Carbo v. Chet Morrison Services, LLC

Filing 77

ORDER denying 74 Motion in Limine to Limit Testimony of G. Randolph Rice. Signed by Judge Carl Barbier on 11/7/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERALD CARBO

CIVIL ACTION

VERSUS

NO: 12-3007

CHET MORRISON SERVICES, L.L.C.

SECTION: "J" (4)

ORDER
Before the Court is Defendant Chet Morrison Services L.L.C.
("Chet Morrison")'s Motion in Limine (Rec. Doc. 74) and Plaintiff
Gerald Carbo ("Mr. Carbo")'s opposition thereto (Rec. Doc. 75).
Defendant's motion was set for hearing on November 12, 2013, on
the briefs. A jury trial is set in this matter on November 18,
2013. The Court, having considered the motions and memoranda of
counsel,

the

record,

and

the

applicable

law,

finds

that

Defendant's motion should be DENIED for the reasons set forth
more fully below.
Chet Morrison requests that the Court exclude or severely
limit the expert testimony of Mr. Carbo's economic expert, G.
Randolph Rice ("Rice"). Specifically, Chet Morrison argues that
one

of

Rice's

calculations

regarding

Carbo's

"potential

wage

losses formulated on an "expectation" of plaintiff being employed

as a vessel captain or mate on the date of the alleged incident"
should be excluded because "it fails to set out the factual
information from which he reached his conclusion." Def.'s Opp.
Rec. Doc. 74, 74-1.
This Court has previously held that arguments that speak to
"the basis and source of" the expert's opinion "are not issues of
admissibility appropriate for the Court to assess, rather, they
are precisely the type of issues that the jury should determine
after cross examination." Lodge v. Doe, No. 11-1257, 2012 WL
3644745, *4 (E.D. La. Aug. 24, 2012) (Barbier, J.). Chet Morrison
argues, however, that this Court should "be cautioned against
'the

temptation

to

answer

objections

to

receipt

of

expert

testimony with a shorthand remark that [sic] jury will give it
the weight it deserves.'" Def.'s Opp., Rec. Doc. 74-1, p. 4
citing In re: Air Crash Disaster at New Orleans, La., 795 F.2d
1230, 1233-34 (5th Cir. 1986)(internal citation omitted).
The warnings given in Air Crash Disaster, as well as the
other cases cited by Chet Morrison, are inapposite because those
cases

involve

evidence

that

is

completely

speculative

and

unsupported by the facts in the record. See Id. (excluding expert
testimony

based

on

unrealistic

speculations

not

supported

by

facts in the record); see also Tyger Construction Co. Inc., v.
Pensacola Construction Co., 29 F.3d 137,142-43 (4th Cir. 1994)

(excluding an expert opinion based on an assumption that was
contradicted by the parties own admissions in the record). Here,
Rice's calculations are not purely speculative because he bases
them on: (1) Carbo's deposition testimony that he obtained his
Captain's and First Mate's license following the accident at
issue,

and

(2)

another

Chet

Morrison

employee's

deposition

testimony that he makes about $450 per day as a first mate.
Moreover, Rice provides an alternative calculation based on Carbo
working in his previous capacity rather than as a captain/first
mate. Therefore, the jury has both high and low estimates to
consider, and there is no reason to predict that it will give too
much weight to this one calculation challenged by Chet Morrison.
Thus, whatever deficiencies may exist in Dr. Rice's report "do
not so offend the Daubert reliability standard so as to preclude
their

admission.

'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.'" Hasik v. State Farm Ins. Co., No. 06-6330,
2007 WL 2903224, *1 (E.D. La. Oct. 2, 2007) (Barbier, J.) citing
Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596 (U.S. 1993).
Accordingly,
Chet Morrison's Motion in Limine (Rec. Doc. 74) is DENIED.

New Orleans, Louisiana this 7th day of November, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE