In the Matter of M&M Wireline & Offshore Services, LLC

Filing 124

ORDER: IT IS HEREBY ORDERED that Plaintiff Beaux Cormier's 80 Objection and Motion in Limine to Exclude Certain Anticipated Testimony of J. Stuart Wood is GRANTED IN PART to the extent that Wood's anticipated testimony on topic one and to pic two as listed in the parties' proposed Pre-Trial Order is excluded and DENIED IN PART to the extent that the topic of the effect a downturn in the oil and gas industry would have on the calculation of income loss generally and on topic three are admissible under Federal Rule of Evidence 702. Signed by Judge Nannette Jolivette Brown on 1/31/2017. (Reference: All Cases)(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF M&M WIRELINE &
OFFSHORE SERVICES, LLC

CIVIL ACTION
NO. 15-4999
C/W NO. 15-5338
SECTION: “G”(5)

ORDER
Before the Court is Plaintiff Beaux Cormier’s “Objection and Motion in Limine to Exclude
Certain Anticipated Testimony of J. Stuart Wood.”1 Having considered the motion, the memoranda
in support and in opposition, the record, and the applicable law, the Court will grant in part and
deny in part the motion.
I. Background
A.

Factual Background
In this litigation, Plaintiff Beaux Cormier (“Cormier”) alleges that he was employed by

Defendant M&M Wireline & Offshore Services, LLC (“M&M Wireline”) as a deckhand on the
M/V M&M 102.2 Cormier states that on November 30, 2014, he was transported from a platform
in the Grand Bay Field to the nearby M/V M&M 102 by a “Jon Boat” owned and/or operated by
Defendant Saratoga Resources, Inc. (“Saratoga”).3 According to Cormier, the operator of the Jon
Boat positioned the boat so that the front of the Jon Boat was near and/or pushed up against the

1

Rec. Doc. 80.

2

Rec. Doc. 6 at 10.

3

Id. at 11.

1

side of the M/V M&M 102.4 When Cormier attempted to step up onto the deck, he alleges that the
Jon Boat backed away from the M/V M&M 102, requiring Cormier to jump back onto the Jon
Boat.5 As a result, Cormier avers that he lost his balance and landed partially on the Jon Boat and
partially in the water, causing the injuries at issue in this case.6 Cormier contends that the Jon Boat
was not secured to the M/V M&M 102 in any way, nor were there other mechanisms in place to
allow for safe ingress and egress to the M/V M&M 102.7 Cormier alleges that at the time of his
accident, the M/V M&M 102 was a vessel owned and operated by M&M Wireline and engaged in
operations by Saratoga (collectively, “Defendants”).8 Cormier further alleges that Defendants are
liable to him for the injuries caused by their negligent acts and for failing to provide seaworthy
vessels.9 Defendants argue that any injury Cormier sustained resulted solely from Cormier’s own
fault, and that Cormier’s alleged back injury pre-existed the incident at issue in this litigation.10
B.

Procedural Background
On October 6, 2015, M&M Wireline filed a complaint for exoneration or limitation of

liability pursuant to Rule F(2) of the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions.11 M&M Wireline filed an amended complaint on October 21, 2015.12

4

Id.

5

Id. at 11–12.

6

Id.

7

Id. at 10.

8

Id.

9

Id. at 12–14.

10

Rec. Doc. 15 at 5–6.

11

Rec. Doc. 1.

12

Rec. Doc. 4.

2

Cormier filed his answer to M&M Wireline’s complaint for limitation of liability and his own
claims on November 25, 2015.13 On September 15, 2016, Cormier filed the instant motion seeking
to preclude M&M Wireline’s expert witness, J. Stuart Wood, from testifying on three topics
identified in the Pre-Trial Order.14 On September 21, 2016, M&M Wireline filed an opposition, in
which M&M Wireline conceded that two of the topics identified in Cormier’s motion should be
excluded but opposed the exclusion of the third topic.15
II. Parties’ Arguments
A.

Cormier’s Arguments in Support of Motion to Exclude
In this motion, Cormier moves to exclude certain anticipated testimony of M&M

Wireline’s economic expert witness, J. Stuart Wood (“Wood”).16 According to Cormier,
Defendants stated in the proposed Pre-Trial Order that Wood would testify on a number of
opinions regarding Wood’s assessment of Cormier’s possible wage losses.17 In particular, Cormier
moves to exclude three topics from Wood’s testimony: (1) that plaintiff would incur a $415,000
loss in wages based on past wage loss and assuming a 50% earnings capacity; (2) that considering
the downturn in the oil and gas industry in his analysis would cause a 25% reduction in wages,
which would reduce Cormier’s past and future wage losses; and (3) that considering the current
income level of an M&M Wireline employee in his analysis would further reduce Cormier’s past

13

Rec. Doc. 6.

14

Rec. Doc. 80.

15

Rec. Doc. 89.

16

Rec. Doc. 80.

17

Rec. Doc. 80-1 at 2.

3

and future wage losses.18 First, Cormier argues that topic one and topic two should be excluded
because they were not included in Wood’s expert report and thus are inadmissible pursuant to the
Court’s Pre-Trial Notice and Scheduling Order requirements.19
Second, Cormier avers that Wood’s expert testimony should be excluded under Federal
Rule of Evidence 702, as Cormier alleges that it is based on improper assumptions, insufficient
facts and data, and unreliable methods.20 Cormier contends that Wood failed to take into account
any of the opinions and analysis of Defendants’ vocational rehabilitation expert, Barney Hegwood,
rendering Wood’s method for determining loss invalid, unreliable, and contrary to expert
economists’ customs and practices.21 Cormier asserts that Defendants have not established that
Wood is qualified to offer an opinion on Cormier’s pre-injury earning capacity or his annual
income base, which Cormier argues is the province of a vocational expert.22 Cormier avers that
data on the current work schedule and pay of M&M Wireline employees is insufficient to base
Wood’s expert opinion on.23 Cormier further contends that downturn in the oil and gas industry in
South Louisiana and the current pay and work schedule of employees of M&M Wireline, a single
company in one industry, cannot be used to minimize Cormier’s loss of earning capacity

18

Id. at 2–3.

19

Id. at 3, 8–9 (citing Rec. Doc. 9). As stated infra, M&M Wireline concedes this argument and states that it
will not seek to introduce these opinions at trial. See Rec. Doc. 89 at 1.
20

Rec. Doc. 80-1 at 9.

21

Id. at 10.

22

Id.

23

Id.

4

damages.24 Cormier argues that such testimony based only on information from the owner of
M&M Wireline, Martin Quiram, would be highly speculative, prejudicial, and irrelevant.25
B.

M&M Wireline’s Arguments in Opposition to Motion to Exclude
In response, M&M Wireline concedes that the first topic and the second topic identified by

Cormier and listed in the parties’ proposed Pre-Trial Order were not included in Wood’s expert
report.26 Thus, M&M Wireline agrees that Defendants will not introduce any testimony on those
topics.27 M&M Wireline opposes the exclusion of the topic of the effect a downturn in the oil and
gas industry would have on the calculation of income loss generally and the third topic listed in
the parties’ proposed Pre-Trial Order, which M&M Wirelines states were included in the expert
report.28 First, M&M Wireline argues that objections to the third topic, “or any part of topics 1 and
2 contained in the expert report,” are untimely.29 M&M Wireline avers that these topics were
included in Wood’s export report that was timely submitted by the Court’s Scheduling Order
deadline of June 30, 2016.30 M&M Wireline contends that any non-evidentiary motions had to be
filed in sufficient time to permit hearing thereon no later than August 3, 2016, i.e. by July 19, 2016;
however, M&M Wireline points out that this motion was not filed until September 15, 2016. 31

24

Id. at 12.

25

Id. at 15.

26

Rec. Doc. 89 at 1.

27

Id.

28

Id. at 1–2.

29

Id. at 2.

30

Id.

31

Id.

5

Thus, M&M Wireline argues that Cormier’s objections to topic three, “any part of topics 1 and 2
contained in the report,” the contents of the expert report, and the qualifications of Wood cannot
now be raised.32 M&M Wireline points out that the downturn in the oil and gas industry was
referenced in Wood’s report, although M&M Wireline concedes that Wood’s opinions in topic
two, which is based on the assumption of a downturn in the oil and gas industry, was not.33
Second, M&M Wireline asserts that Wood is qualified to render an expert opinion on past
and future wage loss and loss of future earning capacity, as he is an expert economist. 34 M&M
Wireline alleges that Cormier did not cite to any authority that an expert economist must consider
the findings of a vocation rehabilitation expert before making his calculations.35 M&M Wireline
points out that Wood considered Martin Quiram’s information regarding the current pay and work
schedule of his employees as well as pay and personnel records in coming to his conclusion. 36
According to M&M Wireline, Cormier’s objections to the sources of Wood’s expert testimony
goes to the weight of the evidence, not admissibility.37 Moreover, M&M Wireline asserts that the
part of topic two that references the downturn in the oil and gas industry is admissible, as the report
indicated that “changes in [the] economic conditions” and “the expectations of demand for the
economic activity in which Mr. Cormier would be involved” may influence the calculation of

32

Id.

33

Id. at 1–2.

34

Id. at 3.

35

Id.

36

Id.

37

Id.

6

income loss.38 Thus, M&M Wireline argues that Wood may testify on the topic of the downturn
in the oil and gas industry.39
III. Law and Analysis
A.

Legal Standard for Expert Reports
“Collectively, the provisions of Rule 26 of the Federal Rules of Civil Procedure require

parties to disclose the identity of their expert witnesses, as well as those experts’ reports in
accordance with the deadlines established by the Court's scheduling order.”40 The Federal Rules
of Civil Procedure permit supplementation of an expert report, but “[a]ny additions or changes to
[the] information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3)
are due.”41 “If a party fails to provide information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” 42 In
evaluating whether a party’s failure to disclose is harmless, courts look to four factors: (1) the
explanation for the party’s failure to disclose; (2) the potential prejudice to the opposing party if
the evidence is allowed; (3) the availability of a continuance to cure such prejudice; and (4) the
importance of the evidence.43

38

Id. at 4.

39

Id.

40

Red Dot Bldgs. v. Jacobs Tech., Inc., No. 11-1142, 2012 WL 2061904, at *3 (E.D. La. June 7, 2012)
(Barbier, J.)(citing Fed. R. Civ. P. 26(a)(2) (requiring disclosure of identity and written reports of expert witnesses);
Fed. R. Civ. P. 26(a)(3)(B) (providing default deadlines for expert disclosures that apply “[u]nless the court orders
otherwise”)).
41

Fed. R. Civ. P. 26(e)(2).

42

Fed. R. Civ. P. 37(c)(1).

43

Red Dot Blds., 2012 WL 2061904, at *4 (citing CQ, Inc. v. TXU Mining Co., L.P., 565 F.3d 268, 280 (5th

7

B.

Legal Standard for Expert Testimony
The district court has considerable discretion to admit or exclude expert testimony under

Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.44 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 case.45
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.”46 The overarching goal “is to make certain
that an expert, whether basing testimony on professional studies or personal experience, employs
in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in
the relevant field.”47 The court must also determine whether the expert’s reasoning or methodology

Cir.2009)).
44

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138B39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 371 (5th Cir. 2000).
45

Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

46

Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (clarifying that
the court’s gatekeeping function applies to all forms of expert testimony).
47

Kumho Tire, 526 U.S. at 152.

8

“fits” the facts of the case and whether it will thereby assist the trier of fact to understand the
evidence—in other words, whether it is relevant.48
A court’s role as a gatekeeper does not replace the traditional adversary system,49 and “[a]
review of the caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”50 As the Supreme Court noted in Daubert, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.”51 “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.”52
C.

Analysis
Cormier moves to exclude the three topics of anticipated testimony of M&M Wireline’s

economic expert witness, J. Stuart Wood, as identified in the parties’ proposed Pre-Trial Order:
(1) Using a $45,000 per year income, plaintiff would incur a past wage loss of
$56,000 and, assuming a 50 percent earnings capacity, he would incur a $415,000
prospective loss. (2) Considering the downturn in the oil/gas industry and thus
assuming a 25 percent reduction in wages or a $34,000 yearly income, plaintiff
would incur a past lost wage of $43,000 and a future wage loss (net of 50 percent
capacity) of $314,000. (3) Considering the current income level of a wireline helper
of $18,200, plaintiff would incur a past wage loss of $25,000, plus a $63,000 future
wage loss if he is only able to earn the minimum wage.53

48

See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.

49

See Daubert, 509 U.S. at 596.

50

Fed. R. Evid. 702 advisory committee’s note to 2000 Amendments.

51

Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

52

Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).

53

Rec. Doc. 80-1 at 1–3.

9

Whether Wood’s testimony exceeds the scope of Wood’s expert report

1.

Cormier argues that because topic one 54 and topic two 55of Wood’s testimony as identified
by the parties’ proposed Pre-Trial Order were not included in Wood’s expert report, those topics
should be excluded.56 Defendants concede that, “to the extent that the first and second topics
identified in the Pre Trial Order were not in the expert report, Defendants will not introduce any
testimony on those topics.”57 Accordingly, the Court will grant Cormier’s motion to the extent that
it seeks to exclude Wood’s anticipated testimony on topic one and topic two that were included in
the proposed Pre-Trial Order but were not included in Wood’s expert report.58
Defendants contend, however, that Wood’s expert report referenced the effect a downturn
in the oil and gas industry would have on the calculation of income loss generally, and thus that
topic is admissible.59 In Wood’s export report, he states that the “most appropriate basic evidence”
for Cormier’s earning capacity is his past history of income.60 Wood further notes that the

54
“(1) Using a $45,000 per year income, plaintiff would incur a past wage loss of $56,000 and, assuming a
50 percent earnings capacity, he would incur a $415,000 prospective loss.” Id.

“(2) Considering the downturn in the oil/gas industry and thus assuming a 25 percent reduction in wages
or a $34,000 yearly income, plaintiff would incur a past lost wage of $43,000 and a future wage loss (net of 50 percent
capacity) of $314,000.” Id.
55

56

Rec. Doc. 80-1 at 8–9.

57

Rec. Doc. 89 at 1.

58
See Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”). See, e.g., Honey–Love v. United
States, No. 14-2185, 2016 WL 1171483, at *3 (S.D. Tex. Jan. 21, 2016) (“The purpose of the Rule 26 requirements
is to provide the opposing parties with notice of the scope of the expert's testimony, allowing those parties the
opportunity to challenge the expert's qualifications or retain an opposing expert. Failure to comply with these
requirements may result in the court excluding the expert's testimony at trial.”), aff'd, No. 16-20080, 2016 WL
6109911 (5th Cir. Oct. 19, 2016).
59

Id. at 1, 4.

60

Rec. Doc. 80-4 at 3.

10

exceptions to this include “situations in which the incomes that would have been earned in the past
are no longer available . . . (due, for example, to changes in industry economic conditions).”61
Additionally, Wood states in his report that Cormier’s future income levels can change due to a
variety of economic influences, including “the expectations of demand for the economic activity
in which Mr. Cormier would be involved.”62 Accordingly, because it appears that Wood included
references to changing economic conditions in the oil and gas industry in his expert report, the
Court will address Cormier’s substantive arguments to exclude the general topic of the downturn
in the oil and gas industry.
Whether Cormier’s motion is timely

2.

M&M Wireline contends that because the general topic of the downturn in the oil and gas
industry and topic three were included in Wood’s expert report, Cormier’s motion to exclude these
topics under Rule 702 is untimely pursuant to this Court’s Scheduling Order.63 Pursuant to this
Court’s first Scheduling Order, non-evidentiary motions must have been filed and served in
sufficient time to permit hearing thereon no later than August 3, 2016.64 Cormier did not file the
instant motion until September 15, 2016.65 However, after the trial in this matter was continued on
September 23, 2016,66 this Court subsequently issued a Revised Scheduling Order extending the

61

Id. (emphasis added).

62

Id. at 4.

63

Rec. Doc. 89 at 4.

64

Rec. Doc. 9 at 1.

65

Rec. Doc. 80.

66

Rec. Doc. 97.

11

non-evidentiary pretrial motion deadline until December 21, 2016.67 Accordingly, the Court will
not dismiss the remainder of Cormier’s motion on timeliness grounds and will instead address the
merits of the motion.
Whether Wood’s testimony should be excluded pursuant to Rule 702

3.

Cormier argues that Wood’s expert testimony should be excluded under Federal Rule of
Evidence 702, as Cormier alleges that it is based on improper assumptions, insufficient facts and
data, and unreliable methods.68 Cormier asserts that Defendants have also not established that
Wood is qualified to offer these opinions, and that Wood failed to consider the analysis of
Defendants’ vocational rehabilitation expert, Barney Hegwood.69 Cormier further argues that the
alleged downturn in the oil and gas industry and the current pay and work schedule of M&M
Wireline’s employees as provided by M&M Wireline’s owner cannot be used to minimize
Cormier’s loss of earning capacity damages.70
In response, M&M Wireline asserts that Wood is qualified to render an expert opinion on
past and future wage loss and loss of future earning capacity, as he is an expert economist, and
there is no requirement that an economist must consider the analysis of a vocational rehabilitation
expert.71 M&M Wireline points out that Wood considered Martin Quiram’s information regarding
the current pay and work schedule of his employees as well as pay and personnel records to arrive

67

Rec. Doc. 116.

68

Rec. Doc. 80-1 at 9.

69

Id. at 9–10.

70

Id. at 12.

71

Rec. Doc. 89 at 3.

12

at his conclusions, and that this is a sufficient basis on which to assert his expert opinions.72
Rule 702 of the Federal Rules of Evidence gives the Court considerable discretion over the
admission of expert testimony.73 As stated supra, for the expert testimony to be admissible, Rule
702 requires that the witness be qualified “by knowledge, skill, experience, training, or education”
and that the testimony be based on “sufficient facts or data” and proper application of “reliable
principles and methods” to the facts of this case.74 Here, M&M Wireline seeks to offer Wood as
an economic expert.75 According to Wood’s Curriculum Vitae, Wood received an MBA in 1967
and a Ph.D. in 1970, and appears to have been a professor of economics and finance for roughly
47 years.76 Wood has published numerous articles, papers, and books on economics and finance,
and has provided expert testimony in over 100 cases during the last four years.77 Accordingly, the
Court is not persuaded by Cormier’s arguments regarding Wood’s qualifications. To the extent
that Cormier believes that Wood is not qualified to opine on the facts at issue in this matter, he
may attack Wood’s conclusions through “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.”78 The Court therefore declines to exclude
Wood’s testimony on the ground that he is not qualified as an economic expert.

72

Id.

73

See Suazo v. Atl. Sounding Co., No. 05-6043, 2009 WL 3254446, at *1 (E.D. La. Mar. 10, 2009) (Vance,

74

Id.

75

See Rec. Doc. 61 at 36.

76

Rec. Doc. 80-4 at 11.

77

Id. at 12–22.

78

Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

J.).

13

Next, Cormier contends that Wood’s testimony should be excluded because it is not based
on sufficient facts and data or reliable principles and methods as required by Rule 702.79 The Court
notes that Wood’s proposed testimony appears to be founded on his extensive economics
experience and knowledge,80 and his expert report states that he relied on, inter alia, Cormier’s
deposition summary, pay and personnel records, information from Martin Quiram on the current
pay and work schedule of M&M Wireline’s employees, figures released by the U.S. Department
of Labor’s Bureau of Labor Statistics, and other outside publications and resources.81 Each section
of Wood’s expert report further points to specific facts, documents, reports, and figures used by
Wood to arrive at his opinions.82 Although Cormier avers that Wood failed to consider the analysis
of Defendants’ vocational rehabilitation expert, Cormier has not pointed to any case or theory that
requires an economic expert to do so or that demonstrates an economic expert’s opinion is
inadmissible without considering such sources. Therefore, the Court finds that Wood’s expert
testimony is admissible under Rule 702.
The Court further notes that Cormier’s objection to Wood’s testimony is precisely the sort
that is best addressed through “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.”83 A court’s role as a gatekeeper does not replace
the traditional adversary system,84 and “[a]s a general rule, questions relating to the bases and

79

Rec. Doc. 80-1 at 9–12.

80

See Rec. Doc. 89 at 3; Rec. Doc. 80-4 at 11.

81

Rec. Doc. 80-4 at 1–4.

82

Id. at 2–6.

83

Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

84

See id.

14

sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility.”85 Because cross-examination would effectively serve Cormier’s ultimate purposes,
and because questions relating to the bases of an expert’s opinion generally go to the weight, rather
than the admissibility, of an expert opinion,86 the Court finds there are sufficient grounds to
establish the reliability of Wood’s opinions.
Finally, Cormier argues that Wood is erroneously attempting to use the alleged downturn
in the oil and gas industry in South Louisiana and the current pay and work schedule of M&M
Wireline’s employees to minimize Cormier’s loss of earning capacity damages.87 As this Court
has determined in a previous Order,88 while loss of earning capacity damages are not limited to
what the plaintiff would have earned working for the same employer, testimony regarding alleged
decreases in wages across an industry may be relevant evidence.89 Wood’s testimony may
therefore be relevant to the extent that it shows that even if Cormier was not injured, his earning
capacity would have been reduced by subsequent market changes. As the Fifth Circuit has
previously held, in determining loss in earning capacity, courts “cannot ignore the fact that long
term economic conditions may change or that economic forecasting may become more certain.”90
“In making awards to compensate injured plaintiffs . . . for loss of future earnings . . . fact-finders

85

Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).

86

United States v. 14.38 Acres of Land, More or Less Sit. in Leflore County, Miss., 80 F.3d 1074, 1077 (5th
Cir.1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)).
87

Rec. Doc. 80-1 at 12.

88

See Rec. Doc. 120.

89

Id. at 9–12.

90

Culver, 722 F.2d at 122.

15

must attempt, in some degree, to gauge future events.”91 Moreover, the Fifth Circuit has previously
upheld a district court’s refusal to strike testimony on the depressed condition of the oil and gas
industry offered in the context of loss of future wages damages.92 The Fifth Circuit held that such
testimony “was relevant to the jury's determination of whether [the plaintiff] could have continued
as a maritime worker in the absence of his accident.”93
While courts “commonly exclude many relevant factors from consideration on the basis
that they are so speculative that they cannot accurately be determined,”94 the Court cannot find at
this time that Wood’s testimony will be so speculative or irrelevant as to merit exclusion from
trial. Moreover, because this is a bench trial, there is substantially less danger that this evidence
may produce any unfair prejudice or confuse the issues.95 Therefore, the Court will not exclude
Wood’s references to the alleged downturn in the oil and gas industry in South Louisiana or to the

91

Id. at 120–21.

92

Book v. Nordrill, Inc., 826 F.2d 1457, 1461 (5th Cir. 1987).

Id. See also Masinter v. Tenneco Oil Co., 867 F.2d 892, 899 (5th Cir. 1989) (finding that an expert’s
testimony that a dramatic reduction of the oil and gas work force merited a reduction in future wage loss damages by
25 percent was not clearly erroneous). While this Court notes that other courts and commentators have found that loss
of future wages and loss of earning capacity are two distinct and separate elements of damages, this Fifth Circuit
precedent weighs against excluding this testimony here. See generally 2 American Law of Torts § 8:27 (“The loss of
future wages and the loss of ability to earn are two separate and distinct elements of damages.” (citations omitted));
Hon. D. Duff McKee, 29 Am. Jur. Proof of Facts 3d 259 (“Loss of earning capacity may or may not involve proof of
an actual loss of earnings.”); Wilburn v. Maritrans GP Inc., 139 F.3d 350 (3d Cir. 1998) (holding that a plaintiff does
not need to prove that he or she will earn less money in the future than he or she would have but for the injury to
recover loss of future wage earning capacity, but instead must only show a diminution in his or her ability to earn a
living).
93

94

Id.

United States v. Nicholson, 492 F.2d 124, 124 (5th Cir. 1974) (“[T]he prejudicial impact of erroneously
admitted evidence is thus presumed to be substantially less than it might have been in a trial before a jury.” (citing
United States v. Dillon, 436 F.2d 1093, 1095 (5th Cir. 1971))). See Gulf States Utilities Co. v. Ecodyne Corp., 635
F.2d 517, 519 (5th Cir. 1981) (although evidence also may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, “[t]his portion of Rule
403 has no logical application to bench trials”); Cowen v. Allstate Ins. Co., No. 11-118, 2012 WL 10591, at *3 (E.D.
La. Jan. 3, 2012) (Vance, J.) (“Because this is a bench trial, the Court does not find her argument [regarding unfair
prejudice] availing.”).
95

16

current pay and work schedule of M&M Wireline’s employees at this time.
IV. Conclusion
For the reasons stated above, the Court finds that Wood’s anticipated testimony on topic
one

96

and topic two

97

as listed in the parties’ proposed Pre-Trial Order were not included in

Wood’s expert report and should be excluded. The Court further finds that Wood’s testimony on
the topic of the effect a downturn in the oil and gas industry would have on the calculation of
income loss generally and on topic three 98 is relevant and admissible under Rule 702. Accordingly,
IT IS HEREBY ORDERED that Plaintiff Beaux Cormier’s “Objection and Motion in
Limine to Exclude Certain Anticipated Testimony of J. Stuart Wood” is GRANTED IN PART to
the extent that Wood’s anticipated testimony on topic one and topic two as listed in the parties’
proposed Pre-Trial Order is excluded and DENIED IN PART to the extent that the topic of the
effect a downturn in the oil and gas industry would have on the calculation of income loss generally
and on topic three are admissible under Federal Rule of Evidence 702.

31st
NEW ORLEANS, LOUISIANA, this ________ day of January, 2017.

_________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

96
See Rec. Doc. 80-1 at 2 (“(1) Using a $45,000 per year income, plaintiff would incur a past wage loss of
$56,000 and, assuming a 50 percent earnings capacity, he would incur a $415,000 prospective loss.”); Rec. Doc. 61
at 36.
97
See Rec. Doc. 80-1 at 2 (“(2) Considering the downturn in the oil/gas industry and thus assuming a 25
percent reduction in wages or a $34,000 yearly income, plaintiff would incur a past lost wage of $43,000 and a future
wage loss (net of 50 percent capacity) of $314,000”); Rec. Doc. 61 at 36.

See Rec. Doc. 80-1 at 2 (“(3) Considering the current income level of a wireline helper of $18,200, plaintiff
would incur a past wage loss of $25,000, plus a $63,000 future wage loss if he is only able to earn the minimum
wage”); Rec. Doc. 61 at 36.
98

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