Diamond Offshore Company v. Survival Systems International Inc.
Filing
105
ORDER GRANTING IN PART DENYING IN PART 55 MOTION to Exclude The Testimony of L.J. Gunter, Robert Kahak, Gregory Scheig, and Dennis Rygaard, DENYING 59 MOTION to Exclude Testimony of Kurt Vandervort, DENYING 87 MOTION to Strike, GRANTING IN PART, DENYING IN PART 98 Supplemental MOTION to Strike, GRANTING IN PART DENYING IN PART 57 MOTION to Strike SSI's Expert Reports and Bar Their Testimony at Trial. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DIAMOND OFFSHORE COMPANY ,
Plaintiff,
v.
SURVIVAL SYSTEMS INTERNATIONAL, INC.,
Defendant.
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CIVIL ACTION H-11-1701
O RDER
Pending before the court are (1) a motion to exclude the testimony of L.J. Gunter, Robert
Kahak, Gregory Scheig, and Dennie Rygaard, filed by defendant Survival Systems International, Inc.
(“SSI”) (Dkt. 55); (2) a motion to strike SSI’s expert reports filed by plaintiff Diamond Offshore
Company (“Diamond”) (Dkt. 57); (3) a motion to exclude the expert testimony of Kurt Vandervort
filed by SSI (Dkt. 59); (4) a motion to strike SSI’s untimely supplemental Daubert motion filed by
Diamond (Dkt. 87), which refers to a supplement SSI filed to its motion to exclude the testimony
of Kurt Vandervort (see Dkt. 82); and (5) a supplemental motion to strike SSI’s experts (Dkt. 98).
Having considered the motions, responses, replies, and applicable law, the court is of the opinion
that SSI’s motion to exclude (Dkt. 55) should be GRANTED IN PART AND DENIED IN PART,
Diamond’s motion to strike (Dkt. 57) should be GRANTED IN PART AND DENIED IN PART,
SSI’s motion to exclude Vandervort’s testimony (Dkt. 59) should be DENIED, Diamond’s motion
to strike SSI’s supplemental Daubert motion (Dkt. 87) should be DENIED, and Diamond’s
supplemental motion to strike SSI’s motion (Dkt. 98) should be GRANTED IN PART AND
DENIED IN PART.
I. BACKGROUND
This case arose on May 17, 2010, when the crew of the Ocean Ambassador, a mobile
offshore drilling unit, was conducting lifeboat drills. Four crewmembers, Mauro Cesar Oliveria
Salamao, Jorge Luis Barbosa Souza, Carlos Mango Batista Pereira, and Joshua Anderson were
passengers in Lifeboat #2 during the drill. The lifeboat was suspended with Triple 5 hooks, which
are manufactured by SSI. The Triple 5 hook is designed to use the weight of the lifeboat to hold the
hook closed. Dkt. 6, Ex. 2. Diamond contends that the hook opened, causing the lifeboat to fall into
the water below. Dkt. 31. Two of the crewmembers were killed in the accident, and the other two
crewmembers were injured. Dkt. 6.
Diamond contends that the accident occurred because the Triple 5 hooks have a latent design
defect that allows the hooks to open, even while bearing the full load of the lifeboat, and Diamond
seeks to provide expert testimony supporting this position. Dkt. 31. SSI proposes to submit expert
testimony that the hooks could have partially opened because the crew did not operate the release
gear to launch the boat and maneuvered the boat while it was attached to the falls, and that the crew
was not alerted to this issue because the release handle was missing. See Dkt. 57-3. The release
handle was not on the lifeboat when it was recovered. Id.
Diamond has filed a motion to strike SSI’s expert reports and bar the testimony of SSI’s
experts. Dkt. 57. SSI has filed a motion to exclude the testimony of Diamond’s experts L.J. Gunter,
Robert Kahak, Gregory Scheig, and Dennis Rygaard, and a separate motion to exclude the testimony
of Kurt Vandervort. Dkts. 55, 59. Diamond filed a response to SSI’s motions (Dkt. 75), and SSI
filed a response to Diamond’s motion (Dkt. 74). SSI filed a reply with regard to Diamond’s response
to its motion to exclude the testimony of Kurt Vandervort (Dkt. 81), and it filed a supplement to its
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motion to exclude Vandervort’s testimony on the same day (Dkt. 82). It also filed a reply to
Diamond’s response to its motion to strike Diamond’s other experts. Dkts. 84, 85. Diamond filed
a reply to SSI’s response to its motion to strike SSI’s experts. Dkt. 83. Diamond then filed a motion
to strike the supplement to the motion to strike Vandervort’s testimony, claiming that it is merely
a new motion to strike that was filed after the dispositive motion deadline. Dkt. 87. Then, Diamond
filed a supplemental motion to strike SSI’s expert reports. Dkt. 98. Before proceeding to the merits,
the court notes that both supplements were merely supplements to motions already on file that were
provided after receipt of new information. See Dkts. 82, 98. Diamond’s motion to strike SSI’s
supplement (Dkt. 87) as untimely is therefore DENIED.
II. LEGAL STANDARD
In cases where federal subject matter jurisdiction is based on diversity, state law governs
substantive matters while federal law governs procedure. Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78, 58 S. Ct. 817 (1938); Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003).
Admissibility of evidence is a procedural matter. Muncie Aviation Corp. v. Party Doll Fleet, Inc.,
519 F.2d 1178, 1182 n.7 (5th Cir. 1975). The admissibility of expert testimony is therefore governed
by the Federal Rules of Evidence. Fed. R. Evid. 702; Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.
2009).
The Supreme Court of the United States acknowledged in Daubert v. Merrell Dow
Pharmaceuticals that Federal Rule of Evidence 702 serves as the proper standard for determining
the admissibility of expert testimony. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597–98, 113
S. Ct. 2786 (1993). Rule 702 provides:
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If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion, or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702. Under Daubert, a trial court acts as “gatekeeper,” making a “preliminary
assessment of whether the reasoning or methodology properly can be applied to the facts in issue.”
Daubert, 509 U.S. at 592–93; Kumho Tire v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167
(1999); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (5th Cir.2002). Daubert and its principles
apply to both scientific and non-scientific expert testimony. Kumho Tire, 526 U.S. at 147. Experts
need not be highly qualified to testify, and differences in expertise go to the weight of the testimony,
rather than admissibility. Huss, 571 F.3d at 452. Nonetheless, courts need not admit testimony that
is based purely on the ipse dixit of the expert. Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146, 118
S. Ct. 512 (1997); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
In addition to being qualified, an expert’s methodology for developing the basis of his or her
opinion must be reliable. Daubert, 509 U.S. at 592–93; Moore, 151 F.3d at 276. Even if the expert
is qualified and the basis of her opinion reliable, the underlying methodology must have also been
correctly applied to the case’s particular facts in order for her testimony to be relevant. Daubert, 509
U.S. at 593; Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). The party
proffering expert testimony has the burden of establishing by a preponderance of the evidence that
the challenged expert testimony is admissible. See Fed. R. Evid. 104(a); Moore, 151 F.3d at 276.
The proponent does not have to demonstrate that the testimony is correct, only that the expert is
qualified and that the testimony is relevant and reliable. Moore, 151 F.3d at 276.
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III. ANALYSIS
A.
Diamond’s Experts
Diamond offers the testimony of several different experts—Kurt Vandervort, Lovelace James
Gunter, Bob Kahak, Dennis Rygaard, and Greg Scheig—to support its position that the lifeboat
accident occurred because the Triple 5 hooks have a design defect that caused the hooks to open
when the lifeboat was onload. Vandervort investigated the incident, inspected the hook design and
operation, inspected the actual lifeboat and component remains from the accident, modeled the
lifeboat motion, and devised a test plan to create a situation similar to the conditions on the date of
the accident. Dkt. 75. Gunter, who is an approved U.S. Coast Guard instructor for Proficiency in
Survival Craft, opines about the training of the crew onboard the lifeboat and the maintenance
programs for the Ocean Ambassador’s lifeboats. Id. Kahak, who is a manager of engineered
products at one of SSI’s competitor companies, discusses the historical background for mechanical
disengaging devices or hooks and the standard of care for these devices and concludes that the Triple
5 hook does not meet the standard of care. Id.; Dkt. 55-4. Rygaard performed an investigation to
determine the root cause of the accident. Dkt. 75. Scheig discusses the damages in this case. Id.
SSI contends that none of these experts is qualified and that their opinions are neither reliable nor
relevant. Dkts. 55, 59.
1.
Kurt Vandervort
Diamond engaged Kurt Vandervort of Stress Engineering Services, Inc., to help investigate
and develop an understanding of the events on the Ocean Ambassador on the day of the lifeboat
accident. Dkt. 59-5. Vandervort has a Ph.D. in mechanical engineering and has worked in
engineering related jobs for more than 20 years. Dkt. 75, Ex. 22. Vandervort conducted numerous
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static and dynamic tests on the Triple 5 hooks, reviewed extensive technical records and discovery,
and traveled to Brazil to inspect the lifeboat and hooks from the Ocean Ambassador and compare
them to other Triple 5 hooks. Dkt. 75; Dkt. 59-5 (Report).
SSI argues that Vandervort’s testimony should be excluded because Vandervort is a
mechanical engineer, not a naval architect, and he relied on computations and simulations that he
did not perform himself. Dkt. 59. Instead, Vandervort relied on data provided by Diamond and on
computations and simulations performed by two of his associates—one of whom has a Ph.D. in
mechanical engineering and the other associate holds a masters in mechanical engineering. Id. SSI
also argues that Vandervort’s methods are unreliable because the weight Vandervort used for the
simulations was 2,000 pounds heavier than the lifeboat and was raised with a different type of wire
rope than the lifeboat. Id. SSI also complains that Vandervort did not produce the underlying data,
calculations, spreadsheets, computer programs, inputs, outputs, or methodology upon which his
opinion rests. Dkt. 82. Additionally, SSI states that it discovered during Vandervort’s deposition
that there was a videotape of the testing, which SSI claims was intentionally withheld. Dkt. 82. The
videotape was not turned in with Vandervort’s report to counsel; instead, it was “buried” in a
“multitude of documents produced in electronic format.” Id. SSI claims this was a “tactic intended
to interfere with [its] ability to challenge the findings of Diamond’s expert.” Id. SSI asserts that the
video depicting the release of a 16,000 pound weight is highly prejudicial if the testing assumptions
are not accurate, and there is no way to establish that Vandervort used reliable data and methodology
to create the computer simulations since his associates or Diamond provided the data. Dkt. 81.
Diamond argues that Vandervort is highly qualified and that the assistants upon whom he
relied have advanced degrees in mechanical engineering. Dkt. 75. Diamond additionally argues that
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the reasons for striking the witness espoused by SSI are insufficient to strike the witness—instead,
they are topics for cross-examination. Id. Moreover, as far as SSI not having the underlying data,
Diamond asserts that Vandervort “painstakingly simulated the actual conditions on the
Ambassador,” but that even if he did not, the point of his testing is that the hooks can open on their
own when the lifeboat is on-load and the primary handle is in the green zone even though SSI claims
the hooks cannot open on their own if the lifeboat is on-load and the handle is in the green zone.
Dkt. 87. Diamond also states that it produced the sea-state data used by Vandervort via the dailydrilling toolpusher reports, ballast-control records via BCO logbook data, documents used to
calculate rig motions and wave data used to model rig motions, computer programs and data, and
the input and output for that data. Id.
First, the court finds that Vandervort’s background as a mechanical engineer qualifies him
to perform the tests and investigations Diamond asked him to perform. He is not testifying about
the structural design of the lifeboat itself; rather, he is testifying about the hooks. While certainly
SSI may point out to the jury that Vandervort is not a naval architect, this particular distinction goes
to the weight of his testimony, not the admissibility. Cf. Porter v. Am. Optical Corp., 641 F.2d 1128,
1138 (5th Cir. 1981) (finding that the fact that an expert was qualified as an expert toxicologist and
not as a design expert “went to the weight of his testimony rather than to its admissibility”).
Second, the court finds that the fact that Vandervort’s associates or Diamond provided some
of the underlying data and that Vandervort’s associates contributed to the model does not disqualify
Vandervort as an expert. Vandervort’s associates provided opinions about the sea state, the rig
motions, and the mathematical model of lifeboat movement. SSI claims that these items were
critical to the model Vandervort designed, yet Vandervort indicated that he had no expertise in wave
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train data or rig motion data. Dkt. 81 (citing Dkt. 81, Ex. 1). The individuals who provided
Vandervort with the data needed for his model have not been offered as experts, so SSI is unable to
cross examine them to determine whether their methods are reliable. Diamond asserts, however, that
whether the underlying data and model accurately simulate real-world conditions is irrelevant,1 as
Vandervort’s testing demonstrates that SSI’s hooks can open on their own, which shows that the
hooks do not perform in the way SSI represented to Diamond that they would. Dkt. 87. The court
does not believe that Vandervort’s reliance on his assistants and the data provided by Diamond
disqualifies him as an expert. Any concerns SSI has about these issues may be addressed through
cross examination.
Third, the court disagrees with SSI’s contention that Vandervort’s methods are unreliable or
irrelevant. SSI contends that Vandervort did not exactly simulate the conditions on the date of the
accident. Diamond, however, is attempting to show through Vandervort’s testimony that the hooks
can open on their own despite SSI’s alleged assurances that they will not, so whether the conditions
under which Vandervort tested the hooks are exactly the same as the conditions on the date of the
accident is immaterial to whether his models and testimony will be of assistance to the jury.
Moreover, as with SSI’s concerns about the underlying data, SSI may point out the differences in
Vandervort’s model and the actual conditions to the jury through cross examination.
Finally, it is unclear to the court what SSI hoped to accomplish by claiming that Diamond
failed to produce the sea-state data and unfairly withheld the videotape of Vandervort’s testing.
Diamond provided evidence that it indeed produced the data about which SSI complains. See
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Diamond claims, however, that the data and model did represent real-world conditions.
Dkt. 87.
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Dkt. 87 & Exs. And SSI acknowledges that Diamond produced the videotape two weeks after
providing Vandervort’s report. See Dkt. 82. Whether it was “buried . . . in a multitude of documents
produced in electronic format” (Dkt. 82) is of little consequence to the court so long as it was timely
produced.
SSI’s motion to strike Vandervort’s testimony is DENIED.
2.
L.J. Gunter
Diamond offers L.J. Gunter of J G Safety & Training Specialists LLC as an expert
on training and maintenance of the lifeboats on the Ocean Ambassador. Gunter has a B.S. in
Behavioral Science from the University of Southwestern Louisiana and it the Director of UL
Lafayette Marine Survival Training Center (“MSTC”) at the University of Lafayette in Lafayette,
Louisiana. Dkt. 55-6. Gunter opines that there was a comprehensive maintenance program in place
for the Ocean Ambassador that included regular inspections and maintenance of the lifeboats, that
the crew of the Ocean Ambassador was following its internal maintenance requirements for weekly,
monthly, and routine maintenance, and that SSI’s claim that the Triple 5 hook is superior because
the weight of the lifeboat helps keep the hook closed is not supported by the facts because the hook
can open when the weight of the lifeboat is on the hook. Id. He also opines about whether the
operating handle of the Triple 5 control box and safety cover for the emergency ratchet were in place
during the lifeboat launching drill. Id. Finally, he opines that SSI’s claim that the Triple 5 hook is
superior to other designs is not supported by the facts because the hook can open when the weight
of the lifeboat is on the hook and that SSI breached its duty of care and acted negligently by failing
to warn prior to the accident that the hooks could open or the release lever could shift. Id.
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SSI asserts that Gunter is not qualified to render the opinions in his report and that his
proposed testimony is not supported by any empirical data or derived from reliable principles or
methods. Dkt. 55. SSI argues that while Gunter has experience teaching a “hands on” session at the
MSTC that includes the launch and release of a lifeboat along with hooking up and retrieval, he is
not qualified because there is no Triple 5 hook at the MSTC and no training with regard to the Triple
5 hook. Dkt. 55. Gunter also does not teach the class on a regular basis. Dkt. 84. SSI asserts that
Gunter’s general experience in training for use of survival craft does not qualify him to testify about
the maintenance or maintenance programs of any equipment aboard the Ocean Ambassador or other
rig, as he has no qualifications or certification that indicate he has experience, training, or education
regarding whether the maintenance programs in place at Diamond met any standard, were complied
with based on some measurable standard, or have any bearing on a fact issue in this case. Dkt. 55.
Moreover, SSI points out that while Gunter may have some generalized knowledge of lifeboat davits,
winches, and release mechanisms, he has no knowledge or education regarding Triple 5 hooks. Id.
In fact, he admitted during his deposition that he had never seen a Triple 5 hook before he was
retained in this case. Dkt. 84 (citing Dkt. 84, Ex. 1 (Gunter’s Dep.)).
Diamond asserts that the MSTC is the premier lifeboat-training facility in the United States.
Dkt. 75. Diamond argues that Gunter, the director of MSTC, is approved by the U.S. Coast Guard
to teach lifeboat and lifeboat release gear operation and maintenance and has trained students in
lifeboat proficiency courses for the last 18 years. Dkt. 75. Prior to working at MSTC, Gunter was
a rig safety representative and was responsible for the rig’s maintenance of and drills involving
lifeboats. Id. Gunter taught lifeboat proficiency to Joshua Anderson, the helmsman of the lifeboat
on the date of the accident. Id. Thus, he knows exactly what Anderson was taught during his
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lifeboat training. Id. Gunter also oversees the maintenance program at MSTC and is thus
responsible for the maintenance of MSTC’s lifeboats, release mechanisms, and davit systems. Id.
Additionally, before offering his opinion, Gunter reviewed the training records of the Ocean
Ambassador crew, reviewed all lifeboat-related maintenance records since the day the Triple 5 hooks
were installed, interviewed crew members and other relevant people, researched training and
maintenance regulations, and reviewed operational records and other documents produced in
discovery. Id.
The court finds that Gunter is qualified. While his experience may not be specific to Triple
5 hooks, he has extensive experience in lifeboat training, and the operation of davits, winches, and
release mechanisms. Moreover, he trained the helmsman of the lifeboat at issue, and he has
reviewed the relevant maintenance records. His lack of direct experience with Triple 5 hooks goes
to the weight of the testimony, not its admissibility.
With regard to relevance and reliability, SSI asserts that Gunter does not provide any
scientifically valid reasoning or methodology for his opinions. Dkt. 55. SSI argues that Gunter
based his opinions on speculations that the deceased lifeboat helmsman and three Brazilian crew
members on the lifeboat were experienced and well-trained, that the drill was being used to
supplement their training in launch and recovery skills, and that they were following standard
lifeboat launching procedures. Id. Additionally, SSI argues that Gunter draws several improper fact
conclusions, including:
(1) that the Triple 5 Release Mechanism Operation and Maintenance Manual was onboard
the Ocean Ambassador at the time of the incident;
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(2) that the operating handle and yellow safety cover for the emergency ratchet had not been
removed and were most likely lost due to the severe damage caused by the accident and
recovery process;
(3) that the poster aboard the Ocean Ambassador was not misleading and depicts a step-bystep procedure for launching the lifeboat with instructions in both Portuguese and English;
(4) that the Flash Alert issued by Diamond is an industry best practice utilized to point out
conditions or incidents that are noted to prevent reoccurrences; and
(5) that SSI’s allegations that the helmsman may have been unaware that the Triple 5 control
box was missing its operating handle and may have unintentionally released the hooks using
the emergency ratchet are unsupported by the facts and witness statements.
Id. With regard to the handle, SSI argues that the witness statements upon which Gunter relies are
from witnesses who have now been deposed and only confirm their statements in part. Id. For
instance, in Mauro Salomao’s witness statement, he said that the primary release handle on the
control box was in place during the drill, but in his deposition he stated that he did not see the
primary release handle. Id. Jorge de Souza similarly said in his witness statement that the handle
was in place but admitted in his deposition that he did not see the handle. Id.
Diamond contends that Gunter’s opinion that Anderson was an experienced and well-trained
helmsman is not speculative and is, in fact, supported by facts, including Anderson’s actual training
records and various licenses and certifications. Dkt.75. Additionally, Diamond states that Gunter’s
opinion that Anderson was trained on the Triple 5 hook is supported by the facts because Anderson
attended a safety meeting during which a video of the Triple 5 hook operation was shown, the Barge
Supervisor has confirmed that he and Anderson reviewed the operation of the SSI Triple 5 Hook
System prior to the accident, and the maintenance records indicate that Anderson assisted in
maintaining the Triple 5 hooks and other lifeboat equipment. Id.; see Dkt. 55-6 (discussing these
facts). Next, Diamond contends that Gunter’s opinion that Salamao, Pereira, and Souza were
experienced and well trained is supported by the facts because (1) Salomao holds a license as a 2d
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engineer, attended a proficiency course in survival crafts, was evaluated and found to be a competent
operator of the Triple 5 hooks 6 months before the accident, took part in Job Safety Analysis review
of launch procedures, and familiarized himself with the Triple 5 Hook system; (2) Pereira held a
Bosun rating from the Brazilian Maritime Authority, attended proficiency training in survival crafts,
and took part in the JSA for the launch procedure as well as weekly Abandonment drills; and (3)
Souza was an Able Seaman (AB) and had been a seafarer for over 20 years, worked on many types
of vessels, and participated in the pre-job training meetings. Dkt. 75; see Dkt. 55-6 (discussing the
training and certifications of these individuals). Next, Diamond argues that Gunter’s opinion that
the drill supplemented training in launch recovery skills and that the crew was following standard
lifeboat launching procedures is supported by the International Maritime Organization Annex rules
and industry best practices, of which he is aware through his 20 years of experience with the MSTC.
Dkt. 75. With regard to Gunter’s conclusions that the manual was onboard and that the operating
handle was present, Diamond contends that they are each supported by eye-witness testimony or
interviews that Gunter cites in his report. Id. And with regard to Gunter’s opinion that the poster
was not misleading, Diamond notes that Gunter relied on his review of the poster, his knowledge of
training and safety standards, and his experience training personnel in marine launch procedures.
Id. As to Gunter’s opinion that SSI’s defense that the helmsman may not have been aware that the
control box was missing its operating handle and may have unintentionally released the hook is not
supported by evidence, Diamond notes that the opinion is supported by witness statements that the
handle was present and because no abnormal circumstances were documented by anyone involved
in the launch procedure. Id.
The court finds that these opinions are relevant and reliable. Gunter based these opinions on
facts in the record as well as his years of experience. As far as SSI’s contention that Gunter bases
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his opinions on or draws improper factual conclusions, SSI may attempt to discredit Gunter’s
testimony through “[v]igorous cross-examination [and] presentation of contrary evidence,” which
are the “appropriate means of attacking” disputed evidence relied upon by experts. Daubert, 509
U.S. at 596; see Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002) (“The fact finder is
entitled to hear [the expert’s] testimony and decide whether it should accept or reject that testimony
after considering all factors that weigh on credibility, including whether the predicate facts on which
[the expert] relied are accurate.”); Nova Consulting Grp., Inc. v. Eng’g Consulting Servs., Ltd., 290
Fed. App’x 727, 733 (5th Cir. 2008) (relying on the same quote from Daubert and noting that it is
not the role of the trial court to evaluate whether the facts underlying the expert’s opinion are
correct). “As a general rule, questions relating to the bases and sources of an expert’s opinion affect
the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s
consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
SSI additionally argues that Gunter attempts to assert the following impermissible legal
conclusion: that SSI breached its duty of care and acted negligently by failing to warn Diamond prior
to the accident of the potential that the hooks could open and the release lever could shift and that
a recovery pendant and interlock pin could have prevented the accident. SSI argues that this opinion
is essentially telling the jury what result to reach. The court agrees. While under Federal Rule of
Evidence 704 an expert’s opinion is “not objectionable just because it embraces an ultimate issue,”
“questions which would merely allow the witness to tell the jury what result to reach are not
permitted. Nor is the rule intended to allow a witness to give legal conclusions.” Fed. R. Evid.
704(a); Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). Here, Gunter’s conclusion
that SSI breached its duty of care and acted negligently is clearly a legal conclusion and should be
excluded.
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SSI’s motion to strike Gunter’s testimony is GRANTED IN PART in that Gunter may not
testify that SSI breached its duty of care and acted negligently. SSI’s motion to strike Gunter’s
testimony is otherwise DENIED.
3.
Robert Kahak
Robert Kahak is a professional in the field of lifeboats and their release mechanisms.
Dkt. 55-4. He has been working in this field since 1974. Id. It is unclear whether he has any
specialized degrees or training. See id. Kahak opines that the Triple 5 hook is not safe in an offshore
environment because it allows the fall ring to move on the hook and the hook to adjust based on the
location of the ring. Id. According to Kahak, environmental conditions can cause the hook ring to
move, and when the hook responds to the moving ring, it can inadvertently open. Id. Kahak
concludes that SSI failed to meet the applicable standard of care when it manufactured and sold the
Triple 5 hook to the offshore community. Id.
SSI argues that Kahak lacks the qualifications necessary to provide an expert opinion with
regard to the design of a release mechanism in general and SSI’s hooks in particular. Dkt. 55. On
his resume, Kahak lists a broad range of skills in which he claims to be proficient, but he does not
list how he came to be proficient in these skills. Dkt. 55-4. He does not appear to have a technical
background. Id. Diamond argues that Kahak has almost 40 years of experience working with
lifesaving appliance systems, specifically including lifeboats, davits and release mechanisms, and
he is the manager of engineered products at Alexander Ryan Safety Co., a direct competitor of SSI’s.
Dkt. 75. Diamond also notes that Kahak was involved in the establishment and maintenance of
lifeboat-training centers at Texas A&M Galveston and the Marine Survival Training School at the
University of Louisiana, Lafayette. Id.
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The court agrees with SSI that Diamond has not shown that Kahak is qualified to offer the
opinions he has been offered to provide. While an expert may be qualified under Rule 702 by
“knowledge, skill, experience, training, or education,” the court is concerned with the fact that
Diamond has given no information about Kahak’s training or education and instead broadly asserts
that he is an expert simply because he has worked in the field for numerous years. While it is clear
that Kahak has knowledge about lifeboats, davits, and release mechanisms, as he has worked in
production, sales, and is currently the manager of engineered products at one of SSI’s competitors,
there is no indication that he has the technical expertise to testify about what causes the Triple 5
hooks to open. The court therefore GRANTS SSI’s motion and STRIKES Kahak’s report and
testimony.
4.
Gregory Scheig
Gregory Scheig is a certified public accountant and financial analyst with a bachelor’s degree
in petroleum engineering and a master’s degree in finance and accounting from the University of
Texas. Dkt. 75, Ex. 21. He also has an accreditation in business valuation and a certification in
financial forensics. Id. Scheig has more than 20 years of consulting and valuation experience,
concentrating on complex financial analyses. Id. His report involves Diamond’s alleged economic
damages. Id.
SSI argues that Scheig’s report is not grounded in scientific, technical, or otherwise
specialized knowledge that will assist the trier of fact. Dkt. 55. SSI contends that since Scheig only
offers opinions about purchase price paid, lost revenue, and costs paid, and does not identify any
scientifically valid reasoning or methodology for his opinions, his opinions are conclusory, and the
jury is more than capable of reviewing the documents and drawing its own conclusions. Id. SSI also
argues that if a CPA testifies about the amount of damages, it would “unfairly validate those
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damages in the mind of the jury, simply because an expert was providing the numbers.” Dkt. 85.
Finally, SSI asserts that Scheig does not provide any information to explain why loss of revenue for
a rig owned by Diamond Netherlands is damage to Diamond Offshore Company and that his opinion
therefore lacks proper foundation and is unreliable. Id. SSI also points out that Scheig did not
provide for depreciation of the lifeboat for years of service in his calculations including the cost of
replacing the lifeboat or use the fair market value of the lifeboat at the time of loss. Id.
Diamond asserts that Scheig is eminently qualified to render the opinions in his report and
that his report is much more than simple math—it details the steps he took to analyze numerous
invoices, payments, adjustments, vessel lists, the charter contract and amendment, services contract,
and settlement agreement to determine the economic damages suffered by Diamond. Dkt. 75.
Diamond asserts that an average juror could not perform the calculations that Scheig performed. Id.
The court agrees with SSI that the calculations Scheig performed are not extremely complex;
however, the court believes that the calculations are not so simple that they would be of no assistance
to the jury. Scheig is qualified to testify about economic damages, and his testimony is relevant and
reliable. Any issues SSI has with the numbers Scheig chose are grounds for cross examination.
Accordingly, SSI’s motion to strike Scheig’s testimony is DENIED.
5.
Dennis Rygaard
Dennis Rygaard is currently the president and owner of Incident Investigation Services, LLC,
which provides third-party Apollo RCA training or consulting services for various well-known
companies. Dkt. 55-5. Apollo RCA is a structured method whereby one applies principles of cause
and effect to determine the root causes that led to an effect or consequence. Id. Rygaard, who has
been teaching the Apollo RCA method since 2003, opines about the root cause of the accident in
Brazil. Id. Rygaard pursued the causes as to why some of the components of the lifeboat were
17
missing, proceeding down what he deemed to be the most likely causal paths and looking for data
to support the findings. Id. He based his findings on information derived from eyewitness testimony
provided by employees who participated in the drill and were either occupants in the lifeboat at the
time of the accident or witnessed the accident and vessel recovery operations. Id. He also reviewed
depositions. Id. He opines that the missing components were on board the lifeboat during the drill
and became dislodged and fell out of the vessel during or after the accident due to various external
forces including vibration and environmental conditions and/or the jolting and impact associated
with the accident itself or during recovery, when the lifeboat fell at least two and possibly four times.
Id.
SSI argues that Rygaard is not qualified to testify about the root cause of the accident because
he has no education, background, or training in any technical field related to mechanical, structural,
or other similar pursuits. Dkt. 55. Diamond argues that Rygaard is well-qualified to testify as to the
root cause of the accident as he has over twenty years of experience in accident reconstruction using
root-cause analysis and he has been a certified instructor of the Apollo RCA method for ten years.
Dkt. 75. Rygaard has performed root-cause analyses for numerous industry and government
agencies in 60-70 incidents involving injuries, fatalities, and maintenance issues. Id. Diamond
additionally argues that courts routinely admit evidence of experts performing root-cause analysis.
Id.
The court finds that Rygaard is not qualified to offer a root causes analysis in this case.
While his background in the method is impressive, his report contains several technical opinions,
and Rygaard does not appear to have any specialized technical background. Moreover, while the
court believes that Rygaard’s methods are of great use to companies attempting to ascertain the cause
of accidents, it also believes that it is not the proper subject of expert testimony in this case as it
18
invades the province of the jury. Rygaard reviewed the evidence and witness statements, determined
which scenarios were, in his opinion, more likely, disregarded scenarios that he felt were unlikely,
and reached a conclusion. This is exactly what the jury will be asked to do. The court does not
believe it is appropriate to sanction an “expert” to tell the jury how to evaluate the evidence. The
jury is more than capable of evaluating this evidence on its own. Accordingly, SSI’s motion to strike
Rygaard’s testimony is GRANTED.
B.
SSI’s Experts
SSI’s experts are Mark Beatty, James Nelson, and Robert Markle. Dkt. 57. Beatty is SSI’s
financial expert, Nelson is an engineer who tested the Triple 5 hooks for this case, and Markle
worked for the U.S. Coast Guard for numerous years and is offered to testify about safety, training,
and regulatory issues. Diamond moves to strike the testimony of all of these experts, claiming that
their testimony is unreliable, irrelevant, and inadmissible because they do not provide the underlying
data for their conclusions, they do not identify the documents they have reviewed in this case, they
do not assert opinions using a sufficient degree of certainty, they are not qualified in the fields in
which they offer opinions, and they rely on assumptions that are opposite to known facts. Dkt. 57.
Additionally, Diamond argues that at their depositions, the experts indicated that they have no
opinions whether SSI’s hooks are fit-for-purpose, have a design defect, or meet U.S. Coast Guard
regulations, no opinions on whether the Triple 5 hook can walk open and drop a lifeboat, and no
opinions about what probably happened to cause the May 17, 2010 incident. Dkt. 98. Thus,
Diamond argues that their opinions are of no value to the jury. Id.
1.
Mark Beatty
Mark Beatty is SSI’s executive vice president. Dkt. 57. Beatty’s expert report purports to
“outline the points for the law suit filed by Survival Systems International (SSI) against Diamond
19
Offshore (Diamond).” Dkt. 57, Ex. 1. It points to three actions allegedly taken by Diamond that
caused damages to SSI, and it discusses the financial impact of these actions on SSI. Id. When
Beatty testified at his expert deposition, he clarified that he was only offering expert testimony on
the financial impact of Diamond’s actions on SSI. Dkt. 98, Ex. 3 at 79.
Diamond argues that Beatty is unqualified to be offered as a financial expert as he is not a
CPA, not an accountant, and has never done accounting work. Dkt. 98 at 8. Diamond also argues
that Beatty’s opinions are neither relevant nor reliable. Dkt. 83. Diamond points out that Beatty
never provides a complete calculation of SSI’s alleged lost profits, and his conclusion that SSI lost
profits as a result of some action on the part of Diamond is purely speculation. Id. at 5. According
to Diamond, Beatty’s report contains no evidence that Diamond caused SSI to lose sales, and
Beatty’s opinion that SSI lost profits does not demonstrate a reasonably certain, objective
determination of lost profits.
SSI argues that Beatty has a Bachelor of Science in Economics and a Masters in Business
Administration, has over twenty years of experience, has founded two businesses, and is directly
involved in the financial planning and day-to-day economics of SSI. Dkt. 74 at 4. SSI presents the
court with a case in which the Texas First Court of Appeals in Houston, Texas determined that an
expert who had a Ph.D. in economics, had taught a university course in corporate valuation, and
often acted as a consultant preparing corporate valuations, could testify about the valuation of an
employment contract. Dkt. 74 (citing KMG Kanal-Muller-Gruppe Deutschland GMBH & Co. v.
Davis, 175 S.W.3d 379, 390 (Tex. App.—Houston [1st Dist.] 2005)). SSI points out that the fact
that the expert was not a CPA did not mean he was not qualified. Id. It then notes that Beatty has
a degree in economics, an MBA, and over twenty years of experience in the business world. Id.
20
Additionally, SSI asserts that Beatty has direct knowledge of SSI’s operations and financial affairs
and is thus “more than qualified as a lay expert.”2 Id.
“[O]pinions of estimated lost profits must, at a minimum, be based on objective facts,
figures, or data from which the amount of lost profits can be ascertained. In addition, when lost
profits are dependent on a plaintiff’s lost contracts with customers, Texas law requires that such
contracts be proved with reasonable certainty, both as to their existence and number.” Great Pines
Water Co., Inc. v. Liqui-Box Corp., 203 F.3d 920, 922-23 (5th Cir. 2000). “Profits which are largely
speculative, as from an activity dependent on uncertain or changing market conditions, or on chancy
business opportunities, or on promotion of untested products or entry into unknown or unviable
markets, or on the success of a new and unproven enterprise, cannot be recovered.” Tex.
Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994).
Beatty’s report indicates that “SSI had to postpone all marketing efforts on the Triple5 hook
for approximately one year” due to Diamond’s actions and thus “did not present the hook to any
potential new customers.” Dkt. 57, Ex. 1. His report further states that “SSI suffered damage due
to the significant amount of senior management time that was absorbed, distracting from focus on,
and growth of, the company.” Id. Beatty provides tables in his report that demonstrate SSI’s growth
rate from 2006 and purport to provide an extrapolation of an internal four-year growth rate. Id. The
tables indicate that SSI should have continued to grow at a certain rate in 2010 and 2011, and in
actuality its revenue went down in 2010. Id. During his deposition, Beatty could not point to a
single lost sale or lost contract that resulted from Diamond’s actions. Dkt. 98, Ex. 3 at 60. Instead,
2
At this point, SSI has offered Beatty as an expert witness under Federal Rule of Evidence
702, not a lay witness under Rule 701. The court is solely considering whether he is qualified as an
expert under Rule 702.
21
he stated that the “majority of the losses . . . are things that we would have been able to achieve,
attention we would have been able to give the business, sales we would have been able to make, and
et cetera.” Id. Additionally, he asserted that SSI chose not to make sales in order to “deal with
issues around Diamond.” Dkt. 98, Ex. 3 at 61. It appears that Beatty would not be able to
demonstrate lost profits within a reasonable degree of certainty as required by Texas law.
Regardless, the court finds that Beatty is unqualified to testify as a financial expert. While
Beatty has an undergraduate degree in economics, and he knows a lot about the economics of SSI
due to his position within the company, he does not have the expertise to testify as an expert with
regard to calculations of lost profits. He has, indeed, never actually performed the same type of
analysis before.3 Dkt. 98, Ex. 3 at 25, 74-75. He is not qualified to testify as an expert.4 Diamond’s
motion to strike Beatty as an expert is therefore GRANTED.
2.
James Nelson
James Nelson has a B.C.E., M.S., and Ph.D. in Civil Engineering and is the Dean of the
College of Engineering at University of Texas in Tyler. Dkt. 57, Ex. 2, Ex. 2. He has been
registered as a professional engineer in Texas since 1979 and is a registered engineer in two other
states. Id. He has worked as an engineer at Exxon Company, the Offshore Company, Robert Reid
Consulting Engineer, and Brown & Root. Id. He has served as expert witness in a case involving
3
Beatty asserts that he has performed similar analyses with regard to business interruption
claims associated with Hurricane Katrina and the California wild fires, but this type of claim is
somewhat different because it relates to an alleged reduction in business rather than a complete
interruption. Dkt. 98, Ex. 3 at 25.
4
The court notes that even though Beatty does not qualify to testify as an expert on these
matters, “an officer or employee of a corporation may testify to industry practices and pricing
without qualifying as an expert.” Tex. A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394,
403 (5th Cir. 2003).
22
a conventional lifeboat, and he has extensive publications relating to free-fall lifeboats. Id. He has
taught numerous engineering classes at several universities, including the following relevant classes:
dynamic analysis of structures, design of steel structures, structural analysis, introduction to
structural design, civil engineering measurements, matrix methods for structural analysis, numerical
and approximate methods in structures, experimental stress analysis, design of offshore structures,
advanced strength of materials, statics and dynamics, theory of structures, engineering mechanics
of materials, and offshore and coastal structures. Id. He has also served as a member of the United
States Delegation at the Subcommittee on Ship Design and Equipment of the International Maritime
Organization since 1994. Id.
Diamond argues that the court should strike Nelson’s testimony because Nelson has never
analyzed or tested lifeboat hooks before this case. Dkt. 57 at 11. Instead, his expertise relates to
“free-fall lifeboats,” which are not suspended by cables and hooks. Id. Diamond further argues that
Nelson does not provide an adequate description of his testing methodology and that his conclusions
are therefore not relevant and reliable under Daubert. Dkt. 57 at 14. Finally, Diamond contends that
Nelson’s report is unreliable because it runs contrary to known facts in the case, as he assumed the
lift never stopped, yet the eye-witnesses stated that when the lifeboat was first raised from the water
it stopped just out of the water and above the three foot swells so that the crew could check that the
hooks were properly set and so that the crew could check to make sure the hooks and release handle
were in their correct respective positions. Id. at 15.
SSI argues that Nelson is qualified, as he has a B.C.E., M.S., and Ph.D. in Civil Engineering,
is the Dean of Engineering and Computer Science at the University of Texas, Tyler, has engineering
experience at Exxon Company, the Offshore Company, Robert Reid Consulting, and Brown & Root,
and has performed consulting work, including structural design and lifeboat consulting, and
23
performed tests on forces on lifeboats for over thirty years. Dkt. 74 at 6. With regard to his
methodology, SSI maintains that Nelson’s report explains his methodology and also provides graphs
and charts regarding the testing and evaluation of the hooks, and the appendices provide the numeric
data to support his conclusions. Id. at 7. SSI further argues that Diamond’s contention that Nelson’s
report is unreliable because it runs contrary to known facts is incorrect, as these alleged “known
facts” were obtained from eyewitness testimony which has, in fact, been called into question.
Dkt. 74 at 8.
First, the court finds that Nelson is qualified to testify as an expert about the testing of the
Triple 5 hooks. Although his prior expertise is focused primarily on free-fall lifeboats, he has taught
numerous college classes relating to structural engineering. The fact that his primary expertise is in
free-fall lifeboats as opposed to lifeboat hooks goes to the weight of his testimony, not its
admissibility.
Second, the court finds that Nelson’s report is relevant and reliable. Nelson describes
evaluations in which the hooks were intentionally placed in a partially open condition or with the
D-ring on the nose of the hook at the bow of the lifeboat to determine the effect of these conditions
on the performance of the hook. Dkt. 57, Ex. 2. He also indicates that one evaluation was conducted
with the hook fully reset, and that the boat was made to swing in both types of evaluations. Id. He
provides his mathematical equations and the reasoning behind his choice of variables and the
assumptions he had to make. Id. Diamond complains that the amount of swing on the lifeboat in
Nelson’s model assumes the lift never stopped, which is contrary to testimony of the survivors.
Dkt. 57. SSI points out that the eye-witness testimony has been “inconsistent at best” and provides
examples of two crewmembers who had stated that the primary release handle of the lifeboat was
in place in earlier statements but admitted to not seeing them during their depositions. Dkt. 74 at
24
7-8. The court finds that this is a question best left for the jury. While the life boat may not have
been swinging as much as the lifeboat in Nelson’s model was swinging—an argument Diamond is
free to present to the jury—the court finds that his model is still relevant and that his methodology
is reliable.5 Diamond’s motion to disqualify Nelson is DENIED.
3.
Robert L. Markle
Robert L. Markle has a Bachelor of Science in mechanical engineering and a Master of
Business Administration. Dkt. 57, Ex. 3. He worked for the U.S. Coast Guard in its Lifesaving and
Fire Safety Division for 27 years. Id. He has been a delegate to the International Maritime
Organization for more than 30 years. Id. Markle was one of the primary drafters of Chapter III,
Lifesaving Appliances, of the International Convention for the Safety of Life at Sea (SOLAS), and
its companion documents, the International Lifesaving Appliances Code, and the Recommendation
on Testing of Life-saving Appliances. Id.
In his expert report, Markle discusses the regulatory environment for training and
qualifications of crew, the regulatory environment for lifeboats, the testing specific to the Triple 5
release mechanism, and the Brazilian Maritime Authority report relating to the May 17, 2010,
accident. Dkt. 57, Ex. 3. He concludes that the Triple 5 release mechanism was reviewed by the
U.S. Coast Guard, tested under the supervision of the U.S. Coast Guard and the American Bureau
of Shipping, and determined to comply with the requirements of SOLAS, the LSA Code, and the
IMO Resolution MSC 81(70), that the release handle may have been missing at the time of the
5
Diamond also asserts that Nelson ran other models but did not produce them. Dkt. 98.
Diamond indicates that the other data has been lost, as SSI does not have it. Id. Diamond argues
that this results in SSI’s failure to meet Daubert requirements. Id. However, Diamond does not cite
and the court is not aware of any cases indicating that lost data should result in the complete
disqualification of an expert.
25
accident as it was not on the lifeboat when it was recovered after the accident, that a missing handle
could mean the lifeboat was not in compliance with 10.5.1.3 of the MODU Code or 10.18 of the
MODU Code, that the lifeboat was likely lowered into the water without releasing it from the falls
because either the crew wanted to avoid having to reconnect the falls after the drill was over, or
because a missing release handle would make it impossible to reconnect the hooks to the falls, even
though they could have been released using the emergency release ratchet. Id. Markle also
concludes that the instruction poster in Portuguese and English was seriously deficient because it did
not describe the operation of the Triple 5 release mechanism and suggested that the emergency
ratchet was to be used during practice and launching. Id. Ultimately, Markle concludes that the
decision not to operate the release gear to launch the boat as well as maneuvering the boat while it
was attached to the falls contributed to the accident because the hooks would have been repeatedly
loaded and unloaded as the boat moved, which might have caused the hooks to partially open. Id.
Even though the hooks were visually checked when the boat was lifted, the crew had little training
on the Triple 5 release mechanism, so they likely did not know what to look for. Id. He also
concludes that the release handle was either missing and the helmsman therefore was not alerted to
the fact that the hooks had moved into a partially open position, as the release mechanism would
have been in the red zone, or the helmsman was not sufficiently trained or familiarized with the
operation of the hooks to know what the handle meant, or the helmsman demonstrated tragic
disregard to his duties by not monitoring the position of the release handle. Id.
Diamond contends that Markle is not qualified to opine on safety and training issues relating
to the incident as he discontinued working for the U.S. Coast Guard four years before the Triple 5
hook even existed and six years before SSI submitted documentation to the U.S. Coast Guard for
approval of the Triple 5 hook. Dkt. 57 at 17. Moreover, Markle’s field is mechanical engineering,
26
not safety, training, or operations of offshore rigs. Id. Additionally, Diamond points out that Markle
is designated to testify about lifeboat safety training, yet the office for which he worked at the U.S.
Coast Guard does not regulate lifeboat safety training. Dkt. 83 at 3.
SSI argues that Markle has over 25 years of experience as the senior most Coast Guard
official and extensive first-hand knowledge of all the rules and regulations governing lifeboat hook
safety and is thus highly qualified to render an opinion about lifeboat hook safety, training, and
design. Dkt. 74 at 10. The court agrees that even if Markle was not working for the U.S. Coast
Guard at the time the Triple 5 hook was approved, he has extensive knowledge of the rules and
regulations upon which he relies to render his opinion. He is thus qualified to discuss the regulatory
environment for approval of the hooks and safety regulations relating to lifeboats in general. He may
also testify as to whether the instruction poster on board was deficient with regard to its description
of and the proper use of the Triple 5 Release Mechanism. However, he does not appear to have
expertise in lifeboat safety training. Thus, to the extent he is being offered to testify about the
adequacy of training, he is not qualified. He may testify about which regulations are relevant and
what they require as far as how often training was to occur, but he may not offer an expert opinion
as to whether the training actually received was adequate.
Diamond also contends that Markle’s opinions do not meet the Daubert standards of
relevance and reliability as they are all unsupported, contrary to known facts, and fail to assert that
any aspect of his conclusions are “more likely than not.” Dkt. 57 at 18. Diamond’s main concern
is that Markle’s conclusions flow from his theory that the primary release handle may have been
missing at the time of the accident, which is contrary to eyewitness testimony. Id. One of these
witnesses specifically remembers the handle was in the green zone when the boat was lifted just out
of the water for the standard re-check. Id. (citing Dkt. 57, Ex. 9 at 131-133). SSI argues that the
27
eyewitness testimony is inconsistent and whether the handle was missing is a disputed issue of fact.
The court agrees that whether the handle was missing is an issue of fact.
Diamond also argues that Markle opines only about his different theories for what may have
happened, but fails to assign percentages of likelihood to any potential scenario or say which was
probable, and that his opinion thus fails to meet the Daubert standard. Dkt. 98 at 6. Under Daubert,
the court may disregard expert testimony if it “concludes that the scintilla of evidence presented
supporting a position is insufficient to allow a reasonable juror to conclude that the position more
likely than not is true.” Daubert, 509 U.S. at 596. Markle essentially opines that it is probable that
the handle—whether it was there or not—was not used in the manner in which it was designed to
be used. Given the fact that the handle was missing when the lifeboat was raised and the fact that
the eyewitness testimony is not altogether consistent, the court finds that a reasonable juror could
conclude that it is more likely than not true that the handle was either missing or not used in the
manner in which it was designed to be used.
Finally, Diamond contends that Markle inappropriately relied on the Marine Casualty
Investigation Report of the Brazilian Maritime Authority and Port Captaincy of Rio de Janeiro.
Dkt. 83. Diamond relies on cases finding that experts may not rely on U.S. Coast Guard Marine
Casualty Investigation Reports (“MCIR”) because the U.S. Code provision providing for
investigation of marine casualties bars the use of the reports in legal proceedings. See United States
v. Egan Marine Corp., 808 F. Supp. 2d 1065, 1076-77 (N.D. Ill. 2011) (striking summary judgment
evidence that relied on an MCIR because using the MCIR as evidence violates 46 U.S.C. § 6308(a));
Ward Hornblower Proescher, No. C-1708, 1999 WL 694025 (N.D. Cal. Apr. 8, 1999) (concluding
that a U.S. Coast Guard MCIR was “inadmissible as evidence for any purpose whatsoever pursuant
to 46 U.S.C. 6308"). Thus, the reason that U.S. Coast Guard reports are inadmissible is because
28
Congress has deemed them inadmissible. This has little bearing on the admissibility of MCIRs from
the Brazilian Maritime Authority. The court finds that it was not improper for Markle to consider
the Brazilian report.
Diamond’s motion to strike Markle’s report because it is irrelevant and unreliable is
DENIED. Diamond’s motion to strike Markle’s report because he is not qualified is GRANTED IN
PART AND DENIED IN PART. It is GRANTED to the extent that Markle purports to be an expert
with regard to the adequacy of training received by the individuals conducting the lifeboat drills. It
is DENIED in all other respects.
IV. CONCLUSION
Diamond’s motion to strike SSI’s supplemental Daubert motion (Dkt. 87) is DENIED. SSI’s
motion to exclude (Dkt. 55) is GRANTED IN PART AND DENIED IN PART. It is GRANTED
with regard to the motion to strike Rygaard’s testimony and with regard to that portion of Gunter’s
testimony and report relating to SSI’s alleged breach of its duty of care and acted negligently. It is
DENIED in all other respects. Diamond’s motion to strike (Dkt. 57) is GRANTED IN PART AND
DENIED IN PART. It is GRANTED with respect to Beatty’s “expert” testimony and report and
with respect to the extent Markle purports to be an expert with regard to the adequacy of training
received by the individuals conducting the lifeboat drills. It is DENIED in all other respects. SSI’s
motion to exclude Vandervort’s testimony (Dkt. 59) is DENIED. Diamond’s supplemental motion
to strike SSI’s motion (Dkt. 98), which merely supplements the original motion, is GRANTED IN
PART AND DENIED IN PART.
Signed at Houston, Texas on January 29, 2013.
___________________________________
Gray H. Miller
United States District Judge
29
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