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Tercero v. Oceaneering International, Inc.

United States District Court, E.D. Louisiana

April 2, 2019


         SECTION I

          ORDER & REASONS


         Before the Court is a motion[1] in limine filed by defendant Oceaneering International, Inc. (“Oceaneering”). Oceaneering moves the Court to prohibit plaintiff Nestor Tercero (“Tercero”) from introducing into evidence several exhibits and portions of deposition testimony. For the following reasons, the motion is sustained in part, overruled in part, and deferred in part.


         The facts of this case are familiar to the Court. Tercero alleges that he was injured on September 7, 2016 while working as a galley hand on board the M/V OCEAN INTERVENTION. Tercero claims that he slipped from a small step ladder when he was cleaning the galley ceiling, having been ordered to do so by the cook, an Oceaneering employee. Tercero asserts that the ladder was an improper piece of equipment with which to perform the task, and he alleges that he sustained personal injuries as a result of the fall.

         Tercero asserts claims for general maritime negligence and unseaworthiness, as well as a claim for Jones Act negligence, against Oceaneering. At the time of the accident, Tercero was employed by Encore Food Services, LLC (“Encore”). However, he asserts that he was a borrowed employee of Oceaneering at the time of his accident and, therefore, that he can recover for Oceaneering's negligence under the Jones Act.

         On January 22, 2019, the Court ordered a continuance of the trial to allow Tercero to pursue the borrowed servant issue and to allow the parties to engage in limited discovery with respect to same.[2] Oceaneering objects to several of Tercero's new exhibits, alleging that they do not relate to the borrowed servant issue and that Tercero is circumventing the Court's order limiting additional discovery.


         Pursuant to Rule 402 of the Federal Rules of Evidence, only relevant evidence is admissible. 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).


         Oceaneering argues that five of Tercero's exhibits listed in the revised joint pretrial order[3] are new exhibits irrelevant to the borrowed servant issue. The Court takes each in turn.

         Exhibit 25

         Tercero's exhibit 25 is a list of weekly safety topics from June 26, 2016 to December 25, 2016 that correspond to safety meetings aboard the OCEAN INTERVENTION.[4] Oceaneering argues that the exhibit should be excluded under Rule 401 because it is only relevant to safety aboard the OCEAN INTERVENTION.[5]

         Tercero asserts that the exhibit also relates to the borrowed servant analysis.[6]Specifically, Tercero argues that because the safety meetings were conducted by supervisors on the OCEAN INTERVENTION, and because Tercero participated in the safety meetings, the exhibit demonstrates the control that Oceaneering exercised over Tercero and that Oceaneering's actions impliedly modified its contract with Encore.[7]

         “Determination of the control factor requires the Court to distinguish ‘between authoritative direction and control, and mere suggestion as to details of the necessary cooperation, where the work furnished is part of a larger undertaking.'” Allen v. Texaco, Inc., No. 99-1456, 2001 WL 611391, at *3 (E.D. La. June 5, 2001) (Vance, J.) (quoting Ruiz v. Shell Oil Co., 413 F.2d 310, 313 (5th Cir. 1986)). The factfinder may consider who the employee took orders from and who told him “what work to do, and when and where to do it.” Melancon v. Amoco Prod. Co., 834 F.2d 1238, 1245 (5th Cir. 1988). “[P]arties to a contract cannot automatically prevent a legal status like ‘borrowed employee' from arising merely by saying in a provision in their contract that it cannot arise.” Id. “The reality at the work site and the parties' actions in carrying out a contract . . . can impliedly modify, alter, or waive express contract provisions.” Allen, 2001 WL 611391, at *3 (quoting Melancon, 834 F.2d at 1245).

         Tercero points out that the exhibit refers to the Oceaneering Employee Handbook, which requires Oceaneering supervisors to conduct weekly safety meetings.[8] Tercero asserts that, because he attended safety meetings that were conducted by such supervisors, the exhibit demonstrates that Oceaneering exercised control over Tercero. Furthermore, he argues that, although the contract between Encore and Oceaneering states that Encore employees would be independent contractors of Oceaneering, Oceaneering's conduct-having supervisors conduct safety meetings for personnel like Tercero-may have modified this contract.[9]

         The Court defers a ruling on the admissibility of exhibit 25 until trial. To the extent that Tercero participated in safety meetings and was instructed by Oceaneering supervisors how to perform certain tasks, the exhibit may be relevant to the issue of control and part of the borrowed servant analysis. However, to be admissible, the exhibit will have to be excised to include only the safety meetings that occurred while Tercero was on board the OCEAN INTERVENTION.

         Exhibits 21(g) and 26

         Oceaneering seeks to exclude Tercero's exhibits 21(g)[10] and 26, [11] arguing again that the exhibits relate only to safety procedures and not to the borrowed servant issue. Oceaneering explains that exhibit 21(g) is an excerpt from the Oceaneering Health, Safety, & Environment Handbook (“HSE”) concerning the Job Safety Environmental Analysis (“JSEA”).[12] The exhibit explains what a JSEA is, who is responsible for conducting JSEAs, and when a JSEA should be conducted.[13]

         Exhibit 26 is a compilation of five JSEAs related to five separate jobs that were completed in the OCEAN INTERVENTION's galley.[14] Only one of the jobs and its accompanying JSEA was completed while Tercero was on board the OCEAN INTERVENTION.[15]

         Tercero argues that these exhibits relate to the borrowed servant issue insofar as they demonstrate the duty that Oceaneering supervisors have to instruct crewmembers before they perform a task and to make sure that the employees have the proper equipment for the job.[16] Officer Patrick Walsh testified that supervisors are responsible for ensuring that employees have the proper equipment, which is the basis for Tercero's claims.[17]

         The Court finds that exhibits 21(g) and 26 are relevant to the borrowed servant issue because they relate to factors in the borrowed employee analysis, such as control. However, exhibit 26 shall be limited only to the September 4, 2016 JSEA involving Tercero.[18] Therefore, the objection to exhibit 21(g) ...

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