Gray v. Energy XXI GOM LLC et al

Filing 62

RULING granting in part and denying in part 48 Motion in Limine. Signed by Judge James J. Brady on 8/5/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KENNETH W. GRAY
CIVIL ACTION
VERSUS
NO. 12-165-JJB
ENERGY XXI GOM LLC, ET AL.
RULING ON MOTION IN LIMINE
This matter is before the Court on a Motion in Limine (Doc. 48) filed by Defendant John
L. Soileau, Inc. The Plaintiff, Kenneth W. Gray, opposes the Motion (Doc. 54). Jurisdiction
exists pursuant to 28 U.S.C. § 1332.
I.

Background

Gray’s lawsuit is for damages based on personal injuries sustained when he slipped and
fell on stairs leading from the living quarters hallway to the galley of a fixed platform in the Gulf
of Mexico. Energy XXI GOM LLC and Energy XXI (Bermuda) Ltd. (collectively, “Energy
XXI”) owned and operated the platform in question. Energy XXI contracted with Soileau to
provide catering, cleaning, and janitorial services for the platform, pursuant to the March 1, 2011
Master Service Agreement. On the evening of July 23, 2011, Louis Johnson was one of the
Soileau employees responsible for overnight cleanup on the platform. The Plaintiff awoke in his
bunk shortly before 5:00 a.m. on the morning of July 24, 2011 and proceeded to the stairwell
leading from the living quarters to the galley. At that time, the Plaintiff was the only one in his
room who was up and about other than two Soileau employees, Johnson and the cook. When the
Plaintiff got to the top of the stairwell, it was dark and he grabbed the hand rail with his left
hand. As he began to descend, his foot slipped, causing him to lose his balance and fall down the
stairs. After the fall, Johnson went to the top of the stairs and found droplets of water. Johnson
went up and down the steps throughout the previous night and all morning bagging and
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transporting the dirty clothes, linens, and other laundry from the living quarters to the laundry
room. Johnson traversed the stairway 15–20 minutes before the accident, never noticed any
water, and did not slip or fall at any time. Johnson last mopped upstairs the evening before, as
usual, after the crew had eaten supper and showered.
This Court held in a summary judgment ruling (Doc. 35) that genuine issues of fact exist
as to Gray’s claims against Soileau regarding the water droplets at the top of the stairs, and that
Soileau failed to present sufficient authority, argument, or explanation for its assertion that Gray
is unable to show Soileau had custody of the platform. Soileau has now filed the instant Motion
in Limine.
II.

Analysis

Soileau requests that, before the commencement of voir dire, the Court enter an order
instructing and directing all parties, witnesses, and attorneys to refrain from making any
reference to certain things. Soileau also makes a number of other requests. Soileau argues the
following in support. If any of these matters are injected into the trial without the Court making
a preliminary determination of their admissibility, Soileau’s defense will be the subject of
irreparable harm. These matters are inadmissible, as they are irrelevant or prejudicial to the
material issues in this case. The Court will address each of Soileau’s arguments in turn.
A. Evidence of Insurance
Soileau requests that the Court preclude introduction of evidence of liability insurance
held by Soileau or the policy limits of any such insurance, and that there be no use of the terms
“insurance adjuster,” “adjuster,” or “claims man.” Soileau also requests that there be no mention
that Gray does not have insurance to compensate him for injuries or damages, or that Gray’s
collateral compensation has been or will be reduced by any amount. Gray does not oppose these

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requests. “Evidence that a person was or was not insured against liability is not admissible to
prove whether the person acted negligently or otherwise wrongfully.” Fed. R. Evid. 411. “This
exclusion encompasses policy limits, as they are necessarily an indication of insurance.” Corbin
v. Hagan, No. 06-11447, 2007 U.S. Dist. WL 3268466, at *1 (E.D. La. Oct. 19, 2007). Since
evidence of insurance is not relevant for any other acceptable purpose, the Court excludes: (1)
any evidence of liability insurance or the policy limits of liability insurance held by either party;
(2) use of the terms “insurance adjuster,” “adjuster,” or “claims man”; and (3) any evidence that
Gray’s collateral compensation has been or will be reduced by any amount. See; e.g., Fed. R.
Evid. 411 (Stating purposes for which admission of liability insurance may be appropriate).
B. Speaking Objections at Trial
Soileau seeks an order prohibiting objections in which counsel provides improper
additional information to the jury and witnesses. Gray responds by stating that the trial will be
conducted in accordance with the Federal Rules of Evidence. The trial will be conducted in
accordance with the Federal Rules of Evidence. Counsel is prohibited from providing improper
additional information to the jury and witnesses in the course of objecting.
C. Showing Documents and Exhibits to Opposing Counsel
Soileau requests an order requiring counsel to show all documents and exhibits to all
other counsel prior to approaching a witness or showing those items to the jury. Soileau further
requests an order requiring that all “blow-ups” and demonstrative evidence be presented to all
counsel for inspection outside the jury’s presence and that all such items be kept concealed from
the jury’s view until they are sought to be introduced. Gray responds that he agrees to follow all
rules of the District Court relative to the trial, including display of exhibits. Counsel must show
all documents and exhibits, including “blow-ups” and demonstrative exhibits, to opposing

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counsel prior to approaching a witness or publishing to the jury. “Blow-ups” and demonstratives
must be kept from the jury’s sight until approved for publication.
D. Introduction of Exhibits
Soileau requests an order excluding the introduction of Roderick Charles’s criminal
records and Gray’s redacted Iberia Medical Center personnel records, which are exhibits six and
10 for Gray. Soileau argues that these documents were not produced, despite Soileau’s request.
Soileau also requests an order excluding the introduction of the expert reports of Stephanie
Chalfin, John Theriot, and Dr. John Sledge, since their reports are hearsay—out of court
statements offered to prove the truth of the matter asserted.
Gray responds that he first learned of Charles’s criminal history in his May 28, 2013
deposition, and has been trying to obtain Charles’s criminal records since that time. Gray argues
that use of subpoena for Charles’s criminal records has been ineffective since Charles was
convicted in a federal court and sentenced to a federal penitentiary, so the odds of Gray’s
obtaining the records are “long at this point.” Gray does not address his redacted Iberia Medical
Center personnel records. Gray argues “there may be exceptions to the hearsay rule or other
circumstances which will permit the introduction of the expert reports.” For instance, he asserts
that Dr. Sledge’s reports are business records under Federal Rule of Evidence 803(6). Gray
argues that the Court should avoid a blanket ruling prohibiting the expert reports or medical
records, and instead reserve ruling on these issues until trial.
Considering that Gray has not yet obtained, and may never obtain, Roderick Charles’s
criminal records, and that Gray did not learn of his criminal history until May 28, 2013, Gray’s
failure to produce the records is not cause for their exclusion. Should Gray obtain the records
and seek their introduction at trial, Soileau may address admissibility at that time. Since Gray

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does not attempt to oppose the exclusion of his redacted Iberia Medical Center personnel records
or argue that these records were produced to Soileau, Gray’s redacted Iberia Medical Center
personnel records are excluded because Gray failed to produce them.
District courts in this circuit have held expert reports are hearsay. Marquette Transp.
Co., Inc. v. Eagle Subaru, No. 06-9053, 2010 U.S. Dist. WL 1558921, at *3 (E.D. La. Apr. 15,
2010); Katz v. State Farm Fire & Cas. Co., No. 06-4155, 2009 WL U.S. Dist. 1380533, at *1
(E.D. La. May 15, 2009); White v. Great West Cas. Co., No. 08-1491, 2009 U.S. Dist. WL
3254562, at *1–2 (W.D. La. Oct. 8, 2009); Weiss v. Allstate Ins. Co., 512 F. Supp. 2d 463, 478
(E.D. La. Apr. 9, 2007). However, the circumstances may provide for admission under hearsay
exceptions, and objections on the basis of hearsay are not always sustained. Bailey v. Dallas
County, No. 09-0865, 2012 U.S. Dist. WL 1033502, at *26 (N.D. Tex. Mar. 28, 2012); James v.
Haven Homes Southeast, Inc., No. 08-770, 2011 U.S. Dist. WL 777971, at *4 (M.D. La. Feb. 28,
2011); Jackson v. U.S. Kids Golf, LLC, No. 06-237, 2009 U.S. Dist. WL 585555, at *2 (E.D.
Tex. Mar. 6, 2009); MGE UPS Systems, Inc. v. Fakouri Elec. Engineering, Inc., No. 04-445,
2006 U.S. Dist. WL 680513, at *7 (N.D. Tex. Mar. 14, 2006). Soileau does not sufficiently
explain his argument that the experts’ reports are hearsay; nor does he explain why the
circumstances call for exclusion.

Gray does not sufficiently explain his arguments either.

Soileau may re-urge this argument at trial. Should that happen, both parties should be better
prepared with authority and argument.
E. Evidence Regarding Roderick Charles’s Criminal Record
Soileau asserts that evidence of Roderick Charles’s criminal history should be excluded
under Federal Rule of Evidence 609(a), since his incarceration occurred in 2002 or 2003, which
was more than ten years ago. Soileau continues by arguing that Charles’s criminal history is

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irrelevant, would result in unfair prejudice, confusion of the issues, and would mislead the jury,
meaning the probative value of the evidence is substantially outweighed by its prejudice.
Gray responds that Rule 609(a) provides in general for the admissibility of criminal
convictions under certain circumstances in a civil case with no reference to any time limitations.
Rather, Gray argues the ten year limitation is part of Rule 609(b), which provides that subsection
(b) applies if more than ten years have passed since the witness’s conviction or release from
confinement, whichever is later. Gray asserts Charles was convicted of distribution of crack
cocaine in 2002 or 2003, and released from prison in 2007, making the ten year rule in
subsection (b) inapplicable, and the evidence admissible under subsection (a).
Rule 609 provides in pertinent part:
(a) In General. The following rules apply to attacking a witness's character for
truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death
or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a
criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs its
prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the elements
of the crime required proving--or the witness's admitting--a dishonest act
or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if
more than 10 years have passed since the witness's conviction or release from
confinement for it, whichever is later. Evidence of the conviction is admissible
only if:
(1) its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect; and

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(2) the proponent gives an adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to contest its use.
Subsection (b) is inapplicable, since Charles was released from confinement in 2007—
less than ten years ago. Fed. R. Evid. 609(b). Rule 609(a)(1)(A) is therefore applicable, so the
evidence must be admitted, subject to Federal Rule of Evidence 403. Soileau’s argument as to
why the evidence should not be admitted under Rule 403 is completely lacking in substance and
is merely a conclusory statement. The Court finds the probative value of evidence of Charles’s
criminal conviction in 2002 or 2003 for distribution of crack cocaine is not substantially
outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury. The
evidence therefore must be admitted under Rule 609(a).
F. Testimony that Soileau had Custody of the Platform or Stairwell or that Soileau’s
Employees Caused the Water to Be at the Top of the Stairs
Soileau seeks an order from the Court precluding unsupported or speculative testimony
that Soileau had custody of the platform or stairwell or that Soileau’s employees caused the
water to be at the top of the stairs. Soileau claims there has been no evidence in support of either
of these theories, so mention of them would be improper. Soileau makes the conclusion that
Gray and his counsel, and any witness called on their behalf, should be precluded from offering
unsubstantiated, unsupported or speculative testimony as to Soileau’s purported liability.
Soileau argues Gray should be required to present any evidence of these theories to the Court and
Soileau’s counsel outside the presence of the jury for an admissibility ruling by the Court.
Gray agrees speculative evidence is not admissible at trial, but states the evidence will
speak to whether Soileau had custody or control of the stairs. Gray notes that the Court
previously denied Soileau’s motion for summary judgment finding factual issues exist as to the
water at the top of the stairs.

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Gray is correct. Fact issues exist as to the water at the top of the stairs, and custody and
control are legal conclusions to be made by the jury based on the evidence. It is preposterous to
think that the Court would exclude evidence as to these issues.
G. Expert Testimony
In the middle of its Motion in Limine, Soileau includes a section arguing that the
testimony of John W. Theriot and Stephanie P. Chalfin, M.S., should be excluded under Federal
Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Federal Rule of Civil Procedure 26. These arguments are untimely and in violation of the
Scheduling Order (Doc. 6) and Modified Scheduling Order (Doc. 15). Although it would not be
an unreasonable conclusion, the Court will refrain at this point from concluding that these
arguments were submitted in the middle of a motion in limine in an effort to conceal the fact that
they are incredibly untimely. Regardless, the deadline for filing discovery motions was February
15, 2013, and the deadline for filing Daubert motions was April 1, 2013. Doc. 15. No matter
how you slice it, Soileau’s arguments fall into those categories, thereby making them more than
three months late at best. As such, Soileau’s arguments in support of excluding Theriot and
Chalfin will not be considered, and they will not be excluded.
H. Alleged Irrelevant or Prejudicial Testimony and Evidence
Soileau requests that the Court enter an order instructing and directing all parties,
witnesses, and attorneys to refrain from making any reference to certain matters without a ruling
from the Court outside the presence of the jury. The Court will address the matters by listing
them individually and including an accompanying ruling.
1. Reference to settlement negotiations or agreements, or the lack thereof, is excluded.

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2. Argument for an award based upon a “unit of time “ calculation—a time span broken down
into smaller units such as weeks, days, or hours, multiplied by a dollar amount, resulting in a
total damage award—will not be the subject of a blanket exclusion. A “unit of time”
argument may be allowed, within the trial court’s discretion, when proper safeguards are in
place or the argument is otherwise cured. Foradori v. Harris, 523 F.3d 477, 511 (5th Cir.
2008).
3. Reference by Gray as to what he was told by a physician, osteopath, chiropractor or any other
healthcare provider with regard to physical conditions, disabilities, or recommended
treatments is excluded as hearsay under Federal Rule of Civil Procedure 802. The exception
contained in Federal Rule of Evidence 803(4), which permits the admission of statements
made for the purposes of medical diagnoses or treatment, is limited to statements made by
the person seeking medical treatment or care. Field v. Trigg County Hosp., Inc., 386 F.3d
729, 735–36 (6th Cir. 2004); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564
(7th Cir. 1996); Stull v. Fuqua Industries, Inc., 906 F.2d 1271, 1273 (8th Cir. 1990); Bulthuis
v. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1985). Should Gray believe an exception is
applicable that would allow such testimony or evidence, his counsel must first seek an
admissibility ruling from the Court outside the presence of the jury.
4. No reference may be made to any party’s financial status, including the wealth or poverty of
a party, or the ability to pay a verdict. The financial statuses and abilities of the parties are
irrelevant under Federal Rule of Evidence 401. Should “something” arise during the trial
which would make reference to a party’s financial status or ability relevant and admissible,
counsel may seek an admissibility ruling outside the presence of the jury.

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5. The parties may state or make reference to the fact that Soileau employee Louis Johnson
placed a “Wet Floor” sign at the top of the stairs following Gray’s alleged accident. This is
relevant to whether Soileau had “custody” of the property.
6. No statement, reference, or appeal may be made to the jury that they serve as the “conscience
of the community,” or that the jury should render a verdict that will make the community
proud. Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1238 (5th Cir. 1985).
7. The Court will only allow the jury to view evidence that has been admitted.
8. No reference, statement, or appeal may be made to the jury suggesting that any defendant
corporation is without a heart or soul, so as to suggest unfair treatment.
9. The Court will only allow the jury to view evidence that has been admitted.
10. Gray is prohibited from commenting, referring to, or exhibiting any prior testimony of any
declarant-witness, unless:
The declarant testifies and is subject to cross-examination about a prior statement,
and the statement:
(A) is inconsistent with the declarant's testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a
deposition;
(B) is consistent with the declarant's testimony and is offered to rebut an
express or implied charge that the declarant recently fabricated it or acted
from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
Fed. R. Evid. 801(d)(1).
11. Any objections by Soileau in a deposition must be resolved by the parties through agreement
or ruled upon by the Court before the deposition is introduced into evidence. Any comments
between the attorneys that appear in the deposition must be redacted before introduction.

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I. Arguments Referred to as “12. A–X”
These arguments are rudimentary and will be handled at trial.
Accordingly, John L. Soileau, Inc.’s Motion in Limine (Doc. 48) is GRANTED IN
PART and DENIED IN PART as set forth herein.1
Signed in Baton Rouge, Louisiana, on August 5, 2013.





JAMES J. BRADY, DISTRICT JUDGE

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In future filings with the Court, counsel should include pinpoint citations and conform with the Bluebook when
referencing authority.

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