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Dauterive v. Guilbeau Marine Logistics L L C

United States District Court, W.D. Louisiana

July 13, 2018

VICTOR MICHAEL DAUTERIVE
v.
GUILBEAU MARINE LOGISTICS L L C ET AL

          MEMORANDUM

          PATRICK J. HANNA, UNITED STATE MAGISTRATE JUDGE.

         Before the Court is the Motion to Exclude the Expert Testimony/Opinions of Gregg S. Perkin, P.E. (Rec. Doc. 65), filed by Defendant Guilbeau Marine, Inc. The Plaintiff filed an opposition (Rec. Doc. 84), to which the Defendant replied (Rec. Doc. 86). Oral argument was held on June 28, 2018. For the following reasons, the motion is denied.

         BACKGROUND

         This case arises out of an incident which occurred on March 12, 2015, whereby an offshore supply vessel, the M/V Rosite G owned and operated by the Defendant Guilbeau Marine, Inc., made contact with a support leg of a fixed offshore platform, WC-265-B, located on the Outer Continental Shelf in the Gulf of Mexico. Unsurprisingly, the parties dispute the nature and degree of impact between the vessel and platform. At the time of the incident, the Plaintiff, who was the Lead Operator and Person in Charge of the platform, was lying down on a bed, located on the top deck in the living quarters of WC-265-B. The Plaintiff alleges that he was injured and suffered damages as a result of the incident.

         As relevant to the instant motion, the Plaintiff has retained an engineering expert, Gregg S. Perkin, P.E., for the purpose of analyzing the conversion of energy and relative effects thereof as they relate to a simulated version of the above-described contact between the vessel and platform. To that end, Mr. Perkin traveled to and inspected both the relevant vessel (M/V Rosite G) and platform (WC-265-B); reviewed discovery documents relevant to this case; and reviewed the testimony of the Plaintiff (lead operator), Joey Lisenby (A-operator), Sonny Blackard (Defendant's deckhand) and Captain Sanchez (Defendant's master).[1] From there, Mr. Perkin and colleague Sam Herod developed a scaled, structural model using an engineering software program called ANSYS, in order to simulate the impact at issue in this case.[2] Using approximate weight of the vessel and three different speeds (2mph, 4mph and 6mph), the stated intention of the analysis “was to show that the impact, i.e. allision of a 400 L/T M/V ship at slow speed could plausibly cause the Main Deck to deflect.”[3]

         The Defendant has challenged Mr. Perkin on multiple grounds. First, the Defendant argues that Mr. Perkin is not qualified to render an opinion in this case, i.e. one involving a dynamic response of a fixed offshore platform to contact from a moving vessel during unmooring operations, primarily because Mr. Perkin lacks structural engineering expertise. Second, the Defendant argues that Mr. Perkin's methodology was flawed for failure to employ the applicable industry standards and federal regulations, specifically API RP 2A-WSD, [4] in performing a dynamic response analysis (“DRA”) of the fixed platform. Third, the Defendant asserts that Mr. Perkin's opinion is not relevant, as it is not based on sufficient facts or data, but rather “worked backward” off of the Plaintiff's version of events in order to conform thereto. The Plaintiff's responses will be discussed in the analysis below.

         LAW AND ANALYSIS

         Trial judges, as gatekeepers, are tasked with “ensur[ing] that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”[5] Federal Rule of Evidence 702 provides:

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.[6]

         Rule 702(a)'s condition that the evidence or testimony should “help the trier of fact to understand the evidence or to determine a fact in issue” goes primarily to relevance.[7] “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”[8] Because this case will be tried to the bench, rather than a jury, the importance of the gatekeeper role is “significantly diminished, ” as there is no jury to expose to unreliable or misleading evidence.[9]

         Daubert emphasized that Rule 702's inquiry is “a flexible one, ” focusing on the expert's “principles and methodology, not on the conclusions that they generate.”[10] The Fifth Circuit has confirmed that Daubert's nonexclusive list of factors, intended to guide a trial court's evaluation of scientific evidence, applies in cases where a court is tasked with evaluating whether an expert in engineering, among other categories, “is a hired gun or a person whose opinion in the courtroom will withstand the same scrutiny that it would among his professional peers.”[11] “The nonexclusive list includes ‘whether [a theory or technique] can be (and has been) tested,' whether it ‘has been subjected to peer review and publication,' the ‘known or potential rate of error,' and the ‘existence and maintenance of standards controlling the technique's operation,' as well as ‘general acceptance.'”[12] “Not every guidepost outlined in Daubert will necessarily apply to expert testimony based on engineering principles and practical experience, but the district court's ‘preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue' is no less important.”[13]

         Thus, “whether an expert's testimony is based on ‘scientific, technical or other specialized knowledge,' Daubert and Rule 702 demand that the district court evaluate the methods, analysis, and principles relied upon in reaching the opinion.”[14]“The court should ensure that the opinion comports with applicable professional standards outside the courtroom and that it ‘will have a reliable basis in the knowledge and experience of [the] discipline.'”[15]

         The rejection of expert testimony is the exception rather than the rule.[16]Daubert instructs that “[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.”[17] Nonetheless, the Plaintiff bears the burden of proof, as the proponent of the expert testimony, to prove that the expert's findings and conclusions are reliable. “This requires some objective, independent validation of the expert's methodology.”[18] “The proponent need not prove to the judge that the expert's testimony is correct, but [h]e must prove by a preponderance of the evidence that the testimony is reliable.”[19]

         Perkin's Qualifications

         As stated, the Defendant first attacks Mr. Perkin's qualifications, primarily because he is not a registered professional structural engineer or civil engineer specializing in offshore structural design. Instead, Mr. Perkin has been a registered professional mechanical engineer since 1978 and owns Engineering Partners International, L.L.C., through which he works as a consultant and professional engineer in the field of mechanical engineering.[20] He has been tendered and accepted as an expert in state and federal courts in the field of mechanical engineering and testified that he has twice provided a litigation-related opinion regarding a vessel coming in contact with a fixed platform.[21]

         The Plaintiff has cited the Court to three cases in which Mr. Perkin was retained to “conduct impact and/or energy conversion analyses, ” related to an allision between an offshore jack-up drilling rig and an offshore platform; the extent to which Hurricane Ivan was responsible for the separation of a mast from the base of an offshore SPAR platform; and the extent to which energy from a downhole fishing operation may have caused a well servicing unit to “fall forward and topple over.”[22]

         The Plaintiff concedes that in the former two cases, a software called ALGOR was used, rather than ANSYS which was used in this case. Although the Plaintiff asserts that ALGOR is an ANSYS competitor and “substantially similar” thereto, [23]the Defendant responds that the Plaintiff has failed to provide any specifics in support of this “conclusory assertion.”[24] Regardless, in the context of Mr. Perkin's report, affidavit, and deposition, the Court does not hesitate to find that the Defendant's objections that Mr. Perkin lacks the requisite experience using ANSYS should go to the weight, rather than the admissibility, of the testimony. The Court notes that, although Mr. Perkin testified that he has never personally - as opposed to other members of his engineering firm - used ANSYS in connection with a DRA of an entire fixed platform, he has “used ANSYS for years.”[25]

         During oral argument, the Defendant relied heavily upon the South Carolina district court case of Wheeler v. Manitowoc Cranes, Inc., C/A No. 2:00-4013-18, 2002 WL 34703748 (D.S.C. Apr. 8, 2002), in support of its challenges to Mr. Perkin's qualifications. In Wheeler, a products liability case centered around a lattice boom crane, the court was confronted with a motion in limine to exclude testimony of the plaintiff's only expert witness as to crane design and safety. Recognizing, first, that the expert was indeed a professional engineer, the court went on to make the following findings: the expert “admitted in his deposition that he did not have any experience” in the area of “cranes, and specifically lattice boom cranes;” “had not operated a crane;” had never “expressed any opinions in a deposition or trial regarding a crane system;” “had never been a member of or contributor to . . . the body that promulgates the industry standards for crane design;” did not review literature setting forth the applicable standard for crane design and safety; and “never would have had an occasion to examine any crane had it not been for the litigation.”[26]And, in the face of that dearth of knowledge or experience, the Wheeler plaintiffs failed to offer any evidence, other than the ...


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