Opinion
CIVIL ACTION NO. 18-5529
2019-08-23
Anthony DOUGLAS v. CHEM CARRIERS TOWING, LLC
Berney Leopold Strauss, Rhett Emerson King, Strauss & King, New Orleans, LA, for Anthony Douglas. Georges M. LeGrand, Michael Thomas Neuner, Trevor Matthew Cutaiar, Mouledoux, Bland, LeGrand & Brackett, LLC, Adam P. Sanderson, Chopin Law Firm LLC, New Orleans, LA, for Chem Carriers Towing LLC.
Berney Leopold Strauss, Rhett Emerson King, Strauss & King, New Orleans, LA, for Anthony Douglas.
Georges M. LeGrand, Michael Thomas Neuner, Trevor Matthew Cutaiar, Mouledoux, Bland, LeGrand & Brackett, LLC, Adam P. Sanderson, Chopin Law Firm LLC, New Orleans, LA, for Chem Carriers Towing LLC.
SECTION "R" (3)
ORDER AND REASONS
SARAH S. VANCE, UNITED STATES DISTRICT JUDGE
Before the Court is the motion in limine from defendant Chem Carriers Towing, LLC ("Chem Carriers") to exclude the report, opinions, and testimony of plaintiff's expert Michael Weeks. Because the Court finds Weeks's testimony either unreliable, within the ken of the jury, within the province of the Court, irrelevant, or misleading, the Court grants the defendant's motion.
R. Doc. 33.
I. BACKGROUND
This case arises from a slip and fall on a boat. On November 1, 2017, Douglas was serving, under the employ of Chem Carriers, as the captain and pilot of the M/V MISS DANIELLE. While on the ship, Douglas suffered an injury exiting the shower. Specifically, his right foot caught on the shower's threshold as he was stepping over it. The threshold stepping out the shower is 9.5 inches high. The shower has no grab bars, and the tile floor is not covered by a mat. Douglas alleges that tripping over this threshold injured his hip and back. Douglas further alleges that these injuries will require surgery and will disable him as a seaman.
See R. Doc. 21-2 at 2 ¶ 10, 4 ¶ 27.
Id. at 1 ¶ 1.
Id. at 2 ¶ 10.
Id. at 4 ¶ 27.
Id. at 2 ¶ 16.
R. Doc. 44-2 at 3:1-3.
Id. at 4:2-10.
See R. Doc. 8 at 2 ¶ 7.
Id. at 2 ¶ 8.
Douglas filed a seaman's suit, bringing claims under the Jones Act, 46 U.S.C. § 30104, general maritime law's warranty of seaworthiness, and general maritime law's doctrine of maintenance and cure. Specifically, he argues that the design of the shower, as well as his fatigue caused by not being allowed sufficient rest, contributed to his accident.
Id. at 1 ¶ 1.
See, e.g. , R. Doc. 36 at 15-16.
In support of his suit, Douglas retained Captain Michael Weeks as an expert. According to Douglas, Weeks is a "marine safety and operations expert." In this capacity, Weeks sought to "determine certain causal factors relating to this incident." He provided a report stating his conclusions and was deposed.
See R. Doc. 47 at 2.
Id.
R. Doc. 33-5 at 2 (emphasis removed; hereinafter, all emphasis has been removed from Weeks's report, unless noted otherwise).
R. Doc. 33-5.
See R. Doc. 33-3.
Chem Carriers filed a motion in limine to exclude Weeks's report, opinions, and testimony. Douglas opposes the motion.
R. Doc. 33.
R. Doc. 47.
II. LEGAL STANDARD
A district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702, which governs the admissibility of expert testimony. See Gen. Elec. Co. v. Joiner , 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ; Seatrax, Inc. v. Sonbeck Int'l, Inc. , 200 F.3d 358, 371 (5th Cir. 2000). Rule 702 provides that a witness "qualified as an expert by knowledge, skill, experience, training, or education" may provide opinion testimony when "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. To be admissible, Rule 702 requires that (1) the testimony be based on "sufficient facts or data," (2) the testimony be the "product of reliable principles and methods," and (3) the witness "reliably appl[y] the principles and methods to the facts of the case." Id.
In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that Rule 702 requires the district court to act as a gatekeeper to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786 ; see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (clarifying that the Daubert gatekeeping obligation applies to all forms of expert testimony).
The Court's gatekeeping function involves a two-part inquiry. First, the Court must determine whether the expert testimony is reliable. The party offering the testimony has the burden to establish reliability by a preponderance of the evidence. See Moore v. Ashland Chem. Inc. , 151 F.3d 269, 276 (5th Cir. 1998). The Court must assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert , 509 U.S. at 590, 590 n.9, 113 S.Ct. 2786 . The aim is to exclude expert testimony based merely on "subjective belief or unsupported speculation." See id. at 590, 113 S.Ct. 2786 . The Court's inquiry into the reliability of expert testimony is flexible and necessarily fact-specific. See Seatrax , 200 F.3d at 372.
Second, the Court must determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will aid the trier of fact's understanding of the evidence. See Daubert , 509 U.S. at 591, 113 S.Ct. 2786 . This is primarily an inquiry into the relevance of the expert testimony. See id. ; see also Bocanegra v. Vicmar Servs., Inc. , 320 F.3d 581, 584 (5th Cir. 2003). Such testimony is unnecessary if the court finds that "the jury could adeptly assess [the] situation using only their common experience and knowledge." Peters v. Five Star Marine Serv. , 898 F.2d 448, 450 (5th Cir. 1990).
Additionally, "a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules." Daubert , 509 U.S. at 595, 113 S.Ct. 2786 . In particular, a court should consider the applicability of Federal Rule of Evidence 403, which permits a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of" among other things, "confusing the issues" or "misleading the jury." Fed. R. Evid. 403. Because "[e]xpert evidence can be ... quite misleading," a court under Rule 403 should "exercise[ ] more control over experts than over lay witnesses." Daubert , 509 U.S. at 595, 113 S.Ct. 2786 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991) ).
But a court's role as a gatekeeper does not replace the adversary system. See Daubert , 509 U.S. at 596, 113 S.Ct. 2786 . "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. "As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres of Land , 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chem. Co. , 826 F.2d 420, 422 (5th Cir. 1987) ).
III. DISCUSSION
The defendant argues that Weeks's opinions are inadmissible under the standards of both Rules 702 and 403. The Court will address each rule in turn.
See, e.g. , R. Doc. 33-1 at 1, 20-21.
A. Rule 702
Weeks offers three principal opinions in his report. First, according to the plaintiff, Weeks concludes that "the ceramic tile flooring in the shower was slick to touch and especially unsuited as a shower floor on a vessel." Second, Weeks identifies the height of the shower's threshold and the lack of grab bars in the shower as design "characteristics which increased the risk of injury to those using the shower." Finally, Weeks opines that "fatigue played a role in Plaintiff's incident." Weeks also presents a smorgasbord of other findings, which the plaintiff does not summarize in his briefing. The Court will address whether each opinion should be admitted, based on the standard provided in Rule 702.
R. Doc. 47 at 3.
Id.
Id. at 4.
1. The Shower Floor
Weeks asserts that "Chem Carriers failed to install or to have an appropriate floor tile installed; instead, slippery wall tiles were installed on the floor which contributed to this accident." The Court excludes this opinion.
R. Doc. 33-5 at 38.
To determine the slipperiness of the shower tiles, Weeks "put saliva on [his] finger and rubbed it." The Court does not find that opining as to whether a surface feels slippery to the touch requires an expert witness. "Expert testimony [is] unnecessary" when the jury can "assess th[e] situation using only their common experience and knowledge." Peters , 898 F.2d at 450. And assessing whether a surface is smooth to the touch falls within the jury's common experience. More generally, jurors are equipped to understand any risks posed by ceramic tile in a shower.
See R. Doc. 33-3 at 25:16-18.
Furthermore, even if Weeks's opinion could assist the jury, this Court does not find his opinion reliable. Rule 702 requires that expert testimony arise from "reliable principles and methods." Fed. R. Evid. 702(c). A test consisting of spitting on one's hand and rubbing it on the floor, though, is not reliable. Indeed, Weeks cites no data, study, or other source to support the validity of this practice as a method for quantifying whether tiles provide sufficient friction to serve as shower flooring. See, e.g. , Daubert , 509 U.S. at 593, 113 S.Ct. 2786 ; Kumho , 526 U.S. at 149, 119 S.Ct. 1167 (" Daubert 's general principles apply to the expert matters described in Rule 702."). And he himself admitted that this test was not "scientific." Because Weeks's opinion as to the tiles' texture both falls within the ken of the jury and is unreliable, this Court does not allow Weeks to testify on this subject.
See id. at 24:14-16.
2. The Threshold Height and Lack of Grab Bars
Weeks also asserts that the shower design contributed to the incident, because the shower's threshold was too high and it did not have grab bars. The Court also excludes this opinion.
See, e.g. , R. Doc. 33-5 at 37-38.
As an initial matter, Weeks arrives at this conclusion by determining that aspects of the shower "violate[ ] federal law, safety and industry standards." Insofar as Weeks attempts to define the legal requirements that apply in this case, his opinions are impermissible. See, e.g. , Shawler v. Ergon Asphalt & Emulsions, Inc. , No. 15-2599, 2016 WL 1019121, at *4 (E.D. La. Mar. 15, 2016) ("[W]hich rules or regulations apply is a legal issue to be decided by the Court. Expert testimony purporting to establish which rules or regulations actually applied to the incident in this case is inappropriate."), aff'd sub nom. , Shawler v. Big Valley, L.L.C. , 728 F. App'x 391 (5th Cir. 2018). The plaintiff does not appear to contest this position.
See, e.g. , id. at 38.
See R. Doc. 47 at 5 ("Defendant suggests that it is impermissible for a witness to encroach upon the role of the Court regarding the laws which apply to the case. On this basic point, we are in agreement.").
Insofar as Weeks has not "attempted to usurp the role of the court" but rather merely has "discussed various safety regulations ... which he believes have relevance," his opinions are misleading and unreliable. Weeks's report cites to a hodgepodge of standards, but he does not demonstrate why they apply. Indeed, for some regulations, in addition to not providing a reasoned explanation as to the standard's applicability, Weeks also does not even fully identify the name of the body that developed the standard. For instance, Weeks alleges that the defendant violated "applicable shower requirements/standards/recommendations," provided by "TAS" and "UFAS." But he does not state what "TAS" and "UFAS" are, much less which of their standards the defendant violated.
Id.
Weeks references various provisions given by, among others, the International Code Council (ICC), the American National Standard Institute (ANSI), the Americans with Disabilities Act (ADA), the International Convention for the Safety of Life at Sea (SOLAS), and the Occupational Safety and Health Administration (OSHA). See, e.g. , R. Doc. 33-5 at 37.
See, e.g. , id. at 32-33.
Presumably these are, respectively, the Texas Accessibility Standards and the Uniform Federal Accessibility Standards.
Where the Court can discern the standards Weeks cites to, most appear wholly inapplicable. For instance, Weeks references "residential building code[s]," but he does not identify specific requirements or explain why shower standards that apply to a house also apply to a ship. See Carbo v. Chet Morrison Servs., LLC , No. 12-3007, 2013 WL 5774948, at *2-3 (E.D. La. Oct. 24, 2013) (preventing an expert from testifying as to guidelines that the court found irrelevant). Similarly, Weeks looks to the Americans with Disabilities Act (ADA) standards for "roll in" showers—that is, a shower one would enter in a wheelchair—when evaluating the design of the vessel's shower. But he has made virtually no attempt to explain why an ADA standard prescribing the maximum threshold height of half an inch for a wheelchair-accessible shower should inform the safe threshold height for a shower on an uninspected inland towing vessel. Further, he has not provided a biomechanical or any type of technical assessment of the safety of different threshold heights. Nor has he provided data connecting marine shower threshold heights of 9.5 inches and accident frequency. Indeed, he has not even pointed to other similar vessel designs that limit their threshold heights to the mere half inch required by the ADA standard.
Id. at 32.
See, e.g. , id. at 34.
See, e.g. , id.
When Weeks references standards that might have a less tenuous connection with maritime design, his application of these standards proves unreliable. For example, Weeks cites to regulations from the International Convention for the Safety of Life at Sea (SOLAS). But he then attempts to suggest that SOLAS regulations that apply to "[m]eans of [e]scape" should dictate the design of the shower. Likewise, Weeks cites to standards from the American National Standards Institute (ANSI). The ANSI standards he rely on have no relevance to threshold heights or grab bars. Rather, they deal with the paint color used to indicate "caution." In this same manner, Weeks lists various Occupational Safety and Health Administration (OSHA) regulations which, though applicable to uninspected vessels generally, see Chao v. Mallard Bay Drilling, Inc. , 534 U.S. 235, 243-45, 122 S.Ct. 738, 151 L.Ed.2d 659 (2002), say nothing about threshold heights or grab bars on such a vessel. The plaintiff's expert, therefore, has not explained to the Court how he has determined that these standards should inform the design of a shower, particularly a shower that he has not shown was a hazard under relevant standards. In sum, therefore, because Weeks's opinions as to the shower threshold height and lack of grab bars impinge on the province of the Court and are unreliable, this Court does not allow Weeks to testify on this subject.
See, e.g. , R. Doc. 33-5 at 32.
See id.
See id.
See id.
See, e.g. , id. at 30-32.
3. The Plaintiff's Fatigue
Weeks claims that the defendant violated the Coast Guard's "twelve-hour rule," see 46 U.S.C. § 8104(h) (stating that "an individual licensed to operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period"), causing the plaintiff to be fatigued and contributing to his accident. The Court excludes this opinion.
See, e.g. , id. at 39.
First, whether Chem Carriers violated the twelve-hour rule is a legal question for the Court, not an expert. Weeks's opinions about Chem Carrier's liability in this regard constitute impermissible legal conclusions, as they "supply the jury with no information other than the expert's view of how its verdict should read." Owen v. Kerr-McGee Corp. , 698 F.2d 236, 240 (5th Cir. 1983).
Furthermore, there is no reliable basis for Weeks's conclusions that proceeding to take a shower after a twelve-hour shift was not a reasonably safe practice, and that it therefore contributed to the incident. The Court cannot discern any reliable principles or methods Weeks applied to the facts of this case enabling him to conclude that the plaintiff—by taking a shower after a twelve-hour shift—was put in harm's way. As such, it is no more than ipse dixit that because the plaintiff worked twelve hours, he therefore had to be too fatigued to take a shower. See, e.g. , Gen. Elec. , 522 U.S. at 146, 118 S.Ct. 512 (stating that when "there is too great an analytical gap between the data and the opinion proffered" a district court need not admit "the ipse dixit of the expert"). Because Weeks's opinion as to the defendant's violation of the twelve-hour rule presents an impermissible legal conclusion and is unreliable, this Court does not allow Weeks to testify on this subject.
Second, insofar as Weeks opines more broadly that fatigue contributed to the incident, the Court finds that understanding the onset and effects of fatigue falls within the jury's "common experience and knowledge," Peters , 898 F.2d at 450. The Court does not find that such opinions will assist the jury: fatigue is widely experienced and thus its onset and effects on alertness can be commonly understood without the assistance of expert testimony. Furthermore, though the plaintiff states that he was not provided an opportunity to rest following the end of his shift, he states that he was not in a hurry to leave the vessel, and none of his testimony indicates that he felt fatigued at the time of the accident. Because Weeks's opinions regarding fatigue fall within the court's interpretation as to the violation of any fatigue-related regulations and the jury's understanding as to fatigue's symptoms and experience, this Court does not allow Weeks to testify on this subject.
See, e.g. , R. Doc. 36-4 at 1 ¶ 4.
See R. Doc. 44-1 at 5:7-9.
4. Remaining Opinions
Although not highlighted in the plaintiff's briefing, Weeks presents several opinions claiming that Chem Carriers acted improperly in ways that did not necessarily contribute to the incident itself. The Court excludes these opinions.
See R. Doc. 47 at 3-4.
See, e.g. , R. Doc. 33-5 at 39-40.
These opinions exhibit many of the deficiencies noted above. Weeks states, for instance, that "Chem Carriers failed to follow their own reporting procedures." But a jury does not need the assistance of an expert in understanding an employer's own safety policies. See Oatis v. Diamond Offshore Mgmt. Co. , No. 09-3267, 2010 WL 936449, at *2 (E.D. La. Mar. 12, 2010) ("[T]he jury is capable of understanding [a company's] job safety policies and whether the policies were violated."). Furthermore, these opinions are irrelevant to the plaintiff's claims. "Plaintiff alleges that his employer, Chem Carriers, was negligent under the Jones Act and its vessel, the MISS DANIELLE, was unseaworthy based on the conditions present in the vessel's bathroom shower. " Chem Carrier's subsequent investigation has no bearing on the conditions in the shower at the time of the incident. As such, these sections of the report largely "consist[ ] of conclusions and one-sided recitations," where little "expertise of any kind was required or used," Jones v. H.W.C. Ltd. , No. 01-3818, 2003 WL 42146, at *3 (E.D. La. Jan. 3, 2003). Because Weeks's remaining opinions are within the ken of the jury or are irrelevant, this Court does not allow Weeks to testify on this subject.
Id. at 40.
R. Doc. 47 at 2 (emphasis added).
B. Rule 403
In addition to finding Weeks's opinions inadmissible under Rule 702, the Court also excludes them under Rule 403. The "probative value" of his evidence "is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, [and] misleading the jury." See Fed. R. Evid. 403. As already discussed, Weeks opines about apparently inapplicable regulations and standards without explaining why they should apply, and in many instances what they require. Weeks's suggestion that the uninspected towing vessel's shower violates ADA regulations by having a threshold height greater than half an inch, for instance, provides a clear example of how such evidence risks misleading the jury. In other instances, Weeks does not even clearly identify the regulations or standards he purports to discuss. As a result, allowing him to present conclusions involving such a jumble of inapposite regulations and standards poses a serious risk of misleading the jury rather than assisting them. Rule 403, therefore, provides a further basis for excluding Weeks's testimony.
See, e.g. , R. Doc. 33-5 at 32.
See, e.g. , id.
See, e.g. , id.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the defendant's motion in limine to exclude the report, opinions, and testimony of Michael Weeks.