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Dukes v. Marine

United States District Court, E.D. Louisiana

December 14, 2018

JOSEPH DUKES
v.
ZAFIRO MARINE

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE

         Before the Court is a motion in limine to exclude the expert testimony of Steve Nolte ("Nolte") filed by defendant CVI Global Lux Oil and Gas 4 S.a.r.l. ("CVI"), [1] to which plaintiff Joseph Dukes ("Dukes") responds in opposition.[2] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This litigation arises from personal injuries allegedly sustained by Dukes when he rolled his ankle climbing down a three-rung ladder from his upper bunk located in the living quarters of a vessel.[3] In September 2014, Dukes was employed by MMR Contractors, Inc. "(MMR") as an instrumentation and electrical technician and working on the Thunder Horse, an offshore platform in the Gulf of Mexico off of the Louisiana coast that was owned by BP Exploration & Production Inc. ("BP").[4] Dukes worked twelve-hour shifts on the Thunder Horse, and spent the other twelve hours of the day on the M/V Sampson, a large quarters vessel located near the Thunder Horse that was owned by CVI and time chartered by BP from Harkand Gulf Contracting, Ltd. ("Harkand").[5] Dukes worked the day shift and slept on the M/V Sampson at night.[6]

         Dukes was assigned to an upper bunk on the M/V Sampson[7] The bunk had a three-rung ladder attached to the frame of the top bunk by metal "L"-shaped brackets.[8] On September 14, 2014, when Dukes was climbing down from his upper bunk, he placed his right foot on the top rung of the ladder, but the ladder slid "no more than two or three inches" along the upper bunk framing to which it was attached, causing Dukes to twist his right ankle, lose his balance, and fall to the floor.[9] Dukes walked it off, took a shower, got dressed, and went to work at 6:00 a.m.[10]Dukes slept in the same upper bunk and used the same ladder for at least the six days leading up to the incident at issue.[11]

         Dukes claims that, on the morning of the accident, he advised the BP Company Man that he twisted his ankle, but he did not specifically mention that he slipped on the ladder.[12] When he returned to the M/V Sampson after work on September 14, 2014, Dukes spoke with the BP Company Man, who offered Dukes a lower bunk in the medic's room for that night, and Dukes accepted.[13]

         Dukes claims that, by the morning of September 15, 2014, his ankle was swollen, and he could not work.[14] The M/V Sampson'?, medic treated Dukes.[15] Dukes completed two incident reports, and then was taken by helicopter for medical treatment, at his request.[16] In one report, Dukes stated that he was "climbing out of the top bunk when right foot rolled."[17] In the other report Dukes wrote:

On Saturday morning 9-14-14 @ 4:30 AM I was climbing down from my bunk in room 107 when my right foot rolled or twisted on me. I walked around the room for a minute then got dressed and went to work. After work I cleaned up and went to bed. On the morning of the 15th I could not put much pressure on my right foot, went to medic and he wrapped my foot with bandage.[18]

         Dukes did not make any reference to a fall or that the ladder had moved in either report.[19] In this lawsuit, Dukes claims that the ladder moved causing him to fall, and as a result of the fall he injured his ankle, left hip, lower back, and left shoulder.[20]

         On October 2, 2015, Dukes filed this action naming Zafiro Marine ("Zafiro") as the defendant.[21] Dukes alleged that Zafiro owned, operated, and/or controlled the M/V Sampson and that Zafiro's negligence and the unseaworthiness of the vessel caused Dukes' injuries.[22]Throughout the course of this litigation, Dukes has filed four supplemental and amending complaints.[23] In one of the amended complaints, Dukes named BP as a defendant, but the Court granted BP's motion for summary judgment, dismissing Dukes' claims against BP.[24] Further, Dukes amended his complaint several times attempting to name the correct owner of the M/V Sampson: Zafiro was replaced with ZM Industries Limited, which was later replaced with CVI Global Lux Oil and Gas, which is a non-existent entity.[25] CVI appeared as the registered owner of the M/V Sampson[26] In his fourth amended and supplemental complaint, Dukes added Harkand as a defendant.[27] Because Harkand has failed to answer or otherwise defend the lawsuit, the Court entered a preliminary default against it.[28] Finally, Zurich American Insurance Company ("Zurich") intervened in the litigation alleging that it issued to MMR a workers' compensation and employer liability insurance policy, that it paid workers' compensation benefits to Dukes, and that it is entitled to recover all compensation and medical expenses it paid or will pay to Dukes.[29]

         II. PENDING MOTION

         CVI filed the instant motion in limine seeking to exclude the testimony of Nolte, Dukes' purported expert in naval architecture, marine engineering, and marine safety.[30] CVI does not challenge Nolte's qualifications, but rather argues that his opinions will not aid the trier of fact because the accident involves issues within a layperson's general understanding - namely, falling off of a bunkbed ladder.[31] CVI also argues that Nolte offers impermissible legal conclusions.[32]

         Dukes argues that Nolte's testimony should not be excluded because his expertise in maritime safety will aid the trier of fact in understanding safety standards that are unique to the maritime industry, and generally not within a juror's common knowledge.[33] Dukes contends that laypersons are typically not familiar with maritime industry standards governing the inspection and maintenance of vessels, or the typical requirements for a bunkbed-and-1 adder setup on a vessel like the M/V Sampson[34] Dukes argues that CVFs concerns about Nolte's testimony can be addressed through cross-examination and the presentation of testimony from CVI's own maritime safety expert.[35]

         III. LAW & ANALYSIS

         A district court has discretion to admit or exclude expert testimony under the Federal Rules of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 requires a district court to act as a gatekeeper to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Rule 702 of the Federal Rules of Evidence provides:

         A witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto 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 or reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         The reliability inquiry requires a court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the Supreme Court listed several non-exclusive factors for a court to consider in assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the general acceptance of the methodology in the scientific community. Id. at 593-95. However, a court's evaluation of the reliability of expert testimony is flexible because "[t]he factors identified in Daubert 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." Kumho Tire v. Carmichael, 526 U.S. 137, 150 (1999). In sum, the district court must ensure "that an expert, whether basing testimony upon professional studies or personal experiences, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. The party offering the testimony must establish its reliability by a preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

         Next, the district court must determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will assist the trier of fact to understand the evidence, i.e., whether it is relevant. Daubert, 508 U.S. at 591. An expert's testimony is not relevant and may be excluded if it is directed at an issue that is "well within the common sense understanding of jurors or requires no expert testimony." Vogler v. Blackmore, 352 F.3d 150, 156 (5th Cir. 2003). Further, an expert cannot make "legal conclusions reserved for the court," credit or discredit witness testimony, or "otherwise make factual determinations reserved for the trier of fact." Highland Capital Mgmt., L.P. v. Bank of Am., N.A., 574 Fed.Appx. 486, 491 (5th Cir. 2014).

         Rule 702 also requires that an expert be properly qualified. Generally, if there is some reasonable indication of qualifications, the district court may admit the expert's testimony, and then the expert's qualifications become an issue for the trier of fact. Rushing v. Kan. City S. Ry., 185 F.3d 496, 507 (5th Cir. 1999), superseded in part by statute on other grounds as noted in Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002). A witness qualified as an expert is not strictly confined to his area or practice, but may testify regarding related applications; a lack of specialization goes to the weight, not the admissibility of the opinion. Cedar Lodge Plantation, L.L.C v. CSHV Fairway View I, L.L.C., 2018 WL 4932716, at *3 (5th Cir. Oct. 10, 2018) (quotations and citations omitted).

         CVI does not contest Nolte's qualifications in the field of marine safety and engineering. Nolte earned a Bachelor of Science degree from the University of New Orleans in naval architecture and marine engineering in 1994.[36] He is a member of the Society of Naval Architects and Marine Engineers, and has over 25 years of experience designing, engineering, maintaining, and operating various types of vessels.[37] Based on his education and experience, Nolte has technical expertise in vessel classification, ...


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