United States District Court, E.D. Louisiana
COX OPERATION, L.L.C.
SETTOON TOWING, L.L.C., ET AL.
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
the Court is a motion 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.
Settoon Experts' Post-Allision Inspections of Quarantine
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. 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. 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.” 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.” He therefore concluded that
“Cox's in-house visual inspection system . . . was
entirely inadequate to ensure reliable and functioning
navigation lights.” 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
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. Cox now moves to exclude evidence related
to the inspections under Federal Rules of Evidence 401-403
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).
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:
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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).
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.” 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.
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.” 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
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. 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. 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.
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.
Captain Fontaine's Statements Contained in Captain
Fazioli's Expert Report for Settoon
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. To conduct the inspection, Fazioli
rented a boat from Abe's Boat Rentals captained by
Fontaine, who otherwise has no connection to this
case. In the portion of his ...