Opinion
CIVIL ACTION NO: 01-1400, SECTION: "J"(4)
November 15, 2002
MINUTE ENTRY
Before the Court is plaintiff's Motion in Limine to exclude or limit the testimony of defendants' liability experts, Max Hardberger and Jason Fernandes. Rec. Doc. 59. For the reasons that follow, plaintiff's motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff Darin Short is a river pilot who claims he suffered serious injury while climbing a pilot's ladder to board THE ANGEL ADVENTURE, a vessel owned and operated by defendants. According to Mr. Short, while he was climbing the ladder and as he was about to climb off the ladder and onto the deck of the vessel, the rope ladder suddenly payed out and fell several feet, causing him to be injured when the ladder abruptly stopped with Short still clinging to the ladder. Short claims that he managed to hold on to the rope ladder with one hand, and that when the ladder fell he fell away from the side of the vessel, and was then swung back into the side of the vessel, resulting in serious injury to his shoulder. Plaintiff admits that he does not know why the ladder fell, but that it had to be either hung up or caught on something at the deck level, or there was some type of malfunction of the mechanical reel which held the ladder on the deck.Defendants apparently intend to call Max Hardberger, a marine surveyor, and possibly his associate, Jason Fernandes, as liability experts at the jury trial which is scheduled to commence on December 9, 2002. Mr. Hardberger and Fernandes issued a joint expert report dated June 28, 2002, which has been submitted to the Court in connection with the pending motion in limine. Also submitted were the transcript of Mr. Hardberger's deposition testimony, taken on August 2, 2002, and excerpts from the depositions of Darin Short and Walter Abney. Mr. Abney is another river pilot who boarded the vessel immediately before Darin Short, using the same pilot's ladder. Finally, defendants submitted a "declaration" by Mr. Hardberger dated November 1, 2002, with attachments, and another declaration of the same date by Mr. Fernandes explaining certain calculations he made regarding the amount of force exerted on Mr. Short when the ladder fell and then suddenly stopped. The Court has considered all of these submissions, as well as the memoranda and arguments of counsel.
DISCUSSION
Applicable Law
Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. 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." In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court interpreted Rule 702 as requiring the trial judge to ensure that an expert's testimony is both reliable and relevant to the case at hand. 509 U.S. 579, 589, 113 S.Ct. 2786, 2795 (1993). Daubert's gatekeeping function applies not only to "scientific" testimony, but to all expert testimony. Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 148, 119 S.Ct. 1167, 1174 (1999). In evaluating whether an expert's testimony is reliable and relevant, the district judge must assess whether the "reasoning or methodology underlying the testimony is scientifically valid" and also must determine whether the reasoning or methodology can be applied to the facts at issue. Curtis v. M S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999). The proponent of expert testimony is not required to prove that the testimony is correct, but must only prove "by a preponderance of the evidence that the testimony is reliable." Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Federal Rule of Evidence 402 provides: "All relevant evidence is admissible. . . . Evidence which is not relevant is not admissible." Rule 401 defines "relevant evidence" as any evidence which has "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." As the Supreme Court noted in Daubert, the basic standard of relevance under Rule 401 is a liberal one. 509 U.S. at 588-89, 113 U.S. 2794.
With regard to the factual basis or support for an expert's opinion, Federal Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Finally, Federal Rule of Evidence 704(a) states in part: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
Application of Law to Facts of Case
The accident in this case occurred on the night of January 31, 2000, as Crescent City river pilot Darin Short and his apprentice pilot, Walter Abney, boarded the ANANGEL VENTURE while the vessel was underway in the Mississippi River. More than one year later, on February 16, 2001, Hardberger and Fernandes, marine surveyors retained by counsel for defendant, inspected the vessel while she was docked on the river near New Orleans. Plaintiff's motion in limine does not challenge the qualifications or expertise of Hardberger or Fernandes as marine surveyors. Rather, plaintiff's motion raises the issues of whether the various opinions are within the expertise of these two marine surveyors and whether their opinions are reliable or relevant to the issues in this case.
In their joint report dated June 28, 2002, Hardberger and Fernandes offer a number of wide-ranging opinions. Several of these opinions appear to be well within their expertise as marine surveyors. For example, at page two of the report, Hardberger and Fernandes state that "The vessel's pilot-ladder arrangements as sighted during our survey were unchanged since the date of the subject incident." In his deposition testimony, Hardberger explains that this opinion is based on information gleaned from onboard conversations with the vessel's master, and also from his own visual inspection of the various fittings and equipment, which did not show any evidence of recent repairs or changes.
At page three of their report, Hardberger and Fernandes state that "the pilot ladder arrangements on board . . . were part of the original ship's construction." Further, it was determined that "the ladder was constructed and maintained in accordance with SOLAS requirements and IMO recommendations." Again, these opinions were based on information furnished by the vessel's master and also the visual survey or inspection.
Also at pages three and four of their report, the surveyors state opinions regarding the mechanism which operated and locked the reels on which the rope ladders were mounted, including air motors driven by worm and worm wheel assembly. In addition, there is a bolt and latch arrangement which permits manual locking, if necessary. Also noted was the presence of pipes welded above the main deck to protect the rope ladders from chafing against the edge of the hull as the ladders were raised or lowered. In summary, the survey found the vessel's pilot ladder arrangements to be in "satisfactory condition" and "a superior design installed in only about five per cent of vessels."
Each of the foregoing opinions appear to be reliable, relevant and well within the expertise of marine surveyors. Hardberger or Fernandes (but not both) will be allowed to testify in accordance with their joint report on these matters.
The remainder of the opinions offered by Hardberger and Fernandes are more problematic. Starting at page four of their report, it appears that the surveyors are largely offering opinions about the veracity or not of the deposition testimony of Darin Short and Walter Abney. The Court will review each such opinion in the order listed in the joint report, starting at page four with comments or opinions about the deposition testimony of Darin Short:
Opinions about the testimony of Darin Short
1. Mr. Short testified that he worked for three months following the accident, continuing to climb pilot ladders although he was unable to raise his left arm overhead. The marine surveyors offer an opinion that Mr. Short could not have climbed ladders regularly over a three-month period if he was injured as he claimed. Obviously, there is no basis for this "expert opinion" other than the fact that the surveyors have also climbed ladders on occasion in their work. Such an opinion does not fit within the expertise of marine surveying and neither expert will be permitted to offer such an opinion at trial.
2. Short claims that when the ladder slipped, he fell with the ladder several feet until it stopped abruptly, causing him to swing into the side of the ship. The surveyors opine that such a scenario is "unlikely" because there would have been approximately 50,000 pounds of force exerted on Mr. Short's body. They are of the opinion that Short could not have retained or regained his grip on the ladder, as he claims, after such a fall. These opinions appear to fall outside the expertise of marine surveying. These experts apparently made no attempt to replicate the accident conditions and conducted no tests to measure or determine the forces involved. Neither surveyor has a degree or any expertise in the science of physics. In fact, Max Hardberger (the only expert whose deposition has been submitted to the court) received his Bachelor's degree in English from the University of New Orleans, and his Masters of Fine Arts in English from the University of Iowa. More recently, Hardberger obtained a law degree by correspondence from Northwestern California University. It is true that Hardberger has spent many years working on vessels, and the last eleven years as a "marine surveyor and consultant." However, when deposed he candidly admitted that he had not made any calculations of the purported forces involved, but relied on Fernandes for such calculations.
Fernandes has not been deposed (or his deposition was not provided to the court by either party) so the Court has only the "joint report" with his attached C.V. and his November 1, 2002 "declaration" describing his calculations. Mr. Fernandes received a diploma in mechanical engineering from Central Polytechnic, in Madras, India. This appears to be a trade school. His "elective" was refrigeration and air conditioning. He is a "certified welding inspector" and a "certified OSHA 24-hour oil spill on-scene commander." Later, Fernandes graduated from the Maine Maritime Academy, with electives in marine insurance and maritime law, and intermodal transportation. He also has an M.S. degree in maritime management. He has also spent a number of years at sea, and since 1991 has worked primarily as a marine surveyor. Although Fernandes has more of a science background than does Hardberger, he appears to lack any special education or expertise in physics. Neither surveyor appears to have authored or published any peer-reviewed literature on this subject, nor have they tested their theories or opinions. Further, there does not appear to have been any attempt made to simulate the mechanics of the accident or to take into consideration a number of variables which might affect such calculations. As noted, the surveyors boarded the vessel during daylight hours while she was docked on the river near New Orleans. They did not use a pilot ladder to board or disembark. On the other hand, the accident occurred at night, while the vessel was underway on the Mississippi River. Under these circumstances, neither Hardberger nor Fernandes will be allowed to testify concerning the calculation of forces purportedly asserted on Mr. Short's body during the accident.
3. Mr. Short claims that when the ladder fell, his body fell away from the side of the ship before he was swung back into the ship. The marine surveyors' opinion is that "this cannot be supported by physics." To the extent the essence of this opinion is that an object falling straight downward cannot be propelled in another direction absent the application of some external force, that notion can be grasped through common sense without the aid of expert testimony. To the extent the opinion seeks to elaborate further, the Court will not permit either surveyor to testify about the physics of the accident for the same reasons stated above in item number three.
4. Darin Short claims that the pilot ladder slipped or payed out several feet. He and Mr. Abney, who witnessed the accident, apparently believe (although they did not observe) the rope ladder hung up on something before it slipped, allowing it to fall several feet. The marine surveyors state that their own visual inspection of the vessel and the deck of the ship indicate there was nothing between the ladder reel and the deck edge that would have prevented its full deployment. Specifically, their survey revealed that the radius of the pipe forming the outside edge of the fishplate, together with the construction features of the steps themselves, prevent them from hanging up on the edge of the deck. Counsel for plaintiff argues that the opinion is not reliable or relevant because the survey inspection took place more than one year following the accident. Obviously, the surveyors do not know, except by what they are told by someone who was there at the time, what transitory conditions, if any, may have existed that could have caused the ladder to hang up. It will be the jury, as the fact finder at trial, that will decide the factual disputes in this case, including such issues as the condition of the deck area near the ladder at the time of the accident. But under Rule 704(a), the fact that an expert's opinion "embraces an ultimate issue to be decided by the trier of fact" does not make such testimony objectionable. Since the surveyors' opinion in this instance is based on their own visual inspection and is well within the expertise of a marine surveyor, either Hardberger or Fernandes (but not both) will be permitted to testify on this matter before the jury. The questions raised by plaintiff's counsel are typical grist for the mill of cross examination.
5. There is a dispute as to whether or not the ladder was secured to padeyes on the deck as it came off the reel and before it went over the side of the ship. According to the deposition of Hardberger, it can be done either way. The marine surveyors are of the opinion that it was not necessary to secure the ladder to the padeyes on deck because it was securely affixed to the reel, which was controlled by an air motor and worm-gear arrangement. Again, the surveyors have no way of knowing (except from what others may say) whether or not the ladder was in fact secured to the padeyes at the time of the accident, or whether or not the air motor device was being used. However, the opinion that it was not necessary to tie the ladder to the padeyes is well within their area of expertise as marine surveyors. Accordingly, the Court will allow testimony on this subject.
6. Darin Short testified that he did not make any investigation into the cause of the pilot ladder's slipping. He did not inspect the ladder reel or determine exactly how the ladder was secured to the vessel. He testified that he did report the incident and his injury to the ship's master immediately upon arriving in the wheelhouse. He requested that the master log the incident in the ship's logs, but according to Short, the master refused. The marine surveyors offer their opinion that Short should have made some investigation into the cause, at least by inspecting the ladder and reel arrangement. Short's failure to do so, in their opinion, "does not make sense." Further, the surveyors opine that Short's failure to investigate was a "breach of the code of conduct between seafarers" and endangered himself (during his later descent) and the disembarking pilot who was being relieved by Short. None of these opinions have any relevance to the cause of the accident in this case. They are simply gratuitous personal opinions about the credibility of Darin Short. Such opinions are clearly outside any expertise of either Hardberger or Fernandes. Neither will be allowed to testify about such matters at trial.
7. In his deposition testimony, Mr. Short claims that the vessel's mate and captain physically pushed him while he was aboard the vessel. The surveyors find this testimony to be "both ludicrous and insulting". Again, such opinions are not relevant to any issue of liability in this case. The marine surveyors have no special expertise which would permit them to offer such opinions at trial.Opinions about the testimony of Walter Abney
1. Mr. Abney testified it is rare for a licensed master to serve as mate. The marine surveyors disagree. The Court fails to see the relevance of this testimony to any liability issue in this case. No such testimony will be permitted by either Mr. Abney or the surveyors.
2. The surveyors challenge testimony by Abney that he could not see clearly when he arrived on the deck of the vessel because of lighting conditions and machinery in the area. The surveyors found the lighting to be adequate (although the inspection was in daylight hours) and, at the time of their inspection a year later, found no machinery in the area except for the reel itself. There is no contention that inadequate lighting contributed to the accident, so the court fails to see any relevance in such testimony. Whether or not there was other machinery or equipment on the deck (in addition to the ladder reel) on the night of the accident is a purely factual issue which does not require any expert testimony. The surveyors are not able to know what the specific, perhaps transitory, conditions were on the deck at the time of the accident. The Court has already stated that the surveyors will be permitted to testify about the ladder reel arrangement as found during their survey, along with their understanding that the basic arrangement had not been changed since its original construction. It will be for the jury to decide the remaining, purely factual, issues such as whether or not there were any other items of machinery or equipment on the deck at the time of the accident.
3. Mr. Abney testified that the pilot ladder was constructed with synthetic fiber steps. The marine surveyors found the ladder's steps to be made of wood (with bottom steps of hard rubber as required by SOLAS). Although the relevance is such testimony is not obvious to the Court at this time, if relevant, this testimony is within the expertise of these surveyors.
4. Mr. Abney testified that the ladder might have been secured to a webbing at the side of the deck. The surveyors found no such webbing near the pilot ladder and state that such webbing is not commonly associated with a pilot ladder's securing arrangement. In their opinion, a pilot ladder should not be secured to webbing of any kind, but to rigid fastening points. Again, this testimony raises factual issues which will ultimately be decided by the jury. The surveyors may testify as to what securing arrangements were revealed by their survey. Cross examination can point out that the survey took place more than a year after the accident. The jury can then decide whether or not any such webbing was present on the night of the accident, and whether it in any way caused the accident.
5. Abney testified about why neither he nor Short made any inspection of the pilot ladder after the accident. The surveyors believe that he should have investigated. This has no bearing or relevance on any liability issue in this case. The court will not allow such testimony.
6. Abney testified that the pilot ladder may have been piled up on deck when he climbed aboard. The surveyors opine that the ladder would not have been piled on deck because it stretched directly from the reel to the deck edge. The surveyors have no basis for this opinion that the Court can discern. They admit that there are several ways the ladder can be secured to the ship, including securing it to the padeyes located on the deck in that area. This testimony is beyond the ability of these experts, who have no basis to know how the ladder was secured on the night of the accident. The Court will not permit this testimony. It is quite apparent that if the ladder was secured only on the reel, and stretched directly over the side of the vessel, without hanging up on anything, that it would not likely be piled up on deck. However, this is simply common sense, and the jurors do not need an expert to explain this to them. These are purely factual issues relating to the securing arrangements of the ladder on the night of the accident. The jury will resolve such factual issues.
7. Abney testified about Short's ability to continue climbing pilot ladders in the three month period following the accident. The surveyors believe Abney's testimony contradicted Short's testimony in several respects. They also "reiterate" their opinion that it is "not possible" that Short climbed pilot ladders using only one arm. Once again, the jury will have to resolve any alleged conflict in the testimony, and they do not require expert help to do so. Also, the opinions offered on this point are outside any expertise possessed by either Hardberger or Fernandes.
8. This opinion again relates to whether or not Short was able to climb pilot ladders with his injured shoulder. For the same reasons stated above, the surveyors will not be permitted to express such opinions to the jury.
Remainder of opinions or "conclusions"
On the last page of the joint report, the surveyors set forth several "conclusions," which appear to largely recap or summarize their previously stated opinions. With a single exception, none of these conclusions or opinions will be allowed for the reasons stated above. The surveyors will be permitted to testify about their final "conclusion" which the court understands to be as follows: Assuming the machinery was working as intended, and assuming the ladder was secured only to the reel with no obstructions, the mechanical features of the worm and worm wheel drive of the pilot ladder reel arrangement would make a partial failure, as alleged, impossible.
Accordingly, for the foregoing reasons,
IT IS ORDERED that plaintiff's Motion in Limine to exclude or limit the testimony of defendants' liability experts, Max Hardberger and Jason Fernandes (Rec. Doc. 59), is GRANTED IN PART and DENIED IN PART.