Atlantic Specialty Insurance Company et al v. Porter, Inc.
ORDER & REASONS granting 29 Motion in Limine. Signed by Judge Sarah S. Vance on 11/4/2016. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ATLANTIC SPECIALTY INSURANCE
COMPANY AND NICHOLAS CHAD
PORTER, INC., D/B/A FORMULA
SECTION “R” (4)
ORDER AND REASONS
Before the Court is Defendant Porter, Inc.’s motion in limine and
Daubert motion to strike the report of plaintiffs’ expert witness, Captain Guy
Plaisance, and to prohibit Plaisance from testifying at trial. 1 Defendant
additionally moves to strike certain “hose-test” demonstration videos
prepared by Plaisance and to prohibit the videos from being introduced into
For the following reasons, the Court GRANTS defendant’s
This lawsuit arises out of a fire onboard the Budget Bender, a
recreational boat owned by plaintiff Nicholas Chad Gonzalez. The fire
R. Doc. 29.
occurred on or about December 21, 2013 and rendered the boat a total loss.
The boat was insured by Atlantic Specialty Insurance Company, which paid
Gonzalez $280,000 on his insurance claim. Plaintiffs assert claims against
the boat’s manufacturer, Porter, Inc., for redhibition, breach of contract,
products liability, and negligence.3 Plaintiffs allege that the fire was caused
by an electrical malfunction attributable to corroded wiring in the port side
of the boat. 4 According to plaintiffs, a gap along the edge of a wet bar in the
boat’s cockpit allowed water to flow downward and onto the wiring below,
causing the corrosion. 5 Plaintiffs allege that this corrosion caused a short
circuit that energized wires, causing them to overheat and eventually ignite
a fire.6 To support this theory, plaintiffs retained three experts: Captain Guy
Plaisance, a marine surveyor; Gary Jones, a fire causation consultant; and
Troy Little, an electrical engineer.
On December 27, 2013, Captain Plaisance inspected the boat for the
first time.7 He returned for a follow-up inspection on January 9, 2014.8
Plaisance wrote two summaries of his inspections for the plaintiffs on
R. Doc. 1-2 at 3-4.
Id. at 2.
R. Doc. 29-1 at 2.
December 31, 2013, and January 17, 2014, respectively. 9 In April 2014,
Plaisance conducted an additional investigation of the boat. This time, he
conducted a “hose test,” in which he placed a garden hose on the boat’s wet
bar and hosed it down to see if water leaked onto the electrical wiring harness
below. 10 Two years later, Plaisance conducted a similar test on a different
boat named Lost My Mind, which is also manufactured by defendant and is
similar to the Budget Bender. 11 Plaisance filmed both tests. On April 15,
2016, plaintiffs submitted Plaisance’s expert report and the videos of the
Plaisance’s report notes plaintiffs’ theory that water entered the boat’s
electrical system and caused a short circuit. 13 Plaisance reported that he
performed two “hose tests” to test how water could intrude into the electrical
system.14 From his tests, Plaisance reported that if the wet bar of the boat
was exposed to water, the water would “flow to an opening at the outboard
edge of the top and down a path . . . into the port forward machinery space.” 15
R. Doc. 29-2 at 2.
R. Doc. 29-1 at 3.
R. Doc. 29-2 at 2.
Id. The methodology and substance of the hose tests, as well as
their potential inadmissibility will be discussed below.
The water would then drip onto the “DC wiring harnesses directly below in
the same area where terminal connections which shorted and melted are
located.”16 Plaisance concluded that this type of water intrusion should not
occur on a seaworthy vessel and that it was the result of a defective design by
Porter seeks to exclude Plaisance’s report and testimony because his
report does not satisfy the technical requirements of Federal Rule of Civil
Procedure 26 and this Court’s scheduling order, and because Plaisance does
not base his proffered expert testimony on reliable data and sound
methodologies, as required by Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).18 Additionally,
defendant seeks to exclude the “hose-test” videos filmed by Plaisance
because they fail to simulate conditions substantially similar to those on the
Budget Bender and because Plaisance did not provide critical information
Id. at 3.
See R. Doc. 29-1.
regarding how the tests were conducted. 19 Plaintiffs responded on June 14,
2016, 20 and defendant replied.21
A district court has considerable discretion to admit or exclude expert
testimony under Federal Rule of Evidence 702. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 371 (5th Cir. 2000). Rule 702 provides:
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
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court
held that Rule 702 requires the district court to act as a gatekeeper to ensure
Id. at 4. Defendant also argues that the hose-test videos risk
unfair prejudice because of their potential to mislead the jury. However,
after this motion was filed, this Court granted defendant’s motion to
withdraw its demand for a jury trial. R. Doc. 32. As this case is now
scheduled for a bench trial, this argument is moot.
R. Doc. 37.
R. Doc. 50.
that “any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” 509 U.S. at 589; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert
gatekeeping function applies to all forms of expert testimony). The Court’s
gatekeeping function thus involves a two-part inquiry into reliability and
First, the Court must determine whether the proffered expert
testimony is reliable. The party offering the testimony bears the burden of
establishing its reliability by a preponderance of the evidence. See Moore v.
Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry
requires the Court to assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93.
The aim is to exclude expert testimony based merely on subjective belief or
unsupported speculation. See id. at 590.
The Court in Daubert articulated a flexible, non-exhaustive, five-factor
test to assess the reliability of an expert’s methodology: (1) whether the
expert’s theory can be or has been tested; (2) whether the theory has been
subject to peer review and publication; (3) the known or potential rate of
error of a technique or theory when applied; (4) the existence and
maintenance of standards and controls; and (5) the degree to which the
technique or theory has been generally accepted in the scientific community.
Id. at 593-95. The Supreme Court has emphasized, however, that these
factors “do not constitute a ‘definitive checklist or test.’” Kumho, 526 U.S. at
150 (quoting Daubert, 509 U.S. at 593). Rather, district courts “must have
considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Id. at 152.
Courts have also considered whether experts are “proposing to testify about
matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions
expressly for purposes of testifying,” Daubert v. Merrell Dow Pharms., Inc.,
43 F.3d 1311, 1317 (9th Cir. 1995). They also have looked to whether the
expert has adequately accounted for obvious alternative explanations, see
Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994), and whether the
expert “is being as careful as he would be in his regular professional work
outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc.,
104 F.3d 940, 942 (7th Cir. 1997).
The Court also recognizes that this case involves a nonjury trial. In
Daubert, the Supreme Court's overriding concern was with the problem of
exposing the jury to confusing and unreliable expert testimony. See 509 U.S.
at 595-97. In the wake of Daubert, several courts have observed that in the
context of a bench trial, the Daubert gatekeeping obligation is less urgent,
because the gatekeeper and trier of fact are the same. See, e.g., Volk v. United
States, 57 F.Supp.2d 888, 896 n.5 (N.D. Cal. 1999); Seaboard Lumber Co. v.
United States, 308 F.3d 1283, 1301-02 (Fed. Cir. 2002) (explaining that in a
bench trial the Daubert standard must still be applied but the concerns about
expert evidence misleading a jury “are of lesser import”); Gibbs v. Gibbs, 210
F.3d 491, 500 (5th Cir. 2000) (“Most of the safeguards provided for in
Daubert are not as essential in a case such as this where a district judge sits
as the trier of fact in place of a jury.”).
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 [finder of fact]’s consideration.”
United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty.,
Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co.,
826 F.2d 420, 422 (5th Cir. 1987)). Nonetheless, expert testimony “must be
reliable at each and every step or else it is inadmissible. The reliability
analysis applies to all aspects of an expert’s testimony: the methodology, the
facts underlying the expert’s opinion, the link between the facts and the
conclusion, et alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355
(5th Cir. 2007) (citation omitted). “Where the expert’s opinion is based on
insufficient information, the analysis is unreliable.”
Paz v. Brush
Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009).
In Joiner, the Supreme Court explained that “nothing in either
Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of
the expert.” 522 U.S. at 146. Rather, “[a] court may conclude that there is
simply too great an analytical gap between the data and the opinion
proffered.” Id.; see also LeBlanc v. Chevron USA, Inc., 396 F. App’x 94, 98
(5th Cir. 2010).
If the Court is satisfied that the expert’s testimony is reliable, the Court
must then determine whether the expert’s analysis is relevant. The question
here is whether the reasoning or methodology “fits” the facts of the case and
will thereby assist the trier of fact to understand the evidence. See Daubert,
509 U.S. at 591. “[F]undamentally unsupported” opinions “offer no expert
assistance to the [trier of fact]” and should be excluded. Guile v. United
States, 422 F.3d 221, 227 (5th Cir. 2005) (citing Viterbo, 826 F.2d at 422).
Motion to Strike Plaisance’s Report
The Court first addresses defendant’s argument that Plaisance’s expert
report should be stricken because it does not comply with Federal Rule of
Civil Procedure 26 and this Court’s scheduling order. The scheduling order
requires that expert reports fully set forth “all matters about which [the
expert witness] will testify and the basis therefor” and “be obtained and
delivered to counsel for Defendant as soon as possible, but in no event later
than April 15, 2016.” 22 Rule 26(a)(2)(B) provides that, “unless otherwise
stipulated or ordered by the court,” a party must disclose its expert witnesses
along with a written report prepared and signed by the witness that contains:
(i) a complete statement of all opinions the witness will express
and the basis and reasons for them; (ii) the facts or data
considered by the witness in forming them; (iii) any exhibits that
will be used to summarize or support them; (iv) the witness's
qualifications, including a list of all publications authored in the
previous 10 years; (v) a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at trial or by
deposition; and (vi) a statement of the compensation to be paid
for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). Because Plaisance’s report does not include many
of these requirements, defendant argues the report must be stricken.
R. Doc. 18.
Defendant’s argument that plaintiff has violated Rule 26(a)(2)(B) fails
to recognize that the Court has “otherwise stipulated or ordered” that an
expert report must merely set forth “all matters about which they will testify
and the basis therefor” and be delivered to defendant by April 15, 2016. 23 See
Knorr v. Dillard’s Store Services, Inc., No. 04-3208, 2005 WL 2060905, at
*2 (E.D. La. Aug, 22, 2005) (rejecting similar argument of technical
noncompliance with Rule 26 because of Court’s scheduling order). Here,
Plaisance’s report informs defendant that he will testify as to plaintiffs’
theory of how water could enter the boat’s electrical system and whether a
vessel that allows water intrusion in this manner is seaworthy.24
Additionally, Plaisance notes that his conclusions are based on the hose-test
videos he conducted and his more than 38 years of experience in vessel
management, construction, repair, and inspection.25
Any confusion or
questions that defendant had over the basis for Plaisance’s conclusions could
be addressed in a deposition or through other discovery means. See Kirkland
v. Marriott International Inc., 416 F. Supp. 2d 480, 486 n. 2 (E.D. La. 2006)
(refusing to strike report with information that was difficult to understand
because information was clarified in subsequent deposition); Stahl v.
R. Doc. 18 at 2.
R. Doc. 29-2 at 2-3.
Id. at 1.
Novartis Pharmaceuticals Corp., No. 99-1048, 2000 WL 33915847, at *2
(E.D. La. Nov. 29, 2000) (same). Finally, plaintiff submitted Plaisance’s
report on April 15, 2016, the deadline for expert reports. 26 Therefore,
Plaisance’s report is timely and adequately sets forth the matters about which
he will testify and the basis for his opinions.
Furthermore, although Plaisance’s report did not include information
like the exhibits used to support his conclusions, his resume, his
compensation, or a list of other cases in which he has provided expert
testimony, plaintiffs later gave defendant the photographic exhibits that
Plaisance relied on, as well as copies of the hose-test videos. 27 Plaintiffs also
gave defendant documentation of Plaisance’s compensation and his resume,
which includes his qualifications and a list of cases in which Plaisance has
testified as an expert either at trial or by deposition.28 Defendant had all of
this information before Plaisance’s scheduled deposition and was not
prejudiced by the absence of this information from Plaisance’s report.
For all of the foregoing reasons, plaintiff’s technical noncompliance
with Rule 26 does not warrant this Court striking Plaisance’s report. See
Knorr, 2005 WL 2060905 at *2.
R. Doc. 29 at 2.
R. Doc. 37 at 14.
R. Doc. 37-13.
Admissibility of Hose-Test Videos
Because the resolution of defendant’s Daubert motion is dependent in
part on the validity and admissibility of Plaisance’s hose-test videos, the
Court will address the videos first. This Court has broad discretion to admit
evidence of experimental tests. See Williams v. Briggs Co., 62 F.3d 703, 70708 (5th Cir. 1995); Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir.
1977). The standard by which the Court determines the admissibility of
experimental evidence depends upon whether it is being offered to reenact
an event that occurred or to demonstrate general scientific principles. See
Wallace v. Gen. Motors Corp., No. 94-2627, 1997 WL 269498, at *1 (E.D. La.
May 19, 1997) (citing McKnight By & Through Ludwig v. Johnson Controls,
Inc., 36 F.3d 1396, 1402 (8th Cir. 1994)); Gilbert v. Cosco, Inc., 989 F.2d 399,
402 (10th Cir. 1993).
If the experimental evidence is a simulation or recreation of the event
in question, then the recreation and the event it seeks to replicate must be
Williams, 62 F.3d at 707.
The conditions of
experimental tests need not be identical to the case at hand, but should be
“nearly the same in substantial particulars as to afford a fair comparison in
respect to the particular issue to which the test is directed.” Barnes, 547 F.2d
at 277. The purpose behind the substantial similarity requirement is to avoid
the risk of misleading members of the jury who may attach exaggerated
significance to the evidence. See McKnight, 36 F.3d at 1402 (citing Fusco v.
Gen. Motors Corp., 11 F.3d 259, 264 (1st Cir.1993)).
If the proffered evidence is not meant to recreate an event but instead
simply demonstrate scientific principles, then the substantial similarity
requirement does not apply. See McCune v. Graco Children’s Products, Inc.,
495 F. App’x 535, 540 (5th Cir. 2012) (“if a party offers the demonstrative
evidence only as an illustration of general scientific principles . . . it need not
pass this ‘substantial similarity’ test” (quoting Muth v. Ford Motor Co., 461
F.3d 557, 566 (5th Cir. 2006))). Demonstrative evidence that is offered only
as an illustration of abstract scientific principles must not too closely
resemble the actual events and circumstances of the case, Riley v. Ford
Motor Co., No. 09-148, 2011 WL 3236109, at *4 (S.D. Miss. July 27, 2011),
and the demonstrative test must be properly conducted. See generally 1
McCormick On Evid. § 202 (7th ed.). Additionally, the scientific principles
that the evidence seeks to demonstrate must be relevant to the case, Scordill
v. Louisville Ladder Group, LLC, No. 02-2565, 2004 WL 307475, at *7 (E.D.
La. Feb. 17, 2004), and the demonstration must not be misleading. Muth,
461 F.3d at 566.
Defendant maintains that the hose-test videos should be excluded
because they do not pass the substantial similarity test.29 Plaintiffs respond
that the videos are offered to demonstrate general scientific principles—such
as the direction water travels when it splashes on the boat—and therefore
need not satisfy the similarity requirement to be admitted. 30
Although plaintiffs contend that the hose-test videos are not offered as
exact simulations, the question is not one of “labels.” See McKnight, 36 F.3d
at 1402. The Court, rather than the plaintiffs’ self-serving characterization
of the evidence, must determine what category the proffered evidence falls
under. See id. at 1402-03 (rejecting proponent’s characterization of evidence
as demonstrating scientific principles and instead finding that evidence
sought to recreate events that gave rise to trial”); see also Muth, 461 F.3d at
566-67 (affirming district court’s rejection of proponent’s characterization of
evidence as only demonstrating scientific principles, not as recreation);
Dunn v. Nexgrill Industries, Inc., 636 F.3d 1049, 1056 (8th Cir. 2011)
Plaisance’s report states that he conducted the hose-test videos to
“determine how water was entering the machinery space wire harness,” and
R. Doc. 29-1 at 18-20.
R. Doc. 37 at 18.
that he viewed the results of his test as “evidence of how the water was
entering” the boat’s mechanical system. 31 These statements and plaintiffs’
theory of the case that the water intrusion occurred in part due to routine
washing of the boat’s wet bar, 32 establish that this evidence is offered not as
a demonstration of general scientific principles but instead as a recreation of
the events that gave rise to this case.33 Therefore, the test must satisfy the
substantial similarity requirement to be admissible.
A comparison of the facts of this case and the hose-test videos reveals
that the videos fail the substantial similarity test. As Barnes establishes, the
conditions of the test and the occurrence it seeks to reenact do not have to be
“precisely reproduced,” but they must be similar enough to “afford a fair
comparison in respect to the particular issue to which the test is directed.”
547 F.2d at 277. The burden is on the party offering the experiments to lay a
“proper foundation demonstrating a similarity of circumstances and
conditions.” Id. Plaisance’s test on the Budget Bender applies a continuous
stream of water from a garden hose directly at the junction between the back
R. Doc. 29-2 at 2.
See, e.g., R. Doc. 29-2 at 2; R. Doc. 36 at 4.
Even if the Court agreed that this evidence was meant to
demonstrate general scientific principles, the demonstrations would not be
helpful to the trier of fact. Here, the scientific principle is apparently that
water will flow downward, which is also known as gravity. The Court does
not need a video demonstration of gravity to understand how it works.
of the wet bar and the boat’s wall. The videos do not indicate how long the
hose has been running, if any water was applied before filming began, the
pressure of the water coming out of the hose, if the pressure was increased
or decreased before filming began, or the edits that have been made to the
The videos and Plaisance’s report also do not detail any
information on how the Budget Bender was washed, including the length of
time it is washed, the type of hose used, or the water pressure applied. These
critical missing details make a “fair comparison” impossible. Barnes, 547
F.2d at 277; Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1337 (11th Cir.
2011) (noting that the lack of specifics about the tests on the videos made it
“impossible to assess whether the video was fairly and honestly made under
circumstances and conditions substantially similar” to plaintiff’s accident
(internal quotation omitted)).
Therefore, because plaintiffs have not
satisfied their burden in establishing substantial similarity, the hose-test
videos are excluded.
Finally, defendant moves this Court to prohibit Plaisance from
testifying under Federal Rule of Evidence 702 and Daubert. Plaisance’s
When asked for information in his deposition on how he
conducted the test, Plaisance gave a rambling response that failed to answer
the question or supply the missing details. R. Doc. 49-1 at 9.
report opines that based on the hose tests and his physical observations of
the Budget Bender, “water entering the DC wiring harness over time . . . , was
a direct result of a defective design and workmanship by Formula.”35 This
defective design resulted in “electrical shorting which lead to the fire.”36 He
also opines that the entry of water into the DC wiring harness in the manner
he described renders the Budget Bender unseaworthy and dangerous.37
Daubert requires that expert testimony be reliable at each and every
step to be admissible, and this reliability analysis applies to all aspects of the
expert’s testimony. Knight, 482 F.3d at 355. This includes not only the
methodology behind the expert’s opinion but also the connection of the facts
and/or data to the opinion itself. Id.
Plaisance bases his opinion of the alleged defect on the hose tests. The
Supreme Court in Daubert noted that the existence and maintenance of
standards and controls bears on whether a scientific test is reliable. 509 U.S.
at 594. Viewing the hose-test videos makes clear that these tests lacked any
form of meaningful standards and controls. As described above, Plaisance
does not supply any of the critical information necessary to assess the tests’
reliability, most importantly how long the hoses had been running, the
R. Doc. 29-2 at 3.
pressure of the water applied to the wet bar, what edits were made to the
videos, and if any water was applied to the wet bar before filming began. Not
controlling for these factors or identifying critical standards for these tests
indicates that the methodology behind these tests is unreliable. Therefore,
the Court will prohibit any of Plaisance’s testimony based on the hose tests.
Plaisance’s second opinion that the boat’s propensity to allow water
intrusion renders the boat unseaworthy and dangerous is likewise excludable
because the opinion is based on the unreliable hose tests.
The Court does
not quarrel with the proposition that if a vessel allows for water intrusion
into its mechanical system during normal operation and regular
maintenance, it would be unseaworthy and potentially dangerous. But what
is absent here is any reliable methodology establishing the predicate facts for
the unseaworthiness conclusion. Given that the Court has excluded the hosetest evidence, there is simply no reliable methodology to support Plaisance’s
opinion, and there is no evidentiary basis for his testimony.
For the foregoing reasons, the Court GRANTS defendant’s motion to
exclude the hose-test videos and to prohibit Captain Guy Plaisance from
New Orleans, Louisiana, this _____ day of November, 2016.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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