Opinion
Civil Action No. 03-0015 Section "C" (2).
January 5, 2005
ORDER AND REASONS
Before the Court is Plaintiff's Motion in Limine to Exclude the Testimony and Expert Report of James W. Turnage, Jr. (Rec. Doc. 63). After a thorough review of the record, the law, the Motion, and the memoranda filed in support thereof and in opposition thereto, Plaintiff's Motion in Limine to Exclude the Testimony and Expert Report of James W. Turnage, Jr. is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
This case involves an alleged maritime personal injury suffered by Plaintiff, Darren Ross, on or about May 8, 2000. At the time of the injury, Plaintiff was employed by Defendant as a roustabout and was in the course of his employment. Plaintiff alleges that due to the negligence of his co-worker, a crane operator, Larry W. Partin, Jr., and Defendant, he injured his left knee as the crane operator attempted to transport Plaintiff from a supply boat onto the mobile offshore drilling rig, the M/V MAX SMITH. He further alleges that the crane operator himself was an unseaworthy condition as that proximately caused him injury.
On January 3, 2003, Plaintiff brought suit against his employer, the owner of the mobile offshore drilling rig, Noble Drilling Corporation. Currently, a jury trial is set for January 18, 2005.
Defendant summarizes Turnage's opinions as follows (Rec. doc. 66, p. 4-5):
(1) When a person has two feet on the ring of the basket, as opposed to one foot on the ring and one foot on the deck of the vessel, this position prevents a person from controlling or maintaining his balance as the lift begins or the boat rolls, pitches, or drops.
(2) Movement in the slack of the net of the personnel basket makes it difficult for a person to maintain his balance.
(3) With one foot on the lower ring of the basket and one on the deck, a person is in a position to immediately remain on deck or safely lift as the basket raises.
(4) With one foot on the lower ring of the basket and one on the deck, a person can easily control his balance in four to eight foot seas with the movement of the boat.
(5) Only the designated signal person has the authority to give hand signals other than a signal for an emergency stop, as is provided in Noble's Safety Handbook.
(6) When a boat does drop from under a personnel basket, the slack in the net tightens. This is the signal for the person riding the basket that the lift is about to occur. Then, the basket loses contact with the deck of the boat. The crane operator will immediately begin the lift to avoid having the boat come back up and strike the bottom of the basket.
(7) If the headache ball of the personnel basket is off center when the boat drops from under the basket, a personnel basket cannot be dragged or violently dragged across the deck of the boat. The net tightens and the basket lifts immediately, losing contact with the deck of the boat. The basket will then swing to center the basket under the ball, but cannot be dragged across the deck of the boat.
(8) The crane operator followed proper procedures as a qualified crane operator in accordance with the standards set forth in API RP 2D.
(9) Darren Ross assumed an unsafe position by placing both feet on the lower ring of the personnel basket. He failed to follow correct procedures to board a personnel basket, as he was trained and had safely performed 750 to 1000 times before.
(10) Neither Noble Drilling or its employees created any unsafe conditions or performed any unsafe acts related to the alleged accident as claimed by Mr. Ross.
Plaintiff objects to the testimony of Defendant's expert, Turnage, because, as Plaintiff claims, the testimony "for the most part re-states facts, putting a spin favorable to defendant in interpreting them, which is outside the parameters of the conclusions which are legitimately allowed under Rule 702." (Rec. doc. 63, memorandum in support, p. 1).
II. LAW AND ANALYSIS
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. It 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. Rule 702, by its plain language, requires that, in order for an expert witness to testify in the form of an opinion, his testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Generally, expert testimony offering a legal opinion is inadmissible because it will not assist the trier of fact in understanding the evidence or determining a fact in issue. Estate of Sowell v. United States of America, 198 F.3d 169, 171-72 (5th Cir. 1999); Askanase v. Fatjo, 130 F.3d 657, 669 (5th Cir. 1997). Additionally, expert testimony offering nothing but the expert's appreciation of the facts is likewise inadmissible because "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).
The Court has previously ruled on a motion in limine seeking to exclude testimony of Plaintiff's expert witness, J. Robert Kubelka. (Rec. doc. 46). The Court held that simple restatements of factual determinations are not permitted, nor are impermissible legal conclusions based upon those factual determinations, such as opinions on medical causation. "While the Court will allow Kubelka to opine as to the appropriateness of a particular maneuver based upon the estimation of facts presented to him by Plaintiff or other fact witnesses, he may not testify to the underlying facts not may he draw the legal conclusions that the crane operator's "inappropriate maneuver" constitutes negligence." (Id. at 4). The Court now clarifies this statement. Questions on whether something is appropriate can often be too fact-specific. The Court does not want the expert witnesses in this case to testify as to whether a specific person acted appropriately or inappropriately because it assumes factual knowledge about what the person did. Rather, experts should testify about what should or should not be done in general, and in a way that is non-specific to the facts in the case.
The Court, for the most part, disagrees with Plaintiff's contention that Turnage's report re-states and spins the facts. Statements 1-7 simply provide opinions and do not purport to testify as to the underlying facts, nor do they offer legal conclusion. Rather, the opinions are non-specific to the facts of the case, and can be rebutted with evidence.
Statement 8, 9 and 10, conversely, are impermissible. Statement 8 presumes to know how the crane operator acted. Statement 9 constitutes testimony as to the underlying facts when it states that Ross "was trained and had safely performed (the correct procedure) 750 to 1000 times before." (Rec. doc. 66 p. 5). Statement 10 comes too close to drawing a legal conclusion regarding the existence of negligence on the part of Noble Drilling. Consequently, these statements are excluded.
Accordingly,
IT IS ORDERED that Plaintiff's Motion in Limine to Exclude the Testimony and Expert Report of James W. Turnage, Jr. is GRANTED IN PART and DENIED IN PART.