Fick v. Exxon Mobil Corporation

Filing 363

ORDER AND REASONS re 285 MOTION in Limine to Exclude Hurricane Testimony filed by Antoine Gregoire, Thomas Fick. IT IS ORDERED that Plaintiffs' omnibus motion in limine regarding testimony about the effect of hurricanes and storms on flowlines and pipelines is GRANTED IN PART and DENIED IN PART as per herein. Signed by Judge Susie Morgan on 1/5/2017.(cg)

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 a motion in limine filed by Plaintiffs.1 The motion is opposed. 2
In this motion in limine, Plaintiffs seek to prevent the introduction of evidence with
respect to: (1) hurricanes or storms beyond the parameters discussed at the Pre-trial
Conference and (2) medical records obtained outside of the discovery process or without
signed HIPAA authorizations. The issue of medical records obtained outside of the
discovery process was addressed in a separate order. 3 This order will address only the
issue of evidence relating to hurricanes and storms and their effect on the movement of
flowlines and pipelines.
Plaintiffs seek to exclude “any testimony concerning hurricanes/storms by any
witness, including, but not limited to expert witnesses, beyond the fact that hurricanes
occur, hurricanes have hit south Louisiana and that hurricanes can cause damage to
structures.” 4 Specifically, Plaintiffs seek to exclude “testimony about hurricanes moving
objects.” 5

R. Doc. 285.
R. Doc. 311.
3 R. Doc. 362.
4 R. Doc. 285-1 at 1.
5 Id.
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A. Cheryl Nixon
Plaintiffs contend Exxon’s corporate representative, Cheryl Nixon, testified during
her deposition that hurricanes or storms moved flowlines from an abandoned facility to
the allision site. Plaintiffs argue this theory originated from Exxon’s expert witness,
Dennis Manuel, and Nixon’s testimony with respect to the effect of hurricanes on the
flowlines is inadmissible under Rule 701 because she has no personal knowledge upon
which to base her testimony. 6
With respect to the testimony of Cheryl Nixon, Exxon represents it has no intention
of presenting testimony through Ms. Nixon that hurricanes or storms moved flowlines or
pipelines from an abandoned facility to the allision site. 7 Exxon, however, argues Ms.
Nixon’s deposition testimony establishes she has “extensive personal knowledge
regarding ExxonMobil’s historic and customary practice of cutting and capping . . . lines
that run from wells that have been plugged and abandoned.” 8 Exxon contends Ms. Nixon
should be permitted to testify that “based on ExxonMobil’s practices, if a line remained
in the field that was once associated with an ExxonMobil well, it could be capped and not
broken-ended.” 9
In the minute entry from the pre-trial conference, the Court ruled “that Cheryl
Nixon will not be allowed to testify about hurricanes.” 10 Plaintiffs’ motion with respect to
Ms. Nixon is moot, as Exxon stated it will not present testimony through Ms. Nixon that
hurricanes or storms moved flowlines or pipelines from an abandoned facility to the
allision site. Ms. Nixon will be allowed to testify about Exxon’s historic and customary

Id. at 2.
R. Doc. 311 at 1.
8 Id. at 1–2.
9 Id. at 2.
10 R. Doc. 270.
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practice of cutting and capping flowlines or pipelines that run from wells that have been
plugged and abandoned, so long as her testimony is based on her personal knowledge.11
Ms. Nixon, however, may not testify that, based on Exxon’s practices, if a line remained
in the field that was once associated with an Exxon well, it would be capped and not
broken-ended. This testimony is not within Ms. Nixon’s personal knowledge and amounts
to speculation.
B. Dennis Manuel
Plaintiffs also argue no other witness should be allowed to testify about hurricanes
or storms beyond the parameters set by the Court at the pre-trial conference. 12
Exxon asserts Mr. Manuel will present testimony based on his experience and
observations that are within the scope of the Court’s order. 13 The Court has ruled Mr.
Manuel “may testify, based on his experience in the field, about his having personally
witnessed the effects of hurricanes on oil fields and hurricane surge tides moving pipes
and line segments. He can discuss the hurricane damage to the nearby abandoned tank
battery he observed when he was in the field with the survey crew.” 14
The Plaintiffs too narrowly construe the Court’s ruling when they argue that no
witnesses should be allowed to testify “about hurricanes moving objects.” 15 Witnesses
may testify generally, if based on their own personal knowledge, that they are aware of
hurricane and surge tides moving pipes and line segments within oil fields. The Court
reiterates that Mr. Manuel may not testify as to the likelihood that particular flow lines

Exxon represents Ms. Nixon “does in fact have extensive personal knowledge regarding ExxonMobil’s
historic and customary practice of cutting and capping . . . lines that run from wells that have been plugged
or abandoned.” R. Doc. 311 at 2.
12 R. Doc. 285-1 at 2–3.
13 R. Doc. 311 at 2–3.
14 R. Doc. 115 at 9; R. Doc. 270.
15 R. Doc. 285-1 at 1.
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or pipelines in the D-15 well’s vicinity were moved by hurricane surge tide for two reasons.
First, he lacks personal knowledge that this occurred. Second, the Court found his opinion
to that effect contained in his expert report was not based on sufficient facts or data to be
the product of reliable principles and methods. 16 Finally, Mr. Manuel will not be allowed
to offer meteorological testimony about particular hurricanes that have affected South
Louisiana. 17
C. Ralph Gipson
With respect to Exxon’s expert, Ralph Gipson, Exxon contends Mr. Gipson will
present testimony that is consistent with the conclusions set forth in his expert report. In
his report, Mr. Gipson opines it is not uncommon for oil and gas infrastructure to be
moved by storm surge, the damage sustained to the LL&E facility was likely a result of
storm surge, the field at issue has been subject to the effect of numerous hurricanes and
storms, and it is more likely than not that the uncapped line segment involved in the
alleged allision was transported by storm surge from the LL&E facility to the site of the
allision. 18
Exxon argues Plaintiffs did not file a Daubert motion to exclude or limit Mr.
Gipson’s testimony, and the deadline for filing such a motion has expired. 19 In the trial
court, challenges to an expert may be raised at any time, 20 although it is certainly
preferable and a party is more likely to succeed if the challenge is raised in compliance

R. Doc. 115 at 9; R. Doc. 270.
R. Doc. 270. The Court also ruled that Defendant’s exhibit #35 in the Pre-trial Order, Composite map
showing the paths of hurricanes and tropical storms making landfall in Southeast Louisiana form 1980 to
the present (Bates number EM-05649), intended to be introduced by Manuel, is inadmissible at trial.
18 Id. at 3.
19 Id. at 4.
20 The Advisory Committee’s notes to the 2000 amendments to Rule 702 state “the amendment makes no
attempt to set forth procedural requirements for exercising the trial court’s gatekeeping function over
expert testimony.” FED. R. EVID. 702, Advisory Committee Notes on 2000 Amendment.
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with the scheduling order. The Court will treat the Plaintiffs’ motion in limine as a
Daubert motion with respect to Mr. Gipson’s expert testimony.
Mr. Gipson may testify regarding hurricanes and storm surges within the same
parameters established for Mr. Manuel’s testimony. Mr. Gipson may testify based on his
personal knowledge of the effects of hurricanes on oil fields and hurricane surge tides
moving pipes and line segments. Mr. Gipson, however, may not testify as to whether the
particular flowlines or pipelines in the D-15 well’s vicinity were moved as a result of a
hurricane or storm surge tide. Exxon has provided no evidence that Mr. Gipson has
personal knowledge of these facts. Based on his expert report, 21 Mr. Gipson’s opinion with
respect to whether particular flowlines or pipelines in the D-15 well’s vicinity were moved
as a result of a hurricane or storm surge tide is not based on sufficient facts or data to be
the product of reliable principles and methods. Finally, Mr. Gipson will not be allowed to
offer meteorological testimony about particular hurricanes that have affected South
Louisiana.
D. Ordis “Buddy” Smith
With respect to the testimony of Exxon’s fact witness, Buddy Smith, Exxon intends
to elicit Mr. Smith’s testimony that he has personal knowledge of storm and hurricane
tidal surges moving oil and gas structures in the Bayou Jean Lacroix field. 22 Exxon argues
Mr. Smith’s testimony is admissible under Rule 602 because it is based on his personal
knowledge.

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R. Doc. 311-2.
Id. at 4–5.

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Mr. Smith is the Coastal Wetlands Operations Supervisor for LL&E. 23 Exxon
contends the results of his inspections are in the documents produced by LL&E, which
Exxon should be permitted to discuss at trial. 24
Mr. Smith testified at his deposition that he inspected the Bayou Jean Lacroix field
after Hurricanes Ike and Gustav, as well as at other times. He will be allowed to give
testimony based on his personal observations during those inspections and other visits to
the property. He may testify about whether storm or hurricane tidal surges moved oil and
gas structures in the Bayou Jean Lacroix field only to the extent he has personal
knowledge of these facts. Mr. Smith may not testify as to whether the particular flowlines
or pipelines in the D-15 well’s vicinity were moved as a result of hurricane or storm surge
tide because, based on his deposition testimony, Mr. Smith has no knowledge of these
facts. 25 Finally, Mr. Smith will not be allowed to offer meteorological testimony about
particular hurricanes that have affected South Louisiana.
CONCLUSION
IT IS ORDERED that Plaintiffs’ omnibus motion in limine regarding testimony
about the effect of hurricanes and storms on flowlines and pipelines 26 is GRANTED IN
PART and DENIED IN PART as set forth above. 27
New Orleans, Louisiana, this 5th day of January, 2017.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
Id.
Id. at 5.
25 Mr. Smith was offered only as a fact witness and not as an expert or a witness who will give lay opinion
testimony.
26 R. Doc. 285.
27 The ruling at the Pre-trial Conference, R. Doc. 270, is clarified as set forth herein.
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