Johnson v. Williams Party Boats, Inc.

Filing 38

MEMORANDUM AND ORDER denying 15 MOTION to Strike Opinions and Testimony of Commander David E. Cole, denying 16 MOTION for Summary Judgment , granting 21 Corrected MOTION for Extension of Time Experts.(Signed by Judge Gregg Costa) Parties notified.(arrivera, 3)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
DENIS HARDY JOHNSON,
Plaintiff,
VS.
WILLIAMS PARTY BOATS, INC.,
Defendant.

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CIVIL ACTION NO. 3:14-CV-123

MEMORANDUM AND ORDER
The Texas Gulf Coast is blessed with warm waters filled with plentiful
sportfish, easily accessible by chartered fishing expeditions. On an idyllic Texas
day, a passenger on such an excursion can enjoy boundless views of the Gulf of
Mexico, the hot sun spilling onto the boat’s deck, the refreshing sea breeze, and the
occasional briny taste of sea spray. Sometimes, however, the breeze is a little
stiffer and the seas a little choppier. One such day led to this lawsuit.
I.

FACTUAL AND PROCEDURAL BACKGROUND1

On the morning of November 19, 2011, Plaintiff Denis Hardy Johnson and
37 other passengers embarked on a 36-hour deep sea fishing trip with Defendant
Williams Party Boats (WPB) aboard the CAPT JOHN.2 The expedition departed

1

The Court’s recitation of the facts resolves all reasonable doubts in favor of Johnson as the nonmovant. See Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir.2001) (citation omitted).
2
Johnson’s pleadings refer to the name of the passenger vessel as the “F.V. Captain John” or the
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from Pier 19 in Galveston, helmed by Captain John Williams. The CAPT JOHN is
authorized by the United States Coast Guard to carry a maximum of 106
passengers up to 200 miles offshore and to operate in seas of up to 8.5 feet high.
This latter measurement refers to the distance between the trough and crest of the
waves.3
Prior to departure, Captain Williams checked offshore weather conditions.
The National Oceanic and Atmospheric Administration (NOAA) report that he
consulted revealed near-shore winds between 15 and 20 knots and seas between 4
and 5 feet; the report further revealed that the winds decreased to between 10 to 15
knots with seas between 3 to 5 feet at the incident site.4
Johnson contends that as the CAPT JOHN proceeded outbound, the seas
were noted to be choppy and many passengers became seasick, retreating to the
CAPT JOHN’s sleeping bunks to lie down. Johnson had been provided a bunk,
but had given it up so his traveling companion could have more room. Due to a
shortage of beds, Johnson lay down on a bench affixed to the exposed upper deck
of the CAPT JOHN. Johnson alleges that a large wave caused him to be thrown

“CAPT JOHN,” while WPB’s pleadings refer to it as “M/V CAPT JOHN.” For simplicity, the
Court will refer to the vessel as the CAPT JOHN.
3
See How are ocean waves described?, NAT’L DATA BUOY CENTER (March 10, 2015, 8:53
P.M.), http://www.ndbc.noaa.gov/educate/waves.shtml.
4
There appear to be inconsistent descriptions of the data contained in the NOAA weather report
between the expert report of Richard L. Frenzel (WPB’s expert) and the affidavits of Captain
Williams and Frenzel. Compare Docket Entry No. 16-2 at ¶6 (Frenzel affidavit) and Docket
Entry No. 16-4 at ¶5 (Williams affidavit) with Docket Entry No. 14-2 at ¶¶ 1, 4 (Frenzel report).
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from the bench and to injure his left shoulder. Following the accident, Captain
Williams turned the vessel around and returned to port.
Johnson filed a negligence suit under general maritime law against WPB in
state court, contending that the trip should have been cancelled due to rough sea
conditions. After WPB removed to federal court, a scheduling order was entered
setting December 5, 2014 as the deadline for Johnson to designate experts and
furnish expert reports. See Docket Entry No. 6. On December 4, 2014, Johnson
identified Commander David E. Cole as a retained marine safety expert but did not
furnish an accompanying expert report. See Docket Entry No. 12. Five days after
the deadline, Johnson faxed WPB a letter explaining the reason for the delay and
asking for an extension of both parties’ discovery deadlines. (See Docket Entry
No. 21-3). WPB never responded to this inquiry.
Instead, WPB filed a Motion to Strike the expert testimony (Docket Entry
No. 15). It then filed a Motion for Summary Judgment (Docket Entry No. 16) that
relied in large part on Johnson’s failure to provide an expert report that would
establish liability. Johnson finally furnished Cole’s report on February 6, 2015—
two months after the designation deadline and the day before his response to
WPB’s Motion to Strike was due. See Docket Entry No. 18. Three days after
furnishing the report, Johnson filed a pending Motion to Extend Time to File
Expert Report (Docket Entry No. 21). Whether WPB is entitled to summary
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judgment thus turns in large part on whether Johnson’s late expert report is
allowed.
II.

STANDARD OF REVIEW

When a party moves for summary judgment, the reviewing court shall grant
the motion “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts on questions
of fact must be resolved in favor of the party opposing summary judgment. See
Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001) (citation omitted).
III.

ANALYSIS

“It is settled that the general maritime law imposes duties to avoid
unseaworthiness and negligence.”

Norfolk Shipbuilding & Drydock Corp. v.

Garris, 532 U.S. 811, 813 (2001) (citation omitted). The elements of negligence
under general maritime law “are ‘essentially the same as land-based negligence
under the common law.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d
201, 211 (5th Cir. 2010) (quoting Withhart v. Otto Candies, L.L.C., 431 F.3d 840,
842 (5th Cir.2005)). A plaintiff asserting a claim of maritime negligence must
prove that: (1) the defendant owed a duty to the plaintiff; (2) the defendant
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breached that duty; (3) the plaintiff was injured; and (4) a causal connection exists
between the defendant's conduct and the plaintiff's injury. See Canal Barge Co. v.
Torco Oil Co., 220 F.3d 370, 376 (5th Cir.2000) (citation omitted).
WPB contends that summary judgment is proper on three separate grounds.
First, WPB argues that Johnson did not timely provide any opinion from a marine
safety expert concluding that WPB breached an applicable standard of care.
Resolution of this issue requires the Court to rule on Johnson’s pending Motion to
Extend Time to File and WPB’s pending Motion to Strike.
Rule 16(b)(4) of the Federal Rules of Civil Procedure provides that a
scheduling order “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). When determining whether to exclude expert
testimony that has been improperly designated, the Fifth Circuit considers four
factors: “(1) the explanation for the failure to identify the witness; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony; and
(4) the availability of a continuance to cure such prejudice.” Betzel v. State Farm
Lloyds, 480 F.3d 704, 707 (5th Cir. 2007) (quoting Geiserman v. MacDonald, 893
F.2d 787, 791 (5th Cir. 1990)).
The first factor is neutral. Johnson’s explanation for the delay in filing
Cole’s report is that Cole needed to review Johnson’s deposition testimony in order
to prepare the report and the transcript did not become available until January 2,
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2015.

This explains why the report was not disclosed before the December

deadline, but does not explain why the report was not furnished until February.
The other factors weigh in Johnson’s favor. That the expert testimony is
fundamentally important to Johnson’s case is apparent from WPB’s attempt to
obtain summary judgment based on the absence of the report. Determining the
scope of the duty WPB owed to Johnson, and whether WPB breached that duty,
requires an understanding of applicable Coast Guard regulations, maritime safety
practices with respect to the operation of charter fishing vessels, NOAA weather
reporting, and the CAPT JOHN’s structural specifications and performance
capabilities in various weather and sea conditions. Because these are not matters
of common knowledge and experience, expert testimony is important.

See

Johnson v. Cenac Towing Inc., 2006 WL 5499506, at *3 (E.D. La. Nov. 21, 2006)
(finding expert testimony would assist trier of fact as industry procedures and
equipment for carrying crossover hoses on ships was not matter of common
experience and knowledge). The second factor thus strongly weighs in Johnson’s
favor. See Betzel, 480 F.3d at 706, 709 (finding abuse of discretion when district
court excluded late-designated experts and then granted summary judgment based
on lack of expert testimony and noting that “the extreme end of the sanction
spectrum was imposed against the lowest end of the prejudice spectrum”).
Although “the importance of . . . [the] testimony cannot singularly override
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the enforcement of local rules and scheduling orders,” Betzel, 480 F.3d at 708
(citation omitted and italics in original), the remaining two factors do not weigh
against allowing the late filing. With respect to the prejudice factor, WPB points
out that the discovery deadline has passed and claims that it will incur expenses
revising its expert report, deposing Cole, and potentially locating fact witnesses,
re-designating a liability expert, and refiling a summary judgment motion in light
of Cole’s previously-unknown opinions. The Court understands WPB’s concerns.
See Geiserman, 893 F.2d at 792 (discussing detrimental effects of failure to follow
discovery deadlines on court system, litigants, and public perception of lawyers
and the judicial process). Unlike some of the cases upon which WPB relies,
however, WPB was not blindsided by the late designation. Before the deadline,
Johnson designated Cole as a retained marine safety expert who would testify
regarding liability. WPB never responded to the letter Johnson faxed five days
after the deadline explaining the delay on producing the report and asking for an
extension of both parties’ discovery deadlines. WPB instead produced its own
expert report and filed motions without first attempting to resolve the situation
with Johnson. The result is a discovery squall that could have been avoided. This
is just one of several facts that distinguishes this case from others in which courts
have excluded improperly designated expert testimony. See, e.g., Smith v. Johnson
& Johnson, Inc., 483 F. App’x 909, 913 (5th Cir. 2012) (affirming district court’s
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denial of late designation when plaintiff moved to designate an additional expert
three days after court had granted plaintiff late designation of three other experts in
light of “long history of delays in the case”); Winfun v. Daimler Chrysler Corp.,
255 F. App’x 772, 774 (5th Cir. 2007) (affirming district court’s decision to strike
plaintiff’s expert report when plaintiff previously had been granted an extension
and still failed to produce report on time); Soliz v. Assocs. in Med., P.A., 2007 WL
2141392, at *1, *3 (S.D. Tex. July 25, 2007) (denying late designation of two
experts when plaintiff had not even identified experts until two and a half months
after defendant designated its own expert); St. John v. Regis Corp., 2007 WL
1238413, at *1 (S.D. Tex. Apr. 25, 2007) (denying plaintiff late designation when
defendant repeatedly attempted to negotiate discovery extensions in good faith and
plaintiff obstructed those efforts).

And the concern about expenses can be

mitigated if the Court awards costs and attorney’s fees to the defense for the time
spent drafting motions that addressed the late filing. See Batson v. Neal Spelce
Associates, Inc., 765 F.2d 511, 516 (5th Cir. 1985) (“[A] party may be personally
liable for reasonable expenses including attorney's fees caused by the failure to
comply with a discovery order.” (italics in original) (citation omitted)).
Finally, as to the fourth factor, the Fifth Circuit has “repeatedly emphasized
that a continuance is the preferred means of dealing with a party's attempt to
designate a witness out of time.” Betzel, 480 F.3d at 708 (citation and internal
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quotation marks omitted). In this case, a continuance would mitigate the prejudice
associated with late designation, at least with respect to discovery deadlines. The
Court therefore finds that the four factors weigh in favor of allowing late
designation.5 Smith v. Johnson & Johnson, 2010 WL 997057, at *3 (S.D. Miss.
Mar. 16, 2010) (“[A] continuance and cost award should mitigate the prejudice to
Defendants, and the interests of justice prefer that cases be decided on their
merits.”). In light of this holding, WPB’s first argument in support of its summary
judgment motion fails.
WPB next argues that it has proffered expert evidence demonstrating that
WPB breached no duty to Johnson. However, now that Johnson has proffered
competing expert evidence drawing just the opposite conclusion, this is a factual
dispute that must be resolved at trial.
WPB’s final basis for summary judgment is that Johnson described the wave
that hit the CAPT JOHN and resulted in his injury as “rogue.” WPB argues that
“rogue” waves are not foreseeable, and resulting injuries are therefore not
actionable as a matter of law. See Cobb v. United States, 471 F. Supp. 102, 107
(M.D. Fla. 1979) (dismissing complaint when “[t]he proximate cause of plaintiff’s
unfortunate accident was a ‘sneaker wave’ not reasonably foreseen by the officers
and crew of the [the ship]”). In describing the accident and the wave, however, it
5

WPB does not object to the late designation of Bo Yang as a non-retained medical provider. Yang is the
acupuncturist Johnson claims he first consulted for ongoing shoulder pain after the expert witness
designation deadline.

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appears that Johnson was speaking colloquially and not using technical maritime
jargon. Moreover, the expert witnesses for both sides dispute the general sea
conditions on the day of the accident. The argument therefore does not warrant
judgment as a matter of law.
***
Rulings concerning missed deadlines are challenging because they “place at
odds two important principles of the civil justice system: the priority that disputes
be resolved speedily, which requires adherence to deadlines, against the desire that
the merits of a case decide its outcome.” Luu v. Int’l Inv. Trade & Serv. Grp.,
2012 WL 2450773, at *1 (S.D. Tex. June 26, 2012).

On many occasions,

especially when multiple deadlines are ignored and an attorney’s conduct evinces
wanton disregard of court orders, the integrity of the court system requires
excluding late filings.

In this case—in which plaintiff’s counsel missed one

deadline and on his own initiative tried to fix the problem—the interest in having
the case decided on the merits warrants a different result.
Defendant’s Motion for Summary Judgment (Docket Entry No. 16) and
Motion to Strike (Docket Entry No. 15) therefore are DENIED. Plaintiff’s Motion
to Extend Time (Docket Entry No. 21) is GRANTED. The Court will consider a
defense request for more time to file an amended expert report that rebuts Cole’s as
well as a new docket call date. The Court will also consider a request by defense
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counsel for an award of the fees attributable to the filings based on the failure to
file an expert report.
SIGNED this 12th day of March, 2015.

______________________________
Gregg Costa
United States Circuit Judge*

*

Sitting by designation.
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