Opinion
CIVIL ACTION No. 01-2894 SECTION "T" (2)
May 22, 2002
Before the Court is a Motion in Limine filed on behalf of the defendant, Knots Marine Inshore, Inc., to exclude testimony from plaintiffs marine safety expert, David E. Cole, on the basis that his testimony will not aid the trier of fact. The Court, having considered the brief of defendant's counsel, the failure of plaintiff to file an opposition, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
By way of background, this Jones Act claim involves a Knots Marine deckhand, Audie Ray Pennison, who allegedly slipped as he was stepping down from a barge onto the bulwarks and then on to the deck of defendant's vessel, the M/V HOOKING BULL I.
David E. Cole, plaintiff's marine expert, has submitted a report dated January 17, 2002 (Exhibit "A"), in which he rendered his opinion as follows:
It is my opinion that the owner of the HOOKING BULL I failed to observe the proper standard of care in providing for safe ingress and egress to the vessel for the crew members. Prudent seamanship and marine safety would call for non-skid applications on the bulwarks. It is foreseeable that the vessel will be working with barges that have slippery substances on the decks which would make transferring to the towing vessel hazardous. Because of the nature of barge shifting work, it is not possible or practical to place a gangway, or provide fixed handholds. On this vessel, there were handrails affixed to the cabin of the vessel, but these were not within reach of a deckhand boarding the vessel. (Exhibit "A").
The United States Court of Appeals for the Fifth Circuit has set the standard for allowing marine experts in Peters v. Five Star Marine Service, 898 F.2d 488 (5th Cir. 1990). Specifically, the Court of Appeals, Fifth Circuit maintained that the trial judge could exclude experts when their testimony was within the realm of the fact finder's knowledge and experience. In Peters, the court reasoned that the testimony of a maritime operations expert was unnecessary for the jury to adequately assess whether it was reasonable for the employer to instruct its employees to manually move equipment on the deck of the boat during heavy seas, whether cargo was improperly stowed, and whether diesel fuel made the deck of the boat slippery. The court cited the language of the trial judge in affirming the decision. "[T]he subject matter that he (the marine operations expert) was going to discuss, and the opinions that he was going to express to you are matters that you can competently deal with based upon your common sense and your knowledge of the world, things such as waves and whether they are dangerous, and seas, and that sort of thing." Id. 449.
Conversely, in the case at bar, Mr. Cole's opinion is crucial in aiding the trier of fact. The court will be called upon to decide the proper standard of care in providing for safe ingress and egress to vessels engaged in barge shifting work, taking into consideration prudent seamanship and marine safety. Unlike the issues presented in Peters, the issues involved in the case at bar are outside the experience and common knowledge of a typical person, therefore, the testimony of Mr. Cole is necessary for a jury to adequately assess whether the proper standard of care was employed by the defendant. Therefore, plaintiff will be allowed to submit the testimony from David E. Cole, marine safety expert, on the basis that his testimony will aid the trier of fact.
Accordingly,
IT IS ORDERED that the Motion in Limine, filed on behalf of defendant, Knots Marine Inshore, Inc., be and the same is hereby DENIED.