Gobert v. Atlantic Sounding Co., Inc. et al

Filing 118

ORDER AND REASONS re 104 Motion in Limine to Exclude Certain Evidence and Deposition Testimony. IT IS ORDERED that Weeks Marine's motion is granted in part, denied in part, and deferred in part as set forth herein. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAUL GOBERT, JR.

CIVIL ACTION

VERSUS

No. 15-650

ATLANTIC SOUNDING ET AL.

SECTION I

ORDER AND REASONS
Plaintiff Paul Gobert was a surveyor for Weeks Marine on the dredge G.D.
Morgan. Gobert claims he slipped and fell while walking down poorly maintained
stairs on the dredge, and that a slippery substance left on the deck after a cleaning—
partially as a result of the pitted nature of the deck—contributed to his fall.

The

upcoming trial concerns Gobert’s unseaworthiness and Jones Act negligence claims
against Weeks Marine.
Before the Court is defendant Weeks Marine’s motion 1 in limine. For the
following reasons, the motion is granted in part, denied in part, and deferred in part.
I.
Weeks Marine moves to exclude a photograph depicting a puddle of soapy
water on the G.D. Morgan. R. Doc. No. 104-2, at 1. The photograph was taken a few
days after Gobert’s fall, and depicts a puddle with foam bubbles after a cleaning. All
parties agree that the photograph depicts a separate area of the dredge from where
the accident occurred.
Defendant Weeks argues that the photograph is irrelevant and/or unfairly
prejudicial because it does not depict the accident site or the conditions on the boat

1

R. Doc. No. 104.

at the time of the accident. Weeks suggests that the photograph will confuse the
issues and create the false impression that the accident site resembled the conditions
depicted in the photograph.

Therefore, Weeks argues that the photo should be

excluded pursuant to Federal Rules of Evidence Rules 401, 402, and 403.
Plaintiff Gobert counters that the photo would be helpful to the jury in
visualizing deck conditions on the G.D. Morgan after a cleaning. Gobert further
suggests that an additional limiting instruction could cure any lingering prejudice by
informing the jury that the photo is being used for illustrative purposes only.
A.
“Evidence is relevant if (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Relevant evidence is admissible unless
otherwise provided by the United States Constitution, a federal statute, another
Federal Rule of Evidence, or another rule prescribed by the U.S. Supreme Court. Fed.
R. Evid. 402.
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.
B.
At the outset, the Court observes that the photograph is neither particularly
helpful to the jury—they will already know what a sudsy puddle looks like—nor
particularly unfair to the defendant—the jury will likely already believe the deck was
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wet when Gobert fell because the supervisor’s injury report indicates that the steps
were wet and slippery. The Court also has no doubt that Weeks will be able to make
sure the jury knows that the photograph was taken on a different part of the dredge.
Plaintiff’s main justification for the puddle photo is that it is illustrative of
what the conditions were like at the time of the accident. As in the case of a postaccident reconstruction, the admissibility of the photograph turns on whether the
conditions depicted in the photograph were “substantially similar” to the conditions
at the time of the accident. See 1 Muller & Kirkpatrick, Federal Evidence § 9:27.
(Westlaw 2016). If the conditions in the photograph were substantially similar to the
deck conditions at the time of the accident, then the photograph will be helpful to the
jury insofar as it will help the jury visualize the likely deck conditions at the time of
the accident. If, on the other hand, the deck conditions were not substantially similar
at the time of the accident—whether because the photo depicts the deck in the midst
of a cleaning or for any other number of reasons—then the proposed exhibit would
simply be wasting both the jury’s and the Court’s time with a pointless and
potentially prejudicial picture of a puddle.
Because the Court will be in a better position at trial to determine whether the
conditions at the time of the accident were substantially similar to the conditions
depicted in the photograph, the Court will defer ruling on the admissibility of the
photograph. The photograph at issue shall not be referenced by witnesses or shown
to the jury unless the Court permits the same following a bench conference.

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II.
Weeks Marine moves to exclude photographs and a videotape taken by
plaintiff’s counsel during his inspection of the vessel. The inspection occurred on a
rainy day, and Weeks suggests that the photos are irrelevant and/or unduly
prejudicial insofar as the photographs supposedly do not accurately depict the deck
conditions on the G.D. Morgan at the time of the accident.
As the photographs depict the accident site, they are relevant. See, e.g., Pub.
Emps. Retirement Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321 (5th Cir. 2014)
(explaining “the standard of relevance in an evidentiary context is not a steep or a
difficult one to satisfy”). Thus, the key question is whether the photographs and video
should be excluded under Rule 403.
The Court is not persuaded that the probative value of the photographs would
be substantially outweighed by the risk of unfair prejudice. After all, Rule 403 is
meant to be applied “sparingly,” Baker v. Can. Nat./Ill. Cent. R.R., 536 F.3d 357, 369
(5th Cir. 2008), and Weeks can mitigate any unfair prejudice through crossexamination by highlighting that it was raining on the day of inspection. 2 The Court
is also willing to consider providing a suitable limiting instruction should Weeks
propose an appropriate one.
Accordingly, even if it was dry on the day of the accident—a state of affairs
seemingly belied by the supervisor’s injury report indicating that the steps were wet
and slippery on the day of the accident—the Court would still determine that the

Though not necessary to the Court’s determination, the Court also notes that Weeks
has the ability to mitigate any unfair prejudice with its own photos of the stairs.
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2

probative value of the photographs of the accident site on the G.D. Morgan is not
outweighed by the risk of unfair prejudice. Weeks’s motion to exclude the photos and
video of the accident site is denied.
III.
Weeks Marine objects to the introduction of certain portions of Dr. Rodney
Burns’s deposition. See R. Doc. No. 104-5. Dr. Burns is a board certified radiologist.
A.
Tr. 19:4-19:23: Weeks objects that the testimony is not within the expertise of
the witness. In response, Gobert offers to withdraw the testimony. Accordingly,
Weeks’s motion in limine is granted.
B.
Tr. 20:4-25:10:

The testimony at issue consists of Dr. Burns—who had

previously taken plaintiff Gobert’s MRI—reviewing an MRI report prepared by Dr.
Jewell—another radiologist. Dr. Burns’s testimony indicates that he did not review
the actual MRI film Dr. Jewell used to prepare his report, but Dr. Burns noted his
belief that Dr. Jewell was a competent radiologist. R. Doc. No. 104-5, at 4 (Tr. 21:1922). Gobert’s counsel then had Dr. Burns discuss Dr. Jewell’s findings that the MRI
taken by Dr. Jewell reflected spine abnormalities.
This Court’s pre-trial scheduling order indicated that “No objection to any
exhibit or any deposition testimony shall be allowed at trial unless the objection was
briefed in writing in accordance with this order” and further emphasized that
“Counsel shall cite relevant authority in each written objection.” R. Doc. No. 90, at
5.

Yet, all Weeks Marine indicates in their objection is: “duplicative testimony
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regarding the January 10, 2015 cervical spine MRI, and lack of foundation as Dr.
Burns did not read the films.” R. Doc. No. 104-1, at 2. 3 That objection largely fails to
inform the Court as to the basis of Weeks’s objection.
For example, Weeks does not explain what testimony the deposition testimony
is duplicative of. As such, the Court is left without a basis for judging whether the
testimony is, in fact, duplicative and, if so, whether the Court should exercise its
discretion to permit the duplicative testimony. Accordingly, the Court finds that the
objection that the testimony is duplicative is waived for failure to comply with the
pre-trial briefing requirement.
Likewise, in objecting to “lack of foundation as Dr. Burns did not read the
films,” R. Doc. No. 104-1, at 2, defendant cites no authority for the proposition that
an expert has to personally perform each test the expert discusses in his or her
testimony. That lack of authority is unsurprising given that “[u]nlike an ordinary
witness . . . an expert is permitted wide latitude to offer opinions, including those that
are not based on firsthand knowledge or observation.”

Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 592 (1993).
Instead, an expert’s ability to offer opinions not based on firsthand knowledge
or observation is governed by Federal Rules of Evidence 702 and 703. But Weeks
Marine raises no objection under Rules 702 or 703. Likewise, Weeks Marine raises
no other objection—such as, for example, a hearsay or a Rule 403 objection.

Dr. Jewell took the January 2015 spine MRI; Dr. Burns took an earlier MRI after
plaintiff was in a car accident (unrelated to Weeks Marine). The comparison of the
two MRIs is one of plaintiff’s main proofs that plaintiff was injured by his fall on the
G.D. Morgan and not by the earlier car crash.
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3

Accordingly, the Court deems any arguments under Rules 403, 702, 703, or 802
waived, and it denies Weeks Marine’s “foundation” objection insofar as there is no
legal requirement that an expert’s opinion be based on firsthand knowledge.
C.
Tr. 25:12-25:25: Weeks next objects to an exchange between plaintiff’s counsel
and Dr. Burns discussing whether a fall can cause a disc herniation as outside of Dr.
Burns’s qualifications.

Notwithstanding Dr. Burns’s concession that causation

generally is not a part of his medical training, R. Doc. No. 104-5, at 8 (Tr. 25:22-24),
the Court denies defendant’s objection on two independent grounds.
First, Weeks Marine’s challenge to Dr. Burns’s testimony—which is really just
a challenge to Dr. Burns’s qualifications—is a motion in limine regarding the
admissibility of an expert’s opinion. Under the scheduling order, any such motion
had to have been submitted by December 28, 2016. See R. Doc. No. 72, at 1. However,
Weeks Marine did not raise the instant challenge until January 17, 2017. See R. Doc.
No. 104. As such, the challenge is untimely, and the Court deems the argument
waived because it was not raised in compliance with the scheduling order. See Fed.
R. Civ. P. 16(f).
Second, Dr. Burns is sufficiently qualified to offer the testimony at issue. “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)). Rule
702 states that an expert may be qualified based on “knowledge, skill, experience,
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training, or education.” Hicks, 389 F.3d at 524; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999) (discussing witnesses whose expertise is based
purely on experience). “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.;
see Daubert, 509 U.S. at 596.
Under Rule 702’s “liberal standards for qualifications of experts,” an expert
need not have the perfect possible academic credentials to testify as an expert. In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 754 (3d Cir. 1994). Dr. Burns is a board
certified radiologist. The Court considers Dr. Burns’s medical credentials to be more
than sufficient, particularly given that the underlying opinion—that a fall can cause
a back injury—seems so basic that nearly any medical professional would be qualified
to offer it. Weeks’s objection to Dr. Burns’s qualifications go to the weight that Dr.
Burns’s opinion should be accorded and not its admissibility.
V.
Weeks Marine objects to the introduction of certain portions of Dr. Berliner’s
deposition testimony. See R. Doc. No. 104-6. Dr. Berliner is Gobert’s treating
physician and surgeon.
Many of Weeks Marine’s objections are simply to the form of plaintiff counsel’s
questions. Under Federal Rule of Evidence 611, this Court has a “large degree of
discretion in overseeing the examination of witnesses.” Sanders v. N.Y.C. Human
Res. Admin.¸361 F.3d 749, 757 (2d Cir. 2004). This Court chooses to exercise that
discretion in the following manner.
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A.
Tr. 15:6-10: Granted. To the extent that plaintiff argues this the question is
simply duplicative of earlier testimony from Dr. Berliner, the plaintiff should use that
testimony to make the point.
B.
Tr. 15:11-15: Granted. Leading.
C.
Tr. 16.2-10: Granted.

Even the witness noted this question was “poorly

worded.” R. Doc. No. 104-6, at 3 (Tr. 16:9).
D.
Tr. 16:11-20: Denied. The Court concludes that the form of the question will
assist the jury in understanding the medical testimony at issue.
E.
Tr. 28:25-30:4: Granted in part as to Tr. 28:5-29:17. The “question” in these
lines is a wandering discussion of plaintiff’s counsel reviewing various evidence under
the guise of a hypothetical question. Such a discussion is a waste of both the Court’s
and the jury’s time. Denied in part as to Tr. 29:18-30:4. The question itself is
acceptable once plaintiff’s counsel actually asks it.
F.
Tr. 47:7-48:1: Denied. Though the question is somewhat leading and could
have been better phrased, the Court concludes that the form of the question will
help the jury understand the medical procedure at issue.

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G.
Tr. 54:12-58:2: Weeks Marine objects to nearly four pages of testimony with
the form objection “lack of foundation.” R. Doc. No. 104-1, at 3. Weeks Marine’s
objection is so non-specific that it forces the Court to guess as to what, in fact, Weeks
Marine’s objection is. Accordingly, the Court deems any such argument waived for
failure to timely brief it in accordance with the scheduling order. See R. Doc. No. 90,
at 5. However, to the extent that Weeks Marine is simply objecting to the fact that
the expert is relying on information provided by third party sources, the objection is
also denied because “an expert is permitted wide latitude to offer opinions, including
those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S.
at 592. The objection to lack of foundation is therefore denied.
The objection incorporating Weeks Marine’s previous objections to Dr.
Berliner’s cost estimates 4 is denied in part and deferred in part as set out in the
Court’s prior opinion. See R. Doc. No. 117, at 5-6. The Court will determine the
reliability of the proposed testimony at trial. No mention shall be made of the costs
of the proposed surgery before the jury unless the Court permits the same following
a bench conference.
H.
Tr. 60:5-19: Denied. The Court concludes that the form of the question will
assist the jury in understanding the medical testimony at issue.

4

R. Doc. No. 98; R. Doc. No. 113.

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I.
Tr. 60:23-61:3: Denied. The Court concludes that the form of the question will
assist the jury in understanding the medical testimony at issue.
J.
Tr. 101:18-103:2: Granted in part as to counsel’s comment “using the MRI, the
gold standard.” R. Doc. No. 104-6, at 16 (Tr. 101:19-20). Denied in all other respects.
The Court concludes that the form of the question will assist the jury in
understanding the medical testimony at issue.
K.
Tr. 103:8-15: Denied. The Court concludes that the form of the question will
assist the jury in understanding the medical testimony at issue.
L.
Tr. 103:16-24: Denied. The Court concludes that the form of the question will
assist the jury in understanding the medical testimony at issue.
VI.
Weeks Marine objects to the introduction of certain portions of Arnold
Hemphill’s deposition testimony.

See R. Doc. No. 104-7. Hemphill was Weeks

Marine’s safety officer on board the G.D. Morgan at the time of the accident.

As

Hemphill is Weeks Marine’s witness, the Court will allow plaintiff’s counsel
considerable latitude in posing questions. See Fed. R. Evid. 611(c)(2).
A.
Tr. 18:1-9: Denied.

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B.
Tr. 18:11-15: Denied.
C.
Tr. 19:5-8: Denied.
D.
Tr. 19:18-21: Granted. Plaintiff has agreed to withdraw the question.
E.
Tr. 21:5-16: Denied.
F.
Tr. 28:6-29:16: Denied.
G.
Tr. 45:2-6: Granted. This question impermissibly asks one witness to speculate
as to another’s state of mind.
H.
Tr. 45:13-19: Granted.

This question impermissibly asks one witness to

speculate as to another’s state of mind.
I.
Tr. 48:8-14: Granted.

This question impermissibly asks one witness to

speculate as to another’s state of mind.
VII.
Weeks Marine objects to the introduction of certain portions of the deposition
of Captain Arnold Tassin, see R. Doc. No. 104-8, a Weeks Marine employee and
captain of the G.D. Morgan at the time of the accident. As Captain Tassin is Weeks
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Marine’s witness, the Court will allow plaintiff’s counsel considerable latitude in
posing questions. See Fed. R. Evid. 611(c)(2).
A.
Tr. 27:8-16: Granted in part. The portion as to what Mr. Gobert said regarding
the deck, see Tr. 27:8-12, is duplicative and unnecessary to the question. Denied as
to the remainder of the question beginning on Tr. 27:12 with “Now, you mentioned
cleaning . . . .” Such a question represents proper cross examination.
B.
Tr. 34:1-14: Granted. Plaintiff has agreed to withdraw the question.
C.
Tr. 35:16-24: Granted as to 35:16-19. Part of the question is simply counsel
improperly testifying. Denied as to 35:21-24.
D.
Tr. 36:21-37:14: Denied.

This Court has already concluded that the

photographs at issue are admissible. See supra Part II.
VIII.
Finally, Weeks Marine moves to exclude any testimony regarding the
photographs and video that Weeks Marine asked to be excluded. See supra Parts III. Weeks Marine’s motion is denied as to the photographs of the accident site as the
Court has already denied the motion in limine regarding those photos and video. See
supra Part II. Weeks Marine’s motion is deferred as to testimony relating to the
photograph of the puddle elsewhere on the G.D. Morgan. See supra Part I. The

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photograph of the puddle shall not be referenced by witnesses or shown to the jury
unless the Court permits the same following a bench conference.
IIX.
Accordingly,
IT IS ORDERED that Weeks Marine’s motion is granted in part, denied in
part, and deferred in part as set forth herein.
New Orleans, Louisiana, February 6, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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