Opinion
CIVIL ACTION CASE NO. 19-10927
2022-04-01
MARQUETTE TRANSPORTATION CO. GULF-INLAND LLC v. NAVIGATION MARITIME BULGAREA et al.
Evans Martin McLeod, Phelps Dunbar, LLP, New Orleans, LA, Justin Cole Warner, Canal Place, New Orleans, LA, Adam N. Davis, Adam Davis Law Firm, Abita Springs, LA, for Marquette Transportation Co. Gulf-Inland LLC. Robert Hugh Murphy, Peter Brooks Sloss, Timothy David DePaula, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Balkan Navigation Ltd., Navigation Maritime Bulgare JSC.
Evans Martin McLeod, Phelps Dunbar, LLP, New Orleans, LA, Justin Cole Warner, Canal Place, New Orleans, LA, Adam N. Davis, Adam Davis Law Firm, Abita Springs, LA, for Marquette Transportation Co. Gulf-Inland LLC.
Robert Hugh Murphy, Peter Brooks Sloss, Timothy David DePaula, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Balkan Navigation Ltd., Navigation Maritime Bulgare JSC.
SECTION: "G" (2)
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, CHIEF JUDGE
Before the Court is Defendants Balkan Navigation Ltd. and Navigation Maritime Bulgare JSC (collectively, "Defendants") "Motion in Limine to Exclude Marquette's Computer Reconstruction of the Allision/Collision." In the motion, Defendants request that the Court prohibit Plaintiff Marquette Transportation Co. Gulf-Inland, LLC's ("Marquette") from displaying a computer reconstruction of the accident at issue in this litigation. Marquette opposes the motion, arguing that the reconstruction is accurate and would be helpful to assist the jury. Having considered the motion, the memoranda in support and opposition, and the applicable law, the Court grants the motion in part and denies the motion in part.
Rec. Doc. 183.
Rec. Doc. 183-1 at 1.
Rec. Doc. 195.
I. Background
According to the Complaint, on January 3, 2019, Marquette's vessel, the Kieffer Bailey (the "Bailey "), was proceeding down the middle of the Mississippi River near Chalmette, Louisiana when Defendants Navigation Maritime Bulgare JSC and Balkan Navigation, Ltd.’s (collectively, "Defendants") vessel, the Strandja , allegedly steered directly into the Bailey ’s navigational path. Marquette alleges that Defendants’ vessel struck and damaged Marquette's vessel.
Rec. Doc. 1 at 1–2.
Id. at 3.
On June 6, 2019, Marquette filed a Complaint in this Court against Defendants. On June 21, 2019, Defendant Balkan Navigation Ltd. answered the Complaint and filed a counterclaim against both Marquette and the Bailey to recover damages incurred by the Strandja. On September 11, 2019, Marquette filed a third-party complaint against Johnson, the compulsory pilot aboard the Strandja.
Id. at 1.
Rec. Doc. 6.
Rec. Doc. 17 at 6.
On March 2, 2022, Defendants filed the instant motion in limine. On March 15, 2022, Marquette filed its opposition. On March 24, 2022, with leave of Court, Defendants filed a reply.
Rec. Doc. 183.
Rec. Doc. 193.
Rec. Docs. 200, 203, 204.
II. Parties’ Arguments
A. Defendants’ Arguments in Support of the Motion in Limine
In the motion, Defendants argue that Marquette's reconstruction of the accident should be excluded for four reasons. First, Defendants assert that the reconstruction is inadmissible under Federal Rule of Evidence 901 because it is not authenticated. Defendants aver that Marquette "does not ... identify who prepared the reconstruction or provide ‘testimony of a witness with knowledge ... that [the] item is what it is claimed to be’ " nor "provide any ‘evidence describing a process or system and showing that it produces an accurate result.’ " Second, Defendants assert that the reconstruction should be excluded under Rule 403 because it is inaccurate and misleading. Defendants contend that the reconstruction contains captions purporting to describe what is occurring. Defendants assert these captions are "self-serving" because they are from Marquette's perspective.
Rec. Doc. 183-1 at 2.
Id. (first quoting Fed. R. Evid. 901(b)(1) and then quoting Fed. R. Evid. 901(b)(9) ).
Id. at 3.
Id.
Id.
Third, Defendants contend that Marquette failed to timely disclose this reconstruction. According to Defendants, the Scheduling Order provided that exhibit lists were due on June 25, 2021, and that discovery closed on July 13, 2021. Defendants assert that this reconstruction was not disclosed on Marquette's exhibit list, nor was it disclosed before the end of discovery. Finally, Defendants argue that the reconstruction "cannot be admitted without expert testimony explaining why it accurately depicts what it purports to depict." Defendants assert that Marquette did not produce an expert report on the reconstruction and, therefore, "it is too late ... to introduce this computer animation."
Id.
Id. (citing Rec. Doc. 61).
Id. at 3–4 (citing Bullock v. Daimler Trucks N. Am., LLC , 819 F. Supp. 2d 1172, 1176–77 (D. Colo. 2011) ).
Id. at 4.
Id.
B. Marquette's Arguments in Opposition to the Motion in Limine
In opposition, Marquette argues that the reconstruction is accurate and authenticated. Marquette provides declarations from its three navigational experts asserting that they "used the technical capabilities of Independent Maritime Consultants to generate a computer generated animated ‘Data Plot and accident replay’ to show the incident." Marquette explains that the experts will use the reconstruction "to help communicate their opinions to the jury at trial." Marquette states that "[c]ertain captions and measurements were layered on the playback to signify certain events leading up to the collision." Marquette contends that these captions "fairly and accurately provide the viewer with helpful information relating to the incident." Marquette contends its experts can testify to the accuracy of the reconstruction because "they independently verified that the [reconstruction] accurately reflects the data." Alternatively, Marquette also notes that it identified Steve Cunningham of Independent Maritime Consultants in the Pretrial Order who can authenticate the reconstruction in the event the Court finds Marquette's experts cannot authenticate it.
Rec. Doc. 193 at 2.
Id. at 3.
Id.
Id.
Id.
Id. at 4.
Id. See also id. at n.5.
Marquette also argues that Defendants will not be prejudiced by use of the reconstruction. Marquette asserts that it notified Defendants of the reconstruction on August 19, 2021. Marquette avers that it turned over the reconstruction to Defendants on September 15, 2021. Given that Defendants have had the reconstruction for approximately six months, Marquette contends that they cannot show any prejudice from its use.
Id. at 2, 4–5.
Id. at 4.
Id. at 4–5.
Id. at 5.
Finally, Marquette asserts that the reconstruction will be helpful to the jury. Marquette explains that the "abundant" navigational data "may be difficult for a non-mariner" to understand. Marquette contends that the reconstruction "puts in context" and helps "make sense" of this data. Marquette also argues that the captions on the video "signify[ ] pertinent events during the course of the minutes leading up to the collision."
Id. at 8.
Id.
Id.
Id. at 11.
Alternatively, if the Court finds that the reconstruction is inadmissible, Marquette asserts that "there is nothing precluding" its use "as a demonstrative aid at trial."
Id. at 13.
C. Defendants’ Arguments in Further Support of the Motion in Limine
In reply, Defendants assert that Marquette did not explain its failure to comply with the Scheduling Order's deadlines for exhibit lists and discovery. Defendants dispute that they are not prejudiced by the reconstruction's use. Defendants assert that Marquette's experts do not mention the reconstruction in their reports, nor did Marquette move to extend the Scheduling Order deadlines or supplement its exhibit lists. Defendants notes that, if they wanted to investigate and respond to this evidence, they themselves would have had to move to extend the deadlines. Defendants argue that offering this evidence after the close of discovery amounts to "trial by ambush."
Rec. Doc. 204 at 1.
Id. at 2.
Id.
Id.
Id.
Defendants re-iterate that Marquette has not laid an adequate foundation or authenticated the reconstruction. Defendants insist that Marquette must produce "expert testimony explaining why [the reconstruction] accurately depicts what it purports to depict." Defendants contend that the expert declarations are insufficient to authenticate the reconstruction for three reasons. First, the experts are navigational experts, not computer reconstruction experts. Second, Defendants assert that none of the experts’ reports discuss the reconstruction or explain the basis for why it is an ostensibly accurate representation. Third, Defendants argue that the experts’ declarations are all identical and all are silent on how the expert "verif[ied] the accuracy of the simulation video."
Id. at 3.
Id. (citing Bullock , 819 F. supp. 2d at 1176–77 (D. Colo. 2011) ).
Id.
Id. at 4.
Id.
Finally, Defendants argue that, "if for no other reason," the reconstruction should be excluded because the captions are unduly prejudicial. Defendants assert that Marquette's captions "are self-serving and misleading." Defendants aver that "the captions include selective quotes from a selective snapshot of the VDR data, and cherry-picked selections of Pilot Johnson's comments taken out of context." According to Defendants, these snapshots are "self-serving" in that they "add[ ] a false sense of clarity to Marquette's chosen audio snippets that those involved in the incident in real time did not have." Defendants contend that other captions were "added at the direction of Marquette's counsel and reflect Marquette's interpretation of the evidence." Thus, Defendants ask the Court to exclude the reconstruction.
Id. at 6.
Id.
Id.
Id.
Id.
III. Law & Analysis
Defendants move the Court to exclude Marquette's computer reconstruction of the accident, arguing that it is unauthenticated, unduly prejudicial, and not timely disclosed. Marquette opposes, arguing that the reconstruction is authentic, not unduly prejudicial, and that Defendants will suffer no prejudice from its use.
Rec. Doc. 183.
Rec. Doc. 193.
As an initial matter, the Court addresses the timely disclosure issue. In evaluating whether a party's failure to timely disclose evidence is harmless, courts look to four factors: (1) the explanation for the party's failure to disclose; (2) the potential prejudice to the opposing party if the evidence is allowed; (3) the availability of a continuance to cure such prejudice; and (4) the importance of the evidence. Here, Marquette offers no explanation for its failure to list the reconstruction on its exhibit list. However, Marquette does assert that it informed Defendants that it would use the reconstruction when the parties were preparing the pre-trial order in August of 2021, when Marquette listed Steve Cunningham as a witness. Given that this trial has been continued twice due to the COVID-19 pandemic, Defendants have known about this reconstruction video for over six months. Therefore, the prejudice to Defendants is minimal compared to the amount of time they have had to prepare. A continuance is not available considering both the minimal prejudice and the length of time this case has been pending. However, the evidence is mildly important because it will assist the jury in understanding complex navigational data beyond the ken of most lay persons. On balance, the Court finds that admitting this evidence will be harmless to Defendants, subject to the following provisos.
Red Dot Bldgs. v. Jacobs Technology, Inc. , 2012 WL 2061904 (E.D. La. 2012) (citing CQ, Inc. v. TXU Mining Co., L.P. , 565 F.3d 268, 280 (5th Cir. 2009) ).
Rec. Doc. 193 at 4.
See Rec. Doc. 118,
First, the parties dispute whether the evidence is sufficiently authenticated. To authenticate "an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." The Fifth Circuit "does not require conclusive proof of authenticity before allowing the admission of disputed evidence." Instead, Rule 901(a) merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be." Rule 901(b)(1) provides that "[t]estimony that an item is what it is claimed to be" satisfies the authenticity requirement. Marquette asserts that its experts can provide this testimony, or, alternatively, it will call Steve Cunningham who prepared the reconstruction on behalf of Independent Maritime Consultants.
Daneshjou v. JPMorgan Chase Bank, N.A. , 799 F. App'x 296, 298 (5th Cir. 2020) (internal citations omitted).
Id.
The Court finds that Marquette's experts do not have the requisite knowledge to testify that the item is what it is claimed to be. Marquette will tender each expert as a navigational expert. Computer reconstruction is well beyond their field of expertise. Therefore, in order to authenticate this evidence, Marquette must call the individual who prepared it.
Defendants argue that an expert report is required to authenticate the reconstruction. Defendants principally rely on a case from the United States District Court for the District of Colorado. The Court finds this case easily distinguishable. In Bullock v. Daimler Trucks North America, LLC , the district court excluded a computer reconstruction because the proponent party did not provide sufficient information about the data sources that underlie the computer reconstruction. Not so, here. Marquette avers that the reconstruction is "based on the available navigational data in this case including the STRANDJA's Voyage Data Recorder (VDR), KIEFFER E BAILEY's Rose Point data[,] and AIS data." Additionally, the Court can find no case in the Fifth Circuit requiring an expert report to admit this reconstruction. Nor does Rule 901 seem to require such an expert report. Rule 901(b)(9) provides that evidence may be authenticated by testimony "describing a process or system and showing that it produces an accurate result." Mr. Cunningham will testify about the process used to translate the navigational data into a 3D-model. Defendants will have an opportunity to challenge this testimony with vigorous cross-examination. Finally, Defendants argue that the evidence is unduly prejudicial because it contains self-serving captions from Marquette. The Court agrees that the captions are unduly prejudicial and add unnecessary commentary. For example, at approximately 9:14, the caption reads that "STRANDJA exits General Anchorage without requesting permission from the KIEFFER E BAILER or vessel traffic." At 10:35, the caption indicates that the "KIEFFER E BAILEY continuously sounds whistle and STRANDJA still does not respond." These captions add needless commentary that the jury can determine for itself from the audio. Additionally, at approximately 10:44, the caption reads "STRANDJA's Master says ‘Uh, Mr. Pilot’ " and "Pilot Johnson says, ‘It's fine. It's fine.’ " However, from the Court's review, these statements are not readily discernable from the audio. Yet again, the jurors must decide for themselves what they hear on the audio. The captions are unduly prejudicial and self-serving. Marquette must remove the captions in order to use this reconstruction. Accordingly, the Court grants Defendants’ motion in part and denies the motion in part.
Rec. Doc. 183-1 at 3–4; Rec. Doc. 204 at 3.
Rec. Doc. 183-1 at 4.
Rec. Doc. 193 at 3.
Rec. Doc. 193-1.
Id.
Id.
IV. Conclusion
For the reasons set forth above, Marquette may introduce the computer reconstruction as an exhibit, subject to proper authentication at trial. However, Marquette must remove the captions from the reconstruction because they are unduly prejudicial. Accordingly,
IT IS HEREBY ORDERED that Defendants Balkan Navigation Ltd. and Navigation Maritime Bulgare JSC's "Motion in Limine to Exclude Marquette's Computer Reconstruction of the Allision/Collision" is GRANTED IN PART and DENIED IN PART . The motion is granted to the extent it seeks to exclude the captions on the reconstruction. It is denied in all other respects.
Rec. Doc. 183.