In the Matter of Aries Marine Corporation et al

Filing 233

ORDER & REASONS denying 157 Joint Motion in Limine for the reasons stated herein. IT IS FURTHER ORDERED that defendants may re-depose Bintcliffe regarding the opinions offered in the declaration prior to FEBRUARY 16, 2023. Defendants may also amend their expert report to respond to opinions offered in the declaration no later than JANUARY 31, 2023. Signed by Judge Lance M Africk on 1/17/2023. (Reference: All Cases)(mm)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF
ARIES MARINE
CORPORATION, ET AL.

CIVIL ACTION
No. 19-10850
c/w 19-13138
REF: ALL CASES
SECTION I
ORDER & REASONS

Before the Court is a joint motion in limine 1 by Aries Marine Corporation
(“Aries”), Fieldwood Energy, LLC (“Fieldwood”), and Fugro USA Marine (“Fugro”) to
exclude the report and testimony of claimants’ marine liability expert, Christopher
Bintcliffe (“Bintcliffe”). Claimants Calvin Abshire, Glenn Gibson, Tomas Arce Perez,
Lee Bob Rose, Gilberto Gomez Rozas, Gabriel Vilano, and Ronald Williams
(collectively, “claimants”) oppose 2 the motion. For the reasons below, the Court denies
the motion.
I.

FACTUAL BACKGROUND

This matter arises from a November 18, 2018 incident in which the RAM
XVIII, a liftboat 3 owned and operated by Aries, listed and ultimately capsized in the
Gulf of Mexico. After this incident, Aries filed a complaint for exoneration or

R. Doc. No. 157.
R. Doc. No. 193.
3 A liftboat is a self-elevating vessel used in offshore mineral exploration and
production. E.g., R. Doc. No. 204, at 1. The RAM XVIII had three legs that were placed
on the sea floor, allowing the vessel to or lift, or “jack up,” out of the water. Id.
1
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limitation of liability in this Court. 4 The seven claimants, all of whom were present
on the vessel during the incident, then filed answers and claims. 5 Claimants also filed
a separate complaint 6 against Fugro and Fieldwood. That matter was consolidated
with the limitation action. 7
Claimants allege that negligence by Aries, Fugro, and Fieldwood caused the
incident. 8 In their briefing 9 in opposition to summary judgment motions 10 currently
pending before the Court, claimants argue that the RAM XVIII listed and capsized
because the preloading process 11 was performed incorrectly or not performed at all,
or because one leg of the vessel slipped into a “hole or impression left by another rig
or vessel” (sometimes referred to as “can holes”) on the sea floor. 12 In support of their
arguments, they submitted an expert report by Bintcliffe.
Bintcliffe’s CV, which is attached to his report, indicates that he is an engineer
with approximately 16 years of experience working in the oil and gas sector, and has

R. Doc. No. 1.
R. Doc. Nos. 6, 13. Six of the seven claimants were employed by Fluid Crane and
Construction. The seventh, Glenn Gibson, was employed by United Fire and Safety.
Fluid Crane and United Fire and Safety are parties to this matter but not the instant
motion.
6 E.D. La. Case No. 19-13138.
7 R. Doc. No. 51.
8 R. Doc. Nos. 6, 13; E.D. La. Case No. 19-13138, R. Doc. No. 1.
9 R. Doc. Nos. 188, 196, 204.
10 R. Doc. Nos. 151, 159, 161.
11 “Preloading” is a process in which the vessel intentionally takes on water in tanks
and lifts slightly out of the water in order “to ensure that the leg pads are on stable
ground and will not punch through the seabed” when the vessel is jacked up to full
working height. R. Doc. No. 151-1, at 9; accord R. Doc. No. 204, at 2.
12 R. Doc. No. 204, at 9 (arguing that any preload conducted was improper); id. at 12
(arguing that no preload was conducted); id. at 13 (arguing that one leg of the vessel
slipped into a hole or impression on the sea floor).
4
5

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experience working with marine operations, including liftboats. 13 Bintcliffe’s report
purports to provide opinions “on the operations and causation of the listing and
capsize of the Aries RAM XVIII.” 14 After setting forth the factual background of the
incident, the report concludes with 13 “process and competency failures.” In addition
to these opinions, claimants provided, as an attachment to their opposition to the
instant motion, a declaration by Bintcliffe dated December 5, 2022, which contains
the same opinions as those provided in his report, plus additional information
regarding his qualifications and conclusions. 15
Aries, Fieldwood, and Fugro (collectively, “defendants”) ask this Court to
exclude Bintcliffe’s report and testimony on the grounds that it fails to comply with
Federal Rule of Evidence 702 and the standards set out in Daubert v. Merrell Dow
Pharmacies, Inc., 509 U.S. 759, 588 (1993). They also object to the Bintcliffe’s
December 5 declaration as both untimely and unreliable. 16
II.

STANDARD OF LAW

a. Admissibility of Expert Testimony
Federal Rule of Evidence 702 governs the admissibility of expert witness
testimony. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 588 (1993); United
States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
R. Doc. No. 157-2, at 15−16.
R. Doc. No. 157-2, at 3.
15 R. Doc. No. 193-7.
16 R. Doc. No. 223, at 3.
13
14

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(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
“To qualify as an expert, ‘the witness must have such knowledge or experience
in [his] field or calling as to make it appear that his opinion or inference will probably
aid the trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th
Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)). An
expert need not be “highly qualified in order to testify about a given issue” as
“[d]ifferences in expertise bear chiefly on the weight to be assigned to the testimony
by the trier of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.
2009).
Daubert “provides the analytical framework for determining whether expert
testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,
243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to
the Daubert framework, which requires a trial court to make a preliminary
assessment to “determine whether the expert testimony is both reliable and
relevant.” Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004); see
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
A number of nonexclusive factors may be considered with respect to the
reliability inquiry, including: (1) whether the technique has been tested, (2) whether
the technique has been subjected to peer review and publication, (3) the technique’s
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potential error rate, (4) the existence and maintenance of standards controlling the
technique’s operation, and (5) whether the technique is generally accepted in the
relevant scientific community. Burleson, 393 F.3d at 584.
The reliability inquiry must remain flexible, however, as “not every Daubert
factor will be applicable in every situation; and a court has discretion to consider
other factors it deems relevant.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th
Cir. 2004); see Runnels v. Tex. Children’s Hosp. Select Plan, 167 F. App’x 377, 381
(5th Cir. 2006) (“[A] trial judge has ‘considerable leeway’ in determining ‘how to test
an expert’s reliability.’” (quoting Kumho Tire, 526 U.S. at 152)). “Both the
determination of reliability itself and the factors taken into account are left to the
discretion of the district court consistent with its gatekeeping function under [Rule]
702.” Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000).
As for determining relevancy, the proposed testimony must be relevant “not
simply in the way all testimony must be relevant [under Rules 401 and 402], but also
in the sense that the expert’s proposed opinion would assist the trier of fact to
understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d
581, 584 (5th Cir. 2003). “There is no more certain test for determining when experts
may be used than the common sense inquiry whether the untrained layman would be
qualified to determine intelligently and to the best degree the particular issue
without enlightenment from those having a specialized understanding of the subject
involved in the dispute.” Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003)
(quoting Fed. R. Evid. 702, Advisory Committee Note).

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“[W]hen expert testimony is challenged under Rule 702 and Daubert, the
burden of proof rests with the party seeking to present the testimony.” Kennedy v.
Magnolia Marine Transp. Co., 189 F. Supp. 3d 610, 615 (E.D. La. 2016) (Africk, J.).
The Court applies a preponderance of the evidence standard when performing its
gatekeeping function under Daubert. See Daubert, 509 U.S. at 592 n.10. And the
Court is not bound by the rules of evidence—except those rules concerning
privileges—when doing so. See id.
The Fifth Circuit has recognized “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. C.I.R., 615 F.3d 321, 330 (5th
Cir. 2010) (citing Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000)). Even so, “the
Court is still required to perform its gate-keeping function” when considering
whether expert testimony should be admitted in a bench trial. United States v. E.R.R.
LLC, No. 19-2340, 2020 WL 2769881, at *3 (E.D. La. May 28, 2020) (Fallon, J.).
b. Disclosure of Expert Reports
Litigants must disclose the identities of expert witnesses and the subject
matter of their testimony “at the times and in the sequence that the court orders.”
Fed. R. Civ. P. 26(a)(2)(D). “If a party fails to provide information or identify a witness
as required by Rule 26(a). . . the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Therefore, “[a]n

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expert witness may not testify to subject matter beyond the scope of the witness's
expert report unless the failure to include that information in the report” is
“substantially justified or harmless” pursuant to Rule 37. Rembrandt Vision Techs.,
LP v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (5th Cir. 2013).
“In determining whether a violation of Rule 26 is harmless or substantially
justified, a court considers: ‘(1) the importance of the evidence; (2) the prejudice to the
opposing party of including the evidence; (3) the possibility of curing such prejudice
by granting a continuance; and (4) the explanation for the party's failure to disclose.’”
Ambrose v. State Farm Mut. Auto. Ins. Co., No. 20-1011, 2021 WL 2284299, at *3
(E.D. La. June 4, 2021) (Morgan, J.) (citing Tex. A&M Rsch. Found. v. Magna Transp.,
Inc., 338 F.3d 394, 402 (5th Cir. 2003)).
III.

ANALYSIS

a. Bintcliffe’s Expert Report
Defendants argue that Bintcliffe’s report should be excluded because Bintcliffe
lacks relevant experience, 17 fails to offer explanation or methodology in support of his
opinions, 18 relies on insufficient data, 19 and makes impermissible credibility
determinations and legal conclusions. 20
As this is a bench trial, this Court’s function as gatekeeper “is significantly
diminished.” Whitehouse Hotel Ltd. P’ship, 615 F.3d at 330. Having reviewed

R. Doc. No. 157-1, at 12.
Id.
19 Id. at 15.
20 Id. at 16.
17
18

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Bintcliffe’s report and defendants’ objections to it, the Court concludes exclusion of
Bintcliffe’s report is not warranted at this time. Defendants may challenge
the reliability of Bintcliffe’s opinions through cross-examination and objection at
trial.
b. Bintcliffe’s December 5, 2022 Declaration
The Court next addresses the sworn declaration that claimants attached to
their opposition to the instant motion. Claimants’ deadline to provide written
expert reports in this matter was September 16, 2022.21 Therefore, to the
extent that claimants attempt to use Bintcliffe’s declaration to supplement the
expert report, that attempt runs afoul of Rules 26(a)(2)(D) and 37(c)(1). Neither party
addresses whether this untimeliness is harmless or substantially justified.
Ambrose, 2021 WL 2284299, at *3.
If claimants intend to offer information contained in the declaration, but
not in the original report, defendants must be given a chance to depose Bintcliffe on
those additional opinions. Even if defendants decide not to re-depose Bintcliffe, they
will be given a chance to amend their own expert report in response to the newly
added Accordingly,
opinions.
IT IS ORDERED that defendants’ motion in limine is DENIED.
IT IS FURTHER ORDERED that defendants may re-depose Bintcliffe
regarding the opinions offered in the declaration prior to FEBRUARY 16, 2023.

21

R. Doc. No. 117, at 2.
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Defendants may also amend their expert report to respond to opinions offered in the
declaration no later than JANUARY 31, 2023.
New Orleans, Louisiana, January 17, 2023.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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