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Deloach Marine Services, LLC v. Marquette Transportation Co., LLC

United States District Court, E.D. Louisiana

February 8, 2019


         SECTION “R” (3)



         Before the Court are defendant Marquette Transportation Company's motion to strike plaintiff Deloach Marine Services' witness Tom Stakelum and defendant's objections to three of plaintiff's exhibits. Because defendant has not demonstrated that it is prejudiced by plaintiff's late disclosure of Tom Stakelum as a witness, the Court denies defendant's motion to exclude him. For the following reasons, the Court overrules two of defendant's objections and sustains one.

         I. BACKGROUND

         This case arises out of an accident that occurred between two towing vessels and their cargo on the Mississippi River.[1] Plaintiff's vessel, the VANPORT, was pushing four barges down the river on January 26, 2016 when defendant's vessel, the JUSTIN PAUL ECKSTEIN, allegedly moved into the path of the VANPORT, causing a collision.[2] Plaintiff filed a complaint on April 6, 2017 alleging negligence, unseaworthiness, and contribution.[3] Defendant denies plaintiff's allegations and has counterclaimed, inter alia, that the VANPORT was unseaworthy and that plaintiff was contributorily negligent.[4] Trial is set for February 11, 2019.[5] In anticipation of trial, defendant has filed one motion in limine and three objections.[6] Plaintiff opposes the motions.[7]


         A. Motion to Exclude Tom Stakelum

         Defendant argues that plaintiff's witness Stakelum should not be permitted to testify because plaintiff did not properly disclose him as a witness until the parties' proposed pretrial order.[8] The deadline to disclose witnesses for trial was December 28, 2018, [9] and the pretrial order was filed on January 28, 2019.[10]

         “When a party fails to timely disclose information required by Federal Rule of Civil Procedure 26(a), ‘the party is not allowed to use that information . . . at a trial, unless the failure was substantially justified or is harmless.'” In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 372 (5th Cir. 2016) (quoting Fed.R.Civ.P. 37(c)(1)). In Geiserman v. MacDonald, the Fifth Circuit described four factors to determine whether “to exclude evidence that was not properly designated”: (1) the explanation for the failure to adhere to the deadline; (2) the importance of the proposed modification of the scheduling order; (3) the potential prejudice that could result from allowing the modification; and (4) the availability of a continuance to cure that prejudice. 893 F.2d 787, 791 (5th Cir. 1990); see also Hooks v. Nationwide Housing Systems, LLC, No. 15-729, 2016 WL 3667134, at *4 (applying the Geiserman test to a motion in limine).

         Defendant has not explained how it is prejudiced by plaintiff's failure to include Stakelum on its initial witness list. For instance, defendant does not say how plaintiff's decision to call Stakelum negatively impacts its strategy or trial preparations. In addition, while plaintiff does not give a reason for its failure to identify Stakelum initially, it disclosed him as a witness before the pretrial conference. Defendant has had adequate time to adjust its arguments before trial, to the extent that such adjustments have been necessary. Finally, Stakelum's testimony serves to authenticate Rose Point navigational data that gives the positions and movements of the two vessels before the collision, information that is central to the merits of the case. The Geiserman factors therefore weigh against exclusion of Stakelum's testimony despite plaintiff's late disclosure.

         Defendant further asserts that Stakelum is an expert witness and has not filed an expert report.[11] Plaintiff responds that it does not intend to offer Stakelum as an expert witness, nor will he offer opinions of any kind.[12]Stakelum would merely authenticate the Rose Point navigational data that plaintiff seeks to introduce as an exhibit.[13] Stakelum personally entered information into the Rose Point program to generate the depiction at issue.[14]His testimony authenticating the depiction is therefore within his personal knowledge under Federal Rule of Evidence 602, and his lay testimony is therefore admissible.

         B. Defendant's Objections

         1. Tom Stakelum Rose Point Navigational Data

         Defendant objects to the Rose Point data created by Tom Stakelum because it was not timely disclosed.[15] But defendant has not shown how this evidence is prejudicial or unexpected. Rose Point data is often admitted in cases such as this one. See, e.g., In re Settoon Towing, LLC, No. 14-499, 2016 WL 9447753, at *2 (E.D. La. Mar. 21, 2016); Marquette Transportation Co., LLC v. M/V Century Dream, No. 16-522, 2017 WL 677814, at *2 (E.D. La. Feb. 21, 2017) (calling the Rose Point navigational system “the industry standard” that “automatically and objectively record[s] vessel location and movement on a proven industry standard electronic chart.”). Defendant included other Rose Point data in the parties' joint bench book.[16] The underlying Rose Point data used to create this depiction was timely exchanged during discovery, and this exhibit is merely a display setting within the program that shows additional information about the water conditions and movements of the vessels. Evaluating ...

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