David v. C and G Boats, Inc.

Filing 72

ORDER AND REASONS denying 64 and 65 Motions in Limine. For the foregoing reasons, plaintiff's motion to exclude David Scruton is DENIED. Plaintiff's motion to exclude James Pritchett is DENIED as moot. Signed by Judge Sarah S. Vance on 9/8/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARLOS DAVID

CIVIL ACTION

VERSUS

NO. 15-1655

C AND G BOATS, INC.

SECTION “R” (2)
ORDER AND REASONS

Before the Court are plaintiff’s two motions in limine to exclude
defense experts David Scruton 1 and James Pritchett. 2 For the following
reasons, the Court denies plaintiff’s motion to exclude David Scruton. The
Court denies as moot plaintiff’s motion to exclude James Pritchett.
I.

BACKGROUND
This case arises out of an accident aboard the M/V MS JANE, a vessel

owned by Defendant A & A Boats, Inc. 3 Plaintiff Carlos David alleges that he
was employed by Defendant M N M Boats, Inc. as a deckhand on the M/V
MS JANE when he was struck by a personnel basket and seriously injured.4
Plaintiff’s accident allegedly occurred while he was helping to guide and land

1
2
3
4

R. Doc. 64.
R. Doc. 65.
R. Doc. 13 at 3.
Id. at 2; R. Doc. 64-1 at 1-2.

the personnel basket on the deck of the M/V MS JANE. 5 Plaintiff asserts that
the captain of the vessel and the crane operator each failed to follow proper
and safe procedures in performing the personnel basket transfer, and that
their negligence directly caused his injuries. 6
On May 15, 2015, plaintiff filed a seaman’s complaint for damages.7
This matter is set for trial beginning October 2, 2017. 8 Plaintiff now moves
to exclude defense experts James Pritchett and David Scruton on the basis
that some of their opinions are either unreliable or constitute improper legal
conclusions.9 Defendants have withdrawn Pritchett as a testifying expert. 10
The Court therefore considers only plaintiff’s motion to exclude Scruton.

II.

LEGAL STANDARD
Federal Rule of Evidence 702 gives the district court considerable

discretion to admit or exclude expert testimony. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 138-39 (1997). Rule 702 provides that a witness “qualified as
an expert by knowledge, skill, experience, training, or education” may

5
6
7
8
9
10

R. Doc. 64-1 at 1-2.
Id. at 2.
R. Doc. 1.
R. Doc. 59.
R. Doc. 64-1; R. Doc. 65-1.
R. Doc. 66.
2

provide opinion testimony when “scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702. To be admissible, Rule 702
requires that (1) the testimony be based on sufficient facts or data, (2) the
testimony be the product of reliable principles and methods, and (3) the
witness apply the principles and methods reliably to the facts of the case. Id.
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
that “any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” 509 U.S. 579, 589 (1993). See also Kumho Tire Co. 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 therefore involves a two-part inquiry. First, the Court
must determine whether the expert testimony is reliable. The party offering
the testimony has the burden to establish reliability by a preponderance of
the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th
Cir.1998). The Court must assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 590. The
aim is to exclude expert testimony based merely on subjective belief or
unsupported speculation. See id. The Court’s inquiry into the reliability of
3

expert testimony is flexible and necessarily fact-specific. See Seatrax, Inc. v.
Sonbeck Int’l, Inc., 200 F.3d 358, 372 (5th Cir. 2000).
Second, the Court must determine whether the expert’s reasoning or
methodology “fits” the facts of the case and whether it will assist the trier of
fact to understand the evidence. See Daubert at 591. This is primarily an
inquiry into the relevance of the expert testimony.

See id; see also

Bocanegra v. Vicmar Services, Inc., 320 F.3d 581, 584 (5th Cir. 2003).
Expert testimony is unnecessary if the court finds that “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).

III. DISCUSSION
A.

Expert Qualifications and Reliability

Scruton is a marine consultant with over 16 years of experience at sea,
including service as a vessel safety officer and captain, and 27 years of
experience as a marine consultant and surveyor.11

He has experience

overseeing the training of crewmembers in vessel handling, maneuvering,
towing, pushing of barges, and line handling. 12 Scruton also serves as an

11
12

R. Doc. 64-2 at 17.
Id.
4

arbitrator in maritime disputes.13

The Court finds that Scruton is

sufficiently qualified to testify as a marine safety expert.
Plaintiff does not contest Scruton’s general maritime expertise, but
argues that Scruton lacks specific experience in offshore crane operations
and is not qualified to offer opinions from the perspective of a crane
operator. 14

Scruton’s report includes three opinions related to crane

operations.15 The Court finds that these opinions relate primarily to the
general safety practices and procedures that a crane operator should follow
during personnel basket transfers and do not require personal experience as
a crane operator. Scruton’s report indicates that he has experience with the
type of Billy Pugh personnel basket that injured plaintiff and is familiar with
recommended safety practices for personnel basket transfers.16 Moreover,
plaintiff acknowledges that Scruton is sufficiently qualified to testify about
personnel basket transfers from the perspective of a vessel captain or
crewmember.17 Scruton’s report describes the respective roles of the vessel’s

Id.
R. Doc. 64-1 at 5-6. Plaintiff also argues that Scruton’s testimony on
crane operations is cumulative and duplicative of the proposed testimony of
James Pritchett. Because defendants no longer plan to call Pritchett as an
expert, the Court does not address this argument. See R. Doc. 64-1 at 7; R.
Doc. 66.
15
R. Doc. 64-2 at 15. These opinions are numbered 14, 15, and 17.
16
Id. at 13.
17
R. Doc. 64-1 at 5-6.
5
13

14

captain and deckhand in ensuring that personnel basket transfers are
conducted safely.18
The Court finds that Scruton has sufficient expertise to testify about
whether the crane operator involved in plaintiff’s accident followed proper
practices and procedures, and that Scruton’s opinions are outside the
common understanding of the jury.

See Metrejean v. REC Marine

Logistics, L.L.C., No. 08-5049, 2009 WL 3062622, at *3 (E.D. La. 2009)
(finding that expert was sufficiently qualified to testify about the safety
hazards of moving tugboats and barges even though he lacked experience
with deckhands such as the plaintiff).
Plaintiff also contends that Scruton’s opinions are unreliable because
Scruton cites to a federal regulation that does not apply to offshore
operations. 19

Scruton references the Occupational Safety and Health

Administration (OSHA) definition of a “danger zone” contained in 29 C.F.R.
§ 1917.2.20 Scruton’s report acknowledges that this regulation does not apply
to offshore operations but explains that OSHA’s definitions are widely
understood in the offshore industry.21 The Court finds that Scruton has

18
19
20
21

R. Doc. 64-2 at 4, 6-7.
R. Doc. 64-1 at 6.
R. Doc. 64-2 at 12.
Id.
6

sufficient experience to testify about how a term such as “danger zone” is
understood in maritime operations, and that this testimony may assist the
trier of fact. Because Scruton does not assert that the regulation is binding,
there is little risk that his opinion will confuse the jury.
To the extent that plaintiff believes that Scruton is unqualified to offer
certain opinions or that his testimony is otherwise unreliable, he may crossexamine Scruton at trial. In assessing an expert’s qualifications, the Court’s
gatekeeping function does not replace the traditional role of crossexamination in the adversary system. See Daubert, 509 U.S. at 596. In
general, “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, More or Less Situated in Lefore County, Mississippi, 80 F.3d 1074,
1077 (5th Cir. 1996); see also Rushing v. Kansas City S. Ry. Co., 185 F.3d
496, 507 (5th Cir. 1999) (explaining that, “as long as some reasonable
indication of qualifications is adduced, the court may admit the evidence
without abdicating its gate-keeping function”).

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B.

Legal Conclusions

Plaintiff asserts that several of Scruton’s opinions offer improper legal
conclusions. 22 The Federal Rules of Evidence do not permit expert witnesses
to offer conclusions of law. See C.P. Interests, Inc. v. Ca. Pools, Inc., 238
F.3d 690, 697 (5th Cir. 2001) (citing Owen v. Kerr-McGee Corp., 698 F.2d
236, 240 (5th Cir. 1983)). An opinion is a legal conclusion if it “would supply
the jury with no information other than the expert’s view of how its verdict
should read.” Owen, 698 F.2d at 240. To be admissible, an expert’s opinion
should “assist the trier of fact to understand the evidence or to determine a
fact in issue” and “bring to the jury more than the lawyers can offer in
argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (internal
citations omitted); see also Fed. R. Evid. 702.
The Court finds that Scruton’s challenged opinions are not legal
conclusions and will assist the jury to understand the evidence in this matter.
Scruton’s opinion that the captain operated the vessel in conformity with
industry practices and company policies is a factual conclusion outside the
common understanding of the jury. See Owen, 698 F.2d at 240 (explaining
that the question of whether an “individual was following proper practices,
seeks a factual, not a legal, conclusion”); Howard v. Offshore Liftboats, LLC,

22

R. Doc. 64-1 at 7-8.
8

No. 13-4811, 2016 WL 232238, at *3 (E.D. La. 2016) (admitting testimony on
the appropriate standard of care). Similarly, Scruton’s opinion that plaintiff
is an experienced deckhand who should have been familiar with his
responsibilities and with the appropriate hand signals is a factual rather than
a legal conclusion. 23

To the extent that plaintiff disputes Scruton’s

characterization of his experience, he will have the opportunity to crossexamine Scruton at trial.
Additionally, Scruton’s opinions that there was adequate space on the
deck of the M/V MS JANE to safely land the personnel basket, that the
weather and sea conditions were favorable to personnel basket transfers, and
that lighting conditions did not contribute to the incident are factual
conclusions that draw on Scruton’s expertise.24 It is unlikely that the jury’s
common experience and knowledge would encompass the appropriate
physical and weather conditions for a personnel basket transfer. See Peters,
898 F.2d at 450 (explaining that the reasonableness of using a ship’s crane
to transfer machinery between two ships in heavy seas was outside the
average juror’s knowledge); Fenimore v. Am. River Transp. Co., No. 041495, 2005 WL 106776, at *3 (E.D. La. 2005) (finding that an expert’s

23
24

R. Doc. 64-2 at 15.
R. Doc. 64-2 at 14-15.
9

opinions on the proper positioning of vessel lines, proper vessel rigging, job
safety, and proper training were beyond a layperson’s general understanding
and were not simply legal conclusions).

IV.

CONCLUSION
For the foregoing reasons, plaintiff’s motion to exclude David Scruton

is DENIED.
Plaintiff’s motion to exclude James Pritchett is DENIED as moot.

8th
New Orleans, Louisiana, this _____ day of September, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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