Gonzalez v. Sea Fox Boat Co Inc

Filing 447

MEMORANDUM ORDER denying 286 & 293 Motion in Limine. Signed by Judge James D Cain, Jr on 5/6/2022. (crt,Crick, S)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
HUGO GONZALEZ

CASE NO. 2:19-CV-00130 LEAD

VERSUS

JUDGE JAMES D. CAIN, JR.

SEA FOX BOAT CO INC

MAGISTRATE JUDGE KAY
MEMORANDUM ORDER

Before the court is a Motion in Limine [doc. 286, 293] filed by plaintiffs and seeking
to limit or strike the expert report and testimony of defense expert witness Gary Fowler
under the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendant Yamaha Motor Corporation USA
(“Yamaha”) opposes the motion. Doc. 336.
I.

BACKGROUND
This suit arises from a maritime accident that occurred on or about July 29, 2018,
on a 2014 Sea Fox Commander vessel, while plaintiffs Jeremy Eades, Hugo Gonzales, and
Galloway Outlaw-Knight were changing out the vessel’s batteries. All three were seriously
injured in the explosion and resulting fire, and Eades has since died of mixed drug
intoxication. Plaintiffs have attributed the explosion to a leaking fuel water separator filter,
causing the presence of gasoline vapors on the vessel, and filed suits against Yamaha, as
designer of the filter, and Sea Fox Boat Company, Inc. (“Sea Fox”), as

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designer/manufacturer of the vessel. Doc. 1. The matter is now set for jury trial before the
undersigned on May 16, 2022.
Plaintiffs attribute the accident to a leak in the starboard fuel/water separator filter.
Yamaha has given notice of its intent to introduce testimony from materials and
metallurgical engineer failure analyst Gary Fowler as a liability expert. Plaintiffs move to
exclude Fowler’s opinions and anticipated testimony on the results of Fourier Transform
Infrared Spectroscopy (“FTIR”) testing and sea spray testing on the grounds that these tests
were unreliable and any opinions flowing from them will not assist the jury. 1 Docs. 286,
293. Yamaha opposes the motion, arguing that Fowler properly relied on the work of other
chemists for both tests. Doc. 334.
II.

A. Governing Law

LAW & APPLICATION

The trial court serves as gatekeeper in determining the admissibility of expert
testimony, by making an initial determination of whether the expert’s opinion is relevant
and reliable. See Daubert, 509 U.S. at 589. This gatekeeping function extends to all expert
testimony, whether scientific or not. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999). Accordingly, Federal Rule of Evidence 702 provides that the court must
consider the following three requirements on challenges to experts: 1) qualifications of the
expert witness; 2) relevance of the proposed testimony; and 3) reliability of the principles

Plaintiffs also move to exclude Fowler’s opinions to the extent he relies on the work of defense expert Kevin Breen,
who is the subject of a separate Daubert motion. Because the court has denied the Daubert challenge to Breen by
separate order, it regards this request as moot.

1

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and methodology on which the testimony is based. 2 The proponent of the expert testimony
bears the burden of proving its admissibility, by a preponderance of the evidence. Mathis
v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
The trial court has broad latitude in determining the admissibility of expert
testimony. Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Rejection of
expert testimony is the exception rather than the rule, and the court’s role as gatekeeper
“does not replace the traditional adversary system and the place of the jury within the
system.” Johnson v. Samsung Electronics Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011);
Scordill v. Louisville Ladder Grp., LLC, 2003 WL 22427981, at *3 (E.D. La. Oct. 24,
2003). Instead, “[v]igorous 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.” Scordill, 2003 WL 22427981 at *3 (quoting
Daubert, 509 U.S. at 596).
B. Application
In his report Fowler stated in relevant part:
Fourier Transform Infrared Spectroscopy (FTIR)
Samples of the paint from the starboard, port and exemplar filters were
removed and analyzed at ATS using FTIR. All three paint samples had the
same spectrum. The major component of the paints is alkyd enamel.
The filter element and pads between the spring and can from the
starboard, port and exemplar filters were analyzed using FTIR. The pads are
polyester with an acrylic adhesive. The major components of filter elements
2
The Daubert Court identified several additional factors for assessing whether the expert’s methodology is valid and
reliable, including whether the expert’s theory had been tested and subjected to peer review, the known or potential
error rate for the expert’s theory or technique, the existence and maintenance of standards and controls, and the degree
to which the technique or theory has been generally accepted in the scientific community. Moore v. Ashland Chemical,
Inc., 151 F.3d 269, 275 (5th Cir. 1998). However, the same standards cannot be applied to all possible fields of
expertise. Accordingly, the Daubert analysis is necessarily flexible and fact-specific. Kumho, 526 U.S. at 150.

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from the three filters were polyester and styrenated acrylic. The pads and
filter elements from the three filters were similar to each other.
Doc. 334, att. 3, p. 9. He then went on to describe in greater detail a salt spray test, in which
“[e]leven new exemplar marine filters were tested in a salt spray chamber for 30 days (720
hours) at Atlas Testing Laboratories, Inc. per ASTM B117-19, Standard Practice for
Operating Salt Spray (FOG) Apparatus (JIS equivalent is JIS Z 2371).” Id. at 9–11. At the
conclusion he noted that all of the filter cans and heads exhibited superficial signs of
corrosion, including small areas of superficial rust and paint deterioration on the Yamaha
filter, but determined that “[t]he superficial corrosion on the filters would not have affected
the integrity of the can.” Id. at 10.
Plaintiffs argue that Fowler’s opinions derived from the testing are unreliable
because he did not personally conduct it and could not answer certain questions about it
during his deposition. 3 Namely, they point to his admission that he was qualified to read
comparative graphs of the FTIR results “but you really need a chemist to look at the smaller
peaks” as well as his inability to explain what certain notes made by the chemist who
conducted the test and how the raw data was listed in the results. Doc. 286, att. 5, pp. 14–
18. As Yamaha points out, however, plaintiffs’ corresponding metallurgical expert Tom
Ackerson relied on a chemist to conduct FTIR testing for plaintiffs and that individual has
not been designated as a witness. Ackerson also referred questions on the technical details
of the test results to that chemist, and offered no criticism of Fowler’s report when offered
Plaintiffs also point out that Fowler could not identify the chemist who conducted the test or recall his precise
credentials at the time of his deposition. Doc. 286, att. 5, pp. 10–11. However, Fowler retrieved the chemist’s name
(Dr. Shabeer) during a break. Id. at 13. Yamaha provided the CV of Dr. Shabeer in its opposition to this motion [doc.
334, att. 6] and plaintiffs have made no challenge to his qualifications.
3

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the opportunity to do so. Doc. 334, att. 1. Additionally, as Yamaha points out, the only
relevance of the FTIR testing is to prove the now-undisputed fact that the Yamaha filters
were manufactured with an alkyd-based, rather than epoxy-based, coating. That fact is now
undisputed. Accordingly, even if these challenges showed that Fowler’s reliance on the
FTIR testing conducted by another chemist was unreliable, it would not provide a basis for
excluding his testimony at trial.
As for the salt spray testing, plaintiffs again challenge Fowler for his failure to
conduct the test personally or answer certain questions about it. In this case, the questions
relate to which company actually applied the paint to the filters and whether the chemist
who conducted the test had personally visited the site in between dropping the filters off
and picking them up at the beginning and end of the 720 hours. Doc. 286, att. 5. Fowler
also agreed that salt spray testing’s ability to imitate real world conditions depended on
how the boat owner treated his vessel, but asserted that in this case they were able to
extrapolate from the testing based on field data. Id. Finally, plaintiffs argue that it is unfairly
prejudicial to allow Fowler to testify as to the test results since they involve comparisons
to filters manufactured by non-parties.
As above, plaintiff expert Ackerson offered no criticism of this testing when offered
the opportunity to do so. Doc. 334, att. 1. Again, these challenges do not show that Fowler
erred in his use of the salt spray testing. Moreover, the performance of the Yamaha filter
in comparison to that of others on the market is relevant to the question of whether the filter
was defective in its design. Even without the comparison, the test is highly relevant and
helpful to the factfinder for its demonstration (according to Fowler) that the Yamaha filter
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experienced only superficial deterioration not likely to impact the structure of the canister.
Any questions relating to his supervision of the experiment or failure to replicate conditions
in the subject vessel are instead fodder for cross-examination.
III.

CONCLUSION
For the reasons stated above, IT IS ORDERED that the Motion in Limine [doc.
286, 293] be DENIED.
THUS DONE AND SIGNED in Chambers this 6th day of May, 2022.

__________________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

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