Lewis v. Chet Morrison Contractors, LLC

959 F. Supp. 2d 962, 2013 WL 3804764, 2013 U.S. Dist. LEXIS 100575
CourtDistrict Court, E.D. Louisiana
DecidedJuly 18, 2013
DocketCivil Action No. 12-2788
StatusPublished

This text of 959 F. Supp. 2d 962 (Lewis v. Chet Morrison Contractors, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Chet Morrison Contractors, LLC, 959 F. Supp. 2d 962, 2013 WL 3804764, 2013 U.S. Dist. LEXIS 100575 (E.D. La. 2013).

Opinion

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

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.1 [963]*963After considering the complaint, the pending motion, the memorandum in support, the opposition, the record, and the applicable law, the Court will deny the pending motion.

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.2 Plaintiff claims that on November 5, 2012, he was wrapping a buoy on CM 11 pipe lay-bury barge while working on a smaller companion barge, when one of the buoys fell out of place. Plaintiff walked along a catwalk in an attempt to retrieve the buoy, but allegedly the tubing along the catwalk was broken and caught the pant leg of Plaintiff, causing him to trip and fall onto a piece of cable and then into the water.3 Plaintiff seeks damages against Defendant under general maritime law, claiming that the incident was caused by Defendant’s negligence and failure to provide a seaworthy vessel with a repaired catwalk and/or a non-skid grating on the catwalk.4

B. Procedural Background

Plaintiff filed the complaint in this action on November 16, 2012.5 On June 17, 2013, Plaintiff filed an amended witness list, wherein he lists Robert E. Borison (“Borison”) as “a marine safety expert who will offer professional opinions regarding the cause of the incident and the Defendant’s safety violations” which Plaintiffs contend amounted to negligence.6 On July 2, 2013, Defendant filed the pending motion in limine.7 On July 9, 2013, Plaintiff filed an opposition to the pending motion.8

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.9 Specifically, Defendant argues that Borison’s report and proposed testimony are “not based on reliable data as [they are] not supported by valid facts.”10 Defendant avers that Borison “only reviewed [Defendant’s] Incident report, photographs of the alleged scene, and incorporated, into his report, plaintiffs self-serving statements made to him during an interview.”11 Defendant stresses that Borison did not “conduct any sort of meaningful investigation such as, at the very least, interviewing any witnesses or performing a visual inspection of the stinger.” 12 Defendant also notes that the photographs reviewed by Borison do not show any holes in the grating or any tripping hazards in the work area Borison opines was the cause of Plaintiffs injury; therefore, Defendant alleges that it is clear that Borison “based this opinion solely on plaintiffs self-serving statements which are not sufficient.”13

[964]*964Further, Defendant argues that Borison’s opinion regarding the possible need for fall protection “is nothing more than speculative and wholly unsupported,” because he “conducted no investigation as to the height of the platform and states he does not know how high off the water it was situated.”14 Finally, Defendant argues that because Borison “was not armed with sufficient facts regarding the condition of the stinger, including the grating, his opinion regarding plaintiffs supervisors not exercising Stop Work Authority is unsupported,” and further claim that it is “worth noting that Mr. Borison fails to mention plaintiffs own right to exercise Stop Work Authority and his failure to do same.”15

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.16 Plaintiff also notes that in Borison’s expert report dated May 2, 2013, he concludes that two of Defendant’s supervisors failed to provide Plaintiff with a safe work place when they ordered him to work from the stinger that had holes in the grating and had a tripping hazard, and opined that if Plaintiff was at least four feet above water, the stinger should have had handrails installed.17

Plaintiff acknowledges that the pending motion does not challenge Borison’s qualifications or credentials, but rather focuses on Borison’s written report.18 Further, Plaintiff explains that Borison’s report does not include statements from Defendant’s employees because those employees have not been presented for deposition yet, but that such depositions are scheduled to occur on July 22, 2013.19 Thereafter, Plaintiff claims that “[i]t is entirely possible that Borison’s written opinions will be supplemented or amended once Defendant’s employees have been deposed.”20

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.21 In response to Defendant’s argument that Borison did not conduct “any sort of meaningful investigation,” Plaintiff argues that this:

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]*965Defendant. 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.

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Bluebook (online)
959 F. Supp. 2d 962, 2013 WL 3804764, 2013 U.S. Dist. LEXIS 100575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-chet-morrison-contractors-llc-laed-2013.