Spaid v. Cheramie Marine L.L.C.

Filing 20

ORDER AND REASONS granting 18 Motion to Exclude the expert testimony and report of Robert Borison. Signed by Judge Sarah S. Vance on 6/22/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FREDERICK O. SPAID, II
VERSUS

CIVIL ACTION
NO. 16-14169

CHERAMIE MARINE, LLC

SECTION “R” (2)

ORDER AND REASONS
Before the Court is defendant Cheramie Marine’s motion to exclude the
expert testimony and report of Robert Borison. 1 For the following reasons,
the Court grants the motion.

I.

BACKGROUND
This case arises out of an accident on defendant’s vessel, the M/V JAN

MARIE. 2 Plaintiff alleges that he was employed by defendant aboard the
M/V JAN MARIE when he suffered injuries to his leg and other parts of his
body after falling into an open hatch on the vessel.3 On August 26, 2016,
plaintiff filed a seaman’s complaint for damages against defendant.4 Plaintiff

1
2
3
4

R. Doc. 18.
R. Doc. 1 at 2.
Id.; R. Doc. 19 at 2.
R. Doc. 1 at 1.

alleges that defendant failed to provide a reasonably safe place to work, failed
to properly train and supervise plaintiff, failed to take precautions for the
safety of employees, and engaged in other acts of negligence.5
Plaintiff proposes to offer the expert testimony and report of Robert
Borison, a marine safety expert.6 In his report, Borison concludes that the
master of the M/V JAN MARIE failed to properly guard an open hole in a
known passageway and failed to barricade the open hole to protect
crewmembers.7

Borison intends to address these two issues in his

testimony.8 Defendant now moves to exclude Borison’s expert testimony
and report on the grounds that Borison’s opinions are within the domain of
common sense and will not assist the trier of fact. 9

II.

LEGAL STANDARD
The admissibility of expert testimony is governed by Federal Rule of

Evidence 702, which provides that a qualified expert may testify if, among
other conditions, “the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to

5
6
7
8
9

Id. at 2.
R. Doc. 14 at 3, R. Doc. 18-2.
R. Doc. 18-2 at 5-6.
R. Doc. 19 at 7.
R. Doc. 18-1 at 1-3.
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determine a fact in issue.” Fed. R. Evid. 702(a); see also Bocanegra v.
Vicmar Services, Inc., 320 F.3d 581, 584 (5th Cir. 2003) (“[E]xpert
testimony must be relevant . . . in the sense that the expert’s proposed
opinion would assist the trier of fact to understand or determine a fact in
issue.”).
The Fifth Circuit has recognized that 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). In other words, the Court must insist “that
a proffered expert bring to the jury more than the lawyers can offer in
argument.” In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d
1230, 1233 (5th Cir. 1986).

III. DISCUSSION
Borison is a marine safety expert and plaintiff argues that his opinions
will help the jury understand maritime industry standards, the role of each
of the actors involved in this incident, and other marine safety issues that are
outside the common experience of the average layperson.10 Defendant does

10

R. Doc. 19 at 7.
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not challenge Borison’s credentials. 11 Instead, defendant argues that
Borison’s opinions are not based on scientific, technical or other specialized
knowledge and will not assist the trier of fact in understanding the evidence
or determining a fact in issue. 12
The issues addressed in Borison’s proffered testimony and report are
within the common experience and understanding of jurors. In his report,
Borison finds that an open hole existed in a passageway on the M/V JAN
MARIE, the hole was created because a hatch cover was removed, the hole
was unguarded, and the company did not barricade open holes or install
warning tape to alert crewmembers of the hazard.13 Based on these findings,
Borison concludes that the master of the vessel failed to properly guard the
open hole and failed to provide a safe work environment. 14 The report does
not discuss maritime industry safety standards.15
No expertise was required or used to render these opinions. The jury is
capable of evaluating the dangers posed by an open hole in a vessel
passageway without expert testimony. Under similar facts, the Fifth Circuit
found that a jury could use their common experience and knowledge to

11
12
13
14
15

R. Doc. 18-1.
Id. at 1.
R. Doc. 18-2 at 6.
Id.
Id.
4

assess whether it was reasonable for the plaintiff’s employer to instruct
employees to move equipment on deck during heavy seas. Peters, 898 F.2d
at 450. The court of appeals further concluded that the jury was capable of
assessing without expert assistance whether cargo was improperly stowed on
deck and whether spilled diesel fuel made the deck of the ship slippery. Id;
see also Oatis v. Diamond Offshore Mgmt. Co., No. 09-3267, 2010 WL
936449, at *2 (E.D. La. Mar. 12, 2010) (excluding expert testimony regarding
whether violation of work safety guidelines contributed to plaintiff’s
injuries); Thomas v. Global Explorer, LLC, No. 02-1060, 2003 WL 943645,
at *2 (E.D. La. March 3, 2003) (excluding expert testimony on whether
installing a rope near a ladder on a vessel was a safety hazard).
Because the Court finds that Borison’s expert testimony and report will
not assist the trier of fact, and is therefore not relevant, it need not consider
the Daubert standards for the reliability of expert testimony. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-593 (1993) (expert
testimony must assist the trier of fact and be scientifically valid); see also
Oatis, 2010 WL 936449, at *2.

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IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to

exclude Robert Borison’s expert testimony and report.

22nd
New Orleans, Louisiana, this _____ day of June, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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