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stating that such questions regarding the facts and assumptions considered by an expert are "proper topics for cross examination and go to the weight that the court will afford [the expert's] opinion."
Summary of this case from In re M&M Wireline & Offshore Servs., LLCOpinion
CIVIL ACTION NO. 03-1195, SECTION "R" (3)
March 18, 2004
ORDER AND REASONS
Before the Court is the motion in limine of defendant Florida Marine Transporters, Inc. to exclude the expert testimony of Robert Borison. Defendant also moves for an extension of the deadline for exchanging expert reports to five days after a ruling on this motion in limine. For the following reasons, the Court grants in part and denies in part defendant's motion to exclude Borison's testimony and grants defendant's motion to extend the expert report deadline.
The Court notes that the motion was filed on behalf of FMT Industries, LLC also. As FMT Industries is not currently a defendant in this case, the Court considers the motion filed on behalf of Florida Marine only.
I. BACKGROUND
This case arises out of plaintiff's fall off of a milk crate on the M/V JOHN ROBERTS on or about June 19, 2002. At the time, defendant Florida Marine operated the JOHN ROBERTS and employed Roy as a deckhand aboard the vessel. Roy stood on the milk crate to sand an area overhead. While sanding, Roy fell backwards off of the milk crate and over the railing around the deck on which he was working onto the deck below. Plaintiff contends that he fell because the milk crate slipped out from under him. Plaintiff hired Robert Borison, who prepared a report that "presents findings on factors that could have directly caused or contributed to the injuries sustained." In his report, Borison opines that Roy's accident was caused by the failure by Florida Marine to provide Roy with a safe place to work. Borison concludes that Florida Marine failed to provide Roy with "an adequate means of protecting him from falling from heights." He also concludes that the vessel's captain or engineer should not have allowed Roy to stand on the milk crate. Finally, Borison asserts that the vessel's captain should not have allowed Roy to perform the sanding task on a deck that had recently been painted or primed. Florida Marine now moves to exclude Borison's testimony as unhelpful and unreliable.
Pla.'s Opp. to Mot. in Limine, Ex. E, Report of Robert Borison at p. 2.
Id. at p. 4.
Id.
Id.
Id.
II. DISCUSSION
The Federal Rules of Evidence govern defendant's motion to exclude the report and testimony of plaintiffs' expert, Robert Borison. See Mathis v. Exxon Corporation, 302 F.3d 448, 459 (5th Cir. 2002). Rule 702 provides:
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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED. R. EVID. 702. This rule applies not only to testimony based on scientific knowledge, but also to testimony of engineers and other experts that is based on technical or specialized knowledge. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). The rule requires the trial court to act as a "gatekeeper," ensuring that any scientific or technical expert testimony is not only relevant, but also reliable. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
There is no jury demand in this case, and therefore the Court is the trier of fact. Defendant argues that Borison's testimony will not assist the trier of fact because his conclusions relate to issues within the common knowledge and competency of this Court. Defendant also contends that because Borison's opinion only identifies factors that could have caused or contributed to plaintiff's fall, it fails to make any fact more or less probable and should be excluded under Federal Rules of Evidence 401 and 702. Further, defendant asserts that Borison's conclusions are not relevant because they rely on assumptions that are contrary to plaintiff's testimony and on regulations that are not relevant to the facts at issue. Finally, defendant argues that the Court should exclude Borison's testimony because Borison's methodology does not bear the necessary indicia of reliability.
Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401.
A. Helpfulness
The Fifth Circuit has expressly recognized that expert testimony should be excluded if the court finds that "the jury could adeptly assess [the] 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, as the trier of fact, 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 WL 61450, *2-3 (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 99426, *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).
This Court has previously applied this rationale to exclude "expert" testimony from the same expert as in this case. See Thomas v. Global Explorer, LLC, 2003 WL 943645 (E.D.La.). In Thomas, the Court concluded that Borison's opinion consisted of conclusions and one-sided recitations of what the plaintiff admitted were disputed factual issues. See Id. at *2. The Court also found that Borison's opinion required no expertise and the opinion would not assist the jury. See Id.
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 the testimony of both experts 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, *l (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.
In this case, Borison's opinion begins with a description of the documents he reviewed in preparation for his report, which included plaintiff's deposition testimony, the Certificate of Documentation and Master Logs of the JOHN ROBERTS, Florida Marine's accident report and operations and deckhand manuals, and the charter agreement. Borison also summarizes the circumstances surrounding the accident. Borison cites an Occupational Safety and Health Administration ("OSHA") standard, 29 C.F.R. § 1910.23 (c)(1), and an excerpt from Florida Marine's operational manual and then summarily states his conclusions. Borison states three conclusions: (1) Florida Marine violated applicable OSHA regulations and well accepted industry safety standards when it failed to provide Roy with an adequate means of protecting him from falling from heights, and thus Florida Marine failed to provide Roy with a safe place to work; (2) the vessel captain or engineer should not have allowed Roy to stand on the milk crate and (3) the captain violated Florida Marine's operations manual and well accepted industry safety standards when he allowed Roy to perform the sanding task on a deck that had recently been painted or primed.
Pla.'s Opp. to Mot. in Limine, Ex. E, Report of Robert Borison, at p. 2.
The Court finds that some of the proffered testimony of Borison would intrude upon the domain of common sense matters upon which the Court requires no expert assistance. Borison concludes that the captain violated Florida Marine's operations manual and "well accepted industry safety standards when he allowed his crew to work from heights on make-shift platforms (milk crates) while on a deck with non-skid properties." Borison reaches this conclusion about the deck surface in spite of Roy's deposition testimony that the primed surface on which he was working was not slippery. More importantly, the Court finds that Borison's conclusion related to the slippery nature of the surface required no expertise of any kind, and the conclusion will not assist the Court to resolve any issue in this case. See Jones v. H.W.C. Ltd., 2003 WL 42146, * (E.D. La.). Plaintiff contends that Borison's report indicates that OSHA Regulations Part 1910, Subpart D — Walking-Working Surfaces is an applicable standard in light of the absence of non-skid material on the deck on which Roy worked, and the applicability of such a standard is not within the realm of common knowledge. The Court notes, however, that Borison's report concludes that Florida Marine violated OSHA standards only in the context of protecting Roy from falling from heights. Borison cites only 29 C.F.R. § 1910.23(c)(1), a specific regulation from Part 1910, Subpart D-Walking-Working Surfaces, which requires guardrails around certain raised platforms and open-sided floors. Borison's report never refers to a specific OSHA regulation in the context of the absence of a non-skid material. Thus, plaintiff's argument that Borison's conclusion regarding the surface on which Roy worked requires expertise fails. Based on the above, the Court finds that Borison's conclusions related to the absence of non-skid material on the deck surface will not assist the Court as trier of fact, and the Court therefore excludes such testimony.
Pla.'s Opp. to Def.'s Mot. in Limine, Ex. E, Report of Robert Borison, at p. 4.
Def.'s Mot. in Limine, Ex 2, Roy's Deposition Testimony, at p. 111.
Borison also concludes that Florida Marine violated both applicable OSHA regulations and accepted industry safety standards when it allowed Roy to work from heights on a makeshift platform (i.e., the milk crate) without adequate fall protection. Florida Marine contends that Borison fails to establish the applicability of the OSHA regulation that he cites. Borison cites 29 C.F.R. § 1910.23(c)(1), which states:
Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,
(i) Persons can pass,
(ii) There is moving machinery, or
(iii)There is equipment with which falling materials could create a hazard.
Borison asserts that because the second deck, the deck on which Roy was working, was more than four feet above the adjacent deck, some form of guardrail, railing or other fall restraint was required. Florida Marine does not dispute that the second deck was more than four feet above the deck below. Roy testified in his deposition, however, that there was a railing on the second deck in the area where he was working. Pictures of the vessel attached to plaintiff's opposition further confirm the presence of a railing around the second deck. Borison does not address the existing railing around the second deck. Section 1910.13(e)(1) specifies the requirements for the railing, including the height from the floor or platform level. Borison does not identify any way in which the railing is insufficient or fails to meet this regulation. Although Borison states that Florida Marine could have installed temporary safety netting or issued Roy a full body harness, Borison fails to indicate which OSHA regulations would require such measures. Thus, although the OSHA regulation cited by Borison may be applicable to the second deck in this case, Borison fails to identify how Florida Marine violated the regulation in light of the railing around the deck. Borison's report instead focuses on the fact that Roy stood on a milk crate while sanding. Plaintiff states that the milk crate was approximately one and a half feet high. As such, the milk crate itself does not qualify as a platform that requires a railing under Section 1910.23(c)(1). Accordingly, Borison's opinion fails to identify a violation of the OSHA regulation with respect to the second deck as an open platform, and the regulation does not apply to the milk crate as a platform. Without identification of a violation of an applicable OSHA regulation, any testimony about the OSHA regulations will not be helpful to the Court, and the Court therefore excludes such testimony.
Id. at p. 112.
Pla.'s Opp. to Def.'s Mot. in Limine, Exs. D and H, Photographs.
The Court notes that defendant contends that the crate is only 11 inches high, but the Court accepts plaintiff's higher figure for purposes of discussion.
Borison also states that Florida Marine violated well accepted industry safety standards when it allowed Roy to stand on a milk crate to work. The Court finds that testimony on industry safety standards that govern work from elevated platforms may assist the Court in this matter. The Court therefore denies defendant's motion to the extent that it seeks to exclude testimony on industry safety standards, other than OSHA standards, on "helpfulness" grounds.
B. Reliability
Defendant contends that Borison's testimony is inadmissible because it is unreliable. As the Fifth Circuit has noted, a Rule 702 inquiry into the reliability of expert testimony is a flexible and necessarily fact-specific inquiry. See Seatrax, Inc. v. Sonbeck Intl., Inc., 200 F.3d 358, 372 (5th Cir. 2000). The Fifth Circuit has added that "`[a]s a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility.'" United States v. 14.38 Acres of Land, More or Less Sit. in Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)).
The Court has determined that Borison's testimony on industry safety standards concerning work on elevated platforms could be helpful in this case. Borison applied his expertise in safety to the specific facts of Roy's accident. Defendant does not dispute Borison's qualification as a safety expert. Defendant's argument instead focuses the applicability of the facts and assumptions that underlie Borison's opinion. As the Fifth Circuit noted in 14.38 Acres of Land, the questions raised by defendant are proper topics for cross-examination and go to the weight that the Court will afford Borison's opinion. Borison relies on his own training and experience in the field of marine safety to opine about industry standards applicable to the facts specific to this case. The Court will consider his testimony on the sole issue on which the Court has found that he could be helpful and give it what weight it thinks it deserves.
C. Causation Testimony
Defendant also seeks to exclude Borison's causation testimony because Borison's opinion only identifies factors that could have caused or contributed to plaintiff's fall, and thus it fails to make any fact more or less probable. The Court notes, however, that Borison affirmatively concludes that "Mr. Kenneth Roy's accident was caused by Florida Marine, Inc. failing to provide him with a safe place to work." Defendant may explore any equivocation earlier in the report on cross-examination. The Court therefore denies defendant's motion to exclude Borison's testimony on this basis.
Pla.'s Opp. to Def.'s Mot. in Limine, Ex. E, Report of Robert Borison, at p. 4. (emphasis added).
D. Deadline Extension
Defendant moves for an additional five days to submit an expert report if the Court denies its motion to exclude Borison's testimony. Because the Court denies defendant's motion in part, the Court grants defendant additional time to submit an expert report in this matter. The Court extends defendant's expert report deadline to five days after the date of this order. Defendant's expert will be limited to the issue of industry safety standards applicable to work on elevated platforms.
III. CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part defendant's motion to exclude the expert testimony of Robert Borison. The Court grants defendant's motion for an extension of the expert report deadlines and extends the deadline to five days after the date of this order.