Dunmiles v. Jubilee Towing, LLC

Filing 40

ORDER AND REASONS GRANTING 23 Motion in Limine Exclude Evidence of Text Messages and/or Reference at Trial to Same and 24 Motion in Limine Exclude Plaintiff's Proffered "Economist" Expert Testimony of G. Randolph Rice; DENYING 25 Motion in Limine Exclude Plaintiff's "Safety" Expert Testimony of John Pierce. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DERRELL DUNMILES

CIVIL ACTION

VERSUS

No. 16-14325

JUBILEE TOWING, LLC

SECTION I
ORDER AND REASONS

Before the Court are three motions 1 in limine filed by the defendant. The Court
rules on the motions as set forth herein.
I.
Defendant, Jubilee Towing, LLC, first moves 2 to exclude any evidence of and/or
reference to alleged racially discriminatory text messages sent to the plaintiff by
Jubilee employees. The plaintiff mentioned during his deposition that he was sent
racist text messages by a Jubilee employee towards the end of his employment, but
plaintiff claimed that he deleted the messages and that he could not specifically recall
what the alleged racist messages said.
Jubilee argues that there is no evidence that racist messages were ever sent to
plaintiff. But even if they were, Jubilee contends that such messages would bear no
relevance to this maritime slip-and-fall-overboard case and further that they would
be unduly prejudicial. Jubilee asks the Court to exclude the messages and any
reference to them pursuant to Rules 402 and 403 of the Federal Rules of Evidence.

1
2

R. Doc. Nos. 23, 24, 25.
R. Doc. No. 23.

In response, plaintiff simply states that “[a]t this point in time, Plaintiff’s
counsel does not anticipate making reference to ‘racially discriminatory text
messages sent to plaintiff by Jubilee Towing employees’ in front of the jury,” but he
argues that the Court should defer a ruling as to the admissibility of such messages
in case an issue arises during trial which would make the messages relevant. See R.
Doc. No. 28. The Court notes that plaintiff does not explain why the messages are
relevant or identify any scenarios wherein the alleged messages could become
relevant.
In order to be relevant, evidence must pertain to a fact that “is of consequence
in determining the action.” See Fed. R. Evid. 401. Having been presented with no
evidence establishing the substance of the text messages and no argument by the
plaintiff as to why such messages could be relevant, the Court finds plaintiff’s
testimony as to the text messages to be irrelevant and it excludes them pursuant to
Rule 402. Simply put, the Court is unaware of any reason why racist text messages—
even if they exist—would have any bearing on the facts of this case. After all,
establishing that an employee of the defendant sent the plaintiff racist text messages
at some point after the accident would put the plaintiff no closer to recovering on his
claim that the captain of defendant’s vessel failed to navigate the vessel in a safe and
seamanlike manner.
Moreover, it appears that any probative value that the messages have is
substantially outweighed by the danger of unfair prejudice, confusing the jury, and
wasting time. The messages should therefore be excluded under Rule 403 as well as

2

pursuant to Rule 402. Counsel shall instruct their witnesses that the text messages
are not to be mentioned at trial.
II.
Jubilee’s second and third motions challenge the admissibility of opinions by
two of plaintiff’s experts. After setting forth the appropriate standard, the Court
addresses each Daubert challenge below.
A.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588
(1993); United States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). 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.
“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)
(internal quotation marks and citation omitted). Additionally, Rule 702 states that
an expert may be qualified based on “knowledge, skill, experience, training, or
education.” Hicks, 389 F.3d at 524. “A district court should refuse to allow an expert

3

witness to testify if it finds that the witness is not qualified to testify in a particular
field or on a given subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (internal
quotation marks and citation omitted). However, “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.
The U.S. Supreme Court’s decision in Daubert “provides the analytical
framework for determining whether expert testimony is admissible under Rule 702.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). Both scientific and
nonscientific expert testimony is subject to the Daubert framework, which requires
trial courts to make a preliminary assessment to “determine whether the expert
testimony is both reliable and relevant.” Burleson v. Tex. Dep’t of Criminal Justice,
393 F.3d 577, 584 (5th Cir. 2004).
A number of nonexclusive factors may be relevant to the reliability inquiry,
including: (1) whether the technique has been tested, (2) whether the technique has
been subjected to peer review and publication, (3) the potential error rate, (4) the
existence and maintenance of standards controlling the technique’s operation, and
(5) whether the technique is generally accepted in the relevant scientific community.
Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible, however, as
“not every Daubert factor will be applicable in every situation; and a court has
discretion to consider other factors it deems relevant.” Guy v. Crown Equip. Corp.,
394 F.3d 320, 325 (5th Cir. 2004). “Both the determination of reliability itself and

4

the factors taken into account are left to the discretion of the district court consistent
with its gatekeeping function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301
(5th Cir. 2000).
With respect to determining the relevance of an expert’s testimony pursuant
to Rule 702 and Daubert, the proposed testimony must be relevant “not simply in the
way all testimony must be relevant [pursuant to Rule 402], but also in the sense that
the expert’s proposed opinion would assist the trier of fact to understand or determine
a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
“There is no more certain test for determining when experts may be used than the
common sense inquiry whether the untrained layman would be qualified to determine
intelligently and to the best degree the particular issue without enlightenment from
those having a specialized understanding of the subject involved in the dispute.”
Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702
advisory committee’s note).
B.
Jubilee moves 3 to exclude certain opinions by plaintiff’s expert economist, G.
Randolph Rice, pursuant to Rule 702 and Daubert. Jubilee takes issue with Rice’s
opinion regarding plaintiff’s future lost earnings. It argues that when making his
calculations, Rice simply assumed that plaintiff would only be able to earn a
minimum wage in the future without pointing to any reason why plaintiff will only
be able to earn a minimum wage. No other expert in this case has offered the opinion,

3

R. Doc. No. 24.
5

so far as the Court is aware, that plaintiff can only earn a minimum wage due to the
accident. Rice’s report states that he reviewed only plaintiff’s employment intake
form, plaintiff’s 2015 pay stubs, and the original complaint in forming his opinions.
See R. Doc. No. 24-2, at 1.
It is unclear how any of the information reviewed by Rice and set forth in his
expert report provides a basis for his conclusion that in the future, plaintiff will only
be able to earn a minimum wage. Pay stubs dating from before the accident and an
employment intake form would not reveal the amount that plaintiff is capable of
earning in the future. According to Jubilee, Rice’s assumption about the minimum
wage is based on nothing more than unsupported speculation and it must be excluded
as unreliable.
In what the Court considers to be a particularly substandard and nonresponsive brief, plaintiff’s counsel responds that Jubilee’s criticism is invalid
because “an economist’s testimony is inevitably grounded in educated speculation
about the economy.” See R. Doc. No. 29, at 4 (emphasis in original). Plaintiff’s counsel
argues that economists routinely deal in statistical averages, which inherently are
somewhat speculative, but that their opinions are nonetheless admitted. On that
basis, plaintiff’s counsel urges the Court to deny the motion.
Plaintiff’s counsel’s arguments are so unresponsive to Jubilee’s challenges that
the Court is left wondering whether plaintiff’s counsel attempted to obfuscate the
issue in order to hide the fact that absolutely no evidence has been provided to the
Court that the plaintiff can only earn a minimum wage. Indeed, contrary to plaintiff’s

6

counsel’s contentions, Jubilee is not complaining that it was improper for Rice to rely
on the national statistical averages when calculating the plaintiff’s work-life
expectancy, or more generally that an economist cannot rely on statistical averages
when computing damages. It is of course permissible for expert economists to do so.
See Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984)
(calculations of future wage loss should be based on statistical averages unless the
plaintiff offers evidence supporting a deviation). Rather, Jubilee is arguing that it is
improper for an expert economist to determine—based on no supporting evidence—
the income that the plaintiff is capable of earning as a result of the accident, and then
to calculate future lost wages based on that number.
In this Court’s experience, when calculating future lost wages, economists
typically rely on other experts—such as vocational rehabilitation experts—to advise
them as to the income a plaintiff can probably earn due to his injuries. Economists
then use that information in conjunction with actuarial data to estimate the wage
loss the plaintiff will probably sustain over the course of his lifetime. Rice’s expert
report does not mention the basis for his assumption that plaintiff can only earn a
minimum wage, see R. Doc. No. 24-2, and plaintiff’s brief does not identify any
evidence whatsoever which would support such an assumption.
Without any evidence to support the assumption that plaintiff is only capable
of earning a minimum wage, Rice’s calculation of plaintiff’s future earning capacity
based on that assumption is unreliable, irrelevant, and potentially confusing for the
jury. See Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 516 (5th Cir. 2013) (“[E]xpert

7

testimony that relies on completely unsubstantiated factual assertions is
inadmissible.”) (internal quotation marks and citation omitted)). Jubilee’s motion to
exclude Rice’s future wage loss calculation based on plaintiff earning a minimum
wage is granted and counsel are instructed not to mention such opinion at trial.
However, out of an abundance of caution and in an attempt to ensure that the
plaintiff is not unduly harmed by his counsel’s mistakes, the Court is willing to
reconsider the issue should admissible evidence be introduced at trial suggesting that
plaintiff is limited to earning a minimum wage as a result of the accident. If that is
the case, plaintiff’s counsel may approach the bench and request permission to elicit
expert testimony from Rice based on such evidence.
C.
Jubilee next moves4 to exclude all opinions by the plaintiff’s maritime safety
expert, John Pierce, pursuant to Rule 702 and Daubert. Jubilee argues that no expert
testimony is permissible on the subject of maritime safety in this case, as the facts
are simple and easily within the knowledge of the typical juror. Even if expert
testimony was permissible on this subject, Jubilee asserts that Pierce’s opinions are
too unreliable to be admitted because Pierce only reviewed plaintiff’s discovery
answers, the Coast Guard accident form, and Jubilee’s safety policies in formulating
his opinion. Pierce apparently did not review the plaintiff’s deposition testimony or
the crewmembers’ deposition testimony, and he did not inspect the vessel itself or
review any photographs of the vessel before issuing his expert report. In essence,

4

R. Doc. No. 25.
8

Jubilee argues that the plaintiff is trying to use Pierce to offer an unreliable lay
witness opinion which the jury will unduly credit because it comes from the mouth of
an expert.
Plaintiff responds that Jubilee’s criticisms go to the weight that should be
given to Pierce’s testimony and not its admissibility. Plaintiff also cites a string of
maritime cases in which expert testimony was permitted by the court, and he argues
that this case is more complicated than Jubilee suggests. See R. Doc. No. 30, at 4-5.
Having reviewed Pierce’s expert report and the cases cited by the parties, the
Court is not convinced that Pierce’s testimony is too unreliable to be admitted under
Rule 702. Indeed, the detailed analysis contained in Pierce’s expert report, see R.
Doc. No. 25-2, suggests that the inquiry is more nuanced than Jubilee admits. At the
very least, there is sufficient room for disagreement to permit Pierce’s testimony to
be presented to the jury. Jubilee’s concerns can be addressed through the traditional
method—cross examination.

See Daubert, 509 U.S. at 596 (“Vigorous 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.”). Jubilee’s motion to exclude Pierce’s testimony is denied.
III.
For the foregoing reasons,

9

IT IS ORDERED that Jubilee’s first two motions 5, as resolved herein, are
GRANTED and its third motion 6 is DENIED as set forth herein.

New Orleans, Louisiana, April 3, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

5
6

R. Doc. Nos. 23, 24.
R. Doc. No. 25.
10