Howard v. Offshore Liftboats, LLC et al

Filing 769

ORDER AND REASONS granting K&K Defendants' 333 Motion in Limine to Limit the Testimony of Jack Madeley and OLB's 337 Motion in Limine to Limit and/or Exclude the Testimony of Plaintiff's Liability Expert, Jack Madeley, as stated herein. Signed by Judge Susie Morgan on 2/1/2016. (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 are two motions in limine to limit or exclude the expert testimony
of Jack Madeley, a purported offshore crane and safety expert retained by Plaintiffs Calvin
Howard and Raymond Howard. 1 The motions were filed individually by the K&K
Defendants 2 and Offshore Liftboats, LLC (“OLB”) (collectively, “Defendants”). 3 Plaintiff
Calvin Howard opposes the motion. The Court has considered the briefs, the record, and
the applicable law, and now issues its ruling. For the reasons that follow, the motions
are GRANTED.
BACKGROUND
This is a maritime personal injury case. It is undisputed that, on May 16, 2013,
Plaintiffs Raymond Howard (“Raymond”) and Calvin Howard (“Calvin”) were injured
during a personnel-basket transfer from the M/V Contender to the deck of the L/B Janie. 4
At the time of the accident, both Raymond and Calvin were employed by Offshore
Liftboats, LLC (“OLB”), the owner and/or operator of the L/B Janie. 5 The M/V Contender

R. Docs. 333, 337.
R. Doc. 333. The K&K Defendants consist of K&K Offshore, LLC, and its many insurers—P&M Marine,
LLC; Atlantic Specialty Insurance Company; Markel American Insurance Company; ProCentury Insurance
Company; Navigators Insurance Company; United States Fire Insurance Company; Lloyds Underwriters;
and Torus Insurance Company (UK), Limited. They are referred to herein, collectively, as “the K&K
Defendants.”
3 R. Doc. 337.
4 See R. Doc. 321.
5 See generally R. Doc. 321.
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was owned and/or operated by K&K Offshore, LLC. 6 As a result of the accident, both
Raymond and Calvin filed suit against OLB—their Jones Act employer—and K&K
Offshore, among others.
LAW AND ANALYSIS
The Federal Rules of Evidence permit an expert witness with “scientific, technical
or other specialized knowledge” to testify if such testimony “will help the trier of fact to
understand the evidence or to determine a fact in issue,” so long as “the testimony is based
upon sufficient facts or data,” “the testimony is the product of reliable principles and
methods,” and “the expert has reliably applied the principles and methods to the facts of
the case.” 7 Courts, as “gatekeepers,” are tasked with making a preliminary assessment
whether expert testimony is both reliable and relevant. 8 The district court is offered broad
latitude in making such expert testimony determinations. 9 The party seeking to offer
expert testimony bears the burden of establishing, by a preponderance of the evidence,
that “(1) the expert is qualified; (2) the testimony is relevant to an issue in the case; and
(3) the testimony is reliable.” 10
According to the Plaintiffs, Jack Madeley was retained as an offshore crane expert
and an expert in marine safety. 11 The Pretrial Order describes Madeley’s testimony as
bearing on “failings of the crane operator, deck signalman and overall negligence and

See generally R. Doc. 321.
FED. R. EVID. 702.
8 See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592–93 (1993)).
9 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151–53 (1999).
10 Motio, Inc. v. BSP Software, LLC, No. 4:12-CV-647, 2016 WL 105299, at *1 (E.D. Tex. Jan. 8, 2016) (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590–91 (1993)). See also Mathis v. Exxon Corp., 302
F.3d 448, 459–60 (5th Cir. 2002); AMW Sports, LLC v. State Farm Fire and Cas. Co., No. 10-651-SCR,
2012 WL 39380, at *1 (M.D. La. Jan. 9, 2012) (“Plaintiffs, the proponents of the expert evidence at issue,
have the burden of demonstrating that their expert is qualified to testify in the field that he is offered and
that his opinions are both reliable and relevant.”).
11 See R. Doc. 363 at 2.
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unseaworthiness of the crews of the two vessels involved in the failed personnel
transfer.” 12
Although the Plaintiffs say that Madeley will testify regarding “overall negligence
and unseaworthiness of the crews,” the portions of his report that are specific enough to
be of any use deal with crane operations, personnel-basket transfers, and related
practices. 13 To illustrate this point, Madeley’s expert report states, in pertinent part:
•

“It appears the crane operator negligently failed to center the boom
directly over the basket before beginning the lift.”

•

“The crane operator failed to have proper radio contact and
communications with the CONTENDER.”

•

“The crane operator should have ensured he had visual contact with the
basket and signal person throughout the task.”

•

“Once the crane operator lost sight of the lift, he should have stopped
hoisting the basket.”

•

“The crane operator should have made sure he received the
CONTENDER’S deck hand’s signals prior to lowering or raising the
personnel basket.”

•

“The crane operator on the L/B JANIE should have stopped the job if
the CONTENDER was not holding its position.”

•

“The crane operator failed to center the boom directly over the basket
and did not give the CONTENDER’S deck hand an opportunity to signal
any re-positioning of the boom because the crane operator proceeded to
lift without receiving the signal.”

As a result, the Court will examine Madeley’s qualifications to testify as an expert witness
on offshore crane operations and personnel-basket transfers. Plaintiffs bear the burden

R. Doc. 467 at 89.
In his report, Madeley references OSHA regulations, but the Pretrial Order does not list the applicability
of OSHA regulations as a contested issue of law in the case. OSHA regulations are not relevant. R. Doc.
467 at 40. Madeley opines in his report that K&K failed to administer drug tests timely. This is not in
dispute and does not justify the need for Madeley’s expert testimony. Madeley mentions in his report the
“possible impairment” of Blake Ryland. Madeley is not a toxicologist and he acknowledges he is not
qualified to testify whether someone was impaired or under the influence of drugs at the time of an accident.
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of establishing, by a preponderance of the evidence, that Madeley is qualified to offer
expert testimony in these fields and that his testimony would otherwise be admissible
under Federal Rule of Evidence 702. The Court must make this determination based on
Madeley’s expert report and curriculum vitae (“C/V”), which were attached to the
Defendants’ motions in limine,14 and excerpts from Madeley’s deposition provided by the
Plaintiffs 15 and Defendants. 16
Madeley has held several engineering positions with a variety of companies. 17
Insofar as that experience relates to crane operations and personnel-basket transfers,
however, Madeley’s experience is minimal. Madeley’s C/V indicates that, from 1975
through 1985, he worked as a safety engineer for Marathon Oil Company, during which
time he engaged in “offshore platform review” and “safety systems design review.” 18 There
is no indication that his duties or responsibilities during this time involved crane
operations or personnel-basket transfers. Madeley has attended a few seminars and
conferences with respect to offshore crane operations. For example, Madeley’s C/V
indicates he participated in a conference on “OSHA Cranes, Derricks, Hoists, Elevators
and Conveyors” in 2012. 19 Madeley also attended a conference on “Mobile Cranes and
Drilling Practice” in 1990 and a conference on “Basic Crane Operator Safety” in 1982. 20
Madeley’s professional experience reflected by his C/V, insofar as it concerns crane
operations, stops there. Madeley’s C/V contains no further information to document his
experience with crane operations during personnel-basket transfers. Madeley’s expert

See generally R. Doc. 333-2; R. Doc. 337-3.
R. Doc. 363-1.
16 R. Doc. 337-4.
17 See generally R. Doc. 333-2 at 14–15.
18 R. Doc. 333-2 at 15.
19 R. Doc. 333-2 at 16.
20 R. Doc. 333-2 at 17.
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report summarizes his background and experience but provides no further evidence of
the basis of his purported expertise. Madeley conceded in his deposition that while he
had a crane operator’s certification in the 1980s, he has not operated an offshore crane
since then. 21
Plaintiffs contend, based on Madeley’s deposition testimony, that Madeley has
participated in “hundreds” of personnel-basket transfers and has “observed more than
that.” 22 Observing and participating in personnel-basket transfers does not render
Madeley qualified to testify as an expert witness on offshore crane operations or the
practices that should be employed when performing personnel-basket transfers. 23 If this
were the case, every seaman working in the Gulf of Mexico would be qualified to testify as
an expert witness on personnel-basket transfers.
The Court finds that Plaintiffs have failed to carry their burden of establishing, by
a preponderance of the evidence, that Madeley is qualified by scientific, technical or other
specialized knowledge to testify as an expert with respect to crane operations and
personnel-basket transfers. To the extent that Madeley is offered to testify on issues of
general safety, the Court notes that, “[i]ssues of general safety and negligence are well
within the province for a jury to decide without the aid of an expert.” 24
CONCLUSION
For the reasons stated above, IT IS ORDERED that the Defendants’ motions in
limine to exclude or limit the testimony of Jack Madeley 25 are hereby GRANTED.

R. Doc. 337-4 at 5-6.
R. Doc. 363 at 4; R. Doc. 363-1 at 6–7 (Deposition of Jack Madeley).
23 The Court previously permitted Madeley to testify as an expert witness on issues related to crane
operations and personnel-basket transfers. See Richardson v. SEACOR Lifeboats, LLC, No. 14-1712, 2015
WL 2193907 (E.D. La. May 11, 2015). That was a bench trial, however, not a jury trial like the present case,
and the Court specifically found “most of the objectives of Daubert [were] not implicated.” Id. at *2.
24 Fulford v. Manson Const. Co., No. 09-3946, 2010 WL 1903865, at *2 (E.D. La. May 7, 2010).
25 R. Docs. 333, 337.
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New Orleans, Louisiana, this 31st day of January, 2016.

____________
_______ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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