United States District Court, E.D. Louisiana
PAUL GOBERT, JR.
ATLANTIC SOUNDING ET AL.
ORDER AND REASONS.
M. AFRICK UNITED STATES DISTRICT JUDGE.
Paul Gobert was a surveyor for Weeks Marine on the dredge
G.D. Morgan. Gobert claims he slipped and fell while walking
down poorly maintained stairs on the dredge, and that a
slippery substance left on the deck after a cleaning-
partially as a result of the pitted nature of the
deck-contributed to his fall. The upcoming trial concerns
Gobert's unseaworthiness and Jones Act negligence claims
against Weeks Marine.
the Court is defendant Weeks Marine's
motion in limine. For the following reasons, the
motion is granted in part, denied in part, and deferred in
Marine moves to exclude a photograph depicting a puddle of
soapy water on the G.D. Morgan. R. Doc. No. 104-2, at 1. The
photograph was taken a few days after Gobert's fall, and
depicts a puddle with foam bubbles after a cleaning. All
parties agree that the photograph depicts a separate area of
the dredge from where the accident occurred.
Weeks argues that the photograph is irrelevant and/or
unfairly prejudicial because it does not depict the accident
site or the conditions on the boat at the time of the
accident. Weeks suggests that the photograph will confuse the
issues and create the false impression that the accident site
resembled the conditions depicted in the photograph.
Therefore, Weeks argues that the photo should be excluded
pursuant to Federal Rules of Evidence Rules 401, 402, and
Gobert counters that the photo would be helpful to the jury
in visualizing deck conditions on the G.D. Morgan after a
cleaning. Gobert further suggests that an additional limiting
instruction could cure any lingering prejudice by informing
the jury that the photo is being used for illustrative
is relevant if (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.”
Fed.R.Evid. 401. Relevant evidence is admissible unless
otherwise provided by the United States Constitution, a
federal statute, another Federal Rule of Evidence, or another
rule prescribed by the U.S. Supreme Court. Fed.R.Evid. 402.
evidence may be excluded “if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403.
outset, the Court observes that the photograph is neither
particularly helpful to the jury-they will already know what
a sudsy puddle looks like-nor particularly unfair to the
defendant-the jury will likely already believe the deck was
wet when Gobert fell because the supervisor's injury
report indicates that the steps were wet and slippery. The
Court also has no doubt that Weeks will be able to make sure
the jury knows that the photograph was taken on a different
part of the dredge.
main justification for the puddle photo is that it is
illustrative of what the conditions were like at the time of
the accident. As in the case of a post-accident
reconstruction, the admissibility of the photograph turns on
whether the conditions depicted in the photograph were
“substantially similar” to the conditions at the
time of the accident. See 1 Muller &
Kirkpatrick, Federal Evidence § 9:27. (Westlaw 2016). If
the conditions in the photograph were substantially similar
to the deck conditions at the time of the accident, then the
photograph will be helpful to the jury insofar as it will
help the jury visualize the likely deck conditions at the
time of the accident. If, on the other hand, the deck
conditions were not substantially similar at the time of the
accident-whether because the photo depicts the deck in the
midst of a cleaning or for any other number of reasons-then
the proposed exhibit would simply be wasting both the
jury's and the Court's time with a pointless and
potentially prejudicial picture of a puddle.
the Court will be in a better position at trial to determine
whether the conditions at the time of the accident were
substantially similar to the conditions depicted in the
photograph, the Court will defer ruling on the admissibility
of the photograph. The photograph at issue shall not be
referenced by witnesses or shown to the jury unless the Court
permits the same following a bench conference.
Marine moves to exclude photographs and a videotape taken by
plaintiff's counsel during his inspection of the vessel.
The inspection occurred on a rainy day, and Weeks suggests
that the photos are irrelevant and/or unduly prejudicial
insofar as the photographs supposedly do not accurately
depict the deck conditions on the G.D. Morgan at the time of
photographs depict the accident site, they are relevant.
See, e.g., Pub. Emps. Retirement Sys. of Miss.
v. Amedisys, Inc., 769 F.3d 313, 321 (5th Cir. 2014)
(explaining “the standard of relevance in an
evidentiary context is not a steep or a difficult one to
satisfy”). Thus, the key question is whether the
photographs and video should be excluded under Rule 403.
Court is not persuaded that the probative value of the
photographs would be substantially outweighed by the risk of
unfair prejudice. After all, Rule 403 is meant to be applied
“sparingly, ” Baker v. Can. Nat./Ill. Cent.
R.R., 536 F.3d 357, 369 (5th Cir. 2008), and Weeks can
mitigate any unfair prejudice through cross-examination by
highlighting that it was raining on the day of
inspection. The Court is also willing to consider
providing a suitable limiting instruction should Weeks
propose an appropriate one.
even if it was dry on the day of the accident-a state of
affairs seemingly belied by the supervisor's injury
report indicating that the steps were wet and slippery on the
day of the accident-the Court would still determine that the
probative value of the photographs of the accident site on
the G.D. Morgan is not outweighed by the risk of unfair
prejudice. Weeks's motion to exclude the photos and video
of the accident site is denied.
Marine objects to the introduction of certain portions of Dr.
Rodney Burns's deposition. See R. Doc. No.
104-5. Dr. Burns is a board certified radiologist.
19:4-19:23: Weeks objects that the testimony is not within
the expertise of the witness. In response, Gobert offers to
withdraw the testimony. Accordingly, Weeks's motion in
limine is granted.
20:4-25:10: The testimony at issue consists of Dr. Burns-who
had previously taken plaintiff Gobert's MRI-reviewing an
MRI report prepared by Dr. Jewell-another radiologist. Dr.
Burns's testimony indicates that he did not review the
actual MRI film Dr. Jewell used to prepare his report, but
Dr. Burns noted his belief that Dr. Jewell was a competent
radiologist. R. Doc. No. 104-5, at 4 (Tr. 21:19-22).
Gobert's counsel then had Dr. Burns discuss Dr.
Jewell's findings that the MRI taken by Dr. Jewell
reflected spine abnormalities.
Court's pre-trial scheduling order indicated that
“No objection to any exhibit or any deposition
testimony shall be allowed at trial unless the objection was
briefed in writing in accordance with this order” and
further emphasized that “Counsel shall cite relevant
authority in each written objection.” R. Doc. No. 90,
at 5. Yet, all Weeks Marine indicates in their objection is:
“duplicative testimony regarding the January 10, 2015
cervical spine MRI, and lack of foundation as Dr. Burns did
not read the films.” R. Doc. No. 104-1, at
That objection largely fails to inform the Court as to the
basis of Weeks's objection.
example, Weeks does not explain what testimony the deposition
testimony is duplicative of. As such, the Court is left
without a basis for judging whether the testimony is, in
fact, duplicative and, if so, whether the Court should
exercise its discretion to permit the duplicative testimony.
Accordingly, the Court finds that the objection that the
testimony is duplicative is waived for failure to comply with
the pre-trial briefing requirement.
in objecting to “lack of foundation as Dr. Burns did
not read the films, ” R. Doc. No. 104-1, at 2,
defendant cites no authority for the proposition that an
expert has to personally perform each test the expert
discusses in his or her testimony. That lack of authority is
unsurprising given that “[u]nlike an ordinary witness .
. . an expert is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge or
observation.” Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 592 (1993).
an expert's ability to offer opinions not based on
firsthand knowledge or observation is governed by Federal
Rules of Evidence 702 and 703. But Weeks Marine raises no
objection under Rules 702 or 703. Likewise, Weeks Marine
raises no other objection-such as, for example, a hearsay or
a Rule 403 objection. Accordingly, the Court deems any
arguments under Rules 403, 702, 703, or 802 waived, and it
denies Weeks Marine's ...