Fick v. Exxon Mobil Corporation

Filing 103

ORDER AND REASONS granting 83 Motion to Exclude Testimony of Dennis K. Manuel. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS FICK ET AL.
Plaintiffs

CIVIL ACTION

VERSUS

No. 13-6608

EXXON MOBIL CORPORATION,
Defendant

SECTION “E”

ORDER AND REASONS
Before the Court is Plaintiffs’ motion in limine to exclude the testimony of
Defendant’s proposed expert Dennis K. Manuel. 1
BACKGROUND
This is a personal injury case. Plaintiffs Thomas Fick and Antoine Gregoire 2
(collectively, “Plaintiffs”) allege that, while shrimping in Bayou Jean La Croix Field in
Terrebonne Parish, Louisiana, on October 23, 2o13, Fick was operating a Carolina Skiff
boat in a navigable waterway when the boat struck a “pipe to the well owned by Exxon.” 3
Fick and Gregoire allege they sustained severe injuries as a result of the allision. 4 On
December 9, 2013, Fick filed this suit against Exxon Mobil Corporation (“Defendant”). 5
Plaintiffs allege that Defendant was negligent and seek compensatory and punitive
damages under the general maritime law. 6

R. Doc. 83.
Plaintiff Antoine Gregoire was named in the Third Amended Complaint. R. Doc. 38.
3 R. Doc. 1 at ¶ IV; R. Doc. 64-17 at 2; R. Doc. 69 at 2.
4 Id.
5 R. Doc. 1. The Amended Complaint, filed June 17, 2014, named Gulf South Pipeline Company, L.P. (“Gulf
South”) as an additional defendant. R. Doc. 10. Plaintiffs filed a motion to dismiss Gulf South, however, on
March 12, 2015, which the Court granted. R. Docs. 33, 36.
6 R. Doc. 1 at ¶¶ V–VII; R. Doc. 38.
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On December 29, 2015, Plaintiffs filed this motion in limine to exclude the
testimony of Defendant’s proposed expert Dennis K. Manuel. 7 Defendant filed a response
in opposition on January 19, 2016. 8 Plaintiffs filed a reply memorandum on January
25, 2016. 9
LAW AND ANALYSIS
Plaintiffs seek to exclude the testimony of Dennis K. Manuel for three reasons.
First, Plaintiffs argue Manuel’s educational background does not relate to oil and gas
surveying. 10 Second, Plaintiffs note that Manuel’s “entire professional portfolio consists
only of Exxon work” and contend that Manuel’s testimony and opinions “will be extremely
biased toward Exxon, lack objectivity and lack reliability.” 11 Finally, Plaintiffs argue that
Manuel’s opinions contained in his report “lack sufficient facts or data to support them.”12
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony:
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. 13
Courts, as “gatekeepers,” are tasked with making a preliminary assessment whether
expert testimony is both reliable and relevant. 14 The Court has broad latitude in making

R. Doc. 83.
R. Doc. 96.
9 R. Doc. 100.
10 R. Doc. 83-1 at 2.
11 Id. at 2–3.
12 Id. at 3.
13 FED. R. EVID. 702.
14 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)).
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such expert testimony determinations. 15 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.” 16 The Court will determine whether Manuel is qualified based on his report,17
his resume, 18 and his declaration, 19 to the extent the declaration describes his credentials
that would qualify him as an expert in the relevant field.
In their motion, Plaintiffs identify six opinions Manuel gives in his report: (1) the
location of the D-15 well; (2) the location of the facility that would have received
production from the D-15 well; (3) the route of the D-15 well flow line; (4) the likelihood
that any one of the multiple pipeline segments near Plaintiffs’ allision coordinates were
at one time associated with the D-15 well; (5) the likelihood that flow lines or pipelines
now in the vicinity of the D-15 well were scattered by hurricane surge tides from another
facility; and (6) the likelihood that the line marked by Plaintiffs was associated with the
D-15 well. 20
In Defendant’s opposition to the motion in limine, Defendant states, “While it is
not clear if Plaintiff has actually challenged Manuel’s qualifications for opining on where
the D-15 well was located, if this challenge has been made, Manuel’s Declaration
demonstrates that he is qualified to do so, especially when considering the well’s location

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151–53 (1999).
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, 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.”).
17 R. Doc. 83-2; R. Doc. 96-2; R. Doc. 96-3.
18 R. Doc. 83-3.
19 R. Doc. 96-1.
20 R. Doc. 83-1 at 1.
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is not in dispute.” 21 The parties do not dispute the location of the well, the first opinion in
Manuel’s report. As a result, no expert testimony is needed on this point.
Manuel does not offer an opinion as to the location of the facility that would have
received production from the D-15 well, Opinion 2 above, or as to the route the flowline
from the D-15 well would have followed while in use, Opinion 3 above. 22 Therefore, the
Court need not address Opinions 2 and 3 identified by Plaintiffs.
Thus, Plaintiffs’ objections to Manuel’s opinions regarding the following are moot:
(1) the location of the D-15 well; (2) the location of the facility that would have received
production from the D-15 well; and (3) the route of the D-15 well flow line. Plaintiffs’
objections to Manuel’s opinions regarding the following remain at issue: (4) the likelihood
that any one of the multiple pipeline segments near Plaintiffs’ allision coordinates were
at one time associated with the D-15 well; (5) the likelihood that flow lines or pipelines
now in the vicinity of the D-15 well were scattered by hurricane surge tides from another
facility; and (6) the likelihood that the line marked by Plaintiffs was associated with the
D-15 well.
With respect to Opinion 4, Manuel concludes that, more probably than not, only
one line in the vicinity of Plaintiffs’ allision site was associated with the D-15 well. 23 With
respect to Opinion 5, Manuel concludes that the other lines in the vicinity were, more
probably than not, scattered by hurricane surge tides from a nearby orphaned facility,

R. Doc. 96 at 6.
R. Doc. 83-2; R. Doc. 96 at 6–7.
23 R. Doc. 83-2 at 2–3. Specifically, Manuel notes that one line segment, “nearest the Humble D 15 well,
more probable than not, belongs to that well.” Id. at 3. That line segment, Manuel states, is “the only line
segment, more probable than not, appearing to belong to the Humble D 15.” Id.
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well, and pipe rack. 24 With respect to Opinion 6, Manuel concludes that, more probably
than not, the line Plaintiffs struck was not associated with the D-15 well but was scattered
from a nearby facility by hurricane surge tides. 25 Manuel ultimately concludes in
his report:
More probable than not, the majority of line segments found near the Humble D
15 well slip were distributed by hurricane tides. The capped line segment, more
probable than not, is the terminal end of the Humble D 15 flow line (abandoned in
place). This is the only line segment, more probable than not, appearing to belong
to the Humble D 15 well. More probable than not, the additional line segments, all
broken ended (including the segment marked by Mr[.] Fick), are hurricane tidal
surge distribution from the nearby orphaned facility, adjacent well and pipe rack. 26
The Court finds Manuel lacks the education, experience, and expertise necessary
for him to express expert opinions on these matters. Manuel holds a bachelor’s degree in
general science and a master’s degree in zoology. 27 Manuel worked as a high school
science teacher for six months and then as a fishery biologist for nine years. 28 He began
working for ExxonMobil in 1982, where he worked as an operator and engineering
technician. 29 As an engineering technician, he “was often responsible for designing Corps
of Engineer . . . wetlands permit plats,” which “required hiring a surveying company to
survey the field so [he] could consider and take into account the wetland features of the
field, around existing oil and gas assets.” 30 Manuel states that, in that capacity, he
“analyzed and interpreted survey results for over fifteen years.” 31 After retiring in 2006,
Manuel worked as a consultant for ExxonMobil, his services for which “included but were
Id. “The multiple line segments . . . , including the line segment marked by Mr[.] Fick,” and thus the line
Plaintiffs struck with their boat, “more probable than not are line segments scattered from the orphaned
facility, well and pipe rack as a result of hurricane surge tides of recent years.” Id.
25 Id. at 3.
26 Id.
27 R. Doc. 83-3; R. Doc. 96-1 at ¶¶ 3, 4.
28 R. Doc. 83-3.
29 Id.
30 R. Doc. 96-1 at ¶¶ 7–8.
31 Id. at ¶ 8.
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not limited to the investigation of various field abandonment issues.” 32 Although Manuel
is undoubtedly familiar with surveys, his resume, declaration, and report fail to establish
that Manuel himself is a surveyor or that he has specialized training, knowledge, or
experience in surveying. Manuel states in his report that he “spent [two days] on site with
a C.H. Fenstermaker survey crew,” 33 but the Court sees no indication a survey was
performed. Manuel had no survey on which he could rely. Land surveyors are highly
trained professionals who are licensed by the State. Surveyors are regularly allowed to
testify regarding surveys, but lay witnesses are not. Manuel is not a licensed surveyor.
Neither does Manuel have training, knowledge, or experience regarding hurricanes or
how hurricanes move pipes around in a body of water. Neither is Manuel an expert
in hydrology.
Further, an expert witness’s findings must have “a sufficiently reliable scientific or
technical basis.” 34 Manuel’s report fails to provide any scientific or technical basis
underlying his conclusions. Manuel’s conclusions amount to speculation. He fails to
describe in his report any reliable principles or methods on which he relies. Although he
states he went to the site with a survey crew and reviewed aerial photos and survey data
files, 35 this is not sufficient to establish a scientific or technical basis for his opinions.
Manuel tries to provide additional support in his declaration to supplement the findings
contained in his report. 36 Additional support in Manuel’s declaration, however, cannot be

Id. at ¶ 10.
R. Doc. 83-2 at 1.
34 Watkins v. Telsmith, Inc., 121 F.3d 984, 993 (5th Cir. 1997).
35 R. Doc. 83-2 at 1–2.
36 See R. Doc. 96-1 at 4–5.
32
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considered by the Court, as that would be akin to the Court’s considering an untimely
supplemental report. 37
The Court finds that Defendant has failed to establish by a preponderance of the
evidence that Manuel is qualified by scientific, technical, or other specialized knowledge
to testify as an expert in this matter. Defendant has also failed to establish that Manuel’s
testimony is reliable or based on sufficient scientific or technical basis and expertise to
support the findings of his report. 38
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiffs’ motion to exclude the
testimony of Dennis K. Manuel is GRANTED.
New Orleans, Louisiana, this 1st day of February, 2016.
_____ _____ _______ _ ______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

37 See R. Doc. 91. The Court struck from the record Plaintiffs’ supplemental reports provided beyond the
Plaintiffs’ November 2, 2015, deadline. Id. Rule 26(a)(2) requires expert reports to be exchanged “at the
time[] . . . that the court orders.” FED. R. CIV. P. 26(a)(2)(D). Defendant’s expert reports were due December
15, 2015. See R. Doc. 63 at 2. “A district court has the discretion to exclude expert testimony and evidence
if a party does not produce expert reports within the appropriate deadlines.” Mike Hooks Dredging Co. v.
Eckstein Marine Serv., Inc., No. 08-03945, 2011 WL 3270855, at *2 (E.D. La. Aug. 1, 2011) (citing Sierra
Club v. Cedar Point Oil Co., 73 F.3d 546, 572 (5th Cir. 1996)). See also Johnson v. Samsung Elecs. Am.,
Inc., No. 10-1146, 2011 WL 4704203, at *2 (E.D. La. Oct. 4, 2011) (“It is well established that a district court
has broad discretion to enforce a scheduling order issued pursuant to Rule 16(b) of the Federal Rules of
Civil Procedure.”); Winfun v. Daimler Chrysler Corp., 225 F. App’x 772, 773 (5th Cir. 2007) (“We review a
District Court’s decision to strike an expert report for failure to meet a deadline under the deferential abuse
of discretion standard. The District Court has broad discretion in discovery matters.” (citations omitted)
(internal quotation marks omitted)). The Court’s scheduling order makes clear that deadlines “may be
extended only by the Court upon timely motion filed in compliance with the Local Rules and upon a showing
of good cause.” R. Doc. 46 at 5. Defendant failed to file any motion requesting leave to provide Plaintiffs
with supplemental reports past Defendants’ December 15, 2015, deadline.
38 The Court notes that with respect to Manuel’s association with Exxon, Plaintiffs challenge his bias and
objectivity. R. Doc. 83-1 at 2–3. Manuel’s bias and objectivity are not a question of admissibility but go to
the weight to be given to the expert and his testimony, a determination to be made by the trier of fact. See
Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir. 1991) (“The court must allow the jury to make
credibility decisions and to decide what weight to afford a report’s findings.”). If Manuel were qualified to
testify as an expert witness, the jury would determine the credibility of his testimony, which presumably
would be subject to vigorous cross examination by Plaintiffs.

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