Richardson v. SEACOR Lifeboats, LLC

Filing 31

ORDER granting in part and denying in part 24 Motion in Limine. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY RICHARDSON, JR.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 14-1712

SEACOR LIFEBOATS, LLC,
Defendant

SECTION: “E” (1)
ORDER

Before the Court is Defendant SEACOR Liftboats, LLC’s (“SEACOR”) Motion in
Limine to Exclude the Opinions, Report, and Anticipated Testimony of the Plaintiff’s
Liability Expert, Jack Madeley.1 Plaintiff Anthony Richardson, Jr. opposes SEACOR’s
motion.2 The Court has considered the arguments of counsel and the applicable law. For
the reasons that follow, SEACOR’s Motion in Limine is GRANTED IN PART and
DENIED IN PART.3 The Court will permit Mr. Madeley to testify as Plaintiff’s liability
expert, subject to the restrictions set forth below.
LAW & ANALYSIS
When expert testimony is challenged, the burden of proof rests with the party
seeking to present the testimony to show by a preponderance of the evidence that the
expert’s testimony satisfies Rule 702 of the Federal Rules of Evidence.4 Rule 702
permits an expert witness with “scientific, technical or other specialized knowledge” to
testify in the form of an opinion or otherwise 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 on sufficient facts or data,” “the testimony is the product of reliable principles and

R. Doc. 24.
R. Doc. 25.
3 R. Doc. 24.
4 Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
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methods,” and “the expert has reliably applied the principles and methods to the facts of
the case.”5
“The

Supreme

Court’s

landmark

case

of

Daubert

v.

Merrell

Dow

Pharmaceuticals, Inc. provides the analytical framework for determining whether
expert testimony is admissible under Rule 702 of the Federal Rules of Evidence.”6
District courts are required to act as gatekeepers to “oversee[] the admission of scientific
and non-scientific expert testimony” in order to make a preliminary assessment of
“whether the expert testimony is both reliable and relevant.”7 The district court is
afforded broad latitude in making such expert testimony determinations.8 With respect
to determining the relevancy of an expert’s testimony pursuant to Rule 702 and
Daubert, the proposed “expert testimony must be relevant, not simply in the sense that
all testimony must be relevant [pursuant to Rule 402], but also in the sense that the
expert’s proposed opinion would assist the trier of fact to understand or determine a fact
in issue.”9
Plaintiff hired Mr. Madeley to testify about “all aspects of liability.”10 Mr.
Madeley’s expert report contains the following written opinions:
1. It appears the crane operator failed to safely operate the crane and
lower the personnel basket at a proper speed.
2. It appears that SEACOR failed to ensure its crane operator operated
the crane safely.
3. The SEACOR crane operator failed to comply with API 2D-1984 section
2.4.3e and 46 CFR 109.521 (“API violations”).
Fed. R. Evid. 702.
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002) (citing Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592–93 (1993)).
7 Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 583–84 (5th Cir. 2004) (citing Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S. at 589, 592–93).
8 See Kumho Tire, 526 U.S. at 151–53.
9 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert, 509 U.S. at 592).
10 R. Doc. 20.
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4. SEACOR failed to ensure safe operations on its vessel.
5. The above listed unreasonably dangerous conditions, management
decisions, failures, deficiencies and associated negligent acts of
commission or omission, on the part of SEACOR, related to the issues
discussed in this report, were to a reasonable degree of engineering
probability more than likely producing and proximate causes of the
incident and related injuries that occurred to Anthony Richardson, Jr.11
The Plaintiff points out, and the Court notes, that SEACOR does not challenge
Mr. Madeley’s qualifications as an expert witness. However, SEACOR seeks to exclude
Mr. Madeley’s opinions, report, and testimony for two reasons:
1. His opinions are based merely on common sense and do not bring any
greater insight to the case than that possessed by the average person.
2. He offers impermissible conclusions of fact and law that are far beyond
the province of expert testimony.12
SEACOR first argues Mr. Madeley’s testimony as a whole should be excluded
because his opinions are based merely on common sense—not on any scientific or
technical knowledge.13 Thus, his testimony will not aid the fact finder since it will not
bring any greater insight to the case than that possessed by the average person.14
Plaintiff responds by arguing it is unlikely a layperson has experience with and/or
understands the safety issues Mr. Madeley is expected to address concerning personnel
basket transfers by crane, industry standards for performing such transfers, and
whether SEACOR complied with those industry standards.15 Additionally, Plaintiff notes

R. Doc. 24-2 at pp. 2–3.
R. Doc. 24 at p. 1.
13 R. Doc. 24-1 at p. 4.
14 Id. at pp. 6–7.
15 R. Doc. 25 at p. 2. Plaintiff argues “[i]t is unlikely that a layperson has experience with and/or
understands: (1) how a personnel basket transfer is conducted offshore; (2) whether it is difficult for a
reasonable crane operator to land the basket softly on the deck of a crew boat dozens of feet below him;
(3) whether the seas were too rough to carry out the basket transfer; (4) whether it is likely that the
upward “jerk” of the basket after it had been landed on the deck was caused by crane operator error or
caused by the boat “bobbing” down with the waves; (5) the normal practice that passengers should use
while disembarking from a personnel basket; and (6) whether (and under what circumstances) it might be
reasonable for workers riding on the basket to try to “jump” off before it hits the deck. Id. at pp. 3–4.
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SEACOR has hired a liability expert to testify about these topics, which undercuts
SEACOR’s argument that Mr. Madeley’s opinions are within the common knowledge of
the fact finder.16 Plaintiff also contends that because this case is set as a bench trial, the
concerns of potential jury confusion are not present and Mr. Madeley should be
permitted to testify.17
The Court recognizes the conflicting rulings in the personnel basket transfer
cases cited by both parties regarding the admissibility of liability experts’ testimony.18
However, the admissibility of an expert opinion is taken on a case-by-case basis,
considering the facts of each individual case, the proferred expert report and opinions,
and the issue of whether that report will assist the trier of fact in its resolution of issues
particular to that individual case.
There is no jury demand in this case, meaning the Court is the trier of fact. “Most
of the safeguards provided for in Daubert are not as essential in a case such as this
where a district court judge sits as the trier of fact in place of a jury.”19 “Daubert requires
a binary choice—admit or exclude—and a judge in a bench trial should have discretion
to admit questionable technical evidence, though of course he must not give it more
weight than it deserves.”20 Even still, the Court should be mindful that expert testimony

Id. at p. 1.
Id.
18 Compare Stevens v. Energy XII GOM, LLC, 2013 WL 4051036, at *4 (M.D. La. Aug. 9, 2013) (finding a
liability expert’s “knowledge and expertise in the area of crane operations could aid the jury in
understanding the facts in dispute”), Henson v. Odyssea Vessels, Inc., 2008 WL 449726 at *3–4 (E.D. La.
Feb. 15, 2008) (finding liability experts’ testimony would be helpful to the trier of fact), and Sorcic v. Sea
Horse Marine, Inc., 1998 WL 175897 at *2 (E.D. La. Apr. 13, 1998) (finding liability experts could testify
because it would assist the trier of fact in understanding the matter), with Johnson v. Pool Co. of Texas,
1994 WL 643113, at *2 (E.D. La. Nov. 14, 1994) (finding a liability expert was unnecessary to assist the
finders of fact), and Pope v. Chevron U.S.A., Inc., 1994 WL 179938, at *3 (E.D. La. Apr. 28, 1994) (finding
expert testimony was unnecessary for the jury to decide whether conduct was reasonable).
19 Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
20 Thompson v. Rowan Cos., No. 06-3218, 2007 WL 724646, at *1 (E.D. La. 2007) (Barbier, J.) (quoting
SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1042 (N.D. Ill. 2003)).
16
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should be excluded if the Court finds the proferred testimony deals only with common
sense issues that the Court, in its role as trier of fact, needs no expert assistance to
resolve.21
The Court finds Mr. Madeley’s knowledge and expertise in the areas of crane
operations and personnel basket transfers will be helpful to the Court in understanding
the facts presented in this case. Because this is a bench trial, and thus most of the
objectives of Daubert are not implicated, Mr. Madeley will be permitted to testify. The
Court, as factfinder, will give Mr. Madeley’s expert testimony the weight it deserves.
Nevertheless, pursuant to Federal Rule of Civil Procedure 26, Mr. Madeley’s testimony
will be limited to the opinions expressed in his expert report and/or discussed in his
deposition concerning the safety issues presented when conducting personnel basket
transfers by crane, industry standards for performing such transfers, and whether
SEACOR complied with those industry standards.22
SEACOR also argues the Court should exclude Mr. Madeley’s legal opinions
regarding SEACOR’s negligence and API violations.23 Specifically, SEACOR states Mr.
Madeley “provides his opinions on the relevant law and how it should be applied in this
case to fix responsibility for this accident” when “[h]e opines that SEACOR had a duty of
‘reasonable care’ and ‘proper supervision’ to protect against ‘unreasonably dangerous
conditions’” and that he makes an impermissible legal conclusion when he opines “that
SEACOR was negligent and that its negligent acts were the proximate causes of the

See, e.g., Thomas v. Global Explorer, LLC, 02-1060, 2003 WL 943645, at *2 (E.D. La. 2003); see also
Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990).
22 See Fed. R. Civ. P. 26; Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994) (stating the
basic purpose of Rule 26 is “preventing prejudice and surprise”).
23 R. Doc. 24-1 at pp. 7–8.
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[Plaintiff’s] injuries.”24 Additionally, SEACOR contends Mr. Madeley’s conclusion that
the crane operator failed to comply with two API standards should be excluded.25
Under Rule 704 of the Federal Rules of Evidence, expert “‘testimony in the form
of an opinion or inference otherwise admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact.’ Nevertheless, an expert may never
render conclusions of law.”26 “Rule 704, however, does not open the door to all
opinions.27 Questions that tell the fact finder what result to reach or that allow a witness
to give legal conclusions are impermissible because they usurp the role of the trier of
fact.28 The decision to admit expert opinion testimony is made on a case-by-case basis.
Most importantly, the testimony must aid the trier of fact in making a decision without
substituting the expert’s judgment for that of the trier of fact.29 Expert testimony that
avoids words with specialized legal meaning is more likely to be admissible than
testimony using legally specialized terms because the former enables the fact finder to
make its own informed determination rather than intruding on the fact finder’s role to
apply the law to the facts before it.30
The Court finds Mr. Madeley’s opinions will be helpful to the Court and are not
impermissible conclusions of law. Mr. Madeley will be allowed to testify about the
reasonable standard of care concerning crane operations and conducting personnel

Id. at p. 7.
Id. at p. 8.
26 Goodman v. Harris Cnty., 571 F.3d 388, 399 (5th Cir. 2009) (internal citations omitted) (quoting Fed.
R. Evid. 704). For example, “[t]he question ‘Did T have capacity to make a will?’ should be excluded,” but
“[t]he question ‘Did T have sufficient mental capacity to know the nature and extent of his property and
the natural objects of his bounty and to formulate a rational scheme of distribution?’ is permissible.”
Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983) (quoting Fed. R. Evid. 704 advisory
committee’s note). See also Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 435 (5th Cir. 2006).
27 Owen 698 F.2d at 240.
28 Id. See also United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991).
29 See United States v. Duncan, 42 F.3d 97, 101–02 (2d Cir. 1994).
30 See id.
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basket transfers and, in his opinion, whether SEACOR met that standard of care. This
includes Mr. Madeley’s opinion on applicable API standards and whether SEACOR
complied with those standards.31 However, Plaintiff is cautioned that Mr. Madeley may
not usurp the Court’s role as fact finder by testifying about his opinions on whether
SEACOR was negligent or the legal cause of the accident because these are legal
conclusions for the fact finder to make.32
SEACOR further contends Mr. Madeley offers impermissible factual conclusions
that are based on an incomplete foundation since he reviewed only certain documents,
including the written statements of the Plaintiff and a co-worker, but did not review
contradictory reports of others or the plaintiff’s deposition testimony.33 “[D]isputes as to
the factual basis of an expert opinion go to the weight of that opinion, not its
admissibility, and are ripe for cross-examination.”34 Further, “[s]imply disagreeing with
the underlying facts relied on by an expert is not grounds for excluding that expert

See Baham v. Nabors Drilling USA, LP, 721 F. Supp. 2d 499, 513 (W.D. La. 2010) aff'd sub nom.
Baham v. Nabors Offshore Corp., 449 F. App’x 334 (5th Cir. 2011) (“Violations of . . . API standards are . .
. not legislative enactments, laws or regulations. Nevertheless, in some cases, those standards might be
applicable to establish the standard of care under a general negligence analysis.” (citations omitted)).
32 See Jacobs v. N. King Shipping Co., No. 97-772, 1998 WL 28234, at *2 (E.D. La. Jan. 23, 1998)
(Clement, J.) (stating blanket legal conclusions regarding negligence are an inappropriate subject for
expert testimony); Owen, 698 F.2d at 240 (affirming the district court’s ruling and stating “the court was
well justified in concluding that the attorney’s question sought from the witness his opinion as to the
legal, not a factual, ‘cause of the accident.’ This is so because there was no dispute in the evidence as to the
factual cause of the mishap: [the plaintiff] ran into the pipeline with his bulldozer. Thus, this makes it
obvious that the attorney was asking the witness to opine that [the plaintiff] was contributorily negligent.
Whether or not [the plaintiff’s] acts were the ‘cause of the accident’ is the issue the jury must resolve after
appropriate legal instructions by the court. That the attorney was seeking a legal conclusion is also made
clear by the question he asked after the court's ruling: ‘Mr. Stone, the past two days we have heard any
number of witnesses who profess to be experts in the field of dirt contracting or land clearing, and I
believe, if I recall correctly, and I think I do, their testimony was to the effect that they would notice a road
crossing and then look for some signal, a turn indicator, a post or a painted fence, whereby they make a
determination as to whether or not they are going to be working close to a pipeline, and they would go on
and do their work. Do you consider that, with your expertise, safe practice?’ This question, directly
addressed to whether Owen was following proper practices, seeks a factual, not a legal, conclusion.
Owen's counsel objected to the question. The court correctly overruled that objection”).
33 R. Doc. 24-1 at p. 2.
34 Martinez v. Offshore Specialty Fabricators, Inc., No. 08-4224, 2011 WL 820313, at *3 (E.D. La. Mar. 2,
2011) (citing Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004)).
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under Daubert.”35 Accordingly, SEACOR may attempt to prove at trial that the accounts
of the incident made by the Plaintiff and his co-worker are inaccurate or inconsistent
and cross-examine Mr. Madeley regarding those disputed assumptions.
Defendant SEACOR also seeks to exclude Mr. Madeley’s expert report. Generally,
expert reports are inadmissible hearsay because they are out-of-court statements offered
to prove the truth of the matter asserted.36 As discussed above, Mr. Madeley may testify
at trial about the contents of his report, but the report itself is inadmissible hearsay.
Accordingly, the motion is granted to the extent it seeks to exclude Mr. Madeley’s expert
report.
CONCLUSION
For the reasons set forth above, the Motion in Limine to Exclude the Opinions,
Report, and Anticipated Testimony of the Plaintiff’s Liability Expert is GRANTED IN
PART and DENIED IN PART as set forth above.37

11th
New Orleans, Louisiana, this ___ day of May, 2015.
__________ __ ______ __ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Id.
See Fed. R. Evid. 801(c); see also Versai Mgmt. Corp. v. Landmark Am. Ins. Corp., No. 11-2139, 2013
WL 681902, at *1 (E.D. La. Feb. 22, 2013); Weiss v. Allstate Ins. Co., 512 F. Supp. 2d 463, 478 (E.D. La.
2007).
37 Of course, the Court retains the ability to limit or control the scope of Mr. Madeley’s testimony at trial.
See Fed. R. Evid. 611(a); Henson v. Odyssea Vessels, Inc., No. 07-613, 2008 WL 449726, at *4 (E.D. La.
Feb. 15, 2008).
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