Granger v. Bisso Marine, LLC et al
Filing
99
ORDER AND REASONS that Bisso Marine's 67 Motion to Exclude the testimony of Robert Borison and Bollinger Shipyard's 69 Motion in Limine to Exclude the Testimony of Robert Borison are DENIED. FURTHER ORDERED that Plaintiff Granger' ;s 71 Motion in Limine to Exclude the Expert Report and Trial Testimony of Kenneth Boudreaux, Ph. D. is DENIED. FURTHER ORDERED that Plaintiff Granger's 75 Motion in Limine to Exclude Documents and Witnesses is GRANTED. Signed by Judge Eldon E. Fallon on 9/6/2016. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEVEN GRANGER
*
VERSUS
*
BISSO MARINE, and
BOLLINGER SHIPYARDS
*
CIVIL ACTION
*
NO. 15-477
*
*
SECTION "L" (3)
ORDER & REASONS
Before the Court is Defendant Bollinger’s Motion to Exclude the Trial Testimony and
Expert Report of Robert Borison, R. Doc. 69, Defendant Bisso’s Motion to Exclude Borison, R.
Doc. 67, Plaintiff Granger’s Motion in Limine to Exclude Expert Report and Trial Testimony of
Kenneth Boudreaux, Ph.D., and Plaintiff Granger’s Motion to Exclude Documents and
Witnesses. R. Doc.75. R. Doc. 36. Having reviewed the parties’ briefs, the applicable law, and
the statements made at oral argument, the Court now issues this Order & Reasons.
I.
BACKGROUND
This case involves a trip and fall accident aboard the L/B Super Chief, a pipe-laying
barge, owned by Defendant Bisso Marine. R. Doc. 36-2 at 1–2. At the time, Plaintifff, Granger,
was an employee of Power Dynamics, LLC, (“PDI”). R. Doc. 36-2 at 1. PDI was hired by Bisso
Marine to perform the installation of hydraulic/mechanical systems on the Super Chief. R. Doc.
36-2 at 1. Granger was a member of the crew assigned to the hydraulic/mechanical systems
project.
Bisso Marine also contracted with Defendant Bollinger Shipyards (“Bollinger”) to
perform renovations and modifications to the Super Chief in preparation for upcoming jobs. R.
Doc. 36-2 at 2. The Super Chief was berthed at Bollinger’s shipyard in Amelia, Louisiana, while
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the two contractors performed the work. There was no legal relationship between PDI and
Bollinger other than that of fellow-contractors hired to perform separate services aboard the
Super Chief. R. Doc. 36-2 at 2.
Bollinger was instructed to remove, refabricate, and reinstall the roof of welding Stall
Three, one of four separate welding stalls on the Super Chief. R. Docs. 36-2 at 2; 36-3 at 4.
Bollinger was not hired to repair, modify, or otherwise renovate the roof of the adjacent Stall
Two. After Bollinger reinstalled the roof of Stall Three, the new roof was approximately 2.5
inches higher than the roof of Stall Two, creating a gap between the Stall Three roof and an
angle iron attached to the roof of Stall Two. R. Doc. 46 at 3. The angle iron itself jutted out
approximately 3 inches above the roof of Stall Two. R. Doc. 46 at 3.
On the date of the accident, contractors PDI and Bollinger were both performing work in
the vicinity of the four separate welding stalls. Granger came aboard the Super Chief in order to
install plumbing in each of the welding stalls in his capacity as a PDI employee. R. Doc. 36-3 at
4. Granger allegedly sustained injuries after he tripped while walking from the roof of Stall Two
towards the roof of Stall Three. In his Complaint, Granger alleges that the replacement of the
Stall Three roof and the resulting height differences between the two adjacent roofs created a trip
hazard, and claims that he caught his foot in the gap created between the angle iron attached to
the roof of Stall Two and the new raised height of the rooftop of Stall Three. R. Doc. 1 at 2–3.
However, in his deposition Granger stated that he believed “the thing that contributed to my
accident was the angle iron [on Stall Two] not being removed properly,” and denied that the gap
created because of the height difference between the two stall roofs contributed to the fall. R.
Doc. 36-3 at 8. In another place during the deposition, Granger stated he did not know if his foot
went into the gap between the Stall Three roof and the angle iron. R. Doc. 44-4 at 5. At a third
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point in the deposition, Granger stated that he could not conceive of any activity by Bollinger
which caused or contributed to his injury. R. Doc. 36-3 at 9. The case is set for trial to begin on
September 26, 2016.
Several motions in limine have been filed seeking to exclude certain witnesses and
testimony and to exclude evidence of a prior arrest. The Court will discuss the applicable law
and the motions in turn.
II.
APPLICABLE LAW
A.
Daubert Legal Standard
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
Rule 702 is in effect a codification of the United States Supreme Court’s opinion in Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the Supreme Court held that
trial courts should serve as gatekeepers for expert testimony and should not admit such testimony
without first determining that the testimony is both “reliable” and “relevant.” Id. at 589.
The trial court is the gatekeeper of scientific evidence. Daubert, 509 U.S. at 596. It has a
special obligation to ensure that any and all expert testimony meets these standards. Id.
Accordingly, it must make a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and whether the reasoning or methodology can be
properly applied to the facts in issue. Id. at 592–93. In making this assessment, the trial court
need not take the expert’s word for it. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 147 (1997).
Instead, when expert testimony is demonstrated to be speculative and lacking in scientific
validity, trial courts are encouraged to exclude it. Moore v. Ashland Chem., Inc., 151 F.3d 269,
279 (5th Cir. 1998).
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In satisfying its “gatekeeper” duty, the Court will look at the qualifications of the experts
and the methodology used in reaching their opinions and will not attempt to determine the
accuracy of the conclusion reached by the expert. The validity or correctness of the conclusions
is for the fact finder to determine after the Daubert analysis.
Scientific testimony is reliable only if “the reasoning or methodology underlying the
testimony is scientifically valid,” meaning that such testimony is based on recognized
methodology and supported by appropriate validation based on what is known. Daubert, 509
U.S. at 592–93. In Daubert, the Supreme Court set forth a non-exclusive list of factors to
consider in determining the scientific reliability of expert testimony. Id. at 593–95. These factors
are: (1) whether the theory has been tested; (2) whether the theory has been subject to peer
review and publication; (3) the known or potential rate of error; (4) whether standards and
controls exist and have been maintained with respect to the technique; and (5) the general
acceptance of the methodology in the scientific community. Id. Whether some or all these factors
apply in a particular case depends on the facts, the expert’s particular expertise, and the subject
of his testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138 (1999).
In addition to the five factors laid out in Daubert, a trial court may consider additional
factors in assessing the scientific reliability of expert testimony. Black v. Food Lion, Inc., 171
F.3d 308, 312 (5th Cir. 1999). Some of these factors may include: (1) whether the expert’s
opinion is based on incomplete or inaccurate dosage or duration data; (2) whether the expert has
identified the specific mechanism by which the drug supposedly causes the alleged disease;
(3) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded
conclusion; (4) whether the expert has adequately accounted for alternative explanations; and (5)
whether the expert proposes to testify about matters growing directly out of research he or she
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has conducted independent of the litigation. See, e.g., id. at 313; Moore v. Ashland Chem., Inc.,
151 F.3d 269, 278–79 (5th Cir. 1998); Christophersen v. Allied-Signal Corp., 939 F.2d 1106,
1114 (5th Cir. 1991); Newton v. Roche Labs., Inc., 243 F. Supp. 2d 672, 678 (W.D. Tex. 2002).
Scientific testimony is relevant only if the expert’s reasoning or methodology can be
properly applied to the facts in issue, meaning that there is an appropriate fit between the
scientific testimony and the specific facts of the case. Daubert, 509 U.S. at 593. However,
scientific evidence is irrelevant, when there is too great an analytical gap between the data and
the opinion proffered. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
The party seeking to introduce the expert testimony bears the burden of demonstrating
that the testimony is both relevant and reliable. Moore, 151 F.3d at 275–76. The requirement of
reliability does not strictly bind an expert within the proffered field of expertise; an expert may
also testify concerning related applications of his or her background. Slatten, LLC v. Royal
Caribbean Cruises Ltd., No. 13-673, 2014 WL 5393341, at *2 (E.D. La. Oct. 23, 2014) (citing
Wheeler v. John Deere Co., 935 F. 2d 1090, 1100 (10th Cir. 1991). The focus is not on the result
or conclusion, but on the methodology. Moore, 151 F.3d at 275–76. The proponent need not
prove that the expert’s testimony is correct, but must prove by a preponderance of the evidence
that the methodology used by the expert was proper. Id.
B.
Federal Rule of Evidence 403
Under the Federal Rules, relevant evidence is generally admissible, with relevance
defined as having any tendency to make a fact more or less probable than it would be without the
evidence and the fact is of consequence in determining the action. Fed. R. Evid. 401, 402.
However, “[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
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misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. “ ‘Unfair prejudice’ . . . means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403
advisory committee’s note.
III.
PRESENT MOTIONS
A.
Motions to Exclude Expert Testimony of Robert E. Borison
1.
Parties’ Arguments
In Defendant Bisso’s Motion to Exclude Borison, Bisso argues that his testimony should
be excluded because it will not assist the trier of fact in understanding the evidence or
determining the facts at issue. R. Doc. 67-1 at 1. Bisso does not challenge Borison’s
qualifications, but instead contends his report and testimony are unhelpful because they relate
solely to common-sense determinations that the trier of fact is capable of making without any
assistance from expert testimony. R. Doc. 67-1 at 7–8. In support of this argument, Bisso cites to
other decisions within this Court where Borison’s testimony was excluded because it “intrude[d]
upon the domain of common sense matters upon which the Court requires no expert assistance.”
R. Doc. 67-1 at 9 (citing Marshall v. Supreme Offshore Servs., Inc., No. CIV.A. 10-3198, 2011
WL 6258487, at *2 (E.D. La. Dec. 15, 2011). Bisso also contends that all of Borison’s testimony
relates to causation, which is a determination that should be left to the trier of fact. R. Doc. 67-1
at 12.
Defendant Bollinger also filed a Motion to Exclude Borison. R. Doc. 69-1. Like Bisso,
Bollinger agrees that Borison’s testimony and conclusions are matters of common sense that
should be decided by the trier of fact. R. Doc. 69-1 at 1. Additionally, Bollinger argues that
Borison’s third finding—that Bollinger “failed to abate a tripping hazard that they knew or
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should have known existed”—is an improper legal conclusion. R. Doc. 69-1 at 4. Specifically,
Bollinger argues that this testimony improperly concludes that Bollinger had a duty to remediate
the alleged hazardous condition.
Plaintiff responds that Defendants’ criticisms of Borison’s testimony are issues
for cross-examination, and go to the weight rather than the admissibility of his testimony. R.
Doc. 86 at 1. Plaintiff begins by summarizing Borison’s three conclusions as follows: (1) Bisso
failed to remove or modify the weldged flange from a known walkway on the roof of welding
Stall Two; (2) Bisso failed to provide stairs the adequate length leading to Stall Two; and (3)
Bollinger failed to abate a tripping hazard they knew or should have known existed. R. Doc. 86
at 2. Plaintiff explains that the average lay person would have no knowledged of the safety
standards Borison relied on in reaching these conclusions, thus, his conclusions and testimony
would be helpful to the trier of fact. Additionally, Plaintiff disagrees within Bollinger’s
contention that Borison’s third finding embraces a legal conclusion. R. Doc. 86 at 9. Instead,
Plaintiff argues that a “safety expert’s opinion about who has a safety responsibility is not a legal
opinion.” R. Doc. 86 at 10.
2.
Analysis
Defendants argue that Borison’s testimony is not relevant, because the trier of fact can
use common sense to reach the same conclusions. However, this case is more complicated than a
standard slip and fall, and the Court finds Borison’s testimony is relevant as it may be helpful to
the trier of fact. To be relevant, expert testimony must assist the trier of fact in understanding or
determining a fact at issue. Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
Here, the disputed facts relate to the safety regulations and responsibilities on a welding vessel.
While the average juror may have a “common-sense” understanding of a regular slip and fall, it
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is unlikely a juror has spent time on a welding barge, or has experience with the safety
regulations governing such vessels. “[A] court should not allow its ‘gatekeeper’ role to supersede
the traditional adversary system, or the jury's place within that system.” Hooks v. Nationwide
Hous. Sys., LLC, No. CV 15-729, 2016 WL 3667134, at *6 (E.D. La. July 11, 2016).
As Plaintiff explains, Borison has special knowledge and experience evaluating vessel
safety procedures. While Defendant may be able to show that his conclusions are in part based
on common sense, this goes more to the weight than the admissibility of Borison’s testimony. As
such, Defendants are free to refute this testimony with “vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596.
Addressing Bollinger’s argument that Borison makes improper legal conclusions, the
Court finds that the testimony at issue does not amount to legal conclusions, but instead states
the facts according to Borison. “[A]n expert may never render conclusions of law.” Goodman v.
Harrison Cnty., 571 F.3d 388, 399 (5th Cir. 2009). In his report, Borison explains that the angle
iron presented a tripping hazard, and it was not removed or highlighted. This is not an improper
legal conclusion, as it does not intrude on the fact finder’s role of applying the law to the facts.
See Richardson v. SEACOR Lifeboats, LLC, C.A. No. 14-1712, 2015 WL 2193907, at *3 (E.D.
La. May 11, 2015). While the Court finds Borison’s opinions pass Daubert scrutiny, the parties
should be aware that the Court will not allow Borison to testify regarding any legal conclusions
at trial.
B.
Motion in limine to Exclude Testimony of Kenneth Boudreaux, Ph. D.
1.
Parties’ Arguments
Plaintiff seeks to exclude the testimony of Dr. Kenneth Boudreaux on the grounds that
his opinions are based on outdated and therefore unreliable information and that his opinions are
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more prejudicial than probative under Rule 403. R. Doc. 71-1 at 1. First, Plaintiff contends that
Dr. Boudreaux uses the same “cookie-cutter” report in many of his cases, merely changing the
Plaintiff’s name for this case. R. Doc. 71-1 at 2. Plaintiff contends that Dr. Boudreaux’s
calculations regarding Plaintiff’s work life expectancy are unreliable because they are based on a
1986 report from the U.S. Department of Labor. R. Doc. 71-1 at 2. Plaintiff argues that this
unreliable data should require the Court to exclude Dr. Boudreaux’s opinions under Daubert. R.
Doc. 71-1 at 5. In particular, Plaintiff avers that the thirty-year-old data presents “too great an
analytical gap between the data and the opinion proffered” to be admissible. (quoting General
Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).
Additionally, Plaintiff contends that Dr. Boudreaux’s testimony is more prejudicial than
probative and is therefore inadmissible under Federal Rule of Evidence 403. R. Doc. 71-1 at 3.
Specifically, Plaintiff argues that the age of the data eliminates any probative value of the report,
and is only offered “for the sake of its prejudicial effect.” R. Doc. 71-1 at 4.
Defendants respond in a joint opposition that Dr. Boudreaux is a widely respected
economist with over forty-five years of teaching experience. R. Doc. 83 at 1. Defendants contend
that because Plaintiff seeks damages for loss of future earnings, testimony regarding his potential
future earnings is relevant to this case. R. Doc. 83 at 2. Defendants point out that while Plaintiff
criticizes Dr. Boudreaux’s reliance on a 1986 report from the U.S. Department of Labor, the
Plaintiff’s economic expert “is using older data than that used by Dr. Boudreaux.” R. Doc. 83 at
3. Defendants contend that if Dr. Boudreaux is excluded from testifying based on the age of his
data, Plaintiff’s expert must be excluded as well.
In addition, Defendants dispute that Dr. Boudreaux’s report is merely a “cookie cutter”
report, but aver while economists often use similar standards in calculating benefits, and the
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calculations in this report are unique to the Plaintiff. R. Doc. 83 at 4. Finally, Defendants contend
that Dr. Boudreaux’s reliance on thirty-year-old data goes to the weight rather than the
admissibility of his conclusions. R. Doc. 83 at 6.
2.
Analysis
“Trial courts have ‘wide discretion’ in deciding whether or not a particular witness
qualifies as an expert under the Federal Rules of Evidence.” Hidden Oaks Ltd. v. City of Austin,
138 F.3d 1036, 1050 (5th Cir. 1998); Fed. R. Evid. 702. However, even if a witness qualifies as
an expert under Daubert, his testimony must still meet the balancing test of Federal Rule of
Evidence 403. See United States v. Posado, 57 F.3d 428, 435 (5th Cir. 1995). Under Rule 403,
relevant evidence may be excluded “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.
403.
In applying the foregoing law to the proposed expert testimony of Dr. Boudreaux, the
Court finds that Daubert is satisfied and Dr. Boudreaux may testify at trial. Plaintiff argues that a
thirty-year-old report is unreliable, while at the same time, explaining that Dr. Boudreaux
frequently relies on this same report in many similar cases. “As a general rule, 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.” Viterbo v. Dow
Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (citing Dixon v. International Harvester Co., 754
F.2d 573, 580 (5th Cir. 1985)). While the Court recognizes there may be questions regarding the
validity of Dr. Boudreaux’s conclusions based on the age of the underlying data, it finds that the
Plaintiff’s objection goes to the weight of the evidence as opposed to methodology used by Dr.
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Boudreaux. Any concerns or challenges Plaintiff has regarding Dr. Boudreaux’s testimony or the
weight to be given to his testimony may be raised during cross-examination.
C.
Motion in limine to Exclude Documents and Witnesses
1.
Parties’ Arguments
It appears that the Plaintiff has been recently arrested for sexual battery of a juvenile.
Plaintiff has filed a motion to exclude any evidence or testimony relating to the Plaintiff’s recent
arrest. R. Doc. 75-3 at 2. Specifically, Plaintiff argues that any witnesses who may testify
regarding this arrest should be excluded from Defendants’ witness list, and any references to the
arrest should be excluded from trial. R. Doc. 75-3 at 1. According to Plaintiff, a warrant was
issued for his arrest on April 13, 2016, after his brother and sister-in-law accused him of sexually
assaulting his niece. R. Doc. 75-3 at 2. Plaintiff explains that since that date, he has not been
charged with the crime. Plaintiff argues that the arrest is in no way relevant to this case, and is
extremely prejudicial. R. Doc. 75-3 at 3. As such, he contends that any evidence regarding his
arrest is inadmissible under Federal Rule of Evidence 403. R. Doc. 75-3 at 8. Additionally,
Plaintiff contends that any such testimony would be inadmissible hearsay. R. Doc. 75-3 at 8.
Plaintiff requests that anyone appearing on Defendants’ behalf should be “strictly prohibited
from making any reference to the accusations or ‘criminal records.’” R. Doc. 75-3 at 9.
Defendants contend that any evidence regarding the Plaintiff’s arrest is relevant, as any
future incarceration would substantially decrease his earning potential and therefore damages in
this case. R. Doc. 87 at 1. First, Defendants argue they are entitled to cross-examine Plaintiff’s
economist on Plaintiff’s future earning capacity if he is incarcerated as a result of these
allegations. R. Doc. 87 at 3. Defendants contend that the jury is capable of objectively viewing
this information and “considering [the] evidence for the purpose it is admitted by the Court.” R.
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Doc. 87 at 4. Second, Defendants suggest that the Court could issue a limiting instruction that
would prevent any prejudicial effect based on this testimony. R. Doc. 87 at 5. Finally,
Defendants contend that any testimony would not be hearsay, as it would be based on the
witnesses’ own observations. R. Doc. 87 at 6.
2.
Analysis
Under the Federal Rules, relevant evidence is generally admissible. Relevance is defined
as having any tendency to make a fact more or less probable than it would be without the
evidence, and the fact is of consequence in determining the action. Fed. R. Evid. 401, 402.
However, even relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. Generally, courts apply this balancing test to determine the admissibility of
criminal convictions. However, the evidence at issue in this case is not a criminal conviction, or
even a formal charge. Instead, Plaintiff was arrested for allegations of criminal behavior. R. Doc.
75-4.
The Supreme Court has explained that “[t]he mere fact that a man has been arrested has
very little, if any, probative value in showing that he has engaged in any misconduct . . . When
formal charges are not filed against the arrested person and he is released without trial, whatever
probative force the arrest may have had is normally dissipated.” Schware v. Board of Bar
Examiners of the State of New Mexico, 353 U.S. 232, 241 (1957). The arrest at issue here would
be particularly prejudicial in light of its subject matter. Numerous courts within this district have
excluded evidence relating to an arrest because “[e]vidence of the arrest itself would be
prejudicial at trial because the arrest did not lead to formal charges.” United States v. Prejean,
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429 F. Supp. 2d 782, 790 (E.D. La. 2006) (holding that while the facts leading up to the arrest
were directly relevant to the alleged drug trafficking at issue, the arrest was unduly prejudicial
under Rule 403 and therefore inadmissible); McIntyre v. Bud's Boat Rental, L.L.C., No. CIV.A.
02-1623, 2003 WL 22174236, at *4 (E.D. La. Sept. 9, 2003) (excluding arrest evidence because
of the “significant danger of unfair prejudice.”).
While this evidence may be relevant for limiting the Plaintiff’s future earning capacity,
the Court finds it does not pass the balancing test of Rule 403. In Jordan v. Ensco Offshore Co.,
this Court excluded evidence of a criminal conviction despite Defendant’s arguments that the
conviction was relevant to prove the Plaintiff’s future earning potential. No. CV 15-1226, 2016
WL 2864380, at *2 (E.D. La. May 16, 2016) Citing McIntyre, the Court explained that even if
evidence related to the Plaintiff’s conviction for arson and later arrest for being a felon in
possession of a firearm was relevant to calculating his future earning potential, such evidence did
not pass Rule 403’s balancing test. Id. Because the probative value of the evidence did not
substantially outweigh the danger of unfair prejudice, evidence of the conviction and arrest was
excluded from trial. Id. Here, Defendants make an identical argument—except the arrest is not
nearly as probative as the conviction in McIntyre, and far more prejudicial. As such, any
evidence or testimony related to Plaintiff’s arrest shall be excluded under Rule 403.
IV.
CONCLUSION
For the aforementioned reasons, IT IS ORDERED that Bisso Marine’s Motion to
Exclude the testimony of Robert Borison (R. Doc. 67) and Bollinger Shipyard’s Motion in
Limine to Exclude the Testimony of Robert Borison (R. Doc. 69) are DENIED.
IT IS FURTHER ORDERED that Plaintiff Granger’s Motion in Limine to Exclude the
Expert Report and Trial Testimony of Kenneth Boudreaux, Ph. D. (R. Doc 71) is DENIED.
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IT IS FURTHER ORDERED that Plaintiff Granger’s Motion in Limine to Exclude
Documents and Witnesses (R. Doc. 75) is GRANTED.
New Orleans, Louisiana, this 6th day of September, 2016.
_________________________________________
UNITED STATES DISTRICT COURT JUDGE
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