Tillage v. Westbank Fishing, LLC
ORDER denying 21 Motion in Limine. The motion is denied, as set forth in document. Signed by Judge Greg Gerard Guidry on 11/20/2020. (ko)
Case 2:19-cv-10858-GGG-DMD Document 63 Filed 11/20/20 Page 1 of 3
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION 19-10858
WESTBANK FISHING, LLC
Before the Court is a Motion In Limine 1 filed by Westbank Fishing, LLC (“Westbank
Fishing”). Harold Tillage (“Plaintiff”) has filed an opposition.2 For the following reasons, the
Motion In Limine 3 is DENIED.
This action arises out of damages sustained by Plaintiff while working aboard the F/V
Frances T. Carinhas on June 11, 2018. Plaintiff was pulling netting into the boat when slack in the
netting caused Plaintiff to fall backwards. On June 19, 2019, Plaintiff met with Dr. Andrew Todd,
an orthopedic surgeon with Southern Orthopedic Specialists, who has identified Plaintiff as a
potential candidate for a lumbar fusion procedure. Because Dr. Todd has not recommended that
Plaintiff undergo a lumbar fusion procedure, Westbank Fishing contends Dr. Todd’s opinion on
Plaintiff’s ability to return to work in gainful employment will be wholly speculative and
unreliable. Westbank Fishing, therefore, seeks an order excluding any evidence concerning the
supposed inability of Plaintiff to return to work to be offered by Dr. Todd. Plaintiff contends the
testimony of Dr. Todd concerning Plaintiff’s functional capacity is not speculative and unreliable
R. Doc. 21.
R. Doc. 27.
R. Doc. 21.
Case 2:19-cv-10858-GGG-DMD Document 63 Filed 11/20/20 Page 2 of 3
but is in fact based upon information made known to Dr. Todd during the course of his treatment
LAW AND ANALYSIS
Federal Rule of Evidence 702 provides: “A witness who is qualified as an expert by
knowledge, skill, experience, training, or education, may testify in the form of opinion or otherwise
if: (a) the expert's scientific, technical, or other specialized knowledge will assist 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.”4 When expert testimony
is challenged under Rule 702 and Daubert, the burden of proof rests with the party seeking to
present the testimony.5
In Daubert, the Supreme Court established a two-part test for judges to perform in
determining the admissibility of expert testimony.6 First, the court must determine whether the
expert's testimony reflects scientific knowledge, is derived by the scientific method, and is
supported by appropriate validation.7 Second, the court must determine whether the testimony will
assist the trier of fact to understand the evidence.8 “A district court should refuse to allow an expert
witness to testify if it finds that the witness is not qualified to testify in a particular field or on a
given subject.”9 However, “Rule 702 does not mandate that an expert be highly qualified in order
Fed. R. Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993); United States v. Hitt, 473 F.3d 146, 148 (5th Cir.2006).
Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir.1998).
Daubert, 509 U.S. at 588; Hitt, 473 F.3d at 148.
Daubert, 509 U.S. at 590.
Daubert, 509 U.S. at 591.
Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)).
Case 2:19-cv-10858-GGG-DMD Document 63 Filed 11/20/20 Page 3 of 3
to testify about a given issue.”10 “Differences in expertise bear chiefly on the weight to be assigned
to the testimony by the trier of fact, not its admissibility.”11
As the Court has previously noted, in bench trials such as this one, many of the Daubert
safeguards are not implicated.12 Additionally, the Court has great discretion in allowing
evidence during a bench trial.13 Westbank Fishing can explore the issues raised in its motion
on cross-examination, but these issues do not necessitate completely excluding any evidence
concerning the supposed inability of Plaintiff to return to work to be offered by Dr. Todd.
Therefore, Westbank Fishing’s Motion in Limine is denied.
For the foregoing reasons, IT IS ORDERED that the Motion In Limine
Westbank Fishing, LLC is DENIED.
New Orleans, Louisiana, on this 20th day of November, 2020.
GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE
Huss, 571 F.3d at 452.
Huss, 571 F.3d at 452.; see also 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.”).
See Ybarra v. Int'l Shipholding Corp., 2019 WL 2077783, at *2 (E.D. La. Mar. 22, 2019).
Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
R. Doc. 21.
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