Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gobert v. Atlantic Sounding

United States District Court, E.D. Louisiana

February 6, 2017

PAUL GOBERT, JR.
v.
ATLANTIC SOUNDING ET AL.

         SECTION I

          ORDER AND REASONS.

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         Before the Court is defendant Weeks Marine's motion[1] in limine. For the following reasons, the motion is granted in part, denied in part, and deferred in part.

         I.

         Weeks 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.

         Defendant 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 403.

         Plaintiff 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 purposes only.

         A.

         “Evidence 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.

         Relevant 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.

         B.

         At the 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.

         Plaintiff's 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.

         Because 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.

         II.

         Weeks 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 the accident.

         As the 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.

         The 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.[2] The Court is also willing to consider providing a suitable limiting instruction should Weeks propose an appropriate one.

         Accordingly, 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.

         III.

         Weeks 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.

         A.

         Tr. 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.

         B.

         Tr. 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.

         This 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 2.[3] That objection largely fails to inform the Court as to the basis of Weeks's objection.

         For 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.

         Likewise, 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).

         Instead, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.