Howard v. Offshore Liftboats, LLC et al

Filing 760

ORDER AND REASONS granting in part and denying in part Calvin Howard's 756 Motion for Reconsideration of the Court's previous rulings re 753 Order on K&K's 589 Objections to Plaintiffs' Deposition Designations of Tim Lawrence and 754 Order on OLB's 623 Objections to Deposition Excerpts of Captain Timothy Lawrence, as stated herein. Signed by Judge Susie Morgan on 1/26/2016. (Reference: All Cases) (tsf)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CALVIN HOWARD, ET AL.

CIVIL ACTION

VERSUS

NO. 13-4811
c/w 13-6407 and 14-1188

OFFSHORE LIFTBOATS, LLC,
ET AL.

SECTION "E" (5)

ORDER AND REASONS
Before the Court is Plaintiff Calvin Howard’s motion for reconsideration of the
Court’s previous rulings on Defendants’ objections to Plaintiffs’ deposition designations
of Captain Timothy Lawrence. 1
BACKGROUND
The Plaintiffs originally informed the Court that they wished to read Captain
Lawrence’s deposition to the jury during their case-in-chief. The Court found that Captain
Lawrence was a managing agent of Offshore Liftboats, LLC (“OLB”), and thus that his
deposition could be used in this manner under Federal Rule of Evidence 32. 2 Thereafter,
the Plaintiffs provided their designations of Captain Lawrence’s deposition to the
Defendants, and the Defendants filed various objections to those designations. 3
The Court ruled on the Defendants’ objections on January 26, 2016. Now, the
Plaintiffs intend to call Captain Lawrence as a live witness during their case-in-chief.
Plaintiffs have asked the Court to re-examine some its rulings in connection with the
designations of Captain Lawrence’s deposition and the Defendants’ objections thereto.

R. Doc. 756.
See R. Doc. 647 at 2–3.
3 R. Docs. 589, 623.
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2

1

Plaintiffs wish to ask some questions of Captain Lawrence during his live testimony that
the Court ruled could not be read from his deposition.
LAW AND ANALYSIS
The Plaintiffs have asked the Court to revisit its rulings that Captain Lawrence may
not testify as to his opinions about various weather conditions at the time of the incident,
including wind speed and wave height. Plaintiffs also contend, contrary to the Court’s
rulings, that Lawrence should be permitted to opine on whether Sylvester Richardson
should have been operating the crane under those weather conditions, the
communications that should have taken place between Richardson and the other vessel,
and the safety procedures that should have been followed during the personnel-basket
transfer.
Captain Lawrence was not designated as an expert witness. Thus, his testimony,
because it is opinion testimony, and because Lawrence is not an expert witness, must be
admissible pursuant to Federal Rule of Evidence 701. Rule 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is: (a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Moreover, “[a]n opinion is rationally based on perception if the opinion is the sort that a
normal person would form and ‘no irrational leaps of logic’ are required to sustain it.” 4
Rule 701 demands “more than a finding that the witness has perceived something firsthand; rather, it requires that the witness’s perception provide a truly rational basis for the
opinion.” 5

Graves ex rel. W.A.G. v. Toyota Motor Corp., No. 2:09cv169KS-MTP, 2011 WL 4590772, at *8 (S.D. Miss.
Sept. 30, 2011) (quoting Lynch v. City of Boston, 180 F.3d 1, 15 (1st Cir. 1999)).
5 Id.
2
4

As an initial matter, Plaintiffs rely heavily on In re Antill Pipeline Construction
Co. 6 In that case, the court applied Federal Rule of Evidence 701, noting that lay witnesses
may only provide opinion testimony if it is “rationally based on [their] perception[s].” 7
The testimony in that case involved the opinion of a lay witness with respect to the speed
of a certain vessel. 8 The court held: “Lay witnesses who offer an opinion regarding speed
must . . . be percipient witnesses, that is, they must themselves observe the object in
motion in order to be allowed to offer an opinion as to its speed.” 9 Although Captain
Lawrence’s proposed testimony in the present case does not involve the speed of the
involved vessels, the In re Antill Pipeline Construction Co. decision is instructive with
respect to what is required for a lay witness to offer opinion testimony pursuant to Federal
Rule of Evidence 701.
The Court has revisited its prior rulings with respect to the admissibility of Captain
Lawrence’s testimony to determine if certain of his opinions are admissible as permissible
opinion testimony from a lay witness under Rule 701 and the applicable jurisprudence.
I.

OPINION #1 – WIND SPEED
In his deposition, Captain Lawrence testified that the wind speed at the time of the

incident was “15 mile[s] an hour, roughly.” 10 Captain Lawrence went on to opine that 15
miles per hour is classified as a “light” wind. 11 Wind speed is typically determined through
the use of an anemometer or some other device capable of gauging wind speed. If Captain
Lawrence will testify that he had access to and actually consulted such a device at the time
of the incident, and that is the basis of his testimony, Captain Lawrence will be allowed to

Nos. 09–3646, 09–3646, 10–2633, 2013 WL 231569 (E.D. La. Jan. 22, 2013).
Id. at *1.
8 See id.
9 Id.
10 See R. Doc. 756 at 3; R. Doc. 623-1 at 12 (Deposition of Timothy Lawrence).
11 R. Doc. 756 at 3.
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6
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offer his opinion that the wind speed was “15 mile[s] an hour, roughly,” at the time of the
incident, provided his testimony satisfies Rule 701’s other requirements. With respect to
the second requirement of Rule 701, the Court finds that Captain Lawrence’s testimony
as it relates to wind speed, so long as it is based on his reading of a wind measurement
device, is not the kind of testimony that would require “scientific, technical, or other
specialized knowledge.” Instead, Captain Lawrence’s testimony is based on his
perceptions from reading an anemometer or other wind-speed gauge. With respect to the
third requirement of Rule 701, the Court notes that Captain Lawrence’s testimony in this
regard would be helpful to the jury in determining certain facts in issue.
Therefore, Captain Lawrence will be permitted to testify that the wind speed was
“15 mile[s] an hour, roughly,” if Plaintiffs establish (1) that Captain Lawrence had an
anemometer—or some other device capable of gauging wind speed—available to him at
the time of the accident; (2) that Captain Lawrence consulted the device at the time of the
incident; and (3) that he is testifying based on his recollection of the wind-speed reading.
If, on the other hand, Captain Lawrence is merely estimating that the wind speed
was “15 mile[s] an hour” at the time of the incident, he cannot be considered a percipient
witness pursuant to Rule 701, as his testimony would not be based on having observed
the exact wind speed. Under those circumstances, Captain Lawrence may not offer
testimony with respect to his opinion that the wind speed was “15 mile[s] an hour,
roughly.”
Furthermore, Captain Lawrence may not testify that a wind speed of 15 miles-perhour is considered to be a “light” wind. This term is vague, undefined, and would not be
helpful to the jury.

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II.

OPINION #2 – WAVE HEIGHT
Captain Lawrence also testified in his deposition that, in his opinion, the seas were

three (3) feet at the time of the incident. 12 Captain Lawrence further testified that he
considers “3-foot” seas to be “calm.” 13 The basis of Captain Lawrence’s testimony on the
wave height at the time of the incident is not clear. If Captain Lawrence is familiar with
wave heights and, at the time of the incident, visually perceived the waves and concluded,
based on his rational perceptions, that the waves were “3 foot,” Captain Lawrence will be
permitted to testify to this, provided the other requirements of Rule 701 are satisfied. In
maritime cases, lay witnesses often are allowed t0 testify as to wave height. The Court
finds that this testimony does not require “scientific, technical, or other specialized
knowledge.” Further, the Court believes such testimony from Captain Lawrence, the
captain in charge of the L/B Janie on the night of the incident, will be helpful to the jury
in understanding the conditions under which the personnel-basket transfer was
attempted. This testimony regarding the wave height at the time of the incident will satisfy
Rule 701 and be allowed, provided Plaintiffs establish (1) that Captain Lawrence is
familiar with wave heights; and (2) that Captain Lawrence visually perceived the waves at
the time of the incident.
However, Captain Lawrence may not testify that the seas were “calm.” Whether the
seas were “calm” or “rough” at the time of the incident requires specialized, scientific
knowledge. These are terms of art which are often the subject of expert testimony. 14
R. Doc. 756 at 3.
R. Doc. 623-1 at 16–17 (Deposition of Timothy Lawrence).
14 See, e.g., Collins v. Cottrell Contracting Corp., 733 F. Supp. 2d 690, 701 (E.D.N.C. 2010) (“The magistrate
judge found the proposed testimony of Mr. Harned, a meteorologist with more than forty years of
experience, regarding wind and wave conditions at the Marion to be both reliable and relevant to whether
there were ‘rough seas’ at the time of the accident.”); Champion v. Globalsantafe Drilling Co., No. 06-1800,
2007 WL 2078763, at *2 (E.D. La. July 13, 2007); Bennett v. Gilco Supply Boat, Inc., No. 00-2826, 2001
WL 1426682, at *2 (E.D. La. Nov. 14, 2001). In fact, the Court notes there will be expert testimony about
this very matter from Dr. Lee Branscome, an expert meteorologist retained by Defendants.
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12
13

Furthermore, these terms are vague and undefined, and they will not be helpful to the
jury. As a result, Captain Lawrence may not testify that the seas were calm, as such
testimony is outside the scope of permissible lay-witness opinion testimony contemplated
by Federal Rule of Evidence 701.
III.

OTHER MISCELLANEOUS OPINIONS
Despite the Court’s previous rulings, Plaintiffs contend Captain Lawrence should

be permitted to offer his opinion as to (1) whether Sylvester Richardson should have been
operating the crane given the weather conditions; (2) the communications practices that
should have been employed during the personnel-basket transfer; and (3) the safety
procedures that should have been followed during the transfer. 15 Plaintiffs essentially ask
that Captain Lawrence be allowed to give lay opinion testimony with respect to whether
the personnel-basket transfer was performed correctly, the standard of care applicable to
personnel-basket transfers, and whether the Defendants acted within that standard of
care.
In Barron v. BP America Production Co., the Fifth Circuit confronted the issue of
whether a lay witness—the owner of an offshore vessel—could testify with respect to his
opinion on whether the vessel should have been operating in the Mississippi Sound under
certain weather conditions, when an employee of the vessel was injured. 16 The Fifth
Circuit held that “[d]etermining whether the [vessel] should have operated in the
Mississippi Sound when Barron was injured requires ‘scientific, technical, or other
specialized knowledge’ of boats, the Mississippi Sound, and the weather conditions of the

R. Doc. 756 at 1–2.
See, e.g., Barron v. BP Am. Prod. Co., 590 F. App’x 294, 297 (5th Cir. 2014) (finding that the
determination of whether a vessel should have operated in the Mississippi Sound under certain weather
conditions “requires scientific, technical, or other specialized knowledge of boats . . . beyond what is
known by the average person.”);
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15

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Gulf of Mexico beyond what is known by the average person.” 17 The Fifth Circuit affirmed
the trial court’s decision to exclude the proposed testimony, holding that the testimony
was correctly excluded as an inadmissible lay opinion. 18
The Barron decision is factually similar to the present case. Captain Lawrence’s
proposed testimony concerns, in part, his opinions on (1) whether the personnel-basket
transfer was performed correctly; (2) whether the transfer should have even been
attempted given the weather; (3) the standard of care applicable to personnel-basket
transfers; and (4) whether the Defendants acted within that standard of care. As the Fifth
Circuit held in Barron, issues such as this require specialized knowledge “beyond what is
known by the average person.” In this case, the parties have retained experts with respect
to these very issues, including David Cole, 19 Robert Watson, 20 Jack Madeley, 21 and
Mitchell Stoller. 22 Therefore, opinion testimony from Captain Lawrence on these issues
is not warranted.
IV.

ADDITIONAL CONSIDERATIONS: SPECULATIVE TESTIMONY
The Court also is aware that, when examining Captain Lawrence, Plaintiffs wish to

ask him various speculative, hypothetical questions. For example, during Captain
Lawrence’s deposition, he was asked questions such as:
Id.
Id.
19 As stated in the Pretrial Order, Robert Watson—Plaintiffs’ liability expert—is a “retired coast guard
commander and former coast guard marine accident investigator who will testify per his report and
deposition with regard to the safety issues, policies, procedures, regulations and facts and circumstances as
set forth in the evidence concerning the negligence and unseaworthiness of Defendants employees involved
in the failed personnel transfer.” R. Doc. 757 at 88.
20 Robert Watson is an expert in crane safety, crane operations, crane inspection, and the training of riggers
and operators. R. Doc. 757 at 103.
21 Jack Madeley is an expert witness on liability for the Plaintiffs. R. Doc. 757 at 88–89. Madeley is a
“professional engineer who will opine on failings of the crane operator, deck signalman and overall
negligence and unseaworthiness of the crews of the two vessels involved in the failed personnel transfer
which is the subject of this case.” R. Doc. 757 at 89.
22 Mitchell Stoller is another liability expert retained by Plaintiffs who will testify “regarding the cause of
the accident, the standards of care and violations of the standards of care by the Defendants, negligence of
the Defendant’s and seaworthiness of the vessel.”R. Doc. 757 at 102.
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17

18

•

“Had the seas been rough you wouldn’t have put Sylvester
Richardson in the crane on May 16th, right?”

•

“[I]f the seas were rough on May 16, 2013, the safest thing to do and
the right thing to do in your opinion, as the captain, would have been
to put a more experienced crane operator in the crane, right?”

Such questions are intended to do nothing more than have Captain Lawrence
speculate on different aspects of the incident-in-question and how the incident could have
been prevented. “[A] lay opinion witness may not testify based on speculation.” 23 “[A] lay
witness’s opinion testimony which constitutes speculation as to what might have been
done or what might have occurred is not based on his first-hand perception of actual
events, and thus does not satisfy the requirements” of Federal Rule of Evidence 701. 24 As
a result, the Plaintiffs will not be permitted to ask questions requiring Captain Lawrence
to offer speculative testimony. Captain Lawrence may not speculate or give his opinion
with respect to how his actions, or the actions of other individuals involved in the incident,
would have been different under different factual scenarios.
CONCLUSION
IT IS SO ORDERED that Plaintiffs’ motion for reconsideration of the Court’s
rulings on the Defendants’ objections to Plaintiffs’ designations of Captain Lawrence’s
deposition be and hereby is GRANTED IN PART and DENIED IN PART.
New Orleans, Louisiana, this 26th day of January, 2016.
______________ ________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
United States v. Lloyd, 807 F.3d 1128, 1154 (9th Cir. 2015) (quoting United States v. Vera, 770 F.3d 1232,
1242 (9th Cir. 2014)) (internal quotation marks omitted). Federal Rule of Evidence 701 “does not permit
speculation by lay witnesses.” Davis v. Brown & Root Int’l, Inc., No. 91-1214, 1994 WL 34045, at *2 (E.D.
La. Jan. 28, 1994). “Under the Federal Rules of Evidence, speculative opinion testimony by lay witnesses—
i.e., testimony not based upon the witness’s perception—is generally considered inadmissible.” Washington
v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir. 1993) (FED. R. EVID. 701).
24 Phillips v. Duane Morris, LLP, No. 13-cv-01105-REB-MJW, 2015 WL 72336, at *2 (D. Colo. Jan. 5, 2015).
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