Warford v . Industrial Power Systems CV-06-463-JL 05/16/08P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Douglas Warford, Isabelle Taylor, LLC, and CNA Insurance Company
v. Civil N o . 06-cv-463-JL Opinion N o . 2008 DNH 105 Industrial Power Systems, Inc. and A.F. Theriault & Son Ltd.
O R D E R
The plaintiffs, Douglas Warford, Isabelle Taylor, LLC (“the
shipowner”), and CNA Insurance Company, proceeding as Warford’s
assignee and the shipowner’s subrogee, are suing to recover for
personal injury and property damage arising out of an explosion
and fire on the shipowner’s fishing vessel, the F/V Isabelle
Taylor, insured by CNA. The defendants, Industrial Power Systems
(“IPS”) and A.F. Theriault & Son Ltd. (“Theriault”), move in
limine to preclude certain of the plaintiffs’ witnesses from
offering expert testimony at the upcoming bench trial. The court
heard oral argument on the motion at the final pre-trial
conference on May 1 5 , 2008.
The court has jurisdiction over this matter under 28 U.S.C.
§ 1333(1) (maritime). For the following reasons, the defendants’
motions are denied without prejudice to renewal of their
objections to the anticipated testimony at trial. I. BACKGROUND
A flash fire aboard the Isabelle Taylor caused severe burns
to the ship’s engineer, Warford, while he was working in the
vessel’s switchboard, an electrical control designed and built by
IPS as part of an overhaul of the vessel’s electrical system
intended to allow the Isabelle Taylor to refrigerate its catch at
sea. The work on the overhaul took place at Theriault’s shipyard
in Nova Scotia, and included the installation of three new
generators manufactured by third parties. While Theriault
performed certain aspects of the work, including the installation
of the generators, under a written contract with the shipowner,
the actual labor involved in installing the switchboard was
performed on-site by an IPS technician, working in conjunction
with Warford himself.
Eventually, the Isabelle Taylor left the shipyard to return
to its home port in Portsmouth, New Hampshire, but the parties
dispute whether they understood that the work had been completed
at that point. The plaintiffs allege that neither Warford nor
the shipowner “was ever told that there was necessary work not
done or that the vessel was not ready to fish.” But the
defendants claim that the plaintiffs knew that, because the
generators had not yet been synchronized, the vessel could not be
operated without a crew member’s continually making manual
2 adjustments to the voltage and frequency of the generators by
using of a voltage meter. The defendants say, in fact, that
IPS’s technician reviewed that procedure with Edwards before the
Isabelle Taylor had set out for Portsmouth, and that Warford was
attempting to execute that procedure at the time of the fire. He
started the blaze by placing an alligator clip from his meter
across the terminals of two different fuse blocks, and on the
“high side” of the fuse, i.e., on the side closer to the source
of the current, causing a short circuit.
The plaintiffs, however, maintain that Warford attempted the
procedure only when he “discovered that the generators were not
load sharing properly as they should have been” and maintain that
the fire resulted from the defendants’ faulty installation of one
of the generators and defective design of the switchboard.
First, the plaintiffs say, a loose bolt in the generator’s splice
block caused an erratic connection, manifesting itself in the
problems that required Warford to open the panel to test the
voltages. The plaintiffs fault the defendants for failing to
inspect the generators before the Isabelle Taylor left the
shipyard, and allowing it to leave without the electrical system
functioning properly.
Second, the plaintiffs say, the panel was defectively
designed because (1) the terminals on the fuse blocks were placed
3 too close together, allowing Warford to place the alligator clip
across two of them at once, (2) the overload protection system
should have consisted of circuit breakers rather than fuses, or
at least a safer type of fuse holder, (3) this system should have
been placed at the shortest possible distance from the power
source, (4) the fuse holders should have been protected by a
shield, (5) the high-voltage zone of the fuse holders should not
have been included in the otherwise low-voltage panel, and
(6) the panel lacked the necessary warnings. The plaintiffs also
assert that IPS should have warned Warford not to try to
manipulate the generators as he did.
In the fire, Warford suffered second-degree burns to his
face and left hand, necessitating hospitalization, and the
Isabelle Taylor suffered damage, necessitating repairs. The
shipowner seeks more than $202,000 in profits it allegedly lost
as the result of missing three fishing trips while the repairs
were completed. The Isabelle Taylor had been scheduled to embark
on a “pair trawling” venture with another similar boat, the F/V
Jean McCausland, just two days after the fire struck. So the
Jean McCausland ended up fishing with another trawler, which,
unlike the overhauled Isabelle Taylor, lacked the capacity to
carry fish, cutting the profitability of the venture in half,
according to the plaintiffs’ calculations.
4 II. APPLICABLE LEGAL STANDARD
The plaintiffs have identified three expert witnesses to
testify on their behalf: Frederick Osborne, David DuBois, and
David “Nick” Jenkins. Under the Federal Rules of Evidence,
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. As the structure of this rule suggests,
before the factfinder in a case can consider expert testimony
over the adverse party’s objection, the trial judge, serving as
“gatekeeper,” must determine whether the testimony satisfies the
relevant foundational requirements. See Daubert v . Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993). In a bench trial,
however, “where the factfinder and the gatekeeper are the same,
the court does not err in admitting the evidence subject to the
ability later to exclude it or disregard it if it turns out not
to meet the standard of reliability established by Rule 702.” In
re Salem, 465 F.3d 767, 777 (7th Cir. 2006); see also United
States v . Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is
5 less need for the gatekeeper to keep the gate when the gatekeeper
is keeping the gate only for himself.”).
The defendants argue in tandem that each of the plaintiffs’
proffered expert witnesses lacks the requisite qualifications to
give some or all of his proffered opinion testimony, while
defendant Theriault challenges a number of the opinions on
additional grounds.1 The court will consider the defendants’
objections to each of the plaintiffs’ designated experts in turn.
III. ANALYSIS
A. Frederick Osborne
The plaintiffs have designated Osborne to testify in support
of their theories of causation and liability against both
defendants. Specifically, Osborne believes that Theriault
deviated from accepted industry practice by failing to inspect
the generators before installing them, that one of the generators
had a loose bolt in its splice block that caused the electrical
system to malfunction, that the defendants should not have
allowed the Isabelle Taylor to leave Nova Scotia with its
1 One of these grounds is that the materials on Osborne’s anticipated testimony provided to the defendants in discovery did not contain “a complete statement of all opinions [he] will express and the basis for them” as required by Fed. R. Civ. P. 26(a)(2)(B)(i). Because Theriault has previously waived this argument, however, it is rejected without further discussion.
6 electrical system in that condition, and that these missteps
precipitated the fire by requiring Warford to open the control
panel in the first place. Osborne also believes that IPS
designed the control panel with a number of defects, listed in
Part I , supra, that allowed Warford to touch his meter clip to
the terminals of two separate fuse holders, sparking the fire.
Osborne runs a marine electrical service company in New
Bedford, Massachusetts, where he has spent almost twenty years
doing strictly electrical work on boats. Prior to that, he spent
more than a decade as a marine engineer; the vast majority of
that work was electrical as well. He holds no degree in
electrical engineering or any related field, however. While
Osborne’s company rarely installs marine generators, it regularly
does the work of connecting those generators to other components
of the boat’s electrical system. The company also performs
troubleshooting work on marine generators, including ones from
the same manufacturer as two of the Isabelle Taylor’s. Osborne’s
company also installs control panels designed and built by either
the company itself or by a third party. But the panels the
company designs are, by Osborne’s own admission, “much less
complicated” than the one IPS designed for the Isabelle Taylor.
The company also has little experience synchronizing multiple
7 generators, because, according to Osborne, that arrangement is
uncommon on boats in the area.2
Because Osborne has never designed a control panel for a
system with synchronized generators, IPS argues that he is
unqualified to render opinions on its design of its panel,
likening them to “the pilot of a Piper Cub commenting on the
technique of the pilot of a Boeing 747 jetliner.” Similarly,
Theriault argues that Osborne cannot opine on the source of the
malfunction in the generator because he “is not a licensed
electrician [or] an engineer.” These arguments are misplaced.
“Rule 702 does not require specific educational training in
the area of expertise and . . . an expert need not have design
experience with the particular product in order to render expert
opinion about the unreasonableness of its design.” Tokio Marine
& Fire Ins. C o . v . Grove Mfg. Co., 958 F.2d 1169, 1175 (1st Cir.
1992); see also Stagl v . Delta Air Lines, Inc., 117 F.3d 7 6 , 81-
82 (2d Cir. 1997); DaSilva v . Am. Brands, Inc., 845 F.2d 356, 361
(1st Cir. 1988). IPS has not identified any specific differences
between the electrical panel it built for the Isabelle Taylor and
2 Osborne explained at his deposition that, while boats with two generators are common, in that arrangement one generator usually serves as a backup power source, so that the generators need not be synchronized like the three generators installed aboard the Isabelle Taylor.
8 the many electrical panels built by Osborne that would make him
incapable of providing the court with “technical[] or other
specialized knowledge” about the design of marine electrical
panels.3 Nor has Theriault identified any specific differences
between the wiring work it did on the Isabelle Taylor’s three-
generator system and the wiring and troubleshooting work Osborne
regularly does on other boats’ one- or two-generator sets. In
any event, “Rule 702 is not so wooden as to demand an intimate
level of familiarity with every component of a . . . device as a
prerequisite to offering expert testimony.” Microfinancial, Inc.
v . Premier Holidays Int’l, Inc., 385 F.3d 7 2 , 80 (1st Cir. 2004).
The First Circuit has upheld the admission of expert
testimony in maritime cases over objections similar to the ones
the defendants have raised here. See, e.g., Correa v . Cruisers,
A Div. of KCS Int’l, Inc., 298 F.3d 1 3 , 25-26 (1st Cir. 2002)
(ruling that engineer experienced in repairing engines could
opine to defectiveness of fuel management system, despite lack of
experience with that particular engine component); Diefenbach v .
Sheridan Transp., 229 F.3d 2 7 , 31 (1st Cir. 2000) (ruling that
3 Indeed, insofar as the court can understand from the materials presently before i t , the alleged defects Osborne has identified in the IPS panel--e.g., the placement of the fuse holders, the type of overload protection used, the lack of warnings--do not implicate features unique to a panel that connects three generators, as opposed to only one or two.
9 sea captain properly gave expert testimony on docking and
undocking equipment and procedures on integrated tug and barge,
despite his lack of experience with that kind of vessel). In
short, “expert witnesses need not have overly specialized
knowledge to offer opinions.” Levin v . Dalva Bros., 459 F.3d 6 8 ,
78 (1st Cir. 2006). This court will allow Osborne to testify
over the defendants’ objections as to his lack of qualifications.
IPS also argues that Osborne cannot testify because, in
developing his opinions about the design of the switchboard, he
did not employ a “‘theory or technique [that] . . . can be (and
has been) tested,’” that “‘has been subjected to peer review and
publication,’” and that “enjoys ‘general acceptance’ within ‘a
relevant scientific community.’” Kumho Tire C o . v . Carmichael,
526 U.S. 137, 149-50 (quoting Daubert, 509 U.S. at 592-94)
(further internal quotation marks omitted). As the Court made
clear in Kumho Tire, however, these “factors identified in
Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Id. at 150
(internal quotation marks omitted).
Thus, while the Court observed that “[e]ngineering testimony
rests upon scientific foundations, the reliability of which will
be at issue in some cases,” it also acknowledged that, “[i]n
10 other cases, the relevant reliability concerns may focus upon
personal knowledge or experience” and therefore be less likely to
implicate the Daubert factors. This is the latter kind of case:
Osborne claims to have formed his opinions on the design of the
switchboard based on his own experience in designing and
installing similar components.4 “In certain fields, experience
is the predominant, if not sole, basis for a great deal of
reliable expert testimony,” without regard to the particular
Daubert criteria. 3 Louis R. Frumer & Melvin I . Friedman,
Products Liability § 18A.04[6][f], at 18A-80.11 (1960 & 2008
supp.). So it is immaterial--and unsurprising--that an
experienced designer of marine electrical switchboards would draw
upon that experience, rather than peer-reviewed studies or other
published literature, in identifying the alleged defects in a
particular switchboard designed by somebody else.5
Theriault further argues that Osborne cannot opine as to its
alleged failure to inspect the generator before installation
because, at his deposition, he testified that he probably would
not have removed tape from the leads on the generator to check
4 Osborne testified, in fact, to the absence of published standards governing most marine electrical work, as opposed to its shore-based counterpart. 5 IPS makes similar challenges to the testimony of Dubois and Jenkins, which are rejected for essentially the same reasons.
11 the connection before installation if it had arrived from the
manufacturer with the leads taped. Theriault also argues that
Osborne cannot opine as to its alleged failure to warn the
plaintiffs that the Isabelle Taylor’s electrical system was not
fully operational when she left Nova Scotia or that the
electrical panel contained high voltage because, Theriault
asserts, the plaintiffs were fully aware of both of those
hazards. “Objections of this type, which question the factual
underpinnings of an expert’s investigation, often go to the
weight of the proffered testimony, not to its admissibility.”
Crowe v . Marchand, 506 F.3d 1 3 , 18 (1st Cir. 2007).
Osborne’s deposition testimony does not conclusively
establish that the generator at issue came from its manufacturer
in a taped condition, excusing Theriault from its alleged
obligation to inspect i t ; likewise, the plaintiffs’ alleged
awareness of the dangers at issue i s , at the moment at least,
simply one inference to be drawn from the evidence likely to be
offered at trial. If the court, sitting as factfinder, ends up
resolving these disputes in Theriault’s favor, that will
undoubtedly weaken Osborne’s opinions as to its liability, but
that possibility provides no basis for excluding those opinions
now, when the court has yet to hear the evidence. The
defendants’ motion to exclude Osborne’s testimony is denied,
12 without prejudice to renewing it should the proof at trial leave
his opinions without the necessary factual support.
B. David Dubois
While the plaintiffs have designated Dubois to testify on a
number of subjects, the defendants seek to exclude his opinions
only as they relate to liability and causation. Specifically,
the defendants challenge his conclusions that (1) they failed to
provide workmanlike performance in servicing the Isabelle Taylor,
(2) IPS was negligent in its design and installation of the
electrical panel, (3) Theriault was negligent in failing to
inspect the generator “so as to discover the loose bolt . . . and
in allowing the vessel to leave the yard with that condition
extant or with any electrical fault existing,” and (4) the
defendants are therefore “responsible” for the fire.
Dubois has been investigating incidents of personal injury
and property damage occurring on commercial vessels for nearly
thirty years through his affiliated companies, Marine Safety
Consultants and Maritime Claims. He attended the United States
Coast Guard Academy, receiving a bachelor’s degree in science
with a concentration in marine engineering and mathematics. He
then spent eight years in the Coast Guard, serving as a chief
engineer officer aboard a cutter, overseeing the overhaul of
13 another cutter, and working as a marine inspector and
investigator. He has testified as an expert in a number of
reported maritime accident cases.6
The defendants nevertheless argue that Dubois lacks the
requisite qualifications to opine on their responsibility for the
fire, asserting that he has no experience or training in
electrical matters. In the court’s view, that cannot be fairly
said of a man who has spent nearly forty years inspecting and
overseeing the upgrades and repairs of commercial and Coast Guard
vessels, of which electrical systems are an essential part. Cf.
Hopkins, 271 F.3d at 4 (upholding admission of Dubois’s testimony
as to crewman’s departure from standard of care over objection
that Dubois was unqualified, noting that he “was a graduate of
the Coast Guard Academy who had served as an inspector of ships
6 See Matos v . Silva Fishing Corp., 21 Fed. Appx. 2 4 , 26 (1st Cir. 2001) (unpublished disposition); Hopkins v . Jordan Marine, Inc., 271 F.3d 1 , 4 (1st Cir. 2001); Minott ex rel. Minott v . Smith, N o . 03-10, 2003 WL 22078070, at *2-*3 (D. M e . Sept. 5 , 2003), rept. & rec. adopted, 2003 WL 22519653 (D. M e . Nov. 5 , 2003), aff’d sub nom. Poulis-Minott v . Smith, 388 F.3d 354 (1st Cir. 2004); In re Moran Towing & Transp. Co., 1989 A.M.C. 2492 (D. M e . 1989); see also Ferrara & DiMercurio, Inc. v . S t . Paul Mercury Ins. Co., 169 F.3d 4 3 , 49 (1st Cir. 1999) (noting Dubois’s investigation of a fire aboard a fishing vessel which determined it was electrical in nature); but see Lisa v . Fournier Marine Corp., 866 F.2d 530, 531 (1st Cir. 1989) (per curiam) (affirming exclusion of Dubois’s testimony where proponent “neither objected at trial to exclusion . . . nor explain[ed] on appeal why it was erroneous”).
14 for the Coast Guard followed by years of consulting work in ship
inspection and investigating maritime accidents”). At his
deposition, in fact, Dubois repeatedly testified that he does
have a background in marine electrical work and demonstrated an
understanding--which the defendants have not attempted to
question--of the electrical concepts at issue.
That Dubois, in formulating his own opinions in this case,
relied in part on Osborne’s more specialized knowledge of that
subject--or, as Theriault complains, Osborne’s investigation of
the scene--does not disqualify Dubois from testifying on it
himself. “[W]hen an expert relies on the opinion of another,
such reliance goes to the weight, not to the admissibility of the
expert’s opinion.” Ferrara & DiMercurio, 240 F.3d at 9
(upholding admission of expert testimony on whether marine fire
had electrical origin over similar objections, including that one
expert had impermissibly relied on observations and report of
another). Here, as in Ferrara & DiMercurio, the court will allow
Dubois to give his proffered opinions, subject to cross-
examination and argument by the defendants over his asserted lack
of expertise in and reliance on Osborne for electrical matters.7
7 Theriault also argues that Dubois, at his deposition, “was either unable or unwilling to offer specific opinions regarding what [it] did wrong in installing any of the systems aboard the vessel or why it was wrong.” The court does not read Dubois’s
15 The defendants’ motions to exclude Dubois’s opinions are denied
without prejudice to renewing their objections at trial.
C. David “Nick” Jenkins
The plaintiffs have designated Jenkins to testify to one
aspect of their damages: the profits allegedly lost due to the
Isabelle Taylor’s inability to participate in a pair trawling
venture for herring while she was undergoing repairs. The
defendants do not argue that Jenkins--who has worked as a
commercial fisherman for twenty years, eight of them as the
manager of an entire fishing fleet--is unqualified to give this
opinion. Instead, the defendants characterize his damage
calculation, summarized in Part I , supra, as “entirely
speculative” because the Isabelle Taylor had never fished as part
of a pair trawling operation prior to the fire.
Just as in cases of land-based torts, a plaintiff in a
maritime action seeking to recover lost profits--including from a
lost opportunity at commercial fishing--need show them only to a
deposition testimony that way. While Dubois admitted that he was unaware of the exact parameters of Theirault’s role in the design and installation of the panel itself, he stated that Theriault was at fault for failing to discover the loose connection in the generator, for failing to test the ship’s electrical system, and for failing to warn the plaintiffs of the dangers of operating the ship with the system unfinished.
16 reasonable certainty. See Yarmouth Sea Prods. Ltd. v . Scully,
131 F.3d 389, 395 (4th Cir. 1997) (citing The Conqueror, 166 U.S.
110, 125 (1897)); Miller Indus. v . Caterpillar Tractor Co., 733
F.2d 813, 822 (11th Cir. 1984); accord Trans-Asiatic Oil, Ltd. v .
Apex Oil Co., 804 F.2d 773, 782 (1st Cir. 1986) (applying
“reasonable certainty” test to claim for demurrage). The
defendants acknowledge not only this rule, but also that lost
fishing profits may be adequately shown “by catches of similar
vessels on the same fishing grounds during the period” at issue.
See, e.g., Miller Indus., 733 F.3d at 822. That is the
plaintiffs’ proposed method of proof: to show that the Isabelle
Taylor would have caught at least as many fish as her would-be
trawling partner, the Jean McCausland, was able to catch in
tandem with a different boat on the same fishing grounds in the
same period. While the defendants are free to challenge the
resulting estimate by way of cross-examination or argument, they
have provided no basis for preventing Jenkins from testifying to
the estimate altogether. See, e.g., Guy v . Starwood Hotels &
Resorts Worldwide, Inc., 2005 DNH 126, 13 (denying motion to
exclude evidence of plaintiff’s lost profits where “defendants’
questions about the accuracy of the estimate can be addressed
through cross-examination”). Their motions to exclude Jenkins’s
testimony on this subject are denied.
17 IV. CONCLUSION
For the foregoing reasons, the defendants’ motions in limine
(document nos. 25 and 31) are DENIED without prejudice to renewal
of the defendants’ objections at trial.
SO ORDERED.
Joseph N. Laplante United States District Judge Dated: May 1 6 , 2008
cc: Christine Friedman, Esq. William H. Welte, Esq. Lee Stephen MacPhee, Esq. Peter G. Callaghan, Esq. Gregory P. Hansel, Esq. Michael Kaplan, Esq. Daniel P. Luker, Esq.