United States District Court, E.D. Louisiana
ERGON - ST. JAMES, INC.
PRIVOCEAN M/V, ET AL.
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
following motion is before the Court: Motion to
Compel Production of Mooring Line Samples and Expert Testing;
Limited Extension of Expert Deadline for Cordage Expert
Report (Rec. Doc. 292) filed by Raven Energy,
Petitioners, the Privocean interests, oppose the motion. The
motion, scheduled for submission on November 29, 2017, is
before the Court on the briefs without oral
case arises out of a breakaway incident in which the M/V
PRIVOCEAN broke away from its moorings at the Convent Marine
Terminal on the east bank of the Mississippi River. The
PRIVOCEAN drifted across the river and allided with other
vessels and the Ergon terminal facility. Raven was the owner
and operator of the Convent facility. A flood of litigation
that this marine casualty resulted from a vessel breaking
free of its moorings, the strength (or lack thereof) and
structure of the mooring lines, and related issues of whether
the parted mooring lines were properly maintained, monitored,
and/or whether they should have been replaced, are all
pertinent considerations in determining why the incident
occurred and which parties are liable for the resulting
damages. Therefore, inspections and testing related to the
PRIVOCEAN's mooring lines began immediately following the
incident. It is the Court's understanding that the
numerous rounds of testing of the mooring lines were
performed jointly with the last round of testing having taken
place in April 2016.
case is subject to a detailed scheduling order, which was
prepared by the parties with amendments by the Court. (Rec.
Doc. 222). The scheduling order contains a single discovery
cutoff date of September 15, 2017, which is not qualified
with the term “fact.” In other words, the
scheduling order contains no ostensible suggestion of
separate cutoff dates for fact and expert discovery. But on
October 20, 2017, Raven requested access to the mooring lines
so that its expert from the UK (Mr. Stephen Banfield) could
inspect the lines while he was in New Orleans. The Privocean
interests agreed to the visual inspection in the spirit of
cooperation. At the close of the inspection, Mr.
Banfield, on behalf of Raven, requested permission to cut
four samples from the mooring lines for the purpose of
conducting yarn testing in the United Kingdom. Petitioners
refused Banfield's oral request for the samples, and
again refused the request following a more formal email
request from Raven's counsel. This Motion to Compel
Court is persuaded that the type of testing that Raven wants
to perform- which is apparently of a different nature than
the testing that was performed up until April 2016-is very
important to this case. On November 1, 2017, Petitioners
produced their expert report, which was prepared by AMTI.
Those experts were unpersuaded that the mooring lines broke
due to any fault by the Privocean interests. (Rec. Doc.
292-7, AMTI Report). Their concluding opinion states as
follows: “Based on AMTI's inspection and the
destructive testing to date, it appears that the Yancheng
mooring lines were defectively
manufactured, resulting in a less than expected
actual breaking strength.” (Id. at 4)
(emphasis added). Nothing in the report suggests that this
conclusion was based on any actual testing (for the specific
purpose of determining defective manufacturing) or analysis;
rather, this opinion seems to derive from the experts'
inability to find any other reason for the lines'
sole basis for seeking relief from this Court is to ferret
out AMTI's contention as to defective manufacturing,
which the Court assumes the Privocean interests intend to
urge at trial. As things stand now, the Court is
persuaded that AMTI's opinion as to defective manufacture
would trigger a meritorious Daubert challenge.
Therefore, absent a withdrawal of the defective manufacturing
issue by the Privocean interests, which is not likely to
occur, the Court will grant Raven's motion for production
of the requested samples and allow the testing proposed by
Mr. Banfield. Given that the proposed sampling and testing
cannot be completed so as to allow Raven to produce
Banfield's expert report by the current deadline of
December 1, 2017, the Court will also allow for a limited
extension of Raven's expert report deadline solely as to
submission of Banfield's expert report.
said, while the Court shares Petitioners' concerns
regarding the sanctity of the current scheduling order, the
Court remains optimistic that the relief Raven seeks can be
accommodated either without altering any other deadlines in
the scheduling order, or altering them minimally, especially
if the Privocean interests require additional time to provide
a rebuttal expert report limited to the defective
manufacturing issue. The Court directs the parties to jointly
propose a workable time table (including a practicable date
by which Raven can produce Banfield's report), being
mindful of the need to proceed cooperatively and
expeditiously, and with due consideration for minimizing
costs while maximizing everyone's enjoyment of the
upcoming holiday season. The Court also directs the parties
to confer and reach an agreement as to whether a
representative of all parties will attend the testing in the
United Kingdom or whether the yarn testing can be videotaped
(for those parties who decline to incur the cost of
traveling) or both.
IS ORDERED that the Motion to Compel
Production of Mooring Line Samples and Expert Testing;
Limited Extension of Expert Deadline for Cordage Expert
Report (Rec. Doc. 292) filed by Raven Energy, LLC is
GRANTED as explained above.
 The relief sought in this motion was
the subject of a motion previously filed on November 6, 2017,
before Magistrate Judge Knowles. Judge Knowles dismissed the
motion because he was persuaded that he was without authority
to grant or deny a motion to compel after the discovery
deadline. (Rec. Doc. 291). Raven disputes ...