Lewis v. Chet Morrison Contractors, LLC
Lewis v. Chet Morrison Contractors, LLC
Opinion of the Court
ORDER AND REASONS
Before the Court is Defendant Chet Morrison Contractors, L.L.C.’s (“Defendant”) Motion in Limine to Exclude Report and Testimony of Robert E. Borison.
I. Background
A Factual Background
According to Plaintiff Tyrone Lewis (“Plaintiff’), at all relevant times, Defendant was owner and operator of CM 11 pipelay barge as well as the companion barge on which Plaintiff was employed as a rigger.
B. Procedural Background
Plaintiff filed the complaint in this action on November 16, 2012.
II. Parties’ Arguments
A. Defendant’s Arguments in Support
In support of the pending motion, Defendant contends that Borison’s report and testimony should be excluded from trial pursuant to Federal Rule of Evidence 702, which governs the admissibility of expert testimony.
B. Plaintiff’s Arguments in Opposition
As an initial matter, Plaintiff notes that Borison has been accepted as a safety expert in other maritime personal injury cases by other sections on this Court.
Plaintiff acknowledges that the pending motion does not challenge Borison’s qualifications or credentials, but rather focuses on Borison’s written report.
Regarding Defendant’s argument that Borison’s report relied on the “self-serving” statements of Plaintiff, Plaintiff argues that an expert is allowed to consider his account of the events in question.
ignores the facts that 1-an expert is not permitted to interview the employees of an adverse party without its counsel being present, 2-Borison will consider the statements of witnesses as soon as the Defendant presents them for depositions, and 3-the condition of the stinger in question changed immediately after the incident, thereby making any inspection by Borison meaningless and of no use in forming his opinions.22
Similarly, Plaintiff refutes Defendant’s arguments that there is no support for Borison’s opinions as to the condition of the stinger and its height at the time of the alleged incident:
The photocopies of the photographs in question were produced in discovery by*965 Defendant. The testimony of Plaintiff in this case refute the photos fairly and accurately depict the condition of the stinger at the time of his injury. To the extent that Plaintiff’s statements conflict with the evidence presented by CMC, Borison is permitted to rely on the statements of Plaintiff. Similarly, Defendant’s contention that Borison’s opinions should be excluded because he conducted no investigation as to height of the platform, ignores the fact that the height of the stinger from the water will never be known because it wasn’t recorded at the time of the incident. Borison is permitted to rely on the Plaintiffs estimate of how far he fell to the water from the stinger in formulating his opinions.23
As Defendant does not challenge Borison’s credentials, Plaintiff argues that the pending motion is inappropriate and Defendant’s contentions are simply grounds for cross-examination, and it will be the jury’s role to resolve disputes between conflicting opinions.
III. Law and Analysis
Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,
In Daubert, the Supreme Court offered an illustrative, but not an exhaustive, list of factors that district courts may use in evaluating the reliability of expert testimony. These factors include whether the expert’s theory or technique: (1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error or standards controlling its operation; and (4) is generally accepted in the relevant scientific community.28
The Supreme Court emphasized that the Daubert analysis is a “flexible” one, and that “the factors identified in Daubert may or may not be pertinent in assessing relia
District courts have “wide latitude in determining the admissibility of expert testimony,”
The district court should, initially, approach its inquiry with the proper deference to the jury’s role as the arbiter of disputes between conflicting opinions. As 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 and should be left for the jury’s consideration.35
Here, as Plaintiff has noted, Defendant does not challenge Borison’s qualifications as an expert, or his methodology. Instead, Defendant generally argues that Borison’s conclusions are unfounded from the evidence he reviewed.
Finally, to the extent that Defendant argues that Borison’s report and testimony are not based on sufficient facts or data, and therefore run afoul of Rule 702(b), the Court finds these arguments unpersuasive. First, as Plaintiff explains, the condition of the stinger changed immediately after the incident, rendering any inspection mean
As Defendant has not challenged Borison’s expertise in this area, and at least one other court has found him qualified as a safety expert in maritime personal injury cases,
TV. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant’s Motion in Limine to Exclude Report and Testimony of Robert E. Borison
. Rec. Doc. 44.
. Rec. Doc. 1 at ¶ 2.
. Id. at ¶ 4.
. Id.&fh 5.
. Id.
. Rec. Doc. 33 at p. 5.
. Rec. Doc. 44.
. Rec. Doc. 45.
. Rec. Doc. 44-1 at p. 2.
. Id. at p. 3.
. Id.
. Id.
. Id.
. Id.
. Id.
. Rec. Doc. 45 at p. 2 (citing Montgomery v. Parker Towing Co., No. 07-3218, 2008 WL 559569 (E.D.La. Feb. 26, 2008) (Africk, J.) (denying a motion in limine seeking to exclude Borison as an expert witness)).
. Id.
. Id. at p. 5.
. Id.
. Id.
. Id. atpp. 5-6.
. Id. atp. 6.
. Id.
. Id. at pp. 7-8
. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Pipitone v. Biomatrix, 288 F.3d 239, 243 (5th Cir. 2002). The Court notes that Daubert and many on its progeny were decided before the 2011 Amendments to Rule 702, which altered the rule's language. However, this changes have no substantive effect on the standard to be applied when considering the admissibility of expert testimony because “[t]he language of Rule 702 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.” Fed.R.Evid. 702, 2011 Amendments.
. 288 F.3d 239.
. Id. at 244 (footnote omitted).
. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
. Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
. Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997).
. Carroll v. Morgan, 17 F.3d 787, 789 (5th Cir. 1994).
. United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., State of Miss., 80 F.3d 1074, 1078 (5th Cir. 1996) (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786).
. 826 F.2d 420 (5th Cir. 1987).
. Id. at 422. While Viterbo was decided before Daubert, subsequent Fifth Circuit opinions after Daubert have cited this language from Viterbo as good law. See 14.38 Acres of Land, 80 F.3d at 1077.
. See Rec. Doc. 44-1 at p. 3.
. 509 U.S. at 595, 113 S.Ct. 2786.
. Rec. Doc. 44-1 at p. 3.
. Viterbo, 826 F.2d at 422.
. Rec. Doc. 45 at p. 6
. Id. atp. 5.
. See Montgomery, 2008 WL 559569.
. Daubert, 509 U.S. at 595-96, 113 S.Ct. 2786.
. See Bocanegra, 320 F.3d at 584.
. Rec. Doc. 44.
Reference
- Full Case Name
- Tyrone LEWIS v. CHET MORRISON CONTRACTORS, LLC
- Status
- Published