Opinion
No. 98 C 50359
April 27, 2001
MEMORANDUM OPINION AND ORDER I. INTRODUCTION
Plaintiff, IM Rail Link ("IM"), has filed a one-count complaint against defendants, Northstar Navigation, Enc., in personam ("Northstar"), and the M/V Megan Beesecker, in rem ("Megan Beesecker"). IM claims Northstar's negligence caused an allision between the Megan Beesecker (a tug boat owned by Northstar) and a railroad bridge owned by IM, which runs across the upper Mississippi River from Sabula, Iowa, to Savanna, Illinois ("Sabula Bridge") on May 5, 1997, and seeks to recover for damages to the Sabula Bridge. Northstar has filed a counterclaim alleging IM was at fault for the allision and seeks to recover for damages to the Megan Beesecker and her tow. In this order, the court addresses various motions in limine filed by both sides, along with IM's "Waiver of Jury Demand."
II. ANALYSIS
A. IM's Waiver of Jury Demand
In the caption of its complaint, originally filed on December 19, 1997, IM demanded a "jury trial on all issues." Nearly three years later, on November 20, 2000, it filed a "Waiver of Jury Demand," in which IM expressed its wish to waive its right to a jury trial in this case. Northstar's response was two-fold: first, it argued IM could not waive the jury demand because both parties must consent to such a waiver and Northstar had not (and would not) give its consent, see Fed.R.Civ. p. 38(d), 39(a); second, in the event the court grants IM's waiver, Northstar has requested leave to file a jury demand on the issues raised in its counterclaim. In its trial brief, IM replied that, because this case has been brought under the court's admiralty jurisdiction, neither side has a right to a jury trial.
As IM correctly notes, the Seventh Amendment right to a jury trial attaches only to "Suits at common law," not admiralty actions. See U.S. Const. amend. VII; Wingerter v. Chester Quarry Co., 185 F.3d 657, 667 (7th Cir. 1998); In re Complaint of McCarthy Bros. Co./Clark Bridge, 83 F.3d 821, 826 (7th Cir.), cert. denied, 519 U.S. 950 (1996) . And because IM has alternatively asserted both admiralty, 28 U.S.C. § 1333, and diversity, id. § 1332, jurisdiction in its complaint (Compl. ¶ 4, 5), the court's first task is to properly characterize IM's claim as one either in admiralty or in law. This requires the court to look at the "totality of the circumstances" and determine whether IM intended to proceed in admiralty or in law, as demonstrated by its pleadings and actions. See Wingerter, 185 F.3d at ¶ 66.
As Wingerter makes clear, both of these sources of federal jurisdiction are available to a plaintiff with an in personam admiralty or maritime claim under the "savings to suitors" clause in 28 U.S.C. § 1333 (1) (assuming the requirements for diversity are met). See Wingerter, 185 F.3d at 665 n. 5. Of course, pleading both in the alternative creates the problem before the court now: the court must try to discern which one the plaintiff was really relying on.
Though the complaint is somewhat ambiguous in this regard, the court finds IM's complaint sufficiently invokes the court's admiralty jurisdiction. On the one hand, IM made a jury demand in the caption of its complaint and even titled its complaint as a "Complaint at Law," both of which indicate a willingness to bring its negligence claim as a common law action under the court's diversity jurisdiction. See id. at 667 (inclusion of jury demand suggests plaintiff intends to proceed at law). On the other hand, IM has also brought a claim against the Megan Beesecker in rem. An action against a vessel in rem falls within a federal court's exclusive admiralty jurisdiction and, therefore, indicates IM's intent to proceed in admiralty rather than at law. See T.N.T. Marine Serv. Inc. v. Weaver Shipyards Dry Docks. Inc., 702 F.2d 585, 588 (5th Cir.), cert. denied, 464 U.S. 847 (1983) . In addition, and most importantly, IM made an "identifying statement" in its pleadings by specifically referring to Federal Rule of Civil Procedure 9(h) and the admiralty and maritime jurisdiction statutes, 28 U.S.C. § 1332, 46 U.S.C. § 740. (Compl. ¶ 4) The Rule 9 (h) designation in particular is the clearest sign IM has elected to bring its suit in admiralty. See Wingerter, 185 F.3d at 666; T.N.T. Marine, 702 F.2d at 587-88. The court thus concludes that, even though diversity jurisdiction may exist as well, and IM may have mistakenly or inadvertently made a jury demand and labeled its complaint as one "at law," see Wingerter, 185 F.3d at 668, IM's negligence claim should be treated as an admiralty action.
That, however, is not the end of the inquiry because the court must now consider what effect Northstar's counterclaim has on all of this. When a plaintiff elects to proceed in admiralty but the defendant files compulsory counterclaims cognizable at law under an alternative source of jurisdiction, a split of authority exists as to whether the defendant may insist on a jury trial for those counterclaims or, conversely, whether the plaintiff's election under Rule 9(h) characterizes the entire action as one in admiralty and thereby "trumps" the defendant's right to a jury trial. Compare Wilmington Trust v. United States Dist. Court for the Dist. of Haw., 934 F.2d 1026, 1032 (9th Cir. 1991), cert. denied, 503 U.S. 966 (1992); Sphere Drake Ins. PLC v. J. Shree Corp., 184 F.R.D. 258, 261 (S.D.N.Y. 1999); with Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 987 (5th Cir. 1978); Norwalk Cove Marina, Inc. v. S/V Odysseus, 100 F. Supp.2d 113, 114 (D. Conn. 2000);St. Paul Fire Marine Ins. Co. v. Holiday Fair, Inc., No. 94 CIV. 5707 (TPG), 1996 WL 148350, at *2 (S.D.N.Y. Apr. 2, 1996). Fortunately, the court need not weigh in on this serious constitutional question as it can decide the issue on a much narrower ground.
As the court views IM's claim as an admiralty suit, Northstar's other argument — that IM could not unilaterally waive the jury demand — is moot. As already noted, there is no general right to a jury trial in admiralty actions. This means, a fortiori, IM had no right to make a jury demand to begin with and Northstar's withholding of its consent to waive the jury demand is therefore meaningless.
To begin, Northstar never made a timely and proper jury demand on its counterclaim as required by Rule 38(b). It does, however, cite the general rule that one party is entitled to rely on the other party's jury demand and need not file a demand of its own. See Partee v. Buch, 28 F.3d 636, 636-37 (7th Cir. 1994); 9 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2318, p. 137 (2d ed. 1994) . But the court finds Northstar may not avail itself of this practice because, as already discussed, IM had neither a constitutional nor a statutory right to a jury trial in the first place. See Concordia Co. v. Panek, 115 F.3d 67, 72-73 (1st Cir. 1997) . When IM made its Rule 9(h) designation, Northstar was put on notice that IM's complaint would at least arguably, if not likely, be treated as an admiralty action. As a result, it was not reasonable for Northstar to rely on IM's jury demand when there was a fairly decent chance the demand was a nullity. See id.
But even if Northstar had made its own jury demand or were allowed to rely on IM's jury demand, the court nevertheless concludes, based on the "totality of the circumstances" and Northstar's intent as demonstrated by its pleadings, see Wingerter, 185 F.3d at 666, that Northstar's counterclaim should also be treated as an admiralty action. IM's complaint and Northstar's counterclaim are not only based on the same set of operative facts, but are in fact mirror images of each other: IM says Northstar is negligent for the allision, while Northstar says IM is negligent. Northstar even states its counterclaim "arises Out of the same occurrence" as IM's complaint. (Counterclaim ¶ 5) The same is also true of the jurisdictional grounds for the complaint and counterclaim. In its answer to Paragraph 4 of IM's complaint, wherein IM makes its Rule 9(h) designation and asserts both admiralty and diversity jurisdiction, Northstar says only that these allegations are conclusions of law and require no answer. (Answer ¶ 4) The counterclaim contains no jurisdictional statement at all. By all accounts, Northstar was simply relying on IM's complaint for setting out the proper basis of subject matter jurisdiction and made no attempt to distinguish its counterclaim as one at law rather than in admiralty. Because the court has already decided IM's complaint should be treated as an admiralty action, it makes little sense to treat Northstar's counterclaim any differently when the two share the same core group of facts and Northstar's pleadings give absolutely no indication it was relying in particular on diversity jurisdiction to assert its counterclaim as a common law action.
In other words, this is not a case in which the plaintiff pleads only admiralty jurisdiction in its complaint and the defendant then affirmatively asserts in its counterclaim a claim at law along with an alternative source of jurisdiction. Cf. Wilmigton Trust, 934 F.2d at 1027-28; Sphere Drake, 184 F.R.D. at 259; Holiday Fair, 1996 WL 148350, at *1. If that were the case, Northstar's counterclaim would not be so easily characterized as an admiralty action and the court would have to squarely confront the Seventh Amendment issue noted above.
For the reasons stated above, the court finds IM's complaint and Northstar's counterclaim shall proceed under the court's admiralty jurisdiction. Therefore, the court strikes IM's jury demand on its own motion, denies IM's "Waiver of Jury Demand" as moot, and denies Northstar leave to file a jury demand on its counterclaim.
B. Motions in Limine
1. IM's Motions to Exclude Documents and Witnesses Not previously Produced or Disclosed and to Exclude Damages Not Timely Disclosed
In these two related motions, IM seeks an order prohibiting Northstar from using thirteen exhibits not timely produced, presenting testimony from six fact witnesses who were not timely disclosed, including one Northstar also intends to call as an expert witness, having any of Northstar's witnesses, except its expert witness, Michael Baxter, from testifying about any of Northstar's alleged damages, and being able to recover certain damages not previously disclosed. Despite IM's interrogatories and requests for production of documents, IM states Northstar failed to produce or disclose any of this information until the day before the final pre-trial order was due — nearly six months after the fact discovery cut-off date and three months after the expert witness disclosure cut-off date.In response, Northstar offers a series of arguments and explanations to wriggle out of these discovery violations, none of which the court is willing to accept. The bottom line is that Northstar did not timely disclose any of the enumerated exhibits or the names of the six witnesses, and did not comply with IM's interrogatory to identify witnesses who would have information about Northstar's damages. It is, therefore, subject to sanctions under Federal Rule of Civil Procedure 37.
Some of these previously undisclosed documents relate to additional damages Northwest claimed for the first time in a supplemental interrogatory response it sent to IM on the day before the final pre-trial order was due. Once again, because Northstar did not previously disclose these damages in its answers to IM's interrogatories before the fact discovery cutoff date and has offered no valid argument for not doing so, the court will not allow it to recover those damages.
Equally meritless is Northstar's reason for not timely disclosing the identity of Bob Michel as an expert witness. Mr. Michel is apparently a marine surveyor. In its Rule 26(a)(2) expert disclosure list, Northstar specifically named three other expert witnesses and said "other surveyors whose reports were produced may also provide opinion testimony." Because Mr. Michel was one of the "other surveyors whose report" was previously produced, Northstar believes this is sufficient to satisfy its duty to disclose Mr. Michel as an expert witness. In short, it is not.
Pursuant to Rule 37, the court grants IM's motions in full. Northstar is hereby prohibited from using as evidence at trial the following exhibits: Nos. 30, 34, 38h, 38k, 38t, 38w, 39, 40, 42, 45, 57, 59, and 60. Northstar is likewise prohibited from introducing at trial the testimony from the following witnesses: Bob Michel, Mark Laird, Jan Haynes, Rhonda Roof, K.J. Smith, and Sharon Wildman. This order applies to Mr. Michel as both a fact witness and an expert witness. Northstar is prohibited from recovering or introducing evidence of the following types of damages: surveying and related costs, salvage costs, and lost profits. Finally, all of Northstar's witnesses, except Michael Baxter, are barred from testifying about any of Northstar's alleged damages (not just the three types of damages mentioned above)
The exhibit numbers correspond to the defendant's list of exhibits in the final pre-trial order.
2. IM's Motion to Exclude Evidence of Other Similar Accidents
IM seeks to exclude evidence of other "hits, allision, or collisions" with the Sabula Bridge as contained in some of Northstar's exhibits. It believes such evidence is inadmissible because there is no way to tell whether the circumstances surrounding these other "hits, allision, or collisions" were "substantially similar" to the allision in this case, such as the size and type of vessels involved, weather conditions, visibility conditions, and water level and current conditions. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268 (7th Cir. 1988) . Alternatively, IM argues Northstar should not be allowed to introduce this "other accident" evidence unless it first establishes a substantial similarity between those other accidents and the allision on May 5, 1997. Finally, IM suggests Northstar should not be permitted to introduce the other accident evidence through the "back door" by claiming its experts relied on it under Federal Rule of Evidence ("FRE") 703.
In response, Northstar primarily argues the prior allision are in fact "substantially similar" because they all involved commercial vessels trying to go through the Sabula Bridge. According to Northstar, they are, therefore, admissible to show IM had notice of the dangerous condition of the Sabula Bridge. Northstar also contends the Seventh Circuit has already decided this issue in its favor on a previous appeal in this case. See IM Rail Link. LLC v. Northstar Navication, Inc., 198 F.3d 1012 (7th Cir.), cert. denied, 121 S.Ct. 276 (2000). As to IM's "back door" argument, Northstar notes that under FRE 703, the evidence itself need not be admissible so long as it is of a type reasonably relied upon by experts in the field.
At this time, the court is unable to definitively rule on IM's motion. Because it does not even have enough facts about the allision involving the Megan Beesecker, let alone the other "hits, allision, and collisions" at the Sabula Bridge, the court cannot make a meaningful comparison between them to determine if they are "substantially similar." The court also does not read the Seventh Circuit's opinion as a short cut around this analysis. It is true the Seventh Circuit referred to the previous accidents at the Sabula Bridge included in the Coast Guard's reports, and said the trier of fact may find the Sabula Bridge an unreasonable obstruction based on the Coast Guard's cost and accident data. See id. at 1015-16. But it did so in the context of explaining its holding on a rather narrow issue: that this evidence could be used, to rebut the presumption of The Oregon, 158 U.S. 186 (1895) . The court simply did not address whether these other accidents were "substantially similar" to the May 1997 allision so as to be admissible at trial. And it is unlikely the court intended its holding either to completely do away with, or act as a substitute for, a finding of "substantial similarity." Finally, if this court ultimately determines some or all of the other accidents evidence is inadmissible, but still may be reasonably relied upon by experts in the field, it will then have to independently weigh the probative value of such evidence against its prejudicial effect to determine if it can nevertheless be disclosed to the fact finder. See Fed.R.Evid. 703. These are all matters better left for trial.
The court therefore denies IM's motion without prejudice, and IM is given leave to object to the other accident evidence at trial on the same grounds raised in its motion.
3. IM's Motion to Ear Certain Opinion Testimony from Michael R. Baxter
Northstar has identified Michael R. Baxter as one of its expert witnesses in the final pre-trial order. He is described as a "marine surveyor" — i.e., someone who surveys, inspects, and determines damages to marine equipment when a marine casualty occurs. Northstar hired Mr. Baxter to survey the damages to the Megan Beesecker and the Sabula Bridge resulting from the allision on May 5, 1997. IM now seeks to disqualify him from testifying as an expert witness about the following matters which it believes are outside his area of expertise of marine surveying: (1) the effects of wind on navigation of marine vessels; (2) the forces or effects of currents on motor vessels near the Sabula Bridge; (3) whether the spans of the Sabula Bridge are too narrow; (4) the science of physics; (5) the age of wood timbers or pilings used in the pier, cribbing, or other structures of the Sabula Bridge; (6) whether the Sabula Bridge is an unreasonable obstruction to navigation; (7) findings or orders by the Coast Guard, including issues raised in Nicholas Mpras' deposition (see infra B-6); and (8) the amount of damage done to the Megan Beesecker "not contained in his marine survey report."
Northstar does not oppose IM's motion with respect to the first three matters. As to the fourth, as far as the court can tell, Northstar does not intend to call Mr. Baxter to testify directly about the "science of physics." Nevertheless, he may, if necessary, rely on any knowledge or educational background he has in physics to render his opinions about marine surveying.
After reviewing his deposition, the court finds Mr. Baxter is not qualified to give an expert opinion on the age of wood timbers or pilings used at the Sabula Bridge. Although Mr. Baxter testified he has received training on how to determine the age of wood, has read magazine articles on the subject, has studied "carve and cobalt dating process" in a science class, and has had discussions with the University of Wisconsin Forest Products Department regarding the useful life of creosol timbers, he unequivocally admitted he did not use any of this experience or knowledge in forming his opinion about the age of the wood timbers used in the Sabula Bridge. (Baxter dep., pp. 124-29) Rather, he concluded those timbers were nine years old because he has surveyed the Sabula Bridge cribbing for the last nine years and has never seen the pilings replaced. (Id. at 124, 129) It is true an expert may "draw a conclusion from a set of observations based on extensive and specialized experience," Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999), but it would seem to be axiomatic that when such an individual does not actually use any of his "extensive and specialized experience" to come to his conclusion, he cannot testify as an expert. Thus, while Mr. Baxter's observations may allow him to testify as a fact witness in this regard, the fact that he did not rely on any of his specialized knowledge, skill, or training when forming his "opinion" on the age of the Sabula Bridge timbers means he may not testify as an expert witness on that subject. See Fed.R.Evid. 702.
The same is also true of items six and seven: explaining how the Coast Guard determines whether a bridge is an "unreasonable obstruction to navigation," as well as the meaning of findings, reports, and orders issued by the Coast Guard, are, as Northstar tacitly concedes, matters beyond Mr. Baxter's area of expertise of marine surveying. In addition, Mr. Baxter apparently did not rely on any of these reports in performing his survey and has not even offered any opinions whatsoever on these topics.
Finally, IM believes Mr. Baxter improperly relied on the report of another marine surveyor and photographs of the Megan Beesecker in forming his opinion as to the amount of damages done to the vessel. IM complains these are not the sort of documents "reasonably relied upon by experts" in the field of marine surveying as required by FRE 703. It also adds Mr. Baxter will simply be repeating and serving as a "spokesman" for the other marine surveyor. See In re James Wilson Assoc., 965 F.2d 160, 176 (7th Cir. 1992) . At this point, however, the court is simply unable to tell whether the disputed materials are of a type reasonably relied upon by marine surveyors or whether Mr. Baxter's testimony would be cumulative of other testimony.
IM's motion is therefore granted in part and denied in part. Mr. Baxter is prohibited from testifying as an expert witness in matters (1)-(3), (4) (except to the extent he relies on his educational background in physics to testify about marine surveying), and (5) — (7). The motion is denied without prejudice as to number (8), and IM is given leave to object at trial for the reasons stated in its motion.
4. IM's and Northstar's Motions to Exclude Marine Casualty Investigation Reports
Both IM and Northstar have moved to exclude marine casualty investigation reports pursuant to 46 U.S.C.S 6308(a), which provides in part:
Notwithstanding any other provision of law, no part of a report of a marine casualty investigation conducted under section 6301 of this title, including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence . . . in any civil . . . proceedings . . . .
Seeing as how both parties agree such marine casualty investigation reports should be excluded under this statute and the court concurs with this assessment, the court grants both motions. The court hereby orders that, as required by 46 U.S.C. § 6308 (a), no report or part of a report of any marine casualty investigation conducted pursuant to 46 U.S.C. § 6301 shall be offered or introduced as evidence at trial.
Northstar originally identified one of its exhibits (Group Exhibit 21) as a marine casualty investigation report in the final pre-trial order, but has since withdrawn that exhibit.
5. Northstar's Motion to Exclude Evidence of Any Subsequent Remedial Measures Undertaken by Northstar
Since the allision between the Megan Beesecker and the Sabula Bridge in May 1997, Northstar apparently has used "helper boats" to guide tug boats and other vessels through the Sabula Bridge. Northatar now moves to exclude this under FRE 407 as evidence of subsequent remedial measures. IM. however, points to the affidavits of two of Northstar's witnesses James Jarvis, the pilot of the Megan Beesecker at the time of the allision, and Russell Hollinger, the President of Northatar — and concludes Northstar "has taken the position that helper tugs would not have "made the injury or harm less likely to occur.'" (Pl. Resp., p. 2) (emphasis in original) Based on this conclusion, IM believes FRE 407 allows it to introduce evidence of Northstar's subsequent use of the helper boats to prove they are a feasible precautionary measure.
After reviewing the affidavits relied upon by IM, the court finds IM has misapplied FRE 407. As a close examination of these affidavits reveals, and Northstar freely admits in its reply brief, Northstar does not contest the feasibility of helper boats. Indeed, the witnesses themselves acknowledged the possibility of using helper boats but explained that, in their opinions, the helper boats would not have prevented the allision in this case and may have even made the situation worse. In other words, Northstar simply weighed the benefits and risks associated with helper boats, and chose accordingly. This is not the same as saying the use of helper boats was not feasible. See Flamino v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984).
The court thus grants Northstar's motion. IM is hereby prohibited from introducing at trial any evidence concerning Northstar's use of helper boats after the allision on May 5, 1997.
6. Northstar's Motion to Exclude Testimony of Nicholas Mpras
According to his videotaped deposition, which IM intends to play at trial, Nicholas Mpras has been employed by the United States Coast Guard for nearly twenty-six years and has been the Chief of the Office of Bridge Administration ("OBA") within the Coast Guard for the last nine years. Northstar believes Mr. Mpras' testimony should be excluded for a number of reasons, among them: (1) it consists of "rank" legal conclusions and interpretations of federal law; (2) the statutes, regulations, permits, and orders brought up during Mr. Mpras' deposition should "speak for themselves;" (3) Mr. Mpras lacks personal knowledge about the orders and permits he was asked about; and (4) the Seventh Circuit has already decided the issues to which Mr. Mpras testified and its previous opinion thus constitutes the law of the case. Having read Mr. Mpras' deposition, the court disagrees with all of Northstar's reasons for excluding it.
First of all, it is rather farfetched to suggest Mr. Mpras lacks personal knowledge about the matters to which he testified. According to his testimony, the OBA issued a permit for the Sabula Bridge in 1996 and an "Order to Alter" in 1997. Mr. Mpras personally signed or approved these documents in his capacity as Chief of the OBA. He also established a sufficient understanding of the process behind issuing these types of permits and orders and explained his role in that process. As a result, Mr. Mpras is more than competent to testify about the permit and Order to Alter that he personally reviewed as Chief of the OBA. Moreover, the court finds Mr. Mpras did not provide "rank" legal conclusions or interpretations, but instead simply offered his opinion on what the permit and Order to Alter mean: what investigations occur before they are issued, what information is relied upon, who gathers that information, what factors are considered in issuing an Order to Alter, how the OBA determines whether a bridge is an unreasonable obstruction to navigation, what happens after an Order to Alter is issued, and whether IM was in violation of the Order to Alter, to name just a few. All of these topics fall directly within the OBA's areas of responsibility and, even more specifically, within the normal duties of Mr. Mpras as Chief of the OBA. These are not improper legal conclusions, but relevant testimony from an individual with personal knowledge of the matters discussed.
As to Northstar's law of the case argument, the court believes Northstar has again read the Seventh Circuit's prior opinion too broadly. Without repeating Northstar's argument in detail, suffice it to say that the court finds Mr. Mpras' testimony is not precluded by the Seventh Circuit's recent decision in this case.
The court therefore denies this motion and IM shall be allowed to present Mr. Mpras' testimony at trial.
7. Northstar's Motion to Exclude Testimony of Captain J.P. (Pat) Jamison
IM intends to call J.P. (Pat) Jamison as an expert witness to testify that James Jarvis, the pilot of the Megan Beesecker on the day of the allision, was negligent in the following ways: (1) his approach to the Sabula Bridge was improper; (2) he should not have allowed other crew members to remain in the pilothouse during the approach to the Bridge; (3) he should have used a helper boat; and (4) he was fatigued. Northstar seeks to prevent Mr. Jamison from testifying on these matters for a number of reasons.
With respect to Mr. Jarvis' southbound approach to the Sabula Bridge, Northstar believes Mr. Jamison has failed to identify the proper standard of care and instead has done nothing more than give the "bottom line" by testifying that he would have acted differently. After reviewing Mr. Jamison's deposition, the court disagrees with Northstar's characterization of his testimony. Specifically, Mr. Jamison testified that, based on his years of experience as a tow boat captain and pilot along the Mississippi River, a river boat pilot normally should be within 150 feet off shore when approaching the Sabula Bridge. Mr. Jarvis, however, was about 200 feet off shore when he made his approach, and Mr. Jamison concluded this deviation contributed to the allision. (Jamison dep., pp. ¶ , 73-74) As Northstar does not question Mr. Jamison's qualifications as an expert witness, the court finds he has set out the appropriate standard of care with sufficient specificity.
Mr. Jamison's testimony regarding crew members in the pilot house, the use of a helper boat, and pilot fatigue, however, are not as clear. In fact, he seemed to be rather equivocal on whether Mr. Jarvis should have used a helper boat to navigate the Sabula Bridge, and his "opinions" that crew members in the pilot house were a distraction and Mr. Jarvis may have been fatigued on the day of the allision border on the speculative. Nevertheless, the court finds it a more prudent course to deny Northstar' s motion for now and wait to see if additional facts introduced at trial shed any more light on Mr. Jamison's testimony concerning these three matters.
Northstar's motion is therefore denied without prejudice, and Northstar is given leave to object to Mr. Jamison's testimony at trial on the same grounds raised in its motion.
8. Northstar's Motion to Exclude Evidence of a Prior Vessel Grounding or Other Accidents or Errors by James Jarvis
The fifth and final motion in limine Northstar identified in the pre-trial order was one to exclude evidence of "a prior vessel grounding or other accidents or errors by James Jarvis [the pilot of the Megan Beesecker at the time of the allision] ." It apparently seeks to prohibit this evidence as "other crimes, wrongs, or acts" evidence under FRE 404 (b). To date, however, the court has yet to receive any briefs in support of or in opposition to this motion. Because Northstar has failed to submit a memorandum in support of this motion within the time frame established by the court, its motion is denied without prejudice. Should this type of evidence be offered at trial, Northstar may object then for the reasons stated in its motion.
III. CONCLUSION
For the reasons stated above, the court strikes IM's jury demand, denies IM's waiver of jury demand as moot, and denies Northstar leave to file a jury demand on its counterclaim. IM's motions to exclude documents and witnesses not previously disclosed and to exclude damages not timely disclosed are granted. IM's motion to exclude evidence of other similar accidents is denied without prejudice. As outlined above in section B-3, IM's motion to bar certain opinion testimony from Michael R. Baxter is granted in part and denied in part. Both IM's and Northstar's motions to exclude marine casualty investigation reports pursuant to 46 U.S.C. § 6308 are granted. Northstar's motion to exclude evidence of subsequent remedial measures undertaken by Northstar is granted. Northstar's motion to exclude the testimony of Nicholas Mpras is denied. As explained in section B-7, Northstar's motion to exclude the testimony of J.P. (Pat) Jamison is denied without prejudice. Northstar's motion to exclude evidence of a prior vessel grounding or other accidents or errors by James Jarvis is denied without prejudice.