Summary
In McNabb, the plaintiff was a boat captain who claimed that he was thrown into the air when he stepped on a loose shaft guard covering an engine shaft.
Summary of this case from Turturro v. United StatesOpinion
Civil Action No. 03-2904 Section "F".
April 27, 2005
Before the Court is defendant's motion to exclude the testimony and report of Dr. Gary Nelson. For the reasons that follow, the motion is GRANTED.
Background
The plaintiff asserts that he injured his shoulder while working as a captain on board defendant's vessel, the M/V GULF ANGEL. He says that he fell after stepping on a loose shaft guard covering an engine shaft. The plaintiff has repeatedly maintained that the shaft guard fell into the shaft, hitting the steel shaft and causing him to be thrown forward into the air and ultimately landing on his shoulder. The accident was unwitnessed.
The plaintiff testified that the deck plate "shot across the engine room to the middle of the engine room."
Plaintiff's expert Geoff Webster, a naval architect, did a preliminary inspection and endorsed McNabb's account of the accident. However, defendant's expert, Kenneth Smith, concluded in his report that the accident could not have happened as described by McNabb because the shaft guard was wedged against the engine and was held into place by a cradle, and the shaft was rotating in a clockwise direction which means that McNabb could not have been thrown forward. He also maintained that if the shaft guard came into contact with the shaft, which was spinning at 900 revolutions per minute, there should have been a mark on the guard. Because a photograph provided by Smith appeared to show a small mark on the guard, the Court continued the trial at plaintiff's request so that the parties could conduct additional discovery as it pertained to: "1) the issue of the missing mark on the shaft cover; and 2) the issue of whether plaintiff's accident could have physically happened and the significance of expert witness Kenneth Smith's current position." The Court also cautioned both sides about expanding the issues in the case.
Plaintiff's other expert, Dr. Shelton, a metallurgical engineer, agrees with Smith that if the guard came into contact with the shaft, there would be a mark on the guard. He also found that there did not appear to be a mark on the guard. However, Shelton found that the guard could have easily flipped over if McNabb had placed his foot on or near the edge of the guard.
The defendant now moves to exclude the evidence of Dr. Gary Nelson, billed as a human factors expert; he would testify about a theory he offers to explain why McNabb may have "misperceived" the sequence of events that occurred during the accident, and more specifically, how he may have experienced the sensation of being thrown forward.
The defendant also moves to exclude Dr. Nelson's report as to its other opinions. However, in a letter to the Court on April 12, 2005, plaintiff's counsel informed the Court that he had "no intention of eliciting testimony from Dr. Nelson relating to the duty of care owed by the defendant to plaintiff . . . [and] will not seek to have Mr. Nelson address codes, statutes or safety rules relating to the duties or obligations of a Jones Act employer/vessel owner."
Law and Application A.
The propriety of excluding expert testimony is measured under the familiar standards announced in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) and related cases. Generally, expert testimony must be both reliable as "scientific" knowledge, and it must be relevant. Fed.R.Evid. 702. Relevancy is simply a question of whether the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. Several factors inform the analysis of reliability. The Court asks: 1) Can the "science" be tested; 2) Has it been subjected to peer review and publication; 3) What is the rate of error; 4) Do controlling standards provide support; and 5) Has it been widely accepted or rejected in the relevant scientific community? Id.The Court's approach, Daubert reveals, should be "flexible," favoring admission of borderline testimony: "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."Daubert, 509 U.S. at 595. The Court should consider the methods, principles, and analysis relied upon by the expert in reaching his conclusions, Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1996), and the opinion must have a reliable basis in the "knowledge and experience" of the discipline.Daubert, 509 U.S. at 502.
The question of admitting expert testimony often does not implicate the classic Daubert analysis in which the judge must distinguish between junk science and legitimate, reliable expertise. Instead, often, as in this case, the Court is confronted with a more modest solution of whether the fact finder's informed evaluation of certain factors depend on expert assistance, or, simply implicate a common sense assessment "within the realm of the average juror's knowledge and experience." See Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990); see also Bouton v. Kim Susan, Inc., No. 96-902, 1997 WL 61450, at *3 (E.D. La. Feb. 6, 1997).
Simply put, Rule 702 confronts the Court with the threshold inquiry of whether an expert is even needed to "assist the trier of fact." Fed.R.Evid. 702. If an expert is not required — that is, if the Court finds that a "jury could adeptly assess [the] situation using only their common experience and knowledge,"Peters, 898 F.2d at 450, there is no need for a full Daubert analysis. If the Court concludes that expert testimony would be useful, then there is no choice but to consider Daubert's impact. Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 n. 6 (5th Cir. 1998) (en banc); Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1996).
B.
The plaintiff seeks to offer Dr. Nelson as an expert in what he calls "human factors engineering." Nelson would testify with regard to what he identifies as the "human startle response," which is said to be the human reaction to sudden unanticipated hazards, and how this principle would help to explain why the plaintiff may have misperceived what actually happened to him and experienced a sensation of being thrown forward by the shaft guard. "[T]rial courts must be wary lest the expert become nothing more than an advocate of policy before the jury. Stated more directly, the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument." In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233 (5th Cir. 1986). The Court believes that the matter of one's response to sudden unanticipated hazards is within the common understanding of the average juror, and, therefore, Nelson's testimony would not assist the trier of fact. Why the plaintiff may have misperceived what happened during an accident which occurred in the matter of seconds is certainly an issue to which members of the jury can relate, and can understand, without expert testimony which clearly does not offer "more than the lawyers can offer in argument." Id; See Calvit v. Procter Gamble Mfg. Co., 207 F. Supp. 2d 527 (M.D. La. 2002) (human factors expert testimony not admitted where testimony was not helpful to fact finder and issue to be determined was one which jury was able to handle without benefit of expert witness). Furthermore, the Court can not allow expert testimony that is admitted for the sole purpose of vouching for the credibility of a fact witness. United States v. Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996); Wescott v. Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995) (An expert may not usurp the exclusive function of the jury to weigh the evidence and determine credibility). It is the function of the jury to make credibility determinations.
All in an effort to counter defendant's insistence that the unwitnessed accident could not physically have happened as plaintiff describes it.
For the foregoing reasons, the defendant's motion to exclude the testimony of Dr. Gary Nelson is GRANTED.