Domingue v. Chevron U S A Inc

Filing 146

MEMORANDUM RULING For the foregoing reasons, the plaintiff's 97 MOTION in Limine o Exclude Certain Subsequent Remedial Measures filed by Michael J Domingue is GRANTED IN PART AND DENIED IN PART, the defendant's 111 MOTION in Limin e Regarding Exclusion of Evidence Regarding Chevron's Post-Accident Replacement of the Vertically-Opening Lift Bar with a Horizontally-Opening Swing Gate and Painting of the Ladder filed by Chevron U S A Inc, is GRANTED IN PART AND DEFERRED IN PART, and defendant's Exhibit No. 30 is EXCLUDED. Signed by Magistrate Judge Patrick J Hanna on 11/30/12. (crt,Guidry, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
MICHAEL J. DOMINGUE

CIVIL ACTION NO. 6:10-cv-00921

VERSUS

JUDGE HANNA

CHEVRON U.S.A., INC.

BY CONSENT OF THE PARTIES

MEMORANDUM RULING

Pending before the Court are the plaintiff’s motion in limine (Rec. Doc. 97)
seeking to preclude evidence concerning subsequent remedial measures, and
Chevron’s motion in limine (Rec. Doc. 111), seeking to preclude evidence concerning
subsequent remedial measures, particularly Chevron’s post-accident replacement of
the lift bar with a swing gate and its painting of the accident ladder. Also pending is
the issue of whether Chevron’s Exhibit No. 30, which is comprised of videos
depicting a ladder and lift bar configuration, may be presented at trial. This issue
which was raised orally at the pretrial conference of November 16, 2012 and briefed
thereafter.
For the reasons set forth during the pretrial conference of November 30, 2012,
the plaintiff’s motion (Rec. Doc. 97) is GRANTED IN PART and DENIED IN

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PART, and the defendant’s motion (Rec. Doc. 111) is GRANTED IN PART and
DEFERRED IN PART, and the videos are EXCLUDED.
More particularly,
IT IS ORDERED that, under Rule 403 of the Federal Rules of Evidence, use
of the videos designated as Chevron’s Exhibit No. 30 at trial is EXCLUDED because
they have the potential for misleading the jury. However, this issue may be revisited
at trial, depending upon the testimony given, particularly that of the plaintiff’s expert
witness, Gregg Perkin.
IT IS FURTHER ORDERED that the plaintiff’s motion (Rec. Doc. 97) is
GRANTED to the extent it seeks to exclude from presentation at trial the “action
points,” “corrective actions,” “key corrective actions,” “lessons learned,” and “key
lessons learned” portions of the Wood Group Incident Analysis Report (variously
described as Exhibit No. 1 to Rec. Doc. 116 and as Plaintiff’s Exhibit No. 43), the
Chevron Root Cause Analysis Report (variously described as Exhibit No. 2 to Rec.
Doc. 116 and as Plaintiff’s Exhibit No. 21), and the Chevron RCA Share Presentation
(variously described as Exhibit No. 3 to Rec. Doc. 116 and as Plaintiff’s Exhibit No.
22). The referenced portions of these documents will be redacted before the
documents are used at trial.

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IT IS FURTHER ORDERED that the plaintiff’s motion (Rec. Doc. 97) is
DENIED to the extent that it seeks to exclude evidence concerning the downgrading
of Wood Group’s safety rating following Mr. Domingue’s accident, as this was not
a subsequent remedial measure under Rule 407 of the Federal Rules of Evidence.
IT IS FURTHER ORDERED that the plaintiff’s motion (Rec. Doc. 97) is
GRANTED with regard to Chevron’s Exhibit 28 concerning Wood Group and titled
“pressurs points,” and that document is EXCLUDED from presentation at trial.
IT IS FURTHER ORDERED that, in all other respects, the plaintiff’s motion
(Rec. Doc. 97) is DENIED.
IT IS ORDERED that Chevron’s motion (Rec. Doc. 111) is GRANTED with
regard to Chevron’s post-accident painting of the ladder, as there is no evidence that
the color of the ladder had anything to do with Mr. Domingue’s accident.
IT IS FURTHER ORDERED that ruling on Chevron’s motion (Rec. Doc. 111)
to the extent that it seeks to exclude evidence concerning the replacement of the lift
bar involved in Mr. Domingue’s accident with a swing gate is DEFERRED in light
of the contrary rulings from the Fifth Circuit in Muzyka v. Remington Arms Co., Inc.,
774 F.2d 1309 (5th Cir. 1985), and Hardy v. Chemetron Corp., 870 F.2d 1007 (5th Cir.
1989), without prejudice to the defendant’s right to reurge this aspect of the motion
in the future if appropriate. However,
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IT IS FURTHER ORDERED that the plaintiff’s counsel is precluded from
mentioning during opening statements that the actual lift bar involved in Mr.
Domingue’s accident was replaced with a swing gate.

CONCLUSION
For the foregoing reasons, the plaintiff’s motion the plaintiff’s motion (Rec.
Doc. 97) is GRANTED IN PART and DENIED IN PART, the defendant’s motion
(Rec. Doc. 111) is GRANTED IN PART and DEFERRED IN PART, and the
defendant’s Exhibit No. 30 is EXCLUDED.
Signed at Lafayette, Louisiana, this 30th day of November 2012.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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