Opinion
Civil Action No. 00-3051, Section "R" (2)
March 25, 2002
ORDER AND REASONS
Before the Court are motions in limine of plaintiff, Charles Herrin, and defendant, ENSCO of f shore Company. Also before the Court are the parties' objections to exhibits. The Court rules on the motions and objections as follows.
I. BACKGROUND
Plaintiff, Charles Herrin, alleges that he was injured while working as a rig mechanic aboard the offshore movable drilling rig ENSCO No. 86. Defendant, ENSCO, is the employer of plaintiff and owner and operator of ENSCO No. 86. Plaintiff filed suit alleging negligence under the Jones Act, 46 U.S.C. § 688, et seq., and unseaworthiness under the general maritime law. He seeks general and special damages, including compensation for physical and mental pain and suffering, and past and future lost wages.
II. DISCUSSION
A. Testimony Regarding Plaintiff's Daughter's Multiple Sclerosis
Defendant asks the Court to exclude any evidence of plaintiff's daughter's multiple sclerosis as irrelevant under Rule 401 and/or prejudicial under Rule 403. FED. R. EVID. 401 and 403. Defendant points out that plaintiff's daughter is not a minor and that her diagnosis occurred after plaintiff's accident. Plaintiff argues that this evidence should be admissible because it is relevant to plaintiff's claims for damages for mental anguish and for loss of enjoyment of life. Plaintiff asserts that since he cannot work as a result of his accident, he has been unable to financially assist his daughter who was recently diagnosed with multiple sclerosis, which contributes to his mental pain and suffering. Plaintiff argues that as a father, a part of his enjoyment of life is linked to his ability to aid his child financially.
Evidence is relevant is it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." FED. R. EVID. 401. Testimony about plaintiff's adult daughter's medical condition is not relevant to the issues of plaintiff's entitlement to damages.
Even if it were relevant evidence, it should nevertheless be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . ." FED. R. EVID. 403. A district court has "broad discretion" in assessing admissibility under Rule 403 and is reviewed only for abuse of that discretion. Id. (citation omitted). In this case, the Court finds that this type of evidence will likely confuse the jury, particularly considering its emotional impact. Here, plaintiff has shown no legal responsibility to pay for his adult daughter's care. The proffered evidence could confuse the jury by causing them to conclude that defendant is liable to pay plaintiff enough to pay for the needs of his adult daughter. Since the risk of confusing the jury outweighs any probative value of the evidence, the Court excludes this evidence.
B. Testimony and/or Exhibits Referencing Subsequent Remedial Measures
In this case, plaintiff's injuries were caused when a 12" rubber discharge hose suspended by a manila rope sling fell to deck after the rope apparently broke. Plaintiff seeks to admit evidence that defendant implemented a new policy requiring braided steel lifting slings be used with crane lifts after plaintiff's accident. Plaintiff asserts that it does not intend to submit evidence of the new policy for the purpose of establishing defendant's negligence. Rather, he asserts that her offers the evidence for a permissible purpose — to show the feasibility of precautionary measures. Plaintiff also asserts that the new policy is admissible as impeachment evidence to refute defendant's assertion that it acted with reasonable care at the time of accident and that precautionary measures were not necessary. Plaintiff argues that evidence of the subsequent replacement of the rope sling with a steel sling is necessary to rebut defense expert's assertion that a rope sling was "appropriate" method for hoisting the hose, and in fact, was a better choice than a wire sling. In Ian Cairn's expert report, he states:
The choice of a rope sling to lift the hose was appropriate for the lifting of the hose. The rope had sufficient capacity to lift the empty hose as observed by the crane operator. In our opinion, utilizing a wire sling to hoist a rubber hose could lead to abrasion and cutting of the rubber hose and would therefore be an inappropriate choice of sling. Further, it was the crew's intent to cut the sling to drop the pipe overboard at the end of the procedure. This would not have been practical with the use of a wire sling.
(Pl's Opp'n. Def's Mot. in Limine, Ex. A, ¶ 4.) Further, plaintiff argues that the evidence is admissible to rebut defendant's claim that plaintiff was at fault. for the accident. Defendant seeks to exclude evidence of its new policy as a subsequent remedial measures under Rule 407 of the Federal Rules.
The Federal Rules of Evidence dictate that "evidence of . . . subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event." FED. R. EVID. 407. The Rules also provide an exception when a party offers such evidence "for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." Id. In this case, although ENSCO asserts that it does not dispute that it was feasible to use steel slings at the time of Herrin's accident, its expert report can be read as suggesting otherwise. Accordingly, the Court reserves ruling on this evidence until trial. Plaintiff is instructed not to offer this evidence without first requesting a bench conference.
C. Plaintiff's Motion in Limine Regarding Photographs
MOOT. Plaintiff has withdrawn this motion.
D. Defendant's Objections to Plaintiff's Exhibits
1. Objection to Exhibit 23: Section of Rope.
Defendant has withdrawn its objection.
2. Objection to Exhibit 24: API RP 2D Recommended Practice for Operation and Maintenance of Offshore Cranes.
The Court reserves its ruling at this time.
3. Exhibit 25: Construction Safety Association of Ontario Rigging Manual.
The Court reserves its ruling at this time.
4. Exhibit 26: Similar Section of Hose and Similar King Nipple.
Reserved. Defendant has withdrawn his objection to the hose. Defendant asserts that the proffered "king nipple" is actually a threaded metal pipe, which is heavier than the king nipple in the case.
E. Plaintiff's Objections to Defendant's Exhibits
1. Exhibit 13: The Certificate of Inspection for the ENSCO No. 86 as irrelevant.
OVERRULED. The Courts finds the evidence relevant under Fed.R.Evid. 401.
2. Exhibit 14: Dr. Boudreaux's Expert Report.
SUSTAINED on the basis of hearsay.
3. Exhibit 15: Ian Cairns' Expert Report.
SUSTAINED on the basis of hearsay.
4. Exhibit 19: Dr. Molleston's Diagnostic Films.
Overruled under Fed.R.Evid. 803(4), subject to proper foundation.
5. Exhibit 20: Dr. Applebaum's medical records and diagnostic films.
Overruled under Fed.R.Evid. 803(4), subject to proper foundation.
6. Exhibit 21: Dr. Williams' Medical Records.
Overruled under Fed.R.Evid. 803(4), subject to proper foundation.
7. Exhibit 22: Charles Herrin's Personnel File.
Overruled, subject to proper foundation.
8. Exhibit 23: Discovery Responses Provided by any Party to this Litigation as irrelevant.
The Court reserves its ruling at this time.
9. Exhibit 24: Interrogatories to plaintiff and Request for Production and all Responses.
Overruled.
10. Exhibit 25: Check stubs and other supporting documents evidencing Mr. Herrin's maintenance and cure settlement advances as irrelevant because plaintiff is not making a claim for maintenance and cure.
The Court reserves its ruling at this time.
III. CONCLUSION
New Orleans, Louisiana, this ___ day of March, 2002.