Opinion
No. 01-3818
January 3, 2003
ORDER AND REASONS
Before the Court is the motion in limine of plaintiff to exclude the expert testimony and report of G. Fred Liebkemann, and the motion in limine of defendant Hydraulic Well Control, Limited ("HWC") to exclude the expert testimony and report of Edward B. Robert. Further, HWC moves to exclude any evidence related to subsequent remedial measures. For the following reasons, the Court GRANTS both parties' motions to exclude expert testimony and reports, and DENIES defendant's motion to exclude evidence related to subsequent remedial measures.
I. Background
This case arises out of plaintiff's fall off of a ladder on a snubbing unit, which is a hydraulic mechanical device, on a fixed drilling platform on December 14, 2000. According to plaintiff, he slipped off the ladder while descending, falling about five to six feet to the floor. Defendant HWC admits to ownership and control of the device and ladder, but asserts that it did not manufacture the ladder. At issue is whether hydraulic oil had spilled onto the ladder and/or the vicinity around the ladder; if oil spilled, whether it was cleaned before plaintiff's fall; if it was cleaned, whether the cleanup was thorough; whether the anti-slip material covering the ladder rungs was in poor condition; whether plaintiff wore proper footwear; and whether plaintiff should have been furnished gear to arrest his fall.
The day after plaintiff's accident, on December 15, 2000, the anti-slip material on the ladder rungs was replaced. Defendant Chevron's company man on the platform, Michael Wilkerson, testified that this decision was made after a discussion with the night supervisor about "any possible way that we could prevent anything happening again," although he denied that the tape was in bad shape. (Wilkerson Depo., attached to Def.'s Mot. in Limine, Ex. 4 at 23-24.) Indeed, he testified that he viewed the tape after the accident and it was in "good" condition. ( Id. at 76.) He said, "I think the nonskid was adequate. . . . I don't recall any major patches worn away. . . . ( Id. at 76-77.) He also stated that he would have noticed" if the "grit" on the tape was worn down at all, and did not notice any smooth areas on the tape. ( Id. at 77.)
Plaintiff proposes to offer the expert testimony and report of Edward B. Robert, an offshore safety consultant. Defendant proposes to offer the expert testimony and report of G. Fred Leibkemann, a mechanical engineer. Each party moves to exclude the other party's expert testimony and report. Further, defendant moves to exclude evidence or testimony related to subsequent remedial measures. The Court rules as follows.
II. Discussion
A. Expert Testimony by Robert and Liebkemann
Federal Rule of Evidence 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
FED. R. EVID. 702. According to the Advisory Committee Notes to Rule 702, "whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier." The Fifth Circuit has expressly recognized that expert testimony should be excluded if the court finds that "the jury could adeptly assess Ethel situation using only their common experience and knowledge." Peters v. Five Star Marine Service, 898 F.2d 448, 450 (5th Cir. 1990). In Peters, the plaintiff was injured while unloading machinery on an offshore supply vessel. The Court found that expert testimony was unnecessary for the jury to assess whether it was reasonable for the plaintiff's employer to instruct employees to move equipment manually during heavy seas, whether cargo was improperly stowed, and whether diesel fuel made the deck of the boat slippery. Id. at 449-50. See also Bouton v. Kim Susan Inc., 1997 U.S. Dist. LEXIS 1654, *6 (E.D. La.) (excluding expert testimony as to whether employer provided a clean, safe workplace and whether employer violated federal regulations and safety manual requirements when plaintiff fell while unloading pipe); Matherne v. MISR Shipping Co., 1991 WL 99246, *1 (E.D. La.) (excluding expert testimony regarding conditions of vessel and safety of ingress and egress when plaintiff fell down vessel steps which allegedly moved)
In Araujo v. Treasure Chest Casino, LLC, 1999 U.S. Dist. LEXIS 5556, *5-8 (E.D. La.), the court excluded both parties' expert testimony as to the adequacy of the employer's supervision, safety equipment, and training; as to whether the plaintiff's accident was due to climbing and using a ladder improperly; and as to whether the employer could have made plaintiff's tasks safer with available tools. The court found that both experts' testimony was unhelpful to the trier of fact because it related to issues within the common knowledge of lay jurors. Id. at *8. The court also noted that an expert's reliance on safety regulations did not make his opinion any more helpful. Id.
Similarly, in Williams v. Eckstein Marine Services, Inc., 1992 WL 373616, *1 (E.D. La.), the court excluded the testimony of two proposed experts in a marine personal injury case on the grounds that the content of their testimony would not aid the trier of fact. The court noted a "common trend" in personal injury litigation in which "expert testimony" is proffered concerning common sense issues with which the fact finders need no expert assistance. The court identified the typical situation involving these unhelpful experts as follows:
The testimony of an "expert" is tendered, who is an individual who happens to have some title, normally describing himself as a "consultant." A review of their "expert" reports normally reveals that the reports consist of their appreciation of the facts (some of which are usually in dispute), their conclusion as to what the law is or ought to be, as far as fixing responsibility for the accident, and for sure, a reservation at the end of the report to change their opinion if they learn more information.Williams, 1992 WL 373616 at *1.
The proffered testimony of Robert and Liebkemann would likewise intrude upon the domain of common sense matters upon which jurors require no expert assistance. Robert's "expert" opinion is that hydraulic oil was spilled in the vicinity of the ladder, which created a slippery condition and reduced traction. Robert states that the cleanup of the platform the night before the accident should have included the ladder. Robert further states that the anti-slip material on the ladder had become worn down, which should not have been allowed, citing certain OSHA regulations for support. Robert concludes that plaintiff should have been provided with a ladder climbing device or fall-arrest gear. Robert's report consists of conclusions and one-sided recitations of disputed factual issues relating to the presence of oil on the ladder, the condition of the anti-slip material, and the ship's cleanup procedures. No expertise of any kind was required or used to render these opinions.
Liebkemann' s "expert" opinion is that no hydraulic oil had been spilled in the vicinity of the ladder or on the ladder. Liebkemann then states that the cleanup work performed by the workers was thorough so that, even if there had been a spill, the ladder would have been clean before plaintiff's accident. Next, Liebkemann states that defendant provided fall protection equipment for workers who desired to use it. He opines that OSHA regulations do not require skid protection on ladders of this type. He says that if plaintiff wore the right kind of shoes, then the accident was caused by the way he put his foot on the rung of the ladder, and if he wore the wrong kind of shoes, this would have contributed to his fall. He concludes by stating summarily that the defendants "did [not do] anything improper that caused on contributed to the accident of Mr. Jones." (Liebkemann Report, attached to Pl.'s Mot. in Limine, Ex. 8 at 3.) Like Robert's report, Liebkernann'S report consists of conclusions and one-sided recitations of disputed facts relating to the presence of oil on the ladder and the ship's cleanup procedures. Although Liebkemann is a mechanical engineer, his opinions do not require the use of mechanical engineering expertise, and his report does not reflect that he used any such expertise. His opinions would not assist the jury to resolve any issue in this case. For the foregoing reasons, the Court excludes the testimony of the liability experts of both plaintiff and defendant.
B. Subsequent Remedial Measures
The admissibility of subsequent remedial measures is addressed in Federal Rule of Evidence 407, which provides:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, had made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
FED. R. EVID. 407 (emphasis added) The Advisory Committee Notes explain that the primary justification for Rule 407 is the "social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety." FED. R. EVID. 407, Advisory Committee's Note.
While Rule 407 prohibits the use of evidence of a defendant's subsequent remedial measures as proof of its negligence, the rule provides that evidence of such remedial measures may be admissible for the purpose of impeachment or proving controverted issues of feasibility of precautionary measures and ownership or control. FED. R. EVID. 407. The Fifth Circuit has also held that evidence of subsequent remedial measures is admissible as "proof of subsidiary issues in the case, such as knowledge of the dangerous condition. . . ." Rozier v. Ford Motor Co., 573 F.2d 1332, 1343 (5th Cir. 1978), reh'g denied, 578 F.2d 871 (5th Cir. 1978) here, issues of feasibility of precautionary measures and ownership or control are riot controverted. Thus, these exceptions are inapplicable.
The Court finds, however, that evidence of defendant's subsequent remedial measures is admissible under the impeachment exception. At the outset, the Court notes that the case law under Rule 407's impeachment exception seems contradictory and difficult to reconcile. Compare Pitasi v. Stratton Corp., 968 F.2d 1558, 1560-61 (2d Cir. 1992) (admitting evidence to impeach defendant's witnesses and rebut defense that the dangerous conditions were so obvious and apparent that no warnings were necessary), and Muzyka v. Remington Arms Co., Inc., 774 F.2d 1309, 1313-14 (5th Cir. 1985) (holding that evidence of design change made by manufacturer a few months after accident should have been admitted at trial for impeachment purposes because of the defendant's expert's "extravagant boasts" of "safest" and "best" design), and Patrick v. South Central Bell Telephone Co., 641 F.2d 1192, 1196-97 (6th Cir. 1980) (admitting evidence to rebut defendant's assertion that its cable wires were within the statutory minimum height at the time of the accident), and Scurlock Marine, Inc. v. W.W. Patterson Co., 1997 U.S. Dist. LEXIS 14044, *6-7 (E.D. La.) (citing Polythane Systems, Inc. v. Marina Ventures Int'l, Ltd., 993 F.2d 1201, 1210 (5th Cir. 1993)) (admitting evidence to rebut defendant's claims that warnings were unnecessary), with Hardy v. Chemetron Corp., 870 F.2d 1007, 1011 (5th Cir. 1989) (quoting Public Service Co. of Indiana v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th Cir. 1985)) ("This exception must be applied with care, since `any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach [a party's] testimony that he was using due care at the time of the accident. . . . If this counted as `impeachment' the exception would swallow the rule.'"), and Bickerstaff v. South Central Bell Telephone Co., 676 F.2d 163, 168 n. 4 (5th Cir. 1982) (quoting 10 MOORE'S FEDERAL PRACTICE § 407.04 at IV-159 (2d ed. 1981)) (discussing conflicting views on the impeachment exception and noting one commentator's admonition that the "trial judge should guard against the improper admission of such evidence `to prove prior negligence under the guise of impeachment'") Nonetheless, the Fifth Circuit has held that "[u]nder these authorities" preponderant view of the impeachment exception, possibly unwise but nevertheless provided by Rule 407," courts should admit evidence of subsequent remedial measures to impeach witnesses. Bickerstaff, 676 F.2d at 168.
In this case, there is a disputed factual issue as to the condition of the tape at the time of plaintiff's accident. Plaintiff contends that the tape was worn down to the point where it provided inadequate traction. Defendant Chevron's company man, Michael Wilkerson, testified that he viewed the tape after the accident and it was in "good" condition. (Wilkerson Depo., attached to Def.'s Mot. in Limine, Ex. 4 at 76.) He said, "I think the nonskid was adequate I don't recall any major patches worn away. . . ." ( Id. at 76-77.) He also stated that he "would have noticed" if the "grit" on the tape was worn down at all, and did not notice any smooth areas on the tape. ( Id. at 77.) Further, defendant states that it "intends to introduce evidence and the testimony of several witnesses at trial which establishes that the ladder rungs were covered with nonskid tape which was in good condition." (Def.'s Mot. in Limine at 3 n. 6.) Thus, evidence of defendant's subsequent remedial measures in replacing the anti-skid tape impeaches these witnesses' credibility on the issue of the condition of the tape at the time of plaintiff's accident. The Court notes that "the jury should of course be suitably instructed as to the purposes for which the evidence may be considered." Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396 (5th Cir. 1972); see also Rimkus v. Northwest Colorado Ski Corp., 706 F.2d 1060, 1066 (10th Cir. 1983)
Based on the foregoing, the Court holds that evidence of defendant's subsequent remedial measures is admissible at trial for impeachment purposes.
III. Conclusion
The Court GRANTS both parties' motions in limine to exclude expert testimony and reports. The Court DENIES defendant's motion in limine to exclude any evidence relating to subsequent remedial measures.