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Lewis v. Marquette Transportation Co., LLC

United States District Court, E.D. Louisiana

April 11, 2019

JOSHUA T. LEWIS
v.
MARQUETTE TRANSPORTATION COMPANY, LLC, et al.

         SECTION M (5)

          ORDER & REASONS

          BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

         Before the Court are motions in limine to exclude the expert testimony of Robert Borison (“Borison”), [1] Kasey L. Crawford (“Crawford”), and G. Randolph Rice (“Rice”), [2] filed by defendant Marquette Transportation Company Gulf-Inland, LLC (“Marquette”), to which plaintiff Joshua T. Lewis (“Lewis”) responds in opposition, [3] and in support of which Marquette replies.[4] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This litigation arises from injuries allegedly sustained by Lewis on or about January 10, 2017, when he slipped and fell on the deck of the M/V Steve Richoux, owned and operated by Marquette.[5] While carrying empty, five-gallon buckets under his right arm, Lewis exited the rudder room on the starboard side of the vessel. According to Lewis, as he stepped with his right foot over the threshold of the rudder room's watertight door, his right foot slipped forward and leftward while his left foot remained firmly on the deck inside the rudder room, causing his left knee to strike the deck.[6] Lewis alleges that the surface of the deck was unsafe because it was not properly coated with non-skid.[7] Lewis seeks damages under the Jones Act for Marquette's alleged negligence and under general maritime law for unseaworthiness.[8]

         II. PENDING MOTIONS

         Marquette first seeks to exclude the testimony of Borison, Lewis' purported liability expert in marine safety.[9] Marquette asserts that Borison lacks expertise to testify on opinions of physics and biomechanics, which Marquette claims is required for Borison to offer his opinion about water's effect of “decreas[ing] the coefficient of friction in areas where little to no non-skid coating was applied.”[10] Marquette also contends that Borison's opinions concerning the conditions of this slip and fall lie within the common knowledge of laypersons and will not be helpful in assisting the trier of fact.[11] In support of this contention, Marquette cites Roy v. Florida Marine Transporters, Inc., 2004 WL 551208 (E.D. La. July 10, 2013), where the court excluded Borison's expert testimony concerning the absence of non-skid material on a deck surface in a maritime slip-and-fall case.[12] Finally, Marquette argues that Borison's testimony is unreliable because he bases his opinion only on Lewis' testimony that the deck lacked a non-skid surface, which contradicts other crewmembers' testimony, and on Borison's own inspection of the surface two years after the incident.[13] Marquette also claims that Borison's testimony is unreliable because his opinions are unsupported by testing and do not address alternative causes.[14]

         Lewis argues that Borison's testimony should not be excluded because Borison's expertise in maritime safety will aid the jury in understanding safety standards that are unique to the maritime industry and generally not within a juror's common knowledge.[15] Lewis contends that laypersons are typically not familiar with maritime industry standards governing the inspection and maintenance of vessels or the proper application of a non-skid coating on a vessel like the M/V Steve Richoux.[16] Finally, to the extent Marquette contests Borison's reliability, Lewis argues that such concerns may be addressed through cross-examination, the presentation of contrary evidence, and instruction on the burden of proof.[17]

         Marquette's second motion in limine seeks to exclude the testimony of Lewis' vocational rehabilitation expert, Crawford, and expert economist, Rice. Marquette does not challenge Crawford or Rice's qualifications but argues that their opinions on Lewis' lost wages are speculative because they assume that Lewis would be promoted from relief mate to vessel captain, even though he held no maritime licenses and never applied for or obtained any U.S. Coast Guard mariner credentials.[18] Marquette relies upon Mayne v. Omega Protein Inc., 370 Fed.Appx. 510 (5th Cir. 2010), for the proposition that past wages, with evidentiary support, are the only permissible basis upon which an expert may calculate lost wages.[19] Lewis counters that evidence exists to support his advancement and that Marquette's motion merely challenges the bases of the experts' opinions, which go to the weight, not the admissibility, of the evidence.[20]

         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 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 ...

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