Associated Terminals of St. Bernard, LLC v. Potential Shipping HK Co. Ltd. et al

Filing 110

ORDER AND REASONS: IT IS ORDERED that 93 Potential Shipping's objections are sustained in part and dismissed as moot in part, as set forth herein. Signed by Judge Lance M Africk on 2/16/2018.(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ASSOCIATED TERMINALS OF
ST. BERNARD, LLC

CIVIL ACTION

VERSUS

No. 17-5109

POTENTIAL SHIPPING HK CO., LTD., ET AL.

SECTION I

ORDER AND REASONS
Potential Shipping HK Co., Ltd., in personam and as owner of the M/V
UNISON POWER, in rem (“Potential Shipping”), objects 1 to numerous proposed
exhibits of Jamaal Ford (“Ford”). Ford filed a response 2 addressing most of the
objections.
In his response, Ford indicates that he is withdrawing two of his proposed
exhibits, namely, Exhibit 4 and Exhibit 28. 3 As such, Potential Shipping’s objections
to these proposed exhibits are dismissed as moot.
With respect to Potential Shipping’s remaining objections, the Court sustains
its objections.
I.
Most of Potential Shipping’s evidentiary objections focus on the issue of
hearsay. Under the Federal Rules of Evidence, “hearsay” is “a statement that: (1) the

R. Doc. No. 93. On a phone call with the Court on February 15, 2018, counsel for
Potential Shipping clarified the portions of the proposed exhibits to which they
objected. As the Court addresses the objections, the Court will explain the portions
of each exhibit at issue.
2 R. Doc. No. 106.
3 See id. at 3, 8.
1

1

declarant does not make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter asserted in the statement.”
Fed. R. Evid. 801(c). (Some statements that meet these criteria are carved out of the
definition of hearsay. See Fed. R. Evid. 801(d).)
Hearsay is generally inadmissible as competent evidence at trial. Fed. R. Evid.
802. However, the Federal Rule of Evidence recognizes exceptions to this general
rule. See Fed. R. Evid. 803 (exceptions that are available regardless of a declarant’s
availability to testify at trial); Fed. R. Evid. 804 (exceptions that are available only
when a declarant is unavailable to testify at trial); Fed. R. Evid. 807 (residual
exception).
Further, a party may offer out-of-court statements at trial for reasons other
than to prove the truth of the matter asserted—e.g., “to show the effect on the
listener.” White v. Fox, 470 Fed. App’x 214, 222 (5th Cir. 2012). Simply put, such
statements are not hearsay at all. See Fed. R. Evid. 801(c) (defining “hearsay” in part
based on the purpose for which a party offers an out-of-court statement).
Lastly, the Federal Rule of Evidence clarify that hearsay imbedded within
hearsay “is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.” Fed. R. Evid. 805. Thus, where
a party offers hearsay that itself contains hearsay, the Court will not admit the
evidence in evidence unless and until the party demonstrates that each layer of
hearsay is independently admissible.
II.
A.
2

Ford’s proposed Exhibit 21 includes an email from Don Zemo of Associated
Terminals of St. Bernard, LLC (“Associated Terminals”) to Steve Martin of
Wilhelmsen Ships Service, Inc. (The date and time on the email are written in
Chinese.) Potential Shipping objects to one sentence in the email, beginning with
“Our Vessel surveyor” and ending with “are bad, too.” 4 It argues that this sentence
constitutes “hearsay within hearsay” and “does not meet any hearsay exceptions to
cure both levels of hearsay.” 5
In his response, Ford states that he “anticipates that Mr. Zemo will testify live
at trial,” in which case he suggests that he will not offer the email. 6 However, Ford
goes on to argue that, “[t]o the extent [Zemo] cannot [testify at trial], the email is
admissible to explain the bases for [his] liability expert Greg Perkin’s opinions.” 7
“[I]t is axiomatic that expert opinions may be based on facts or data of a type
reasonably relied upon by experts in a particular field, even if the sources are not
admissible evidence.” United States v. Gresham, 118 F.3d 258, 266 (5th Cir. 1997)
(citing Fed. R. Evid. 703)). Thus, experts may rely on inadmissible hearsay evidence
in developing their expert opinions. First Nat. Bank of Louisville v. Lustig, 96 F.3d
1554, 1576 (5th Cir. 1996) (citing Moss v. Ole South Real Estate, Inc., 933 F.2d 1300,
1309 (5th Cir. 1991)).
However, an expert’s reliance on hearsay to form his expert opinion does not
render the hearsay itself admissible as competent evidence. Indeed, Federal Rule of

The page of the exhibit that features this sentence is marked UP000324.
R. Doc. No. 93, at 1.
6 R. Doc. No. 106, at 1.
7 Id.
4
5

3

Evidence 703 “was amended in 2000 ‘to emphasize that when an expert reasonably
relies on inadmissible information to form an opinion or inference, the underlying
information is not admissible simply because the opinion or inference is admitted.’”
Szymanski v. Murphy, 437 Fed. App’x 649, 654-55 (10th Cir. 2011) (quoting Fed. R.
Evid. 703 advisory committee notes); cf. Jones v. Am. Council on Exercise, No. 153270, 2016 WL 6084636, at *10 (S.D. Tex. Oct. 18, 2016) (Miller, J.) (“This is perhaps
the type of evidence an expert may rely upon, but it is hearsay and not admissible on
its own.”).
Rather, “if the facts or data” on which an expert relies “would otherwise be
inadmissible”—because, for example, the facts or data would constitute hearsay—
then the expert “may disclose them to the [factfinder] only if their probative value in
helping the [factfinder] evaluate the opinion substantially outweighs their prejudicial
effect.” Fed. R. Evid. 703 (emphasis added). In this case, Ford has not demonstrated,
or even argued, that the probative value of the objected-to statement in the email in
assisting the Court 8 evaluate his liability expert’s opinion substantially outweighs its
prejudicial effect.
Alternatively, Ford argues that the Court should admit the email in full under
Rule 807, the residual exception to the hearsay bar. Rule 807 provides a residual
exception to the Federal Rule of Evidence’s hearsay rules. Under this rule, “a hearsay
statement is not excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception” if four circumstances are met:
(1) the statement has equivalent circumstantial guarantees of
trustworthiness; (2) it is offered as evidence of a material fact; (3) it is
8

The Court is the factfinder in this case.
4

more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the
interests of justice.
Fed. R. Evid. 807(a). The Fifth Circuit has counseled that “[t]he [807] exception is to
be ‘used only rarely, in truly exceptional cases.’” United States v. Phillips, 219 F.3d
404, 419 n. 23 (5th Cir. 2000) (quoting United States v. Thevis, 665 F.2d 616, 629 (5th
Cir. 1982)).
“[T]he proponent of the statement bears a heavy burden to come forward with
indicia of both trustworthiness and probative force.” Id. (alteration in original). “[I]n
order to find a statement trustworthy, a court must find that the declarant of the . . .
statement was particularly likely to be telling the truth when the statement was
made.”

Id. (internal quotation marks omitted) (alteration in original).

“The

determination of trustworthiness is drawn from the totality of the circumstances
surrounding the making of the statement, but [it] cannot stem from other
corroborating evidence.” United States v. El-Mezain, 664 F.3d 467, 498 (5th Cir. 2011)
(internal quotation marks omitted) (alteration in original). The evidence “must be at
least as reliable as evidence admitted under a firmly rooted hearsay exception . . .
[and] must similarly be so trustworthy that adversarial testing would add little to its
reliability.” Id. (internal quotation marks omitted) (alteration in original).
In support of the application of Rule 807 to the email, Ford argues that “the
statement is contained in an email produced by Defendants, which provides
‘circumstantial guarantees of trustworthiness.’” 9

9

Id. at 2.
5

Ford further argues that the

statement “demonstrates that multiple wire ropes on the Defendants’ Vessel were in
poor condition; is more probative of this point than other non-hearsay evidence; and
will serve the interests of justice.” 10
What Ford does not explain, however, is why the email’s production by
Potential Shipping during discovery indicates that the objected-to statement in the
email is uniquely trustworthy, why this particular statement is more probative than
any other non-hearsay evidence—such as Mr. Zemo’s live testimony—or why its
admission will serve the interests of justice. Moreover, Ford points to no case law to
bolster his Rule 807 arguments.
The Court sustains Potential Shipping’s objection to Exhibit 21.
B.
Ford’s proposed Exhibit 22 is a series of emails involving numerous
individuals. Two of these individuals are Ed Stettinius and Linda Mitchell, both of
Freight Management Logistics.
Potential Shipping objects to the May 22, 2017 email from Ed Stettinius, 11 and
the two May 19, 2017 emails from Linda Mitchell. 12 It argues that their emails “are
inadmissible as hearsay.” 13 Potential Shipping also argues that the declarants lacked
personal knowledge of the matter discussed in the emails and that Ford will be unable
to authenticate the emails at trial. 14

Id.
The pages of the exhibit that feature this email are marked UP000394, UP000395,
and UP000396.
12 The pages of the exhibit that feature these emails are marked UP000396 and
UP000397.
13 R. Doc. No. 93, at 2.
14 Id.
10
11

6

For his part, Ford argues that the emails are “admissible to explain the bases
for Intervenor’s liability expert Gregg Perkin’s opinions.” 15 Ford also argues that the
emails fall outside the Federal Rules of Evidence’s definition of hearsay, because the
statements in the emails “were adopted by Defendants.” 16 Ford does not cite any case
law to support his latter argument. 17
Moreover, Ford does not rebut Potential Shipping’s objections based on lack of
personal knowledge or inability to authenticate.

As the Court explained to the

parties, “[a]ny party that does not respond to an objection or motion will be deemed
to have waived the ability to contest that objection.” 18 The Court thus treats these
objections by Potential Shipping as uncontested.
Further, as the Court previously explained, an expert may consider
inadmissible hearsay in forming his opinions, but the expert may disclose the hearsay
only where the probative value of the hearsay in assisting the factfinder assess the
expert’s opinion substantially outweighs its prejudicial effect. See Fed. R. Evid. 703.
Ford has not shown, or argued, that the probative value of the emails in assisting the
Court evaluate his liability expert’s opinion substantially outweighs their prejudicial
effect. 19
The Court sustains Potential Shipping’s objections to Exhibit 22.
C.

R. Doc. No. 106, at 3.
Id.
17 As such, Ford’s argument is inadequately briefed and therefore waived.
18 R. Doc. No. 89, at 3.
19 Alternatively, the Court rejects Ford’s suggestion that a party’s mere forwarding of
an email for “reference” manifests that the party “adopted” the emails as its own
statements “believed [the statements] to be true.” Fed. R. Evid. 801(d)(2)(B).
15
16

7

Ford’s proposed Exhibit 2 is a series of emails involving numerous individuals.
Of these emails, Potential Shipping objects to only one sentence in a May 19, 2017
email from Don Zemo and addressed to Steve Martin. 20
The Court notes that this is the same sentence— beginning with “Our Vessel
surveyor” and ending with “are bad, too”—to which the Court has already sustained
an objection. As it did previously Potential Shipping argues that the sentence is
“inadmissible as hearsay.” 21
Ford offers the same argument that the Court previously determined to be a
failing one: that the emails are “admissible to explain the bases for Intervenor’s
liability expert Gregg Perkin’s opinions.” 22 However, even if an expert may look to
inadmissible hearsay in developing his opinions, the expert may disclose the hearsay
only where the probative value of the hearsay in assisting the factfinder gauge the
expert’s opinion substantially outweighs its prejudicial effect. See Fed. R. Evid. 703.
Ford still has not demonstrated, or argued, that the probative value of the objectedto statement in the email in assisting the Court gauge his liability expert’s opinion
substantially outweighs its prejudicial effect.
The Court sustains Potential Shipping’s objection to Exhibit 2.
D.
Ford’s proposed Exhibit 5 is a report prepared by Associated Terminal’s expert
surveyor, Captain Ronald Campana. 23 Potential Shipping argues that the report is

The page of the exhibit that features this email is marked AT 0000012.
R. Doc. No. 93, at 2.
22 R. Doc. No. 106, at 4.
23
The first page of the report is marked AT 0000100, and last page is marked AT
0000137.
20

21

8

hearsay and that the expert surveyor “is within the subpoena power of the Court, and
can testify live regarding his survey.” 24
Ford represents that he “anticipates that Captain Campana will testify live at
trial,” in which case he suggests that he will not offer the report. 25 However, Ford
goes on to argue that, “[t]o the extent [Captain Campana] cannot [testify at trial], his
report is admissible to explain the bases for [his] liability expert Greg Perkin’s
opinions.” 26 Ford also argues that the Court should allow the report in evidence
under Rule 807. 27
“[A]s a general rule, expert reports . . . are hearsay, and therefore generally not
admissible as exhibits, although they may be the subject of testimony and might be
used to impeach a witness or refresh a witness’ recollection.” Flowers v. Striplin, No.
01-1765, 2003 WL 25683914, at *1 (E.D. La. May 22, 2003) (Engelhardt, J.); see also
Marquette Transp Co. v. Eagle Subaru, No. 06-9053, 2010 WL 1558921, at *3 (E.D.
La. Apr. 15, 2010) (Vance, J.) (“Expert reports are hearsay because they are out of
court statements offered to prove the truth of the matter asserted.”).
Ford’s Rule 807 argument is unconvincing.

At the very least, Captain

Campana’s report is not more probative than any other non-hearsay evidence—
namely, Captain Campana’s live testimony. Cf. id. (“The Court finds, however, that
the report is not admissible under the residual exception because it is not more
probative than other evidence that the parties have already agreed to introduce.

R. Doc. No. 93, at 2.
R. Doc. No. 106, at 4.
26 Id.
27 Id. at 5.
24
25

9

Specifically, Strouse’s unsworn expert report is less probative and less trustworthy
than his sworn perpetuation deposition testimony.”). The Court also notes that Ford
does not cite any case law to support his contention that the report is admissible via
Rule 807.
The Court sustains Potential Shipping’s objection to Exhibit 5.
E.
Ford’s proposed Exhibit 36 is a document that allegedly outlines treatment
recommendations provided to Ford by one Dr. Brennan. 28 Potential Shipping argues
that the document—which “is not part of any certified medical record, is undated and
[whose] author is unknown”—is “classic hearsay.” 29 Potential Shipping also contends
that the document “lacks any foundation establishing the basis for its contents” and
“completely lacks authentication.” 30
In his response, Ford states that he anticipates that Dr. Brennen “will testify
live at trial,” in which case he suggests that he will not offer the document. 31 Ford
then goes on to argue that, “[t]o the extent [Dr. Brennan] cannot [testify], his surgical
recommendation and cost estimate are admissible to explain the bases for
Intervenor’s future-medical expert, Dr. Todd Cowen.” 32
Ford does not respond to Potential Shipping’s foundation and authentication
objections, 33 and the Court thus considers those objections uncontested. In addition,

The document is marked J Ford 000058.
R. Doc. No. 93, at 2.
30 Id.
31 R. Doc. No. 106, at 6.
32 Id.
33 For example, Ford does not explain how he will authenticate the document.
28

29

10

to the extent that Ford asks permission for his expert to disclose the document to the
Court in order to explain the information on which he relied to form his opinion, Ford
has not established, or argued, that the probative value of the objected-to document
in assisting the Court assess his medical expert’s opinion substantially outweighs its
prejudicial effect.
The Court sustains Potential Shipping’s objections to Exhibit 36.
F.
Ford’s proposed Exhibit 25 is a series of emails involving numerous
individuals. Of these emails, Potential Shipping objects to one paragraph in a May
20, 2017 email written by Don Zemo and addressed to “Capt Stanley/Steve.” 34 (The
M/V UNISON POWER was copied on the email.) The objected-to paragraph reads,
in full:
Please advise if [ ] all the cables and load test[s] after replacement [are]
going to be carried out as per the class surveyor recommendations, on
all cranes? If so, please advise the completion timeframe? If not, we can
offer floating Derrick(s) at $900.00 per [hour] once the bulk has
completed. 35
Potential Shipping argues that this paragraph “is inadmissible as hearsay,”
and also constitutes “hearsay within hearsay.” 36 Potential Shipping further asserts
that the paragraph “is inadmissible as evidence of subsequent remedial measures to

The page of the email featuring this paragraph is marked UP000602.
The Court notes that it contacted counsel for both parties regarding the
identity or identities of “Capt Stanley/Steve.” Neither party has knowledge of this
individual or these individuals. However, the email “To” line appears to indicate that
“Steve” refers to Steve Martin of Wilhelmsen Ships Service, Inc., and that “Capt
Stanley” is a separate individual.
35 The alterations were made by the Court.
36 R. Doc. No. 93, at 3.
34

11

prove negligence, culpable conduct or a need for warning or instruction regarding
Potential Shipping and/or the M/V UNISON POWER.” 37
Ford counters that the paragraph “is admissible to explain the bases for
Intervenor’s liability expert Gregg Perkin’s opinions.” 38 Yet to the extent that Ford
asks permission for his expert to disclose the paragraph pursuant to Rule 703, Ford
has not explained, or argued, why the probative value of the objected-to paragraph in
assisting the Court assess his liability expert’s opinion substantially outweighs its
prejudicial effect.
Ford also argues that the paragraph is not hearsay on the ground that
Potential Shipping “adopted” the paragraph as its own statement. 39 In his view, the
paragraph “shows that Defendants were informed by a Class Surveyor that
additional cranes required replacement of the crane wires, and that the Defendants
complied with the Class Surveyor’s recommendation.” 40
The Court points out that the email containing the paragraph above was
written by Don Zemo—a representative of Associated Terminals, not Potential
Shipping—to “Capt Stanley/Steve,” neither of whom worked for Potential Shipping. 41
Moreover,

the

email

itself

does

not

demonstrate

compliance

with

any

recommendations by anyone; the email simply demonstrates that a representative of
Associated Terminals inquired into whether the recommendations were “going to be

Id.
R. Doc. No. 106, at 7.
39 Id.
40 Id.
41 As the Court previously noted, neither party even knows who these individuals are.
See supra note 34.
37
38

12

carried out.” Therefore, the email alone does not indicate that Potential Shipping
adopted any statement. See Fed. R. Evid. 801(d)(2)(B).
Potential Shipping’s counsel has now informed the Court that Potential
Shipping did indeed implement these recommendations. 42 Yet even if the Court were
to ignore the hearsay issues with the paragraph, Ford runs into another barrier to
the paragraph’s admission: Federal Rule of Evidence 407.
Under this rule,
[w]hen 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.
Analyzing case law applying Rule 407, this Court has observed that, “when . . . a postaccident report contains a list of recommended remedial measures which are later
actually implemented, the case law supports excluding not only the fact that the
remedial measures were implemented, but also the list of recommended remedial
measures suggested in the post-accident report.” Ponds v. Force Corp., No. 16-1935,
2017 WL 67530, at *2 (E.D. La. Jan. 6, 2017) (Africk, J.); see also Thornton v.
Diamond Offshore Drilling, Inc., No. 07-1839, 2008 WL 2315845, at *5 (E.D. La. May
19, 2008) (Vance, J.) (“Although recommendations are not remedial measures that

When asked by the Court, Ford indicated that he did not have a basis on which to
challenge Potential Shipping’s representation.
42

13

have been implemented, they are of the same character in that they reflect a party’s
post-accident considerations and thinking about policy changes and safety
improvements.”); Walker v. Pioneer Prod. Servs., Inc., No. 15-0645, 2016 WL 3459881,
at *1 (E.D. La. June 24, 2016) (Zainey, J.) (“[I]nvestigative reports that recommend
remedial measures . . . implicate the policies of Rule 407.”); but see Robinson v.
Diamond Offshore Mgmt. Co., No. 04-1899, 2006 WL 197010, at *3 (E.D. La. Jan. 26,
2006) (Barbier, J.) (holding that “investigative reports that recommend measures are
not themselves remedial measures and are not excluded by Fed. R. Evid. 407”).
In

this

case,

the

objected-to

paragraph

concerns

post-accident

recommendations for replacement and testing of “all the cables . . . on all cranes.”
Potential Shipping implemented these recommendations. Ford hopes to use this
paragraph to prove Potential Shipping’s “notice of the defective condition of the
wiring on the crane that ultimately snapped” 43—in other words, to prove negligence.
Rule 407 and its case law forbid such a use.
The Court sustains Potential Shipping’s hearsay objection to Exhibit 25. In
the alternative, the Court also concludes that Rule 407 bars the paragraph’s
admission for the use for which Ford intends to offer it.
G.
Ford’s proposed Exhibit 29 is a series of emails involving numerous
individuals. Potential Shipping objects to one paragraph in the series, beginning with

43

R. Doc. No. 106, at 7-8.
14

“Just FYG, we are hearing” and ending with “both H2 and H4 (just an idea).” 44 It
argues that the paragraph is “inadmissible hearsay.” 45
Ford argues that the paragraph is “admissible to explain the bases for [his]
liability expert Gregg Perkin’s opinions.” 46 However, to the extent that Ford asks
permission for his expert to disclose the paragraph under Rule 703, Ford has not
demonstrated, or argued, that the probative value of the objected-to paragraph in
assisting the Court gauge his liability expert’s opinion substantially outweighs its
prejudicial effect.
The Court sustains Potential Shipping’s objection to Exhibit 29.
H.
Ford’s proposed Exhibit 1 is a series of emails between Placito Miceli of Turn
Services, LCC, and Don Zemo. Potential Shipping objects to two paragraphs in the
series: one begins with “Just got a call” and ends with “possibly needing security,”
and the other begins with “the operator of the ship’s gear” and ends with “damaging
cargo and equipment.” 47
Potential Shipping argues that these paragraphs “are inadmissible as hearsay
and are not based on personal knowledge.” 48 Ford counters that they are “admissible
to explain the bases for [his] liability expert Gregg Perkin’s opinions.” 49

The pages of the exhibit that features this paragraph are marked UP001088 and
UP001089.
45 R. Doc. No. 93, at 3.
46 R. Doc. No. 106, at 8.
47 The pages of the exhibit that features these paragraphs are marked AT 0000001
and AT 0000002.
48 R. Doc. No. 93, at 3.
49 R. Doc. No. 106, at 9.
44

15

Ford does not address Potential Shipping’s objection based on personal
knowledge, and the Court thus treats the objection as uncontested. Moreover, to the
extent that Ford asks permission for his expert to disclose the paragraphs under Rule
703, Ford has not shown, or argued, that the probative value of the emails in assisting
the Court evaluate his liability expert’s opinion substantially outweighs their
prejudicial effect.
The Court sustains Potential Shipping’s objections to Exhibit 1.
II.
The Court recognizes that it has made these decisions on the cold exhibits.
Thus, should there be any unadvanced or unanticipated reason to reconsider these
rulings at trial, the parties may request that the Court do so.
Accordingly,
IT IS ORDERED that Potential Shipping’s objections are sustained in part
and dismissed as moot in part, as set forth herein.

New Orleans, Louisiana, February 16, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

16