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Cox Operating LLC v. Settoon Towing LLC

United States District Court, E.D. Louisiana

June 26, 2018

COX OPERATION, L.L.C.
v.
SETTOON TOWING, L.L.C., ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion[1] in limine filed by plaintiff Cox Operating, L.L.C. (“Cox”) to exclude certain evidence. Specifically, Cox moves to exclude evidence regarding: Settoon Towing L.L.C.'s (“Settoon”) experts' post-allision inspections of Quarantine Bay; witness statements included in Settoon expert Captain Fazioli's report; and alleged subsequent remedial measures. For the following reasons, the motion is denied in part and deferred in part.

         I. Settoon Experts' Post-Allision Inspections of Quarantine Bay

         On September 13, 2016, a vessel owned by Settoon allided with one of Cox's wells in Quarantine Bay (Well 149D, “the Well”). One of Settoon's affirmative defenses to liability is that any loss stemming from the allision resulted from Cox's negligence in failing to properly light the Well.[2] In March and April of 2018, two of Settoon's experts, Michael Nunez (“Nunez”) and Marc Fazioli (“Fazioli”), conducted investigations of the Quarantine Bay field, and both experts relied on those inspections in preparing their reports.[3] In Nunez's report, he explained that, during the April inspection, he “boarded Cox's two manned platforms in the field . . . to view the navigation lights at full darkness.”[4] Nunez stated that he “was unable to adequately conduct an accurate visual inspection of the operability of the navigation lights from either position; it was difficult to differentiate between the over 100 blinking lights.”[5] He therefore concluded that “Cox's in-house visual inspection system . . . was entirely inadequate to ensure reliable and functioning navigation lights.”[6] Fazioli's report reads similarly. In his opinion, based in part on his observations during the March and April inspections, “a ‘visual' check of the navigation aids / obstruction lights . . . would be an ineffective method to appropriately determine the functionality of the obstruction lights within Quarantine Bay.”[7]

         Cox contends that these observations are meant not only to discredit Cox's navigation aid light inspection system but also to negate Cox personnel's claims that they could see the Well's light and differentiate it from the other lights in the field on the night of the allision.[8] Cox now moves to exclude evidence related to the inspections under Federal Rules of Evidence 401-403 and 702.[9]

         Under Rule 402, only relevant evidence is admissible. Fed.R.Evid. 402. And Rule 401 provides that “[e]vidence 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. “[T]he standard of relevance in an evidentiary context is not a steep or difficult one to satisfy.” Pub. Emps. Retirement Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321 (5th Cir. 2014). However, relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.” Jowers v. Lincoln Elec. Co., 617 F.3d 346, 356 (5th Cir. 2010) (citation omitted).

         Rule 702 governs the admissibility of expert witness testimony. See Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 758, 588 (1993). The rule provides that:

         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.

         The U.S. Supreme Court has explained that Rule 702 grants district judges gatekeeping power “to ensure that [expert] testimony is both reliable and relevant.” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal quotations and citation omitted). Rule 703 states that “an expert's opinion should be admissible so long as the sources underlying that opinion are of a type reasonably relied on by experts in the field.” See First United Fin. Corp. v. U.S. Fidelity & Guar. Co., 96 F.3d 135, 138-39 (5th Cir. 1996) (summarizing Rule 703).

         Cox argues that the inspections are irrelevant because they were conducted over a year and a half after the allision, “with different weather conditions[, ] from different vantage points.”[10] Because of these differences, Cox contends that any opinions based on the inspections could not possibly help the trier of fact in determining whether the Well was lit or distinguishable from other lights on the night of the allision.[11]

         Cox also argues that any testimony from Settoon's experts based on the March and April 2018 inspections should be excluded because it would violate Rule 703's requirement that the sources “underlying” expert opinions be “of a type reasonably relied on by experts in the field.”[12] Cox does not affirmatively claim that post-accident inspections fall outside of this “type” of accepted evidence. Instead, Cox merely notes that “Settoon has made no allegation that an inspection of the condition of oilfield lights . . . a year and a half after an allision . . . is the type of evidence that is ‘reasonably relied upon by an expert' in the field of navigation or navigational lights.”[13]

         In response to Cox's assertion that the inspections are irrelevant, Settoon argues that the inspections go directly to its defense that the light was not working when the allision occurred and refute testimony presented by Cox.[14] Furthermore, according to Settoon, Cox cannot claim the inspections are irrelevant because Cox has not articulated a single difference between the conditions of the field at the time of the inspections and the conditions of the field at the time of the allision.[15] Settoon claims that the evidence will show that Quarantine Bay looked the same at the time of the inspections as it did on the night of the allision.[16]

         The Fifth Circuit recognizes that, “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.” Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004) (internal quotations and citation omitted); In re M&M Wireline & Offshore Servs., LLC, No. 15-4999, 2017 WL 480603, at *788 (E.D. La. Feb. 3, 2017) (Brown, J.) (denying a motion to exclude expert witness testimony in which the movant argued that the expert's conclusions were unfounded). “[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system: Vigorous 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.” United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996) (quoting Daubert, 509 U.S. at 596). If the Quarantine Bay landscape was significantly different at the time of the inspections than it was over one year earlier when the allision occurred, Cox can establish those differences and illuminate the flaws in Settoon's experts' testimony at trial. This portion of Cox's motion is denied.

         II. Captain Fontaine's Statements Contained in Captain Fazioli's Expert Report for Settoon

         Cox also moves to exclude certain statements made by Captain William Scott Fontaine (“Fontaine”) to Captain Fazioli, who is an expert witness for Settoon. On March 30, 2018, Fazioli went to Quarantine Bay to inspect the field.[17] To conduct the inspection, Fazioli rented a boat from Abe's Boat Rentals captained by Fontaine, who otherwise has no connection to this case.[18] In the portion of his ...


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