Lee v. Offshore Logistical & Transports, LLC

Filing 74

ORDER AND REASONS granting 64 Motion in Limine to Exclude J P Jamsion's testimony. Signed by Judge Susie Morgan on 12/19/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELWOOD LEE,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-2528

OFFSHORE LOGISTICAL &
TRANSPORT, LLC,
Defendant

SECTION: “E”

ORDER AND REASONS
Before the court is a motion in limine filed by Defendant, Offshore Logistical &
Transport, LLC (“Offshore”) to exclude or limit the testimony of Plaintiff Elwood Lee’s
proffered liability expert, Captain J.P. “Patrick” Jamison. 1 Lee opposes this motion. 2
BACKGROUND
This is a maritime personal injury case. Lee filed a complaint on July 10, 2015,
pursuant to the Jones Act 3 and general maritime law. 4 Lee alleges that on July 20, 2014,
while aboard the M/V BALTY, he “experienced an accident” on the stern deck resulting
in “serious painful injuries” to his knee and other parts of his body. 5 The M/V BALTY is
an offshore supply vessel with a steel deck covered by unpainted, rough deck boards. The
vessel transports cargo, which is loaded and stored onto its deck. The parties agree that:
(1) the M/V BALTY was owned, operated, and/or controlled by Offshore; (2) Lee was an
employee of Offshore at the time of the accident; and (3) Lee was a seaman under the
Jones Act at the time of the accident. 6 It is undisputed that Lee, as the senior captain

R. Doc. 64.
R. Doc. 69.
3 46 U.S.C. § 30104.
4 R. Doc. 1.
5 Id. at ¶¶ III–V.
6 Id.; R. Doc. 23-4 at 1, ¶ 3; R. Doc. 27-1 at 1, ¶ 3.
1

2

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aboard the M/V BALTY, was involved in getting “the boat organized” and performed
“generalized maintenance.” 7 It is undisputed Lee was unaware of a defect that gave him
“concern about the ability to walk in [the] area” of the alleged injury. 8 Finally, both parties
agree there was no non-skid material on the deck of the M/V BALTY at the time of Lee’s
injury. 9
The parties, however, dispute whether Offshore’s failure to apply non-skid paint
constituted negligence or rendered the M/V BALTY unseaworthy 10 and whether the lack
of non-skid paint contributed to Lee’s injuries. 11 Lee contends Offshore had the duty to
ensure there was a non-skid application on the deck, but Offshore asserts that Lee, as the
vessel’s captain, bears this duty. To support his position, Lee sought Captain Jamison’s
expert opinion on these issues.
On November 14, 2017, Offshore filed the instant motion in limine to exclude or
limit Captain Jamison’s testimony at trial. 12 On November 21, 2017, Lee timely filed his
opposition. 13
STANDARD OF LAW
The Federal Rules of Evidence permit an expert witness with “scientific, technical
or other specialized knowledge” to testify if such testimony “will help the trier of fact to
understand the evidence or to determine a fact in issue,” so long as “the testimony is based
upon sufficient facts or data,” “the testimony is the product of reliable principles and
methods,” and “the expert has reliably applied the principles and methods to the facts of

R. Doc. 23-2 at 7.
Id. at 20.
9 Id. at 17–18.
10 R. Doc. 23-4 at 3, ¶ 14; R. Doc. 27-1 at 2, ¶ 14.
11 R. Doc. 23-4 at 4, ¶¶ 28–29; R. Doc. 27-1 at 3, ¶¶ 28–29.
12 R. Doc. 64.
13 R. Doc. 69.
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the case.” 14 The threshold inquiry is whether the expert possesses the requisite
qualifications to render an opinion on a particular subject matter. 15 If the expert’s
qualifications are found to be sufficient, the court then must examine whether the expert’s
opinions are reliable and relevant. 16 The United States Supreme Court’s decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 17 provides the analytical framework for
determining whether expert testimony is admissible under Rule 702. Under Daubert,
courts, as “gatekeepers,” are tasked with making a preliminary assessment of whether the
expert’s testimony is relevant and reliable. 18
The party offering the expert opinion must show by a preponderance of the
evidence that the expert’s testimony is reliable and relevant. 19 The reliability of expert
testimony “is determined by assessing whether the reasoning or methodology underlying
the testimony is scientifically valid.” 20 In Daubert, the Supreme Court enumerated
several non-exclusive factors that courts may consider in evaluating the reliability of
expert testimony. 21 “These factors are (1) whether the expert’s theory can 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

FED. R. EVID. 702.
Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 799 (E.D. La. 2011). See also Wilson v. Woods, 163
F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow an expert to testify if it finds that the
witness is not qualified to testify in a particular field or a given subject.”).
16 United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).
17 509 U.S. 579 (1993).
18 See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592–93 (1993)).
19 Mathis v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
20 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). See also Burleson v. Texas Dep’t
of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004); Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581,
584–85 (5th Cir. 2003).
21 Daubert, 509 U.S. at 592–96.
14
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and maintenance of standards and controls, and (5) the degree to which the technique or
theory has been generally accepted in the scientific community.” 22
The Supreme Court has cautioned that the reliability analysis must remain flexible.
Various Daubert factors “may or may not be pertinent in assessing reliability, depending
on the nature of the issue, the expert’s particular expertise, and the subject of his
testimony.” 23 Thus, “not every Daubert factor will be applicable in every situation . . . and
a court has discretion to consider other factors it deems relevant.” 24 In sum, the district
court is offered broad latitude in making expert testimony determinations. 25
“In addition to reliability, Daubert requires that expert testimony be relevant.” 26
Under Daubert, expert testimony is relevant only if it assists the trier of fact in
understanding the evidence. 27 Expert testimony should be excluded if the court finds that
“the jury could adeptly assess [the] situation using only their common sense experience
and knowledge.” 28
DISCUSSION
Offshore seeks to limit or exclude Captain Jamison’s testimony at trial. 29 Offshore
argues Captain Jamison “is (1) not qualified to address the liability issues on negligence
or the seaworthiness of the offshore supply vessel involved in this suit, and (2) his opinion
is not admissible under the Daubert standards.” 30

Bocanegra, 320 F.3d at 584–85 (citing Daubert, 509 U.S. at 593–94).
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999).
24 Guy v. Crown Equip. Corp., 394 F.3d 320, 326 (5th Cir. 2004).
25 See, e.g., Kumho Tire, 526 U.S. at 151–53.
26 Howard v. Cal Dive Intern., Inc., No. , 2011 WL 63873, at *2 (E.D. La. Jan. 6, 2011).
27 Daubert, 509 U.S. at 591.
28 Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990).
29 R. Doc. 64.
30 R. Doc. 64-1 at 5.
22
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In support of its motion, Offshore attached Captain Jamison’s expert report. 31 In
his report, Captain Jamison offers five opinions. 32 Offshore argues, and Lee does not
dispute, that the opinions offered by Captain Jamison in items three through five of his
report are not relevant to the analysis of Offshore’s alleged negligence or the
seaworthiness of the M/V BALTY. 33 Thus, the Court will consider only Captain Jamison’s
qualifications to render the opinions in items one and two of his report. These opinions
focus on the application of non-skid paint on the wooden deck boards of the M/V BALTY.
A. Captain Jamison’s Qualifications
Offshore first argues this Court should limit or exclude Captain Jamison’s
testimony at trial because he is not qualified to address whether Offshore was negligent
or whether the M/V BALTY was unseaworthy. 34 It argues that, although Captain Jamison
has extensive experience with tugboats, towboats, and push boats, all inland vessels, he is
not qualified to offer an opinion on an offshore supply vessel, such as the M/V BALTY. 35
Offshore points out that, of all the credentials listed in Captain Jamison’s resume, not one
addresses any qualifications regarding an offshore supply vessel. Additionally, looking to
Captain Jamison’s expert report, Offshore points out that Captain Jamison states his
“areas of work include the Illinois River, the Upper and Lower Mississippi Rivers, the
Ohio River, the Missouri River and the East and West Inter Coastal Waterways at New
Orleans, LA.”
Offshore submits that the relevant differences between inland vessels and offshore
vessels render Captain Jamison’s experience with inland vessels inapplicable to an

R. Doc. 64-5.
Id. at 2–3.
33 R. Doc. 69 at 12–13.
34 R. Doc. 64-1 at 14.
35 Id. at 14, 17–18.
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offshore vessel such as the M/V BALTY. 36 For example, in his deposition testimony,
Captain Jamison admitted he has worked only on inland waterways with tugboats,
towboats, and push boats, all of which had metal decks and were not meant to carry cargo
on the deck. 37 He admitted he was not familiar with the kind of friction rough deck boards,
such as the deck boards on the M/V BALTY, have and whether such boards could provide
a safe walking surface without non-skid paint. 38 He admitted he had not been aboard the
M/V BALTY, 39 nor had he seen photos of the vessel. 40 Further, Captain Jamison
admitted he was unfamiliar with the current regulations governing the decks of offshore
supply vessels. 41 Finally, in his report, Captain Jamison erroneously referred to the M/V
BALTY as “a non-inspected vessel,” despite the M/V BALTY having been inspected by the
U.S. Coast Guard and operating under the Certificate of Inspection issued by the Coast
Guard. 42
In response, Lee argues Captain Jamison is a licensed Any Gross Ton Master and
has worked in the marine industry since 1957. 43 Plaintiff further argues Captain Jamison
has over fifty years of experience in the marine industry, including serving as an expert
witness in cases involving offshore supply vessels. 44 Plaintiff asserts that, given Captain
Jamison’s several years of experience in the marine industry generally, Offshore’s
contention that the differences between river vessels and offshore supply vessels is “far
better addressed through cross-examination than a motion in limine.” 45
Id. at 17–18.
R. Doc. 64-6 at 12.
38 Id. at 46.
39 Id. at 17.
40 Id.
41 Id. at 20.
42 R. Doc. 64-1 at 5.
43 R. Doc. 69-2 at 4.
44 R. Doc. 69-3 at 2; R. Doc. 69 at 11.
45 R. Doc. 69 at 10–11.
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The Court finds Captain Jamison is not qualified by education or experience to
testify whether Offshore was negligent or whether the M/V BALTY was unseaworthy.
Although Captain Jamison has been offered as an expert on offshore vessels in the past,
he has never been accepted as an expert regarding offshore supply vessels. Notably, each
of the cases in which Captain Jamison was offered as an offshore expert settled before
trial, without a challenge to Captain Jamison’s credentials and without a ruling on his
qualifications. Captain Jamison’s training and experience is limited to rivers and inland
waterways and does not include bodies of water on which an offshore vessel primarily
operates. He has not worked on an offshore supply vessel or received training related to
offshore supply vessels. Further, in his report, Captain Jamison did not consider the M/V
BALTY’s U.S. Coast Guard’s Certificate of Inspection, certifying the M/V BALTY is a
vessel fit for the service for which it was inspected, which for the M/V BALTY is carrying
cargo on the Gulf of Mexico. He did not consider, and admitted he was not aware of, the
regulations regarding the design, construction, and operation of offshore vessels,
including their decks. Thus, the Court finds Captain Jamison is not qualified by his
training or experience to address liability issues on negligence or the seaworthiness of the
M/V BALTY.
B. Whether Captain Jamison’s opinions are relevant and reliable
Even assuming Captain Jamison were qualified to render an expert opinion on the
seaworthiness of the M/V BALTY or Offshore’s alleged negligence, the opinions rendered
in items one and two of his expert report “intrude on the domain of common sense
matters upon which jurors require no expert assistance.” 46

Jones v. H.W.C. Ltd., No. 01-3818, 2003 WL 42146, at *3 (E.D. La. Jan. 3, 2003); see also Peters, 898
F.2d at 450.
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Expert testimony is relevant under Daubert if it assists the trier of fact in
understanding the evidence. 47 Expert testimony does not assist the trier of fact if the court
finds “the jury adeptly [can] assess [the] situation using only their common experience
and knowledge.” 48 “[S]everal courts in the Eastern District of Louisiana have found that
no expertise was required to assist the jury in determining liability for accidents occurring
offshore.” 49
For example, in Peters v. Five Star Marine Service, the Fifth Circuit considered
the admissibility of expert testimony regarding the responsibilities of the master and crew
in offloading procedures, the obligation to keep the deck clean of fuel, and the need to
store cargo properly. 50 The Fifth Circuit found that the proffered expert testimony would
not assist the jury in assessing whether the cargo was improperly stowed, whether it was
reasonable for the plaintiff's employer to offload the vessel during heavy seas, and
whether diesel fuel made the boat deck slippery, given that these opinions derived from
common sense. 51
Similarly, in Matherne v. MISR Shipping Co., this Court excluded the plaintiff’s
expert, finding that the expert’s opinion would intrude on the province of the jury. 52 In
Matherne, the plaintiff slipped when he attempted to board the vessel. 53 The plaintiff’s
expert sought “to testify concerning various conditions on December 23 and 24, 1985,
including the safety of the means of ingress and egress from the M/V ALEXANDRIA as

Daubert, 509 U.S. at 591.
Peters, 898 F.2d at 450.
49 Howard v. Cal. Dive Int’l, Inc., No. 09-6265, 2011 WL 63873, at *3 (E.D. La. Jan. 6, 2011).
50 Id. at 499.
51 Id. at 450.
52 No. 88-2261, 1991 WL 99426, at *1 (E.D. La. May 31, 1991).
53 Id.
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well as other matters of an expert nature concerning the vessel and its appurtenances.” 54
In granting the defendant’s motion to exclude the plaintiff’s expert, the Court reasoned
that “[i]t is apparent that what the factfinder must determine in terms of liability is
whether or not the plaintiff actually fell and if so, what caused him to fall,” and finding
that “[a] jury is competent to determine such liability issues and a ‘safety expert’ would
not assist the jury in making such a determination.” 55
Finally, in Araujo v. Treasure Chest Casino, L.L.C., 56 this Court excluded the
plaintiff’s expert, finding that his opinion was not relevant. In Araujo, the plaintiff fell off
a ladder on the defendant’s vessel, sustaining injuries. 57 The plaintiff sought to introduce
expert testimony detailing the defendant’s failure to provide safe equipment. 58 Although
the proffered expert relied on safety regulations and the defendant’s safety manual, the
Court found the expert testimony was not helpful to the jury because it “relate[d] to issues
within the common knowledge, experience, and understanding of the average lay juror.” 59
Like the proffered experts in Peters, Matherne, and Araujo, Captain Jamison seeks
to testify regarding “issues within the common knowledge, experience, and
understanding of the average lay juror.” 60 No expertise is required to determine whether
the lack of non-slip paint “increase[s] the chances of a slip or twisting of the knee,” 61 given
that such testimony does not involve any scientific or technical procedures that are

Id.
Id.
56 No. 97–3043, 1999 WL 219771, at *2 (E.D. La. Apr. 14, 1999).
57 Id. at *1.
58 Id. at *2.
59 Id.
60 Id.
61 Id.
54
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unknown to the jury. Because Captain Jamison’s testimony will not be helpful to the jury,
his opinions are not relevant. 62
Accordingly;
CONCLUSION
IT IS ORDERED that Defendant’s motion in limine 63 is GRANTED.
New Orleans, Louisiana, this 19th day of December, 2017.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

62
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See Peters, 898 F.2d at 450.
R. Doc. 64.
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