In Re: In the Matter of American River Transportation Co. LLC.

Filing 309

ORDER AND REASONS denying 277 Motion in Limine to Exclude Certain Opinions of James N. Domingue, M.D. FURTHER ORDERED that the 278 Motion in Limine to Exclude Certain Opinions of Larry Hayes, LCSW, BACS is granted and Hayes' opinion disagnosing Ronald D. Neal with PTSD is excluded. Signed by Judge Mary Ann Vial Lemmon on 01/03/2023. (ko)

Case 2:18-cv-02186-MVL-DPC Document 309 Filed 01/03/23 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF AMERICAN
RIVER TRANSPORTATION, CO.,
LLC, AS THE OWNER AND
OPERATOR OF THE M/V
LOUISIANA LADY, PRAYING FOR
EXONERATION FROM OR
LIMITATION OF LIABILITY

CIVIL ACTION
NO: 18-2186
SECTION: "S" (2)

ORDER AND REASONS
IT IS HEREBY ORDERED that the Motion in Limine to Exclude Certain Opinions of
James N. Domingue, M.D., filed by American River Transportation Company, LLC ("ARTCO")
(Rec. Doc. 277) is DENIED;
IT IS FURTHER ORDERED that the Motion in Limine to Exclude Certain Opinions
of Larry Hayes, LCSW, BACS filed by ARTCO (Rec. Doc. 278) is GRANTED, and Hayes'
opinion diagnosing Ronald D. Neal with PTSD is excluded.
BACKGROUND
Limitation claimants (hereinafter, "plaintiffs") Ronald D. Neal and Philip Graves and
Rebecca Whaley Crain seek damages for personal injuries suffered by Neal and the death of
Graves' and Crain's son, Spencer Graves, as a result of a fire in the crew quarters of the M/V
LOUISIANA LADY on September 3, 2017. Following a settlement conference before the
Magistrate Judge, the parties have reached a stipulation concerning the limitation fund, privity
and knowledge, and liability, leaving for trial only the quantum of damages due to the claimants.
In support of their claims, plaintiffs seek to introduce the opinions of two experts, Dr. James N.
Domingue, M.D. and Larry Hayes, LCSW, BACS. ARTCO seeks to exclude certain of their
opinions pursuant to Federal Rule of Evidence 702, and Daubert v. Merrell Dow

Case 2:18-cv-02186-MVL-DPC Document 309 Filed 01/03/23 Page 2 of 6

Pharmaceuticals, Inc., 509 U.S. 579 (1993).
DISCUSSION
Federal Rule of Evidence 702 provides that for expert testimony to be admissible, “(1)
the testimony [must be] based upon sufficient facts or data, (2) ... the product of reliable
principles and methods, and (3) the witness [must have] applied the principles and methods
reliably to the facts of the case.” FED. R. EVID. 702. This rule requires the district court to act as
a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Daubert, 509 U.S. at 589. To perform its gatekeeping function, the court
must first determine whether the proffered expert testimony is reliable. The party offering the
testimony bears the burden of establishing its reliability by a preponderance of the evidence. See
Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires
the court to assess whether the reasoning or methodology underlying the expert's testimony is
valid. See Daubert, 509 U.S. at 592-93. The goal is to exclude expert testimony that is based
merely on subjective belief or unsupported speculation. See id. at 590. However, “[i]n Gibbs v.
Gibbs, 210 F.3d 491, 500 (5th Cir. 2000), [the Fifth Circuit] noted that the importance of the trial
court's gatekeeper role is significantly diminished in bench trials, as in this instance, because,
there being no jury, there is no risk of tainting the trial by exposing a jury to unreliable
evidence.” Whitehouse Hotel Ltd. P'ship v. Comm'r, 615 F.3d 321, 330 (5th Cir. 2010).
1. James N. Domingue, M.D.
Dr. Domingue is plaintiffs' retained medical witness. ARTCO does not challenge Dr.
Domingue's qualifications; rather, ARTCO challenges Dr. Domingue's opinion that Spencer
2

Case 2:18-cv-02186-MVL-DPC Document 309 Filed 01/03/23 Page 3 of 6

Graves experienced periods of consciousness and thus pain and/or discomfort following his
initial exposure to smoke and carbon monoxide and prior to his death. ARTCO argues that this
opinion is unreliable and speculative because it contradicts the testimony of the four physicians
who saw and treated Graves, which ARTCO characterizes as concluding that Graves never
experienced any consciousness following the initial exposure up until the time of his death.
The court's review of Dr. Domingue's report and testimony reflects that he does reference
and rely upon the notes and records of the treating physicians, including Ochsner Medical Center
("OMC") records that noted trace soot in nares evidencing breathing during exposure, pupils
sluggishly reactive to light, posturing at OMC that could be in response to pain, elevated blood
pressure during transport for hyperbaric treatment credited to insufficient analgesia and sedation
(also possibly indicative of pain), and a response to pain in all extremities following hyperbaric
treatment. Dr. Domingue also clarified that to the extent his report implied that Graves was
continually conscious from initial exposure until brain death, it was mistaken, and his actual
opinion is that the Graves was "more probably than not, intermittently conscious during the
episodes pointed out in the discussion section of [his] report."1
Thus, the challenged opinion does not contradict the medical records and witnesses in
this case, but emphasizes different facts than those emphasized by ARTCO's expert. Dr.
Domingue therefore drew a different conclusion than ARTCO's expert, but the court cannot say
that it is unsupported by the facts in the record. Essentially, ARTCO's challenge goes to the

1

Dr. James N. Domingue, Supplemental Report (11/21/22), Rec. Doc. 294-11, Domingue
Depo., Rec. Doc. 294-9, 88:17-89:19.
3

Case 2:18-cv-02186-MVL-DPC Document 309 Filed 01/03/23 Page 4 of 6

bases for Dr. Domingue's opinion, suggesting that in formulating it, Dr. Domingue
overemphasized certain facts and overlooked others that he should have considered. “[Q]uestions
relating to the bases and sources of an expert's opinion[,] affect the weight to be assigned that
opinion rather than its admissibility and should be left for the [fact-finder's] consideration.”
United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996). Moreover, because
this is a bench trial, the purpose of a Daubert motion, to prevent exposing a jury to unreliable
evidence, is not implicated. See Gibbs, 210 F.3d at 500. Considering this, as well as the court's
broad discretion to decide whether to admit expert opinion testimony, see General Elec. Co. v.
Joiner, 522 U.S. 136, 138–39 (1997), the court will admit Dr. Domingues's expert report and
testimony and give it whatever weight it deserves.
2. Larry Hayes, LCSW, BACS
Plaintiffs have also designated Larry Hayes, LCSW, BACS to offer his opinion
diagnosing Neal with "Post Traumatic Stress Disorder" ("PTSD").2 ARTCO contends that
because Hayes has no advanced degrees in psychology nor licenses to practice psychology or
neuropsychology, he is not qualified to offer such a diagnosis. ARTCO also argues that the
diagnosis of "possible PTSD"3 is speculative and thus not held within the medical certainty
required to be admissible as expert testimony.
In making its argument, ARTCO relies on Louisiana Revised Statute section
37:2703(14)(c), which provides that a licensed social worker is not authorized “to administer or
2

Hayes Narrative Evaluation (12/3/22), Rec. Doc. 275-10, 7.

3

Hayes Report (10/3/22), Rec. Doc. 295-10, 4.
4

Case 2:18-cv-02186-MVL-DPC Document 309 Filed 01/03/23 Page 5 of 6

interpret psychological tests, or to engage in the practice of psychology,” or “to engage in the
practice of medicine” and cases interpreting it. ARTCO further contends that the Fifth Circuit
has ruled that PTSD is a medical diagnosis, citing United States v. Crosby, 713 F.2d 1066,
1076–77 (5th Cir.1983). Thus, ARTCO posits that Hayes is unauthorized to diagnose Neal with
PTSD.
Plaintiffs counter by pointing to Louisiana Revised Statutes section 37:2708(B), which
states that the practice of clinical social work “requires the application of specialized clinical
knowledge and advanced clinical skills in the areas of prevention, assessment, diagnosis, and
treatment of mental, emotional and behavioral and addiction disorders” and cases interpreting
that provision. Arguing that Hayes' PTSD diagnosis and evaluation fall within the application of
his “specialized clinical knowledge and advanced clinical skills” as a clinical social worker,
plaintiffs contend that he is qualified as an expert to render an opinion diagnosing Neal with
PTSD.
The court need not choose which statutory provision is controlling, because in addition to
the fact that Hayes is not specifically authorized under Louisiana law to render a medical
diagnosis, he lacks specialized clinical knowledge and advanced clinical skills that would qualify
him to diagnose PTSD. A review of Hayes' resume4 reflects that for the past eight years, he has
been executive director of an organization whose mission is to prevent, detect, and treat
HIV/AIDS. Prior to that, the vast majority of his experience is related to youth and educational
counseling, including as the Truancy Center Director for the Recovery School District, as a
4

Rec. Doc. 295-10, 2.
5

Case 2:18-cv-02186-MVL-DPC Document 309 Filed 01/03/23 Page 6 of 6

Juvenile Court Liaison, and as a School Social Worker. Nothing on Hayes' resume suggests
expertise in trauma work or PTSD. In contrast, in Lodge, the case plaintiffs cite as support for
allowing an LCSW to testify regarding a PTSD diagnosis stemming from sexual abuse, the
proposed witness had published a book on sexual abuse, given numerous professional
presentations on sexual abuse, and in her practice primarily diagnosed and treated victims of
sexual abuse. 2012 WL 3644745, *4. In addition, she had done extensive research on sexual
abuse by clergy members, which was at issue in that case. Id. These facts are readily
distinguishable from those related to Hayes' experience, which, as previously noted, reflects no
expertise in trauma. Hayes is not qualified to render a medical PTSD diagnosis or testify to
medical causation. Therefore, Hays may not opine regarding his PTSD diagnosis, although he
may testify regarding his personal observations and treatment of Neal as a social worker.
For all of the foregoing reasons,
IT IS HEREBY ORDERED that the Motion in Limine to Exclude Certain Opinions
of James N. Domingue, M.D., filed by American River Transportation Company, LLC
("ARTCO") (Rec. Doc. 277) is DENIED;
IT IS FURTHER ORDERED that the Motion in Limine to Exclude Certain
Opinions of Larry Hayes, LCSW, BACS filed ARTCO (Rec. Doc. 278) is GRANTED and
Hayes' opinion diagnosing Ronald D. Neal with PTSD is excluded..

3rd day of January, 2023.
New Orleans, Louisiana, this _____
____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
6