Opinion
Civil Action No. 00-2137 SECTION "T" (1)
July 19, 2001
Before the Court are three Motions in Limine seeking to exclude the testimony of certain witnesses from trial in the above-captioned matter. The Plaintiff, Vance H. Chandler, Jr., seeks to have all expert testimony and exhibits on behalf of the Defendant stricken from trial based on the Defendant's alleged failure to meet the expert disclosure requirements of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure and the disclosure deadlines set forth in is Court's scheduling order. Additionally, the Defendant, RB Falcon Inland, Inc., seeks to have the testimony and expert reports of Dr. Bernard Manale and J. Robert Kubelka excluded from trial in this matter. This cause came before the Court for hearing on June 20, 2001. The parties waived oral argument and the matter was submitted for the Court's consideration on the briefs. The Court, having reviewed the record, the arguments of the parties, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
This action arises out of an incident that occurred on May 5, 2000, aboard the Falcon Rig 46. The Plaintiff, Vance Chandler, was employed as a floorhand on Rig 46 and was engaged in a"laying down pipe" operation when he allegedly sustained personal injuries. Specifically, Chandler was pulling slips when the Rig's backup tongs swung and hit him in the right hip/low back area. Chandler alleges that the backup tongs were hung too close to the rotary. Additionally, he claims that the backup tongs were hung in such close proximity to the rotary as to create a safety hazard for the floorhand working that side of the drill floor. See Memorandum in Support of Motion in Limine to Exclude Testimony and Expert Reports of J. Robert Kubelka, page 3. Accordingly, Chandler brought suit against the Defendant, RB Falcon Inland, Inc.
The above-captioned action was originally set for trial on April 16, 2001, before the Honorable Morey L. Sear. On October 25, 2000, the Clerk of Court re-allotted this case to Section "T" for trial before the undersigned. On March 14, 2001, this Court granted the Plaintiff's Motion to Continue Trial; consequently, the trial was rescheduled to take place on May 14, 2001. In continuing the trial, this Court also ordered that all discovery deadlines be extended to comply with the pre-trial order based on the new trial date. However, on April 8, 2001, the undersigned granted another continuance of the trial in this matter. That Order stated that the trial shall be rescheduled for August 20, 2001. In addition, the Order stated that all discovery deadlines would be extended to comply with the new trial date. Furthermore, that Order stated that no further continuances of trial would be granted.
II. LAW AND ANALYSIS
A. Motion in Limine to Exclude Defendant's Expert Testimony and Exhibits:
On April 5, 2001, the Plaintiff filed a Motion in Limine to Exclude Expert Testimony and Exhibits Offered by Defendant. The Plaintiff claimed that the Defendant failed to comply with this Court's scheduling order and Rule 26(a)(2)(c) of the Federal Rules of Civil Procedure. Specifically, the Plaintiff claims that the Defendant failed to deliver any expert reports to the Plaintiff in a timely manner as required by the this Court's pre-trial order. Accordingly, the Plaintiff seeks to have the Defendants' expert testimony and exhibits excluded from trial in this matter pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure.
In opposition to this Motion in Limine, the Defendant concedes that the reports of the two expert witnesses that it intends to call, Allen Crane and Dr. Christopher E. Cenac, were forwarded to the Plaintiff after the original Court-ordered expert report deadline. However, the Defendant argues that the Plaintiff has not been prejudiced by this untimeliness because trial in this matter has since been continued. Additionally, the Defendant argues that the Plaintiff's Motion in Limine is now moot because trial in this matter was continued after the filing of said motion. The Defendant claims that because this Court's Order continuing the trial also stated that all discovery deadlines were to be continued in accordance with the new trial date, the expert reports at issue were timely under the new cutoff dates. This Court agrees.
The pertinent deadlines contained in the scheduling order with regard to the production of expert witness reports is as follows:
[w]ritten reports of experts, including treating physicians, who may be witnesses for Plaintiffs fully setting forth all matters about which they will testify and the basis therefor shall be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than 90 days prior to Final Pretrial Conference Date.
(See Scheduling Order, Doc. 5, October 10, 2000).
As stated above, the trial in this matter has been continued until August 20, 2001, with the final pre-trial conference to be held on August 9, 2001. Accordingly, the scheduling order requires the Plainitff to provide the Defendant with the requisite expert reports no later than May 11, 2001. The Defendant provided the Plaintiff with a copy of Dr. Cenac's expert report in March 2001; additionally, the Defendant mailed a copy of Allen Crane's expert report to the Plaintiff on March 27, 2001. Because both reports were furnished to the Plaintiff within the 90 day cutoff period described above, the Defendants have not violated the pre-trial Order or the Federal Rules of Civil Procedure. Accordingly, the Plaintiff's Motion in Limine to Exclude Expert Testimony and Exhibits Offered by Defendant (Doc. 36) is hereby deemed MOOT.
B. Motion In Limine to Exclude Testimony and Expert Reports of Robert Kubelka:
As stated above, the Defendant filed two Motions in Limine in this case. First, the Defendant seeks to strike the Testimony and Expert Reports of J. Robert Kubelka, the Plaintiff's maritime expert, on the grounds that his opinion as to the cause of the alleged accident is unsupported by any trustworthy methodology, research, or reliable data. Moreover, the Defendant claims that Kubelka's testimony is unnecessary because it is not the kind of testimony that would be of assistance to the trier of fact. Accordingly, the Defendant seeks to have Kubelka's testimony stricken from trial in this matter pursuant to Rule 702 of the Federal Rules of Evidence because it is neither relevant nor reliable.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. See Fed.R.Evid. 702. That rule states the following:
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.
The first inquiry pursuant to Rule 702 is whether the purported expert's testimony will assist the trier of fact either to understand the evidence or to determine a fact at issue. In the present case, the Defendant argues that Kubelka's testimony should be disallowed because his testimony is not of a complex nature or specialized subject matter such that a jury would require assistance in understanding it. The Defendant is of the opinion that Kubelka's "conclusions are based merely on common sense, conclusions that could be arrived at by the average finder of fact after listening to the testimony of fact witnesses. He does not bring to the determination any greater knowledge, technical expertise, or insights than the average person." Memorandum in Support of Motion in Limine to Exclude Testimony and Expert Reports of J. Robert Kubelka, page 6.
Additionally, the Defendant argues that Kubelka's conclusions are not based on scientific or technical data. Rather, Kubelka stated that the opinions and conclusions contained in his expert report were arrived at after reviewing the Plaintiff's written statement, the Complaint, the Plaintiff's Answers to Interrogatories, and a personal interview with the Plaintiff. The Defendants thus argue that because Kubelka's testimony is not based on scientific or technical knowledge, it is not "reliable" expert testimony within the meaning of Rule 702 or Daubert v. Merrill Dow Pharmaceutical. Inc., 509 U.S. 579, 113 S.Ct. 2786, L.Ed.2d 469 (1993). Accordingly, the Defendant claims that this Court should exercise its "gate-keeping" function and preclude Kubelka from testifying as an expert at the trial in this matter.
In the present case, the Plaintiff retained Kubelka as a Marine Expert to testify to the following: 1) all factors considered before and during drill floor operations; 2) compliance and adherence to various industry standards, rules, regulations, and recommended work practices that enhance safety in the workplace; 3) defining and explaining the terminology and equipment used aboard a drill rig; and 4) the unsafe manner in which operations were conducted aboard Rig 46 on the day of the Plaintiff's alleged accident. See Plaintiff's Memorandum in Opposition to Motion in Limine to Exclude the Testimony and Expert Reports of J. Robert Kubelka, pages 6-7. The Plaintiff claims that Kubelka's testimony is necessary because the "facts and circumstances of this litigation are beyond the realm of the average juror's knowledge and experience." Id. at 7. Therefore, the Plaintiff argues that Kubelka should be allowed to testify at the trial in this matter because said testimony will undoubtedly assist the trier of fact.
In Peters v. Five Star Marine Service, 898 F.2d 448 (5th Cir. 1990), the Fifth Circuit upheld a ruling of the trial judge disallowing the testimony of a marine expert on the grounds that "the subject matter that he was going to discuss, and the opinions that he was going to express . . . are matters that [the jury] can competently deal with. . . ." Peters v. Five Star Marine Service, 898 F.2d 448 (5th Cir. 1990). However, inSmith v. United Gas Pipeline Co., 857 F.2d 1471 (5th Cir. 1988), the Fifth Circuit reversed a district court for disallowing the testimony of a marine expert. See Smith v. United Gas Pipeline Co., 857 F.2d 1471 (5th Cir. 1988). The Fifth Circuit distinguished the two cases on the grounds that the subject matter of the expert testimony in Peters was within the realm of the average juror's knowledge and experience, but the subject matter of the expert's testimony in Smith was not. See Peters 898 F.2d at 450.
In looking at the proposed testimony of Kubelka under the guise of bothPeters and Smith, this Court is of the opinion that Kubelka should not be entirely stricken from testifying at trial provided that he can prove to this Court that he is in fact an expert in the areas in which he seeks to offer testimony. In the present case, the Plaintiff is correct in asserting that the facts and issues involved are not within the realm of the average juror's knowledge and experience. This Court is certain that the average person would not know about the procedures for performing a "laying down pipe" operation or what backup tongs are and what they do. Therefore, to the extent that Kubelka's testimony will consist of defining and explaining the terminology and equipment used aboard a drill rig, this Court finds that such testimony is indeed relevant. Additionally, to the extent that Kubelka will discuss the standard factors considered before and during drill floor operations and any other industry standards, rules, regulations, and recommended work practices involved in "laying down pipe" operations, this Court finds that such information will be of assistance to the trier of fact in this case. Nevertheless, the Plaintiff must first prove that Kubelka is a qualified expert in these areas and that his testimony is based upon actual industry standards and regulations, rather than mere personal experience. Accordingly, Kubelka shall be allowed to testify as to the matters stated above provided that his testimony is grounded in actual specialized training, expertise, and reliable data in these areas, rather than mere general experience, speculation, or conjecture.
However, with respect to Kubelka's conclusions as to whether or not the backup tongs were hung too low and as to whether the driller breached a duty to the Plaintiff by failing to resolve the problem regarding the position of the backup tongs after the Plaintiff allegedly reported the problem to him, this Court is of the opinion that such testimony violates Rule 702 of the Federal Rules of Evidence. In Daubert, the Supreme Court established a two-part test for judges to perform in determining the admissibility of expert testimony. See Daubert, 509 U.S. at 590. The first prong of that test requires the Court to decide "whether the expert's testimony reflects scientific knowledge, is derived by the scientific method, and is supported by `appropriate validation.'" Jacobs v. Northern King Shipping Co., Ltd., 1998 WL 28234, at *1 (E.D.La. Jan. 23, 1998) (quoting Daubert, 509 U.S. at 590)). In the present case, Kubelka's conclusions are not based on scientific, technical, or specialized knowledge. Furthermore, Kubelka did not rely on any type of proven methodology in arriving at those conclusions. Instead, Kubelka readily admits that his conclusions are based merely on his review of the accident report, the Plaintiff's statement, the complaint, and an interview of the Plaintiff. He did not even perform an inspection of the rig in question. Therefore, his conclusions do not constitute reliable expert testimony as contemplated under Rule 702 of the Federal Rules of Evidence. Furthermore, because his report deals solely with these specific issues and conclusions, that report is not admissible at trial.
Furthermore, this Court notes that the Fifth Circuit has made clear that the principles set forth in Daubert are not limited merely to scientific knowledge, but rather include other specialized or technical knowledge as well. See Watkins v. Telsmith, Inc., 121 F.3d 984, 989-91 (5th Cir. 1997).
See Memorandum in Support of Motion in Limine to Exclude Testimony and Expert Reports of J. Robert Kubelka, Exhibit C.
Additionally, Kubelka's conclusions discussed above are matters for the jury to decide after hearing all of the evidence presented by the various parties. As the Defendant correctly points out, "Mr. Kubelka's conclusions are based merely on common sense, conclusions that could be arrived at by the average finder of fact after listening to the testimony of fact witnesses." Defendant's Memorandum in Support of Motion in Limine to Exclude Testimony and Expert Reports of J. Robert Kubelka, page 6. Moreover, Kubelka, in concluding that the driller breached a duty to the Plaintiff, is attempting to offer a conclusion a law. Such conclusions of law are outside of the proper ambit of expert testimony. See Jacobs v. Northern King Shipping Co., Ltd., 1998 WL 28234, at *2 (E.D.La. Jan. 23, 1998). Consequently, Kubelka's opinions and conclusions with regard to whether or not the backup tongs were hung too low and as to whether the driller breached a duty to the Plaintiff by failing to resolve the problem regarding the positioning of the backup tongs after the Plaintiff allegedly reported the problem to him are inadmissible pursuant to Rule 702 of the Federal Rules of Civil Procedure.
C. Motion in Limine to Exclude Testimony and Expert Report of Dr. Manale
Finally, the Defendants filed a Motion in Limine seeking to exclude any and all testimony and/or reports of Dr. Bernard Manale regarding chemical radiculopathy and Substance P to Daubert and its progeny. Furthermore, the Defendants assert that Dr. Manale's testimony and/or reports with regard to radiculopathy and Substance P do not satisfy the requirements of Rule 702 of the Federal Rules of Evidence. Specifically, the Defendants contend that the chemical radiculopathy theory advanced by Dr. Manale has not been scientifically tested or proven and that Dr. Manale fails to meet the Daubert requirement with regard to chemical radiculopathy and/or Substance P because he does not posses the requisite expertise or training to provide an expert opinion with regard to such theories.
With regard to the Motion in Limine to exclude Dr. Manale's testimony regarding chemical radiculopathy and Substance P, this Court is of the opinion that said motion would be best dealt with by conducting a Daubert hearing. Accordingly, this Court orders that the parties appear before the undersigned on Wednesday, August 1, 2001, at 10:00 a.m. to present evidence and testimony with respect to the admissibility of Dr. Manale's chemical radiculopathy and Substance P testimony pursuant to Daubert, its progeny, and Rule 702 of the Federal Rules of Evidence.
III. CONCLUSION:
For the foregoing reasons, this Court is of the opinion that I. Robert Kubelka shall be allowed to testify at the trial in the above-captioned matter, but only with regard to defining and explaining the terminology and equipment used aboard a drill rig and discussing the standard factors considered before and during drill floor operations and any other industry standards, rules, regulations, and recommended work practices involved in "laying down pipe" operations. However, before this Court will allow said evidence to be presented, the Plaintiff must show that Kubelka's testimony is grounded in actual specialized training, expertise, and reliable data in these areas, rather than mere general experience, speculation, or conjecture. Furthermore, this Court concludes that Kubelka's expert report and the conclusions and opinions contained therein are inadmissible because they violate Rule 702 of the Federal Rules of Evidence.
Furthermore, this Court concludes that a Daubert hearing shall be held to address the Defendants' Motion in Limine seeking to Exclude the testimony of Dr. Manale regarding chemical radiculopathy and Substance P.
Accordingly,
IT IS ORDERED that the Defendant's Motion in Limine to Exclude Testimony and Expert Reports of J. Robert Kubelka be, and the same is hereby, GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the Plaintiff's Motion in Limine to Exclude Expert Testimony and Exhibits Offered by Defendant be, and the same is hereby, deemed MOOT.
IT IS FURTHER ORDERED that a Daubert hearing shall be held to address the Defendfant's Motion in Limine to Exclude Testimony and Expert Report of Dr. Bernard Manale with respect to chemical radiculopathy and Substance P.
IT IS FURTHER ORDERED that the parties appear before the undersigned for a Daubert hearing on Wednesday, August 1, 2001, at 10:00 a.m.