Opinion
CIVIL ACTION NO. 03-222 SECTION "A"(4)
March 22, 2004
MINUTE ENTRY
Before the Court are a Motion in Limine (Rec. Doc. 138) filed by plaintiff Albert Earl Jorden ("Plaintiff") and Motions in Limine (Rec. Doc. 137) filed by defendants Dolphin Towing, L.L.C. and Imperial Trading Co., Inc. ("Defendants"). Both motions are opposed. The motions, set for hearing on March 10, 2004, are before the Court on the briefs without oral argument. As detailed below, Plaintiff's motion in limine is GRANTED, and Defendants' motions in limine are GRANTED IN PART AND DENIED INV PART.
A. Plaintiff's Motion in Limine
Plaintiff moves to exclude the testimony of Defendants' maritime safety expert, Norman Dufour. Plaintiff asserts that because the Court struck Plaintiff's expert after concluding that expert testimony would not assist the trier of fact, a fortiori there is no need for Defendants' maritime expert.
In opposition Defendants argue that Mr. Dufour's testimony will assist the trier of fact because unlike Plaintiff's expert, Mr. Dufour's report is not limited to legal conclusions. Defendants also point cut that the Court's scheduling order requires that all motions to challenge expert testimony were required to be heard no later than December 3, 2003. Thus, according to Defendants, Plaintiff's motion is untimely.
The Court has reviewed Mr. Dufour's expert report and concludes that most of the report's contents pertain to matters well within the understanding of lay persons. Further, several of Mr. Dufour's statements are much like the legal conclusions that prompted the Court to exclude the testimony of Plaintiff's maritime expert David Cole. Although Plaintiff's motion to strike Dufour is in fact untimely under the Court's scheduling order, it would be unfair and unduly prejudicial to require Plaintiff to prove his case without an expert while allowing Defendants to elicit opinions similar to those that the Court found objectionable in Cole's expert report. Therefore, except as discussed in Defendants' motion in limine no. 15, Plaintiff's motion to exclude the testimony of Norman Dufour is GRANTED.
The Court is also aware that Plaintiff had no reason to move to strike Defendants' expert at a time when he was opposing the exclusion of his own expert. However, Plaintiff should have raised the issue of filing an out — of — time motion to strike Defendants' expert immediately after the Court ruled in favor of Defendants on their motion to exclude Plaintiff's expert.
B. Defendants' Motions in Limine
1. Unseaworthiness
Defendants argue that Plaintiff's own deposition testimony belies the assertion that there was a causal relationship between the NowCool on the deck and Plaintiff's accident. They point out that repairing a leaking valve like the one in question is part of the chief engineer's job. Defendants move for an order precluding Plaintiff from arguing that the NowCool was an unseaworthy condition or that Defendants' failure to clean the NowCool before his accident amounted to Jones Act negligence.
In opposition, Plaintiff points out that Defendants' argument is fundamentally identical to the arguments presented in their previously denied motion for summary judgment. Plaintiff also submits that his deposition was taken almost a year and a half after the accident but the statement he gave to Defendants' — investigator "suggests" that the NowCool might have played a role in the accident.
In reply, Defendants assert that they received leave of Court to raise the unseaworthiness issue via a motion in limine following oral argument on Defendants' motion for summary judgment. As for Plaintiff's statement, Defendants point out that it should be disregarded for purposes of the instant motion because Plaintiff submitted no attestation to indicate that it was his own statement. If the Court does consider the statement, Defendants urge the Court to note that Plaintiff only states that the NowCool "could have contributed" to his accident. According to Defendants, Plaintiff should not be allowed to rely upon this tenuous statement to sidestep his own sworn testimony.
DENIED. Although the Court agrees that Plaintiff's deposition testimony virtually forecloses a finding of causation with respect to the NowCool, Defendants will have wide latitude to cross examine Plaintiff on this issue and can impeach Plaintiff with his deposition testimony if necessary.
2. Failure to Provide a Tender
Defendants move to exclude all evidence and argument that Defendants failed to provide Plaintiff with a tender no hold/balance the ladder. Defendants assert that Plaintiff's own testimony establishes that he did not believe that he required the assistance of a tender and that he could have secured the assistance of either Carlos Zapata or Dan Davis. Finally, Defendants assert that there is no proof that the absence of a tender was causally related to the accident because Plaintiff has never contended that the ladder tipped or wobbled. Rather, he simply lost his balance and therefore a tender would have made no difference.
In opposition, Plaintiff argues that the question of the adequacy of the crew is not one that should be decided on summary judgment. Although Plaintiff concedes in his depositions that he could, have "grabbed Zapata by the ear and dragged him out to the ladder to help if necessary," Plaintiff really had no authority over Zapata or Davis to make them do anything.
In reply, Defendants re-urged that the lack of a tender had nothing to do with this accident and that Plaintiff's deposition indicates that he could have secured assistance from either Zapata or Davis if he had really tried.
DENIED. Defendants can argue this point to the jury.
3. Scaffolding
Defendants move to exclude any testimony by Plaintiff that Defendants should have had scaffolding available so that he could safely perform overhead work. Defendants assert that this type of argument is opinion testimony that can only be supported by. expert testimony. Defendants point out, however, that Plaintiff's own expert, who the Court has already excluded, had opined that scaffolding was not necessary. According to Defendants, Plaintiff should not be able to circumvent his own expert, and furthermore, if Plaintiff is allowed to talk about scaffolding then Defendants should be allowed to impeach his testimony with his own expert's report.
In opposition, Plaintiffs assert that Defendants are merely trying to have their cake and eat it too: They wanted Plaintiff's expert excluded, which they got, but now they want to rely on his opinion to impeach the Plaintiff. Plaintiff asserts, however, that he always disagreed with his expert's opinion on this point.
DENIED. However, if Plaintiff raises the scaffolding issue, the Court will allow Defendants to ask Plaintiff about the contrary opinion of his own expert. If necessary, Defendants would be allowed to call Cole to testify for the limited purpose of rebutting Plaintiff's own testimony on this point.
4. Photographs of Plaintiff's Foot
Defendants seek to exclude the photographs taken after the accident of Plaintiff's foot. Plaintiff had previously had half of his foot amputated from problems that had nothing to do with this case — thus his foot already looked bad. Defendants argue that it would be prejudicial for the jury to see the foot because there are no existing pictures of what the foot looked like before this accident. They will just be seeing the pictures of a deformed foot — a foot that was deformed before the accident.
In opposition, Plaintiff argues that he has undergone four operations as a result of his accident. He should be allowed to show the jury the photographs and Defendants are free to raise the issue of the prior injury with the jury.
DENIED WITHOUT PREJUDICE. The Court cannot rule on any potential undue prejudice from. the photographs without having seen the photographs firsthand.
5. Mexican Safety Audit
This motion in limine, as well as the next two, pertain to issues that Captain Kim Allemand allegedly volunteered during his deposition. Defendants advise the Court that Allemand was fired after Plaintiff's accident and that Allemand's wife has her own Jones Act and maritime law suit pending against Defendants (apparently she was an employee too).
Defendants are moving to exclude from Allemand's testimony the list of vessel repairs he created while the vessel was in Mexico. Defendants assert that the items do not pertain to anything involved in Plaintiff's accident, are wholly irrelevant, and would be greatly prejudicial.
In opposition, Plaintiff argues that this evidence pertains to his overall theory of the case that Defendants had a lackadaisical approach to safety.
GRANTED. This information is not relevant to Plaintiff's claim.
6. Application of SOLAS/ISM Regulations
Allemand also testified that the DUMAR III was not SOLAS approved and that there was no ISM training manual aboard. Defendants contend that SOLAS has voluntary standards for vessels to meet and that a SOLAS certification has nothing to do with Plaintiff's accident. Defendants assert that Allemand's testimony on this point would be not only irrelevant but prejudicial.
In opposition, Plaintiff argues that this evidence pertains to his overall theory of the case that Defendants had a lackadaisical approach to safety.
GRANTED. This information is not relevant to Plaintiff's claim.
7. Vessel Certification
Allemand also testified that in his opinion the crew of the DUMAR III was "illegal" and not properly certified. Defendants move to exclude this line of testimony because Allemand is not an expert in this area and because Allemand has no personal knowledge of the certification. Defendants point out that Plaintiff's own expert (excluded) opined that the crew was properly certified.
In opposition, Plaintiff argues that this evidence pertains to his overall theory of the case that Defendants had a lackadaisical approach to safety.
GRANTED. This information is not relevant to Plaintiff's claim.
8. Prior Thumb Injury
Plaintiff suffered a prior injury to his thumb while employed by Dolphin. Defendants want all evidence of this prior injury excluded.
Plaintiffs do not oppose this aspect of Defendants' motion.
GRANTED as unopposed.
9. Possible Amputation of Plaintiff's Foot
Defendants assert that Plaintiff's counsel has made repeated references to the possibility of Plaintiff having to undergo amputation of his foot. Defendants point out, however, that Plaintiff's own physician, Dr. Salloum, has never indicated that amputation is a possibility. Therefore, according to Defendants, it would be unfair for Plaintiff to make such an inference to the jury, especially after the passage of all pretrial deadlines.
In opposition, Plaintiff asserts that amputation remains a possibility and that Plaintiff's physician is due to be deposed again on March 30, 2004. Thus, Defendants can explore the issue with Dr. Salloum at that time.
GRANTED unless Plaintiff's physician confirms the possibility of amputation. Unless Dr. Salloum opines that amputation is a possibility, Plaintiff will not be allowed to tell the jury that he faces possible amputation.
10. Dan's Davis's Post — Accident Termination
Defendants assert that Dan Davis witnessed Plaintiff's accident and was available to assist had Plaintiff sought assistance. Dan Davis gave a perpetuation deposition and it was revealed that after Plaintiff's accident Davis was arrested for possession of marijuana. Defendants did terminate Davis's employment but only after allowing him to continue a three week hitch in Mexico. Defendants seek to exclude any mention of Davis's arrest because there is no evidence that his marijuana use had anything to do with the accident and no felony conviction resulted from the arrest.
In opposition, Plaintiff argues that in light of the fact that Defendants are placing great weight on Davis's testimony, Plaintiff should be able to explore his credibility. Also, Defendants' willingness to allow an admitted drug user to continue to work is more evidence of their lackadaisical approach to safety.
GRANTED to the extent that Plaintiff is attempting to use the drug issue, absent a conviction, to undermine Davis's credibility. See Fed.R.Evid. 609(a); United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998); United States v. Samples, 897 F.2d 193, 196-97 (5th Cir. 1990) (recognizing that evidence of a drug habit and drug arrests not admissible to attack credibility). Unless Plaintiff can demonstrate to the Court that the drug issue is admissible for some other purpose, i.e., to show bias on the part of the witness, the motion is GRANTED.
11. Liability Insurance
Defendants move to exclude any evidence that they are covered by liability insurance. They argue that evidence of insurance would be prejudicial and might cause the jury to artificially inflate any award.
In opposition, Plaintiff asserts that he only plans to inform the jury that Defendants were insured at the time of the accident and that some of the investigation, i.e., taking of Plaintiff's post — accident statement, was done by Defendants' adjuster.
In reply, Defendants assert that the adjuster can be cross — examined to establish that he took the statement for the defense interests in the case without emphasizing that he works for the insurer.
GRANTED. Federal Rule of Evidence 411 states:
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Fed.R.Evid. 411 (emphasis added). Plaintiff gives no acceptable reason for informing the jury that Defendants were insured at the time of the accident. Naturally, the jury will have to know who the adjuster is when he testifies and therefore the jury will surely surmise that Defendants had insurance. However, Plaintiff shall not directly mention the issue of insurance in the presence of the jury.
12. Andrew Martin
Andrew Martin was a co. — defendant in the Edwin Edwards trial and was later convicted. He is also a former sales representative for Dolphin but his association with Defendants was terminated over a year before Plaintiff had his accident. Andrew Martin had no involvement with Plaintiff's accident. Defendants assert that Plaintiff's counsel has sought at every turn to inject Martin's name into these proceedings. Defendants therefore move for an order excluding any reference to Andrew Martin because he is irrelevant to the case and the mention of his name would be overly prejudicial.
In opposition, Plaintiff asserts that Martin was likely more than just a salesman at Dolphin. Captain Allemand in fact asserts that Martin was the overall manager. Therefore, the jury is entitled to know that Defendants employed a criminal in their company.
GRANTED. Mr. Martin's prior or alleged current association with Defendants has no relevance to any issue in this lawsuit.
13. Other Personal Injury Claims
Defendants seek to exclude any evidence of other personal injury claims against them. Defendants assert that other claims are irrelevant.
In opposition, Plaintiff asserts that he was denied discovery on this issue and therefore has no information about other personal injury claims.
GRANTED. Evidence of other personal injury claims has no relevance to any issue in this lawsuit.
14. Back Injury
Plaintiff alleged a back injury in his complaint but to date has offered no medical evidence to support such a claim. Defendants assert that without medical evidence Plaintiff cannot prove or recover for a back injury. Therefore, Defendants move for an order excluding any testimony from Plaintiff about a back injury.
In opposition, Plaintiff asserts that he testified in his deposition that he did in fact injure his back.
DENIED. Plaintiff can tell the jury that he claims a back injury from the accident and Defendants are free to point out to the jury that Plaintiff has no medical evidence of any such injury.
15. Pre-Job Safety Analysis
Plaintiff contends that a job safety analysis ("JSA") should have been done prior to his accident. Allemand opined during his deposition that Dolphin should have had a job safety analysis program in place at the time of Plaintiff's accident. However, Allemand admits that as chief engineer Plaintiff would have been the one conducting the JSA. Defendants move for an order excluding any testimony about a JSA. They contend that expert testimony is required for this type of testimony and that Allemand is not a marine expert. Further, Allemand admitted that he knew nothing about the particulars of Plaintiff's accident.
In opposition, Plaintiff asserts that Captain Allemand is more than qualified to opine on safety issues aboard the DUMAR III. Likewise, Dan Davis should be allowed to tell the jury that when he was required to work above deck that the captain always required him to review a job safety sheet. Plaintiff asserts that had a JSA been performed prior to his accident perhaps he would not have been injured.
In reply, Defendants assert that Plaintiff was a seasoned chief engineer and therefore it would have been his responsibility to perform his own JSA. In contract, Dan Davis was a deckhand. Defendants remind the Court that Allemand is an angry and bitter fellow who should not be permitted to give opinion testimony.
DENIED. The Court will allow Plaintiff to raise this issue with the jury. Because expert testimony is likely needed for this issue, the Court will permit Plaintiff to call David Cole solely no opine on this issue and only to the extent that he has already done so in his prior expert report and deposition testimony. Likewise, so that the jury will not be mislead, Defendants can call Mr. Dufour in order to rebut Plaintiff's expert on this issue.
Accordingly;
IT IS ORDERED that the Motion in Limine (Rec. Doc. 138) filed by plaintiff Albert Earl Jorden should be and is hereby GRANTED;
IT IS FURTHER ORDERED that the Motions in Limine (Rec. Doc. 137) filed by defendants Dolphin Towing, L.L.C. and Imperial Trading Co., Inc. should be and are hereby GRANTED IN PART AND DENIED IN PART, as detailed above.