Cox Operating, L.L.C. v. Settoon Towing, LLC et al

Filing 130

ORDER AND REASONS: IT IS ORDERED that Settoon's 89 motion is GRANTED IN PART and DEFERRED IN PART as set forth herein. Signed by Judge Lance M Africk on 8/13/2018. (Reference: All Cases)(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COX OPERATING, L.L.C.

CIVIL ACTION

VERSUS

No. 17-1933
c/w 17-2087

SETTOON TOWING, L.L.C., ET AL.

SECTION I
REF: ALL CASES

ORDER & REASONS
Before the Court is defendant Settoon Towing, L.L.C.’s (“Settoon”) motion 1 in
limine to exclude evidence of certain subsequent remedial measures pursuant to
Federal Rule of Evidence 407. For the following reasons, the motion is granted in part
and deferred in part.
I.
This case concerns a 2016 accident in which a vessel owned by Settoon allided
with a well owned by Cox (the “allision”). The present motion arises out of an e-mail
sent by Scott Townsend (“Townsend”), Settoon’s then operations manager, to all
Settoon vessels three days after the allision. 2 In the e-mail, Townsend listed 17 areas
that had been “flagged as locations [Settoon vessels] will not run in at night.” 3
Included on that list was “Venice – All locations east of the river,” which undisputedly
encompasses Quarantine Bay, the field in which the allision occurred. 4

R. Doc. No. 89.
R. Doc. No. 121, at 10; R. Doc. No. 89-1, at 1.
3 R. Doc. No. 121, at 10.
4 R. Doc. No. 89-1, at 2. The Court will refer to this area, described as “Venice – All
locations east of the river” in the e-mail, as “Quarantine Bay.”
1
2

Settoon contends that this e-mail serves as evidence of a policy that it enacted
after and as a direct result of the allision to “discontinue running its vessels in certain
navigable waters at night” (the “policy”). 5 According to Settoon, it implemented the
policy as a subsequent remedial measure; thus, any evidence of the policy—including
Townsend’s e-mail and related deposition testimony—is inadmissible under Federal
Rule of Evidence 407. 6
Rule 407 provides that
When measures are taken that would have made an earlier injury or
harm less likely to occur, evidence of the subsequent measures is not
admissible to prove: negligence; culpable conduct; a defect in a product
or its design; or a need for a warning or instruction. But the court may
admit this evidence for another purpose, such as impeachment or—if
disputed—proving ownership, control, or the feasibility of precautionary
measures.
Fed. R. Evid. 407. The primary justification for Rule 407 is the “social policy of
encouraging people to take, or at least not discouraging them from taking, steps in
furtherance of added safety.” Fed. R. Evid. 407 advisory committee’s note to 1972
proposed rules.
In response, Cox argues that Rule 407 is inapplicable. 7 Cox does not deny that
Quarantine Bay was, post-allision, added to the list of areas within which Settoon’s
vessels should not operate at night (the “policy list”). Instead, it argues that the
addition of Quarantine Bay and other areas to the policy list was simply a change
made to an already existing policy and that the entire policy falls outside the scope of

R. Doc. No. 89, at 1.
Id.
7 R. Doc. No. 105, at 5.
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Rule 407’s exclusionary protection. 8 Alternatively, Cox argues that evidence of the
policy is admissible under Rule 407’s exceptions. 9
II.
The Court first addresses whether evidence of the policy is admissible under
Rule 407’s general exclusionary rule. It is uncontested that several areas added to
the policy list, including Quarantine Bay, were added after the allision. Furthermore,
it is uncontested that those areas were added to the policy list as a direct result of the
allision. The Court therefore rejects Cox’s unconvincing characterization of this
particular change in Settoon’s practices as a mere “codification of the policy.” 10 The
updated policy list is an addition to the policy list which was generated in direct
response to the allision and, therefore, a clear subsequent remedial measure. 11
“Rule 407 is clear that when measures are implemented after an accident that
are intended to make an earlier injury or harm less likely to occur in the future, those
measures are inadmissible to prove fault.” Ponds v. Force Corp., No. 16-1935, 2017
WL 67530, at *3 (E.D. La. Jan. 6, 2017) (Africk, J.). This comports with the rule’s
policy justification: If the Court were to decide that the policy updates are admissible
against Settoon at trial, Settoon might be less likely to actively and openly seek “to

Id.
Id.
10 Id.
11 Id. Cox makes what is essentially the same argument in its supplemental
memorandum, asserting that the policy is not a subsequent remedial measure
because the policy existed before the allision and the e-mail “merely expanded” it. R.
Doc. No. 213, at 1. But this argument fails for the same reason: the expansion is the
subsequent remedial measure, not the policy.
8
9

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adopt such post-accident measures in the future. That is precisely the result Rule 407
seeks to avoid.” Id. Accordingly, evidence pertaining to additions to Settoon’s policy
list implemented after the allision is excludable as a subsequent remedial measure
and inadmissible under Rule 407’s general exclusionary rule. 12
Alternatively, Cox argues that evidence of the policy is nonetheless admissible
under two exceptions: to prove Settoon’s control over its own vessels and to prove that
Settoon had knowledge of the risks associated with navigating oilfields at night. 13
The Court will defer ruling on whether any Rule 407 exception applies until trial.

With respect to the other areas on the policy list, Settoon has already admitted that
any “testimony concerning the fields that Settoon was already not running [in] at
night . . . prior to the allision . . . is admissible.” R. Doc. No. 89-1, at 3.
12

The Fifth Circuit has held that evidence of subsequent remedial measures may be
“admissible as proof of subsidiary issues . . ., such as knowledge of [a] dangerous
condition.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1343 (5th Cir. 1978). In addition
to citing Rozier, Cox cites Kirkland v. Marriott International, Inc., 416 F. Supp. 2d
480 (E.D. La. Feb. 21, 2006) (Vance, J.). However, the Kirkland court discussed proof
of knowledge in the context of impeachment. Kirkland, 416 F. Supp. 2d at 489
(“Impeachment . . . may include proving defendants’ knowledge of the alleged
dangerous condition at the time of the accident.”). With respect to knowledge,
Townsend’s e-mail and the policy list were generated after the allision. However, Cox
is not precluded from offering testimony at trial to show that Settoon’s personnel
knew about the potential dangers of navigating certain oilfields at night before the
allision—such testimony does not require any reference to the policy list.
13

As to the control issue raised by Cox, Settoon has indicated that control is undisputed,
and it insists that it does not plan to argue at trial that Cox could control Settoon’s
vessels at the time of the allision. R. Doc. No. 121, at 3.
Ultimately, as stated herein, the Court defers ruling on whether any Rule 407
exception applies—related to knowledge, impeachment, control, or otherwise—until
trial. The Court also defers a decision on any arguments related to Federal Rule of
Evidence 403 until trial.
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III.
Accordingly,
IT IS ORDERED that Settoon’s motion is GRANTED IN PART and
DEFERRED IN PART as set forth herein.
New Orleans, Louisiana, August 13, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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