Breazeale v. Parker Drilling Company

Filing 35

ORDER AND REASONS. It is ORDERED that Defendant's Motion in Limine (Rec. Doc. 31 ) is DENIED. It is FURTHER ORDERED that Defendant's Motion for Leave to File Reply (Rec. Doc. 34 ) is DENIED as moot. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLYDE BREAZEALE

CIVIL ACTION

VERSUS

NO: 14-2614

PARKING DRILLING COMPANY, ET
AL.

SECTION: “J”(2)

ORDER AND REASONS
Before the Court are a Motion in Limine (Rec. Doc. 31) filed by
Defendant,

Parker

opposition

thereto

Breazeale

Drilling
(Rec.

(“Plaintiff”).

Company

Doc.

32)

Having

(“Defendant”),

filed

by

considered

and

Plaintiff,
the

motion,

an

Clyde
the

parties’ submissions, the record, and the applicable law, the Court
finds, for the reasons expressed below, that the motion should be
DENIED.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This litigation arises from an injury suffered by Plaintiff on
March 28, 2014. Defendant employed Plaintiff as a seaman on the
Rig PD76-B. Plaintiff was stacking fifty-pound sacks of a powdered
chemical on the ledge of a hopper in the mixer room. While lifting
a sack, Plaintiff injured his back. (Rec. Doc. 1.) Plaintiff filed
suit in this Court on November 14, 2014, alleging Jones Act
negligence, unseaworthiness, and maintenance and cure claims.
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Plaintiff underwent an L5-S1 fusion in April 2015. (Rec. Doc. 22.)
Trial is set for August 15, 2016. (Rec. Doc. 25.) Defendant filed
the instant motion on May 12, 2016. (Rec. Doc. 31.) Plaintiff
opposed

the

motion

on

June

7.

(Rec.

Doc.

32.)

Defendant

subsequently filed a motion seeking the Court’s leave to file a
reply memorandum. (Rec. Doc. 34.)
PARTIES’ ARGUMENTS
In its motion, Defendant objects to two of Plaintiff’s liability
experts, Jack T. Mandeley and Captain Mitchell Stoller. First,
Defendant argues that the experts’ testimony will not assist the
trier of fact because Plaintiff’s injuries are subject to common
sense understanding. Second, Defendant claims that the experts are
not

qualified

because

they

lack

experience

in

medicine,

biomechanics, kinesiology, ergonomics, and occupational safety.
Third, Defendant asserts that the experts base their opinions on
inapplicable standards or regulations, such as the Occupational
Safety

and

Health

Administration

(OSHA)

workplace

safety

regulations, the American Society for Testing and Material (ASTM)
lifting

and

carrying

standards,

the

National

Safety

Council

lifting recommendations, the National Institute of Occupational
Safety and Health (NIOSH) lifting limits, and the American Bureau
of Shipping (ABS) lifting requirements. Fourth, Defendant argues
that the experts’ opinions should be excluded because they provide
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impermissible legal conclusions. Finally, Defendant asserts that
the Court should exclude Plaintiff’s experts because other courts
have previously done so.
In

his

opposition,

Plaintiff

withdraws

his

designation

of

Mandeley as an expert witness, retaining Stoller as sole liability
expert. First, Plaintiff claims that Stoller is qualified to
testify as an expert witness. Plaintiff emphasizes that Stoller
graduated first in his class from California Maritime Academy and
served as a United States Coast Guard third mate, second mate,
chief mate, and captain/master. Plaintiff argues that Stoller is
trained and instructed in safety topics, including safe lifting
and risk assessments. Further, Stoller is a member of associations
and served on committees relating to marine work place safety.
Stoller is experienced as a nonlitigation marine safety consultant
to private companies and has consulted on maritime safety issues
in litigation. Plaintiff acknowledges that Stoller is not an
ergonomist. However, Plaintiff argues that Stoller has extensive
maritime work experience and has gained experience about risk
assessments and safety. Moreover, Plaintiff asserts that Stoller’s
opinions are relevant, reliable, and beyond the province of the
jury. Even if Stoller relied on lifting standards that are not
applicable to this case, Plaintiff argues that the standards are

3

admissible and reliable. Finally, Plaintiff notes that Courts have
admitted opinions similar to Stoller’s in factually similar cases.
LEGAL STANDARD
Federal Rule of Evidence 702 imposes a special “gatekeeping”
obligation on a trial judge to ensure that expert testimony or
evidence is both relevant and reliable. Rule 702 provides that a
witness who is qualified as an expert may testify if: (1) the
expert's “specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue”; (2) the
expert's testimony “is based on sufficient facts or data”; (3) the
expert's testimony “is the product of reliable principles and
methods”; and (4) the principles and methods employed by the expert
have been reliably applied to the facts of the case. Fed. R. Evid.
702.
The United States Supreme Court's decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the
analytical framework for determining whether expert testimony is
admissible

under

Rule

702.

Both

scientific

and

nonscientific

expert testimony are subject to the Daubert framework, which
requires trial courts to make a preliminary assessment of “whether
the expert testimony is both reliable and relevant.” Burleson v.
Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004);
see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
4

When expert testimony is challenged under Daubert, the party
offering the expert's testimony bears the burden of proving its
reliability and relevance by a preponderance of the evidence. Moore
v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
DISCUSSION
Defendant criticizes Stoller’s qualifications, the reliability
of his testimony, the relevance of his opinion, and his alleged
impermissible legal conclusions. The Court will address each issue
in turn.
I.

Stoller’s qualifications
To qualify as an expert, “the witness must have such knowledge

or experience in [his] field or calling as to make it appear that
his opinion or inference will probably aid the trier in his search
for truth.” United States v. Hicks, 389 F.3d 514, 524 (5th Cir.
2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th
Cir. 1992)). Additionally, Rule 702 states that an expert may be
qualified based on “knowledge, skill, experience, training, or
education.” Hicks, 389 F.3d at 524; see also Kumho Tire Co., 526
U.S. at 147 (discussing witnesses whose expertise is based purely
on experience). “A district court should refuse to allow an expert
witness to testify if it finds that the witness is not qualified
to testify in a particular field or on a given subject.” Huss v.

5

Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (quoting Wilson v. Woods,
163 F.3d 935, 937 (5th Cir. 1999)).
However, “Rule 702 does not mandate that an expert be highly
qualified in order to testify about a given issue. Differences in
expertise

bear

chiefly

on

the

weight

to

be

assigned

to

the

testimony by the trier of fact, not its admissibility.” Id. (citing
Daubert, 509 U.S. at 596). “A lack of specialization should
generally go to the weight of the evidence, rather than its
admissibility.” United States v. Wen Chyu Liu, 716 F.3d 159, 168
(5th Cir. 2013). “[V]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but
admissible evidence.” Id. (quoting Daubert, 509 U.S. at 596). “Thus
‘an

expert

witness

is

not

strictly

confined

to

his

area

of

practice, but may testify concerning related applications; a lack
of specialization does not affect the admissibility of the opinion,
but only its weight.’” Id. (quoting Wheeler v. John Deere Co., 935
F.2d 1090, 1100 (10th Cir. 1991)).
According to Stoller’s expert report, he is experienced in
piloting, captaining, shipyard operations, navigation and towing
safety, the International Safety Management Code, and “ergonomic
issues” on vessels. (Rec. Doc. 32-1, at 14-21.) He had been tested
on safety issues for the Board of Maritime Pilots of the State of
6

Oregon. He has completed several continuing education classes
offered by the National Safety Council Occupational Safety and
Health Services Unit. In 2008, he completed classes on job safety
analysis

and

slips,

trips,

and

falls.

In

2004

and

2006,

he

completed ergonomics classes. Stoller is also a member of National
Safety Council. Clearly, Stoller has at least some experience in
and knowledge about maritime safety issues. Further, the opinions
expressed in his report are not medical in nature. Stoller merely
discusses lifting standards employed by several associations,
applying the standards to the lifting performed by Plaintiff in
this case. This testimony is within the bounds of his experience.
Thus, Stoller is a qualified expert witness on this subject.
II.

Reliability of Stoller’s testimony

The reliability of expert testimony “is determined by assessing
whether the reasoning or methodology underlying the testimony is
scientifically valid.” Knight v. Kirby Inland Marine Inc., 482
F.3d 347, 352 (5th Cir. 2007). A number of nonexclusive factors
may be relevant to the reliability analysis, including: (1) whether
the technique at issue has been tested, (2) whether the technique
has

been

potential

subjected
error

to

rate,

peer
(4)

review
the

and

existence

publication,
and

(3)

maintenance

the
of

standards controlling the technique's operation, and (5) whether
the technique is generally accepted in the relevant scientific
7

community. Burleson, 393 F.3d at 584. The reliability inquiry must
remain flexible, however, as “not every Daubert factor will be
applicable in every situation; and a court has discretion to
consider other factors it deems relevant.” Guy v. Crown Equip.
Corp., 394 F.3d 320, 325 (5th Cir. 2004); see also Runnels v. Tex.
Children's Hosp. Select Plan, 167 F. App'x 377, 381 (5th Cir. 2006)
(“[A] trial judge has considerable leeway in determining how to
test

an

expert's

reliability.”)

(internal

quotation

marks

omitted).
Further, Rule 702 plainly requires that expert testimony be
“based on sufficient facts or data.” Fed. R. Evid. 702(b). Expert
testimony is not based on sufficient facts or data when it lacks
an evidentiary basis or factual support. See Wilcox v. Max Welders,
L.L.C., No. 12-2389, 2013 WL 4517907, at *1 (E.D. La. Aug. 22,
2013). On the other hand, “questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned
that opinion rather than its admissibility and should be left for
the jury's consideration.” United States v. 14.38 Acres of Land,
80 F.3d 1074, 1077 (5th Cir. 1996).
Defendant argues that Stoller bases his opinion on inapplicable
lifting standards, including the American Society for Testing and
Materials

(ASTM)

standards,

the

American

Bureau

of

Shipping

lifting requirements, and the United States Coast Guard’s lifting
8

and carrying requirements. However, Stoller’s report acknowledges
that these standards do not apply. In fact, Stoller opines that
Defendant was negligent because its lifting and carrying standards
did not meet or exceed the recognized safety standards. (Rec. Doc.
32-1, at 12.) Stoller may testify about relevant standards in
similar industries as long as a foundation is laid to demonstrate
that

the

standards

were

derived

from

valid

scientific

methodologies.
III. Relevance of Stoller’s testimony
“[E]xpert testimony must be relevant, not simply in the sense
that all testimony must be relevant . . . 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.” Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert,
509 U.S. at 591-92). Under Rule 702, “an expert can be employed if
his testimony will be helpful to the trier of fact in understanding
evidence that is simply difficult, [though] not beyond ordinary
understanding.” United States v. Downing, 753 F.2d 1224, 1229 (3d
Cir. 1985). Trial courts have broad discretion to decide “whether
the jury could adeptly assess the situation using only their common
experience and knowledge.” Peters v. Five Star Marine Serv., 898
F.2d 448, 450 (5th Cir. 1990).

9

Defendant argues that Stoller’s testimony will not assist the
trier of fact because the subject matter of his testimony is based
on common knowledge. Additionally, Defendant points to Alvarado v.
Diamond Offshore Management Company, in which a court of this
District excluded expert testimony on the issue of whether the
defendant

violated

its

own

safety

procedures

and

federal

regulations. No. 11-25, 2011 WL 4948031, at *3 (E.D. La. Oct. 18,
2011). In Alvarado, the plaintiff was injured when he lifted a
sack of chemicals. Id. at *1. The Court found that the jury could
use common sense and knowledge to determine whether the defendant
violated the applicable safety procedures and whether lifting
fifty to sixty pound sacks is unreasonably dangerous. Id. at *3.
However, Plaintiff argues that the issues in this case are more
complex than the issues in Alvarado. Plaintiff points out that he
is

not

seeking

dangerous.

to

Instead,

prove

that

a

Plaintiff’s

simple
theory

lift
of

is

the

unreasonably

case

is

that

Defendant failed to train Plaintiff on lifting techniques, that
Defendant should have provided assistance to Plaintiff in the form
of

additional

manpower

or

mechanical

assistance,

and

that

Plaintiff’s work assignment required him to lift from an unsafe
position, which caused his injury. The Court agrees with Plaintiff
that this case involves issues outside the province of the jury’s
common

understanding.

Moreover,
10

“issues

of

ergonomic

and

biomechanic safety are far less intuitive and are based on more
technical information.” McMullen v. BP Expl. & Prod., No. 12-1206,
2013 WL 2556032, at *7 (E.D. La. June 10, 2013). Further, “the
jury in this case is unlikely to be familiar with offshore rigs
generally

or

chemical

totes

specifically.”

Id.

Therefore,

Stoller’s testimony will be helpful to the trier of fact.
IV.

Legal conclusions and miscellaneous issues

An expert witness may give opinions on “ultimate issues” of
fact, presuming he is qualified to do so. Fed. R. Evid. 704.
However,

an

expert

witness

may

not

make

credibility

determinations, offer conclusions of law, or “go beyond the scope
of his expertise in giving his opinion.” Goodman v. Harris Cnty.,
571 F.3d 388, 399 (5th Cir. 2009); see Fed. R. Evid. 704. The Court
finds that Stoller’s opinions on ultimate issues are appropriately
fact-based. Further, Stoller’s report contains a disclaimer, which
reads, “The opinions set forth here are not intended to be legal
opinions.” (Rec. Doc. 31-1, at 3.)
Finally, Defendant points out that Stoller has been excluded as
an expert witness in other cases. Of course, this fact has no
bearing on the Court’s ability to accept him as an expert in this
case. Defendant’s objections notwithstanding, the Court finds that
Stoller should be permitted to testify as an expert witness in
this case.
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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion in Limine (Rec.
Doc. 31) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Leave to
File Reply (Rec. Doc. 34) is DENIED as moot.
New Orleans, Louisiana this 17th day of June, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT COURT

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