Deloach Marine Services, LLC v. Marquette Transportation Company, LLC

Filing 55

ORDER AND REASONS regarding 34 Motion to Strike. For the foregoing reasons, defendant's motion to exclude Tom Stakelum is DENIED. Defendant's objection to Tom Stakelum's Rose Point data is OVERRULED. Defendant's objection to the Budwine documents is SUSTAINED. Defendant's objection to the Randy Bullard email is SUSTAINED. Signed by Judge Sarah S. Vance on 2/8/2019. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DELOACH MARINE SERVICES, LLC
VERSUS

CIVIL ACTION
NO. 17-2970

MARQUETTE TRANSPORTATION
COMPANY, LLC

SECTION “R” (3)

ORDER AND REASONS
Before the Court are defendant Marquette Transportation Company’s
motion to strike plaintiff Deloach Marine Services’ witness Tom Stakelum
and defendant’s objections to three of plaintiff’s exhibits. Because defendant
has not demonstrated that it is prejudiced by plaintiff’s late disclosure of Tom
Stakelum as a witness, the Court denies defendant’s motion to exclude him.
For the following reasons, the Court overrules two of defendant’s objections
and sustains one.
I.

BACKGROUND
This case arises out of an accident that occurred between two towing

vessels and their cargo on the Mississippi River. 1 Plaintiff’s vessel, the
VANPORT, was pushing four barges down the river on January 26, 2016

1

R. Doc. 1.

when defendant’s vessel, the JUSTIN PAUL ECKSTEIN, allegedly moved
into the path of the VANPORT, causing a collision. 2

Plaintiff filed a

complaint on April 6, 2017 alleging negligence, unseaworthiness, and
contribution. 3

Defendant

denies

plaintiff’s

allegations

and

has

counterclaimed, inter alia, that the VANPORT was unseaworthy and that
plaintiff was contributorily negligent.4 Trial is set for February 11, 2019.5 In
anticipation of trial, defendant has filed one motion in limine and three
objections.6 Plaintiff opposes the motions. 7

II.

DISCUSSION
A.

Motion to Exclude Tom Stakelum

Defendant argues that plaintiff’s witness Stakelum should not be
permitted to testify because plaintiff did not properly disclose him as a
witness until the parties’ proposed pretrial order.8 The deadline to disclose

2
3
4
5
6
7
8

Id. at 2 ¶ 4.
Id. at 3-4 ¶¶ 7, 10.
R. Doc. 5.
R. Doc. 33.
R. Doc. 34; R. Doc. 38.
R. Doc. 47.
R. Doc. 34-1 at 1.
2

witnesses for trial was December 28, 2018,9 and the pretrial order was filed
on January 28, 2019. 10
“When a party fails to timely disclose information required by Federal
Rule of Civil Procedure 26(a), ‘the party is not allowed to use that
information . . . at a trial, unless the failure was substantially justified or is
harmless.’” In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir.
2016) (quoting Fed. R. Civ. P. 37(c)(1)). In Geiserman v. MacDonald, the
Fifth Circuit described four factors to determine whether “to exclude
evidence that was not properly designated”: (1) the explanation for the failure
to adhere to the deadline; (2) the importance of the proposed modification
of the scheduling order; (3) the potential prejudice that could result from
allowing the modification; and (4) the availability of a continuance to cure
that prejudice.

893 F.2d 787, 791 (5th Cir. 1990); see also Hooks v.

Nationwide Housing Systems, LLC, No. 15-729, 2016 WL 3667134, at *4
(applying the Geiserman test to a motion in limine).
Defendant has not explained how it is prejudiced by plaintiff’s failure
to include Stakelum on its initial witness list. For instance, defendant does
not say how plaintiff’s decision to call Stakelum negatively impacts its

9
10

R. Doc. 23 at 3.
R. Doc. 31.
3

strategy or trial preparations. In addition, while plaintiff does not give a
reason for its failure to identify Stakelum initially, it disclosed him as a
witness before the pretrial conference. Defendant has had adequate time to
adjust its arguments before trial, to the extent that such adjustments have
been necessary. Finally, Stakelum’s testimony serves to authenticate Rose
Point navigational data that gives the positions and movements of the two
vessels before the collision, information that is central to the merits of the
case. The Geiserman factors therefore weigh against exclusion of Stakelum’s
testimony despite plaintiff’s late disclosure.
Defendant further asserts that Stakelum is an expert witness and has
not filed an expert report. 11 Plaintiff responds that it does not intend to offer
Stakelum as an expert witness, nor will he offer opinions of any kind. 12
Stakelum would merely authenticate the Rose Point navigational data that
plaintiff seeks to introduce as an exhibit. 13 Stakelum personally entered
information into the Rose Point program to generate the depiction at issue.14
His testimony authenticating the depiction is therefore within his personal

11
12
13
14

Id.
R. Doc. 47 at 2-3.
Id.
Id. at 2.
4

knowledge under Federal Rule of Evidence 602, and his lay testimony is
therefore admissible.
B.

Defendant’s Objections
1.

Tom Stakelum Rose Point Navigational Data

Defendant objects to the Rose Point data created by Tom Stakelum
because it was not timely disclosed. 15 But defendant has not shown how this
evidence is prejudicial or unexpected. Rose Point data is often admitted in
cases such as this one. See, e.g., In re Settoon Towing, LLC, No. 14-499,
2016 WL 9447753, at *2 (E.D. La. Mar. 21, 2016); Marquette Transportation
Co., LLC v. M/V Century Dream, No. 16-522, 2017 WL 677814, at *2 (E.D.
La. Feb. 21, 2017) (calling the Rose Point navigational system “the industry
standard” that “automatically and objectively record[s] vessel location and
movement on a proven industry standard electronic chart.”). Defendant
included other Rose Point data in the parties’ joint bench book. 16 The
underlying Rose Point data used to create this depiction was timely
exchanged during discovery, and this exhibit is merely a display setting
within the program that shows additional information about the water
conditions and movements of the vessels. Evaluating defendant’s motion

15
16

R. Doc. 38 at 1.
See Joint Exhibits 2, 4.
5

under the Geiserman factors, defendant has failed to show that this evidence
is prejudicial, and the evidence has probative value as a detailed depiction of
the vessels’ locations leading up to the collision.

The Court therefore

OVERRULES the objection.
2.

Budwine & Associates Survey Report

Defendant objects to records by the marine survey firm Budwine &
Associates estimating damages to the VANPORT’s cargo because they were
not timely disclosed, and because they are hearsay. 17 Plaintiff contends that
these records are not hearsay because they fall under the business records
exception.18
The documents are not within the business records exception because
they were not prepared as part of a regular business activity. Fed. R. Evid.
803(6) (record must be “kept in the course of a regularly conducted activity
of a business” and making the record must be “a regular practice of that
activity”).

Instead, these documents appear to have been prepared in

anticipation of litigation against either the owner of Deloach’s cargo or the

R. Doc. 38 at 1.
R. Doc. 47 at 5. Plaintiff also argues that these documents are
admissible under Federal Rule of Evidence 1006. But there is no evidence
that the documents in this exhibit summarize other voluminous documents.
They do not refer to other documents, and they include findings, comments,
and conclusions that appear to be original to the reports submitted as
evidence. They are therefore not admissible under Rule 1006.
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17

18

defendant. “The absence of trustworthiness is clear . . . when a report is
prepared in the anticipation of litigation because the document is not for the
systematic conduct and operations of the enterprise but for the primary
purpose of litigating.”

Certain Underwriters at Lloyd’s, London v.

Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). The Fifth Circuit has noted of
marine survey reports that “their objectivity is suspect because of their
intended use in litigation.” Colorificio Italiano Max Meyer, S.P.A. v. S/S
Hellenic Wave, 419 F.2d 223, 225 (5th Cir. 1969). Indeed, the first page of
Budwine’s report certifies that the purpose of its employment by Deloach
“was to ascertain the nature and extent of damages to the subject vessels that
stemmed from this incident.”19 The documents are not merely part of
Deloach’s regularly conducted business, but instead were created for the
purpose of assessing damages related to this specific accident for use in
litigation or settlement.
Nor do the Budwine documents qualify as business records of Budwine
& Associates, because they lack trustworthiness as documents created
primarily for future litigation. See Sinkovich, 232 F.3d at 205 (“Litigants
cannot evade the trustworthiness requirement of Rule 803(6) by simply
hiring an outside party to investigate an accident and then arguing that the

19

Objected to Exhibit 2 at 1.
7

report is a business record because the investigator regularly prepares such
reports as part of his business.”). Because the Budwine documents were not
created in the course of a regularly conducted business activity, they are
inadmissible as business records. But during Mr. Budwine’s testimony, he
may use these documents to refresh his recollection. See Fed. R. Evid. 612.
Defendant’s objection is SUSTAINED.
3.

Randy Bullard Email

Finally, defendant objects to an email sent by one of the marine
surveyors at Budwine & Associates documenting the damage to plaintiff’s
vessel and cargo because it was not listed as an exhibit in plaintiff’s initial
exhibit list.20 Plaintiff argues that this email was produced during discovery,
and that it was included within an entry on its initial exhibit list identifying
as exhibits a group of documents from Budwine & Associates. 21 Regardless
of whether this exhibit was timely disclosed, it is hearsay. Plaintiff points to
no applicable exception to the rule against hearsay, and the Court sees none.
Plaintiff’s witness from Budwine & Associates can testify to the information
contained in this email rather than requiring the Court to rely on hearsay

20
21

R. Doc. 38 at 2.
R. Doc. 47 at 6.
8

evidence to establish these facts.

Accordingly, defendant’s objection is

SUSTAINED.

III. CONCLUSION
For the foregoing reasons, defendant’s motion to exclude Tom
Stakelum is DENIED. Defendant’s objection to Tom Stakelum’s Rose Point
data is OVERRULED. Defendant’s objection to the Budwine documents is
SUSTAINED.

Defendant’s objection to the Randy Bullard email is

SUSTAINED.

New Orleans, Louisiana, this _____ day of February, 2019.
8th
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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