplicable to the M/V CAROLINE MORRISON. Chet
inspected vessel, so the applicable USCG standards preempt all
other general regulations.
Pursuant to rule 29 USC § 653, OSHA has regulatory authority
over working conditions for United States employees. However, the
statute specifically states that OSHA’s authority does not apply
to working conditions over which other federal agencies "exercise
U.S.C. § 653(b)(1).
Under 14 U.S.C. § 2, Congress provides the
regulations needed to promote the safety of vessels; therefore,
OSHA regulations are pre-empted where USCG regulations apply.
In defining the scope of the USCG's regulatory authority,
Congress divided vessels into two categories: “inspected vessels”
and “uninspected vessels.”
Chao v. Mallard Bay Drilling, 534
U.S. 235, 242 (2002). With respect to “inspected vessels”, the
regulations. Id. at 242 (“[T]he Coast Guard and OSHA signed a
‘Memorandum of Understanding’ . . . evidencing their agreement
that . . . OSHA may not enforce the OSH Act with respect to the
working conditions of seamen aboard inspected vessels. ”); see
Francois v. Diamond Offshore Co., No. 11-2956, 2013 WL
654635 (E.D. La. Feb. 21, 2013) (Morgan, J.)(citing Chao, 534
U.S. at 243.) This preemption "extends not only to those working
conditions on inspected vessels specifically discussed by Coast
Guard regulations, but to all working conditions on inspected
vessels." Chao, 534 U.S. at 242. Moreover, the Fifth Circuit has
plaintiff to introduce into evidence the OSHA regulations [...]
on sound reasoning that OSHA regulations do not apply to vessels
in navigation." Clary v. Ocean Drilling & Exploration Co., 609
F.2d 1120, 1121 (5th Cir. 1980). Applying this well-established
precedent to the instant case, it is clear that, because the M/V
CAROLINE MORRISON is a USCG Inspected Offshore Supply Vessel,
OSHA regulations are preempted by USCG regulations.
The law surrounding the relevancy of ANSI guidelines is less
clear. In Dixon v. International Harvester Co., 754 F.2d 573,582
(5th Cir. 1985), the Fifth Circuit recognized that it is wellsettled
admissible from a hearsay standpoint, but then went on to discuss
evidence that the tractor at issue was governed by the cited ANSI
standards, the Dixon court determined that the ANSI standards
Specifically, the Court found that, though the tractor was not
generally used for logging purposes, the defendants purchased the
tractor with the intent to use it in logging activities and that
it was designed for and sometimes used for "skidding," which was
an activity regulated by the ANSI standard at issue. Id.
Applying the analysis used in Dixon, the Court concludes
irrelevant to the instant matter. The facts that persuaded the
Dixon court that the standards were relevant are not present in
the instant matter. The structure and construction of stairs on a
vessel are not comparable to the broad, general workplace ANSI
standards on which Pazos relies.5 In fact, occupational safety on
a vessel and in general workplaces varies enough that not even
OSHA regulations apply, thus it is illogical to allow the very
similar ANSI guidelines to be relied upon when OSHA regulations
have been excluded.
Therefore, upon the conclusion that the
potential to confuse and mislead the jury,
the Court will grant
the motion in limine inasmuch as it pertains to the exclusion of
Though the OSHA regulations and ANSI standards
Additionally, the Court notes that the ANSI standards referenced in
Pazos' Report are severely outdated, having been withdrawn and consolidated
into one standard, A1264.1, in the 1970s. See, The American Society of Safety
of Engineers, ANSI/ASSE A1264.1: Background Materials
http://www.asse.org/publications/standards/a1264/a1264_links.php (last visited
Oct. 22, 2013)
inspection of the handrails, coaming, nosing, and illumination of
B. Universal Formula for Total Step Geometry
Chet Morrison contends that the Universal Formula for Total
Step Geometry does not meet the requirements of Daubert because
its application in a maritime setting is "highly suspect." Chet
Morrison avers that Pazos is the only professional that applies
this formula in maritime settings, and it does not appear in any
directly respond to Chet Morrison's argument that this formula is
not applied in marine settings. Thus, the only information that
the Court has regarding this formula is that it was developed by
a French architect in the late 1600s, that it is included in the
"Slip and Fall Handbook" by Stephen I. Rosen, that it is often
investigators consider the formula to be far from a perfect one,
ninety (90%) of forward fall accidents" occur on a stairway that
Chet Morrison requests that any mention of the illumination of the
stairwell be stricken from Pazos' report because Pazos did not make any
conclusions based on the lights in the stairwell being turned on. Chet
Morrison contends that, because Carbo stated in his deposition that he could
have turned on the lights, Pazos' references to the poor illumination in the
stairwell is irrelevant. The Court must deny the motion in limine on these
grounds because, as was previously noted, such contentions speak to the
factual basis of the expert's opinion and are more approrpriately challenged
via cross-examination. In re Katrina Canal Breaches Consol. Litig., 2010 WL
does not meet this formula. Stephen I. Rosen, SLIP
Daubert requires that expert testimony be both reliable and
relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 589 (1993). In determining whether this standard is met,
[t]he party offering the expert testimony bears the
preponderance of the evidence. The reliability inquiry
requires the Court to assess whether the reasoning or
methodology underlying the expert's testimony is valid.
The aim is to prevent expert testimony based merely on
subjective belief or unsupported speculation.
Nugent v. Hercules Offshore Corp., No. 98-3060, 2000 WL 381925,
Though there is not specific evidence that this formula is
engineer who has been in the field for over fifty years, Pazos
has the specialized knowledge necessary to testify as an expert
as to the dangerousness of the stairs, and he may base his
opinion on his personal experience and this formula, which is
Vitae, Rec. Doc. 55-2. Pazos' use of this formula differs from
his attempted use of the OSHA and ANSI regulations because: (a)
the formula is general enough to not mislead the jury, (b) the
formula is general enough to be applied to all stairways, (c) the
construction rather than the highly regulated field of workplace
preempting this formula, as was the case with OSHA and ANSI
regulations. Therefore, Carbo meets his burden of proving by a
preponderance of the evidence that the Universal Formula for
Total Step Geometry is reliable and the motion in limine will be
denied as it relates to this issue.
C. Plaintiff's Medical Condition
Chet Morrison contends that the Background section Pazos'
report describes Carbo's medical chronology and claimed injuries,
architect/engineer. Therefore, Chet Morrison requests that such
information be stricken from the Report. The Court agrees that
Pazos is not qualified to discuss Carbo's injuries; therefore,
any mention of Carbo's injuries or medical chronology must be
stricken from Pazos' report. Further, any mention of the same
topics at trial is barred.
D. Conclusions of Law
couched as opinion when he states that the accident was the
result of the Captain's negligence, and when he opines that the
Captain violated the vessel's "three point contact" rule. Finding
that such statements do provide inadmissible legal conclusions,
the Court will grant the Defendant's motion on this issue. The
legal conclusions that the Captain was negligent, and that his
negligence caused Plaintiff's injuries, as well as the legal
rule7 must be stricken from the report and excluded from Pazos'
testimony at trial.
E. Four Corners of the Report/ Admissibility of the Report in
Chet Morrison argues that, in light of the exclusion of
large portions of Pazos' report, as well as the fact that Pazos
will be barred from amending his report because the deadline for
expert reports have passed, the entire report must be excluded
Additionally, the Court finds that Pazos is not qualified to give
opinions as to the three-point contact rule and that an expert opinion is not
necessary in this area. Pazos is a marine engineer and naval architect, not a
safety expert; therefore, he must be barred from rendering opinions about
safety procedures on the vessel. Moreover, a jury does not require an
expert's assistance to determine that asking somebody to carry a bowl up a set
of stairs would require him to carry the bowl with one hand, thus only hold on
to the handrail with one hand. See Robertson v. Cal Dive International, Inc.,
No. 05-807, 2006 WL 1999210, *2 (E.D. La. July 14, 2006)(Englehardt, J.).
because it does not meet the requirements of Federa Rule of
Though the many of the bases for Pazos' opinions have been
excluded by the Court, this does not necessarily require the
foundations have been excluded, as the Court determined that the
experts may testify to "scientific, technical, or other specified
knowledge." FRE 702 (emphasis added). In Kumho, the Supreme Court
specifically uses Pazos' speciality, engineering, as an example
of a discipline where these areas often overlap, noting that,
though engineering rests on scientific foundations, "personal
knowledge or experience" can also be a factor in rending an
opinion. See Kumho, 526 U.S. at 150. Thus, having inspected the
M/V CAROLINE MORRISON, Pazos's opinions that are based on more
Pazos' report and testimony will aid the jury. Stairs on a vessel
are often very different from the ordinary stairs in a home or
building with which a juror would be familiar; therefore, the
Court finds that expert testimony would assist the juror in
determining the reasonableness of the stairs on the M/V CAROLINE
MORRISON in relation to other stairways in similar vessels. Thus,
Chet Morrison's motion is denied in this respect.
Finally, though Carbo has not indicated that he intends to
supplement or amend Pazos' report, the Court notes, out of an
abundance of caution, that such amendments are not permitted at
this late stage of litigation. Therefore, Carbo is confined to
his current expert report as redacted in light of the instant
Order of this Court.
Chet Morrison Services, LLC's Motion in Limine (Rec. Doc.
55) is GRANTED IN PART and DENIED IN PART.
IT IS ORDERED THAT the following parts of Pazos' expert
report and testimony are stricken: (1) all OSHA regulations, ANSI
guidelines, and USAS standards; (2) the legal conclusions that
the Captain was negligent, that his negligence caused Plaintiff's
injuries, and that the Captain violated the three-point contact
Recommendations, including 46 C.F.R. 72.05-20(n)-(o); and (4) any
mention of Carbo's injuries or medical chronology. Otherwise, the
Motion in Limine is DENIED.
New Orleans, Louisiana this 23rd day of October, 2013.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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