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Luwisch v. American Marine Corp.

United States District Court, E.D. Louisiana

June 18, 2018


         SECTION: “E” (5)



         Before the Court is Defendant American Marine Corporation's motion in limine to exclude or limit the testimony of defense witness Glenn Hebert, a purported expert in vocational rehabilitation.[1] The motion is opposed.[2]


         Plaintiff Henry Luwisch alleges that on November 2, 2014, while performing an inspection of the upper deck of the M/V AMERICAN CHALLENGER, he tripped on an improperly stowed rope and/or board and fell approximately ten feet to the deck below.[3]As a result of the fall, Luwisch alleges he sustained injuries to his right shoulder and arm, neck, and head.[4] Luwisch brings claims of Jones Act negligence, unseaworthiness, and maintenance and cure.

         The present motion seeks to exclude or limit the testimony of Plaintiff's expert witness Glenn M. Hebert, MRC.[5] Defendant American Marine Corporation (“AMC”) argues Hebert's opinions fail to satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals. First, AMC argues Hebert should not be allowed to offer opinions or testimony regarding Luwisch's medical treatment.[6] Second, AMC challenges Hebert's opinions regarding Luwisch's earning capacity.[7] Third, AMC asserts the underlying data relied upon for Hebert's opinion on the long-term economic effects of disability are flawed and unreliable.[8] Fourth, AMC contends Hebert's opinions regarding vocational rehabilitation are lacking in support.[9]


         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.[10]

         The United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., [11] provides the analytical framework for determining whether expert testimony is admissible under Rule 702.

         Under Daubert, courts, as “gatekeepers, ” are tasked with making a preliminary assessment of whether expert testimony is both relevant and reliable.[12] The party offering the expert opinion must show by a preponderance of the evidence that the expert's testimony is reliable and relevant.[13]

         The reliability of expert testimony “is determined by assessing whether the reasoning or methodology underlying the testimony is scientifically valid.”[14] In Daubert, the Supreme Court enumerated several non-exclusive factors that courts may consider in evaluating the reliability of expert testimony.[15] “These factors are (1) whether the expert's theory can or has been tested, (2) whether the theory has been subject to peer review and publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and maintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific community.”[16]

         The Supreme Court has cautioned that the reliability analysis must remain flexible: the Daubert factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.”[17] Thus, “not every Daubert factor will be applicable in every situation . . . and a court has discretion to consider other factors it deems relevant.”[18] The district court is offered broad latitude in making expert testimony determinations.[19]

         As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight of the evidence rather than its admissibility and should be left for the finder of fact.[20] “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the admissibility of the expert opinion.”[21] Thus, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”[22] The Court is not concerned with whether the opinion is correct but whether the preponderance of the evidence establishes that the opinion is reliable.[23] “It is the role of the adversarial system, not the court, to highlight weak evidence.”[24]


         I. Medical Treatment

         AMC first objects to the section of Hebert's expert report that contains a discussion of Luwisch's medical history.[25] AMC asserts Hebert should not be permitted to offer opinions or testimony regarding Luwisch's medical treatment or prognosis, as he is not a medical doctor.

         The Court agrees. Hebert will not be allowed to testify as to Luwisch's medical condition, medical causation, prognosis, or history of treatment. As Luwisch notes in his opposition, Hebert shall “properly defe[r] to ...

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