Parker v. John W. Stone Oil Distributors, LLC

Filing 50

ORDER AND REASONS: ORDERED that 29 Motion in Limine is hereby DENIED.FURTHER ORDERED that 30 Motion in Limine is hereby DENIED. FURTHER ORDERED that 31 Motion in Limine is hereby DENIED. Signed by Judge Eldon E. Fallon on 6/28/2019. (jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JEREMY A. PARKER

CIVIL ACTION

VERSUS

NO. 18-3666

JOHN W. STONE OIL DISTRIBUTORS, L.L.C.

SECTION "L" (2)

ORDER & REASONS
Before the Court are the following motions: (1) Plaintiff’s Motion in Limine to Exclude the
Opinions of Robert Borison, R.Doc. 29; (2) Plaintiff’s Motion in Limine to Exclude Cumulative
Opinions of Dr. Everett Robert and Dr. Archie Melcher, R. Doc. 30; and (3) Defendant’s Motion
in Limine to Exclude the Opinions of Plaintiff’s Safety Expert, Don J. Green, R. Doc. 31. Each
motion is opposed. R. Docs. 33, 34, 36. The second and third motions have replies. R. Docs. 41,
46. The Court now rules as follows.
I.

BACKGROUND
This case arises from injuries Plaintiff Jeremy Parker, a Jones Act seaman, allegedly

sustained while working as a tankerman aboard a vessel, the M/V PRESAGER, owned by
Defendant John W. Stone Oil Distributors LLC. R. Doc. 1 at 2. Plaintiff claims a fellow
crewmember pulled on a face wire, causing a line to pop, which resulted in a 10-pound shackle
falling approximately ten feet and hitting Plaintiff in the head. R. Doc. 30-1 at 1. Plaintiff alleges
this impact caused serious injuries to his neck and head and rendered him unfit for duty as a
seaman. R. Doc. 30-1 at 1. According to the Complaint, the sole and proximate cause of the
accident was Defendant’s negligence and maintenance of an unseaworthy vessel. R. Doc. 1 at 2–
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3. Accordingly, Plaintiff seeks to recover past, present, and future physical, mental and emotional
pain and suffering; loss of wages and wage-earning capacity; medical expenses; past and future
physical disability; and past, present, and future maintenance and cure. R. Doc. 1 at 3.
Defendant contests the cause of Plaintiff’s accident and asserts Plaintiff placed himself in
an unsafe position in violation of Defendant’s safety rules. R. Doc. 35 at 1. Further, Defendant
alleges Plaintiff failed to inspect the line in question prior to its use. R. Doc. 35 at 1.
II.

PRESENT MOTIONS
Before the Court are several overlapping motions: (1) Plaintiff’s Motion in Limine to

Exclude the Opinions of Robert Borison, R. Doc. 29; (2) Plaintiff’s Motion in Limine to Exclude
Cumulative Opinions of Dr. Everett Robert and Dr. Archie Melcher, R. Doc. 30; and (3)
Defendant’s Motion in Limine to Exclude the Opinions of Plaintiff’s Safety Expert, Don J. Green,
R. Doc. 31. Each motion is opposed. R. Docs. 33, 34, 36. The second and third motions have
replies. R. Docs. 41, 46.
III.

LAW AND ANALYSIS
The admissibility of expert testimony is governed by Rule 702 of the Federal Rule of

Evidence, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. This rule codifies the Supreme Court’s decisions in Daubert v. Merrell Dow
Pharma., Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
The Court must act as a “gate-keeper” to ensure the proffered expert testimony is “both
reliable and relevant.” Wells v. SmithKline Beecham Corp., 601 F.3d 375, 378 (5th Cir. 2010). This
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requires the Court conduct a two-pronged assessment to determine whether the expert testimony is:
(1) based on reliable methodology and (2) will assist the trier of fact to understand the evidence or
to determine a fact in issue. See Daubert, 509 U.S. at 589–91.
a. Whether Defendant’s experts’ reports are reliable
The first prong “entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Wells, 601 F.3d at 378 (quoting Daubert, 509 U.S. at
592–93). With respect to reliability, the Court’s focus “must be solely on principles and
methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.
Ultimately, a court’s role as a gatekeeper does not replace the adversary system. 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.” Id. Proper deference is to be accorded to the jury’s role “as the arbiter of
disputes between conflicting opinions.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077
(5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). “As a
general rule, questions 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 jury’s
consideration.” Id. (quoting Viterbo, 826 F.2d at 422).
1. Whether Defendant’s liability expert used reliable methodology
Expert reports must be detailed in order to avoid “sketchy and vague” information. See Sierra
Club v. Cedar Point Oil Co. Inc., 73 F.3d 546, 571 (5th Cir. 1996). Moreover, expert reports must
be based on a sufficient factual foundation and cannot be based simply on the unsupported beliefs
and opinions of the expert himself. See Daubert, 509 U.S. at 590. When the expert opinion is “[not]

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based upon the facts in the record but on altered facts and speculation designed to bolster [a party’s]
position,” then the expert’s opinion must be excluded. See Guillory v. Domtar Indus., 95 F.3d
1320, 1331 (5th Cir. 1996).
Plaintiff argues the opinions of Defendant’s liability expert, Robert Borison, should be
excluded because they “are merely unsupported speculation and assumptions.” R. Doc. 29-1 at 3.
Plaintiff contends there are no documents that support Borison’s conclusion that Plaintiff
contributed to his own injury. R. Doc. 29-1 at 3. For example, according to Plaintiff, the USCG
incident report makes no mention of Plaintiff being in an unsafe position when he was allegedly
injured. R. Doc. 29-1 at 3.
In opposition, Defendant argues Borison’s report cites to specific facts and data, such as
“vessel safety procedures outlined in Stone Oil’s manuals.” R. Doc. 36 at 3. Defendant submits
“Borison cites to two separate policy provisions contained in Stone Oil’s Safety Manual Policies
& Procedures and Stone Oil’s Safety Policy Manual.” R. Doc. 36 at 3. Further, according to
Defendant, “[t]his Court has previously rejected such arguments and has denied a prior motion in
limine seeking exclusion of Borison on this exact ground.” R. Doc. 36 at 8–9.
The Court agrees with Defendant that the report of its liability expert, Robert Borison,
should not be excluded. Borison’s report cites to two separate policy provisions contained in Stone
Oil’s Safety Manual Policies & Procedures and Stone Oil’s Safety Policy Manual. The provisions
state: “No one should stand under a suspended load or should the operator pass a load over
personnel,” R. Doc. 36-5 at 63, and instruct personnel to “[s]tand clear of lines or wires when they
have a strain on them,” R. Doc. 36-6 at 9. Moreover, Borison has over 50 years of experience in
the safety field, upon which he bases his opinions. Therefore, the Court finds Borison’s report is
based on a sufficient factual foundation supported by his experience in the industry as well as

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Stone Oil’s Safety Manuals. Any challenges to Borison’s opinions are ripe for cross examination
and affect only the weight of his opinion rather than its admissibility.
2. Whether the opinions of Defendant’s medical experts are cumulative
Pursuant to Rule 403 of the Federal Rule of Evidence, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” However, the Fifth Circuit has held that “[t]he
exclusion of evidence under Rule 403 should occur only sparingly.” United States v. Pace, 10 F.3d
1106, 1115 (5th Cir. 1993). Additionally, the Fifth Circuit has not put a precise limit on the number
of experts that can testify regarding a particular issue. See Leefe v. Air Logistics, Inc., 876 F.2d
409, 411 (5th Cir. 1989). Multiple experts may testify to the same conclusion if they approached
their individual analyses from separate “vantage points.” See Sanchez v. Swift Transp. Co. of Ariz.,
LLC, No. 4:15CV15-LG, 2017 U.S. Dist. LEXIS 204892 (W.D. Tex. July 19, 2017); Thomas v.
W&T Offshore, Inc., No. CV 16-14694, 2018 WL 4095099, at *3 (E.D. La. Aug. 27, 2018).
Because “[i]t is difficult . . . to determine the necessity and cumulative effect of testimony by
several experts,” the Court has wide discretion in allowing experts to testify. See Leefe, 876 F.2d
at 411.
Plaintiff argues the opinions of Defendant’s medical experts Dr. Everett Robert and Dr.
Archie Melcher should be excluded because they are “needlessly cumulative.” R. Doc. 30-1 at 3.
According to Plaintiff, having two doctors present evidence on the same condition will confuse
and mislead the jury into thinking Defendant’s opinion should be given more weight. Id. Plaintiff
contends Defendant’s claim that each doctor approached Plaintiff’s diagnosis from a different
vantage point is a “red herring” because neurologists and neurosurgeons practice the same medical

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specialty, neurology. R. Doc. 41 at 2. Further, according to Plaintiff, “both doctors rendered the
same exact opinion regarding the same exact brain injury . . . .” R. Doc. 41 at 2.
In opposition, Defendant argues the opinions of Dr. Melcher and Dr. Robert are not
cumulative because they each approach Plaintiff’s medical condition from a different vantage
point. R. Doc. 33 at 7. Defendant contends, “Dr. Robert will primarily testify regarding the alleged
cause of Parker’s subjective complaints of continued neck pain,” while “Dr. Melcher will primarily
testify as to the cause of Parker’s alleged head/brain injury and white matter changes.” R. Doc. 33
at 10. Additionally, according to Defendant, Dr. Melcher and Dr. Robert used their different
specialties to approach their individual evaluations of Plaintiff’s medical condition. R. Doc. 33 at
10. Defendant submits the testimony of Dr. Melcher and Dr. Robert may overlap at times, but they
will “offer separate opinions on separate injuries using a separate analysis.” R. Doc. 33 at 11.
The Court will deny Plaintiff’s motion in limine to exclude the opinions of Defendant’s
medical experts. Dr. Robert and Dr. Melcher approached their individual evaluations of Plaintiff
from different “vantage points” as they practice different specialties. The Court recognizes
Plaintiff’s contention that neurosurgeons and neurologists both stem from the study of neurology,
but here each doctor took a different approach in evaluating Plaintiff. Dr. Robert relied upon his
physical examination and diagnostic images of Plaintiff, whereas Dr. Melcher relied upon
Plaintiff’s past medical history, diagnostic tests, and the symptoms Plaintiff reported to Dr.
Shamsnia and Dr. Bartholomew. Therefore, while there may be overlap in their testimony, the
reports of Dr. Robert and Dr. Melcher are not cumulative of each other. Coming to the same
conclusion does not make the reports duplicative. Any objection to Dr. Robert and Dr. Melcher’s
conclusions are ripe for cross examination and speak only to the weight of their reports and not
their admissibility. If at trial Dr. Robert’s testimony duplicates Dr. Melcher’s, or vice versa,

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Plaintiff may object to the testimony at that time.
b. Whether Plaintiff’s safety expert presents relevant testimony that will aid the factfinder in resolving a factual dispute
The second prong to ensure expert testimony is “reliable and relevant,” looks primarily to
the issue of relevancy. Daubert, 509 U.S. at 589. “Whether the situation is a proper one for the use
of expert testimony is to be determined on the basis of assisting the trier.” Advisory Committee
Notes Fed. R. Evid. 702. Assisting the finder of fact requires the expert testimony to reveal more
than the attorneys in arguments can offer. See In re Air Crash Disaster at New Orleans, La., 795
F.2d 1230, 1233 (5th Cir. 1986).
1. Whether the opinions of Plaintiff’s safety expert fall into the common
knowledge and experience of the fact-finder
Pursuant to the Advisory Committee’s Notes on Federal Rules of Evidence 702,
There is no more certain a test for determining when experts may be used than the
common sense inquiry whether the untrained layman would be qualified to
determine intelligibly and to the best possible degree the particular issue without
enlightenment from those having specialized understanding of the subject involved
in the dispute.
(quoting Mason Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952)). Expert
testimony does not assist the fact-finder when the jury “could adeptly assess [the] situation
using only their common experience and knowledge.” Peters v. Five Star Marine Serv.,
898 F.2d 448, 449 (5th Cir. 1990). However, complex issues are considered to fall outside
the scope of the jury’s common experience and knowledge. See In re Horizon Vessels, Inc.,
No. CIV. H -03-3280, 2007 WL 655927, at *8 (S.D. Tex. Feb. 28, 2007); McMullen v. BP
Expl. & Prod., No. CIV.A. 12-1206, 2013 WL 2556032, at *7 (E.D. La. June 10, 2013).
Defendant argues the opinions of Plaintiff’s safety expert, Don J. Green, should be
excluded because they “do not provide any scientific, technical or other specialized

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knowledge.” R. Doc. 31-1 at 1. According to Defendant, Green renders opinions that fall
within the common knowledge and experience of the fact-finder: a defective line caused
the alleged incident and if Defendant “had implemented and/or maintained an inspection
program for nylon lines,” then the alleged incident would not have occurred. R. Doc. 31-1
at 8–9. Defendant contends “Green cites to absolutely no guidelines, federal regulations,
and/or industry standards . . . nor does he offer any specialized knowledge or expertise
regarding securing a tow, shackles, face wires, or nylon ropes.” R. Doc. 31-1 at 10.
In opposition, Plaintiff argues Green’s testimony will help the jury understand marine
safety procedures and how Defendant’s conduct caused Plaintiff’s alleged incident. R. Doc. 34 at
1. According to Plaintiff,
At trial, Commander Green will testify about the customary practices utilized on a
vessel of the sort on which plaintiff was injured, and . . . the proper safety
instructions usually given, safety and inspection steps taken during building tow,
the maintenance of work areas to ensure that they are free from hazards and other
unsafe practices . . . .
R. Doc. 34 at 8. Plaintiff contends all of the information Green will testify to is outside the scope
of a layman’s knowledge, and his testimony will be of the utmost importance to assist the jury in
understanding “the critical facts and concepts at issue.” R. Doc. 34 at 8.
The Court agrees with Plaintiff that his safety expert, Don J. Green, will assist the jury in
understanding the issues of this case. While common experience and knowledge dictates that a
defective nylon line may cause an accident, how a maritime company such as Defendant is
expected to maintain and/or inspect its nylon lines it is outside the scope of the jury’s knowledge.
Further, the jury will be assisted by Green’s more than 50 years of marine experience in
understanding this case. The Court notes, however, that Green’s testimony must be limited to the
contents of his report (noting that cross examination during his deposition could expand the scope

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of his testimony). See, e.g. Richardson v. SEACOR Lifeboats, LLC, No. CIV.A. 14-1712, 2015
WL 2193907, at *2 (E.D. La. May 11, 2015). If at trial Green’s testimony goes beyond the scope
of his report or any relevant deposition testimony, Defendant may object at that time.
IV.

CONCLUSION
For the reasons stated above,
IT IS ORDERED that Plaintiff’s Motion in Limine to Exclude the Opinions of Robert

Borison, R. Doc. 29, is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion in Limine to Exclude Cumulative
Opinions of Dr. Everett Robert and Dr. Archie Melcher, R. Doc. 30, is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine to Exclude the Opinions
of Plaintiff’s Safety Expert, Don J. Green, R. Doc. 31, is hereby DENIED.

New Orleans, Louisiana, this 28th day of June, 2019.

ELDON E. FALLON
U.S. DISTRICT COURT JUDGE

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