This case concerns a trip-and-fall accident. Pedero Sanders alleged that, on November 8, 2022, he was employed by Weeks Marine as a Jones Act seaman assigned to the dredge JS Chatry. He claimed that, in the course of his work, he tripped and fell while retrieving supplies from a shack on land.
According to Sanders, the supply shack is pulled into place at the worksite using “D-rings,” and he tripped over one of the rings that was supposed to be buried, but was not, resulting in bodily injuries.
Sanders filed this suit against Weeks Marine, alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure.
Weeks Marine filed two motions in limine to exclude the testimony and opinions of Sanders’ experts – one directed at Sanders’ safety expert, Robert Borison, and the other at Sanders’ economic loss expert, Max Lummis.
Safety Expert Witness
Robert Borison brings to the table over 50 years of safety experience in the industries relating to the exploration, production, and transport of oil and gas
and the marine, general, and commercial industries. His expertise in safety issues on production platforms, barges, structural, fabrication yards, vessels/boats, commercial and industrial buildings, and building projects is
extensive.
Accounting Expert Witness
Max Lummis is a Certified Public Accountant licensed in Texas and Colorado, a Certified Valuation Analyst and a Certified Fraud Examiner. Lummis has worked as a forensic accounting professional since 2004. He founded LCS Forensic Accounting & Advisory (a certified public accounting firm) in 2012 and has been its managing member since. He has been disclosed as an economic damages expert witness on over 200 matters.
Discussion by the Court
Weeks Marine’s motion to exclude Sanders’ safety expert Robert Borison
Borison reviewed the evidence in this case and performed “root cause” analysis in which he opines that Weeks Marine failed to provide Sanders with a safe vessel to work on because did not remove the shackle and D-ring from the supply shack’s skid after setting it up for service.
Weeks Marine argued that Borison’s testimony and opinions should be excluded because expert testimony is not necessary to understand the issues presented in this simple trip-and-fall case. Defendants contended that a trip-and-fall hazard is within the ordinary understanding of a lay juror and the issues can be resolved by employing common sense. Defendants also pointed out that Borison opined that it failed to provide Sanders with a safe vessel, which amounts to a legal conclusion for the factfinder to make.
Weeks Marine contended that Sanders underestimates the intelligence of the average juror, who can understand, without expert testimony, the circumstances surrounding a trip-and-fall accident and that a pre- task meeting (including a Job Safety Analysis) can be helpful to prevent accidents.
Weeks Marine also urged that Borison should not be permitted to testify about JSAs or why supply shacks are needed and how they are moved and placed because his report does not state any opinions on those topics.
Despite being qualified, Borison’s opinion does not relate to any specialized maritime activity or equipment for which expert testimony would be required. The average juror is certainly familiar with tripping hazards and can resolve the issues presented in this case without expert testimony. Further, Borison’s opinion on tripping hazards does not implicate industry standards that are not also within the understanding of jurors. Moreover, Borison cannot testify about JSAs or the use and movement of supply shacks because he does not discuss them in his report.
Weeks Marine’s motion to exclude or limit Sanders’ economic loss expert Max Lummis
Lummis issued a report with four calculations: (1) Sanders’ past lost wages from the date after the accident (November 9, 2022) to the expected trial date (November 18, 2024) in the amount of $197,153; (2) Sanders’ future lost wages through his average work- life expectancy of 61 years, discounted to present value, in the amount of $2,513,712; (3) Sanders’ future lost wages if he works until age 62, discounted to present value, in the amount of $2,616,386; and (4) Sanders’ future lost wages if he works until age 70, discounted to present value, in the amount of $3,442,865.
To calculate the lost future earnings, Lummis “increased projected pre-tax annual earning capacity each year from 2023 through Plaintiff’s average work life expectancy using an inflation-adjusted ‘real’ wage growth of 0.83%,” then he “discounted back to the expected trial date using an inflation-adjusted risk-free rate of 0.56%.”
Lummis’ Testimony and Opinions regarding Sanders’ Future Lost Wages should be Excluded
Weeks Marine sought to exclude or limit Lummis’ testimony and opinions regarding Sanders’ future lost wages, arguing that he doubly accounts for inflation. It contended that Lummis, without evidence of Sanders’ potential wage growth, speculatively increased Sanders’ annual wages by 0.83%, and then applied a 0.56% discount rate, which allows Sanders to “double-dip” on his future wage loss claim. Weeks Marine further argued that Lummis should not be permitted to testify as to Sanders’ future lost wages beyond his statistical work-life expectancy of 61 years because there is no evidence that he would work longer.
It also argued that Lummis should not be permitted to present evidence of future lost wages beyond Sanders’ statistical work-life expectancy because there is no evidence that Sanders would have worked that long. Finally, Weeks contended that Lummis should not be permitted to amend his report to provide new calculations because the time has passed for providing expert reports and he could have performed the calculations correctly in the first place.
Lummis’s calculations are wrong as a matter of law
The Court held that Lummis’ testimony and opinions on Sanders’ future lost wages are inadmissible because he doubly accounts for inflation. As noted above, Lummis increased Sanders’ annual income by a factor of 0.83%, and then discounted the income stream to present value using a 0.56% discount rate. The supposed annual increase was based entirely on the statistical wage growth rate developed by the Bureau of Labor Statistics (which rate Sanders admits is “inflation-adjusted”), not evidence of Sanders’ actual expected increased earnings due to personal merit or increased experience. In other words, Lummis’ calculations are wrong as a matter of law and must be excluded from trial.
The Court, however, allowed Lummis 14 days to amend his report utilizing the proper methodology.
The Court added that Lummis may testify at trial as to Sanders’ future lost wages up to ages 62 and 70, if Sanders first presents other evidence that he would have continued to work past his statistical work-life expectancy of 61 years. It held that Weeks Marine’s motion in limine to exclude Lummis’s testimony concerning Sanders’ future lost earnings up to ages 62 and 70 is denied.
Held
The Court granted Weeks Marine’s motion in limine to exclude Robert Borison’s testimony but granted in part and denied in part Weeks Marine’s motion in limine to exclude Max Lummis’ testimony.
Key Takeaway:
Borison’s sole opinion is that the exposed D-ring created a tripping hazard. This opinion does not relate to any specialized maritime activity or equipment for which expert testimony would be required.
Lummis’ calculations are wrong as a matter of law because he doubly accounts for inflation. Lummis increased Sanders’ annual income by a factor of 0.83%, and then discounted the income stream to present value using a 0.56% discount rate. The Court held that the supposed annual increase was not based on evidence of Sanders’ actual expected increased earnings due to personal merit or increased experience but on the statistical wage growth rate developed by the BLS, which rate Sanders admits is “inflation-adjusted”.’
Case Details:
| Case Caption: | Sanders V. Weeks Marine, Inc. |
| Docket Number: | 2:23cv7317 |
| Court: | United States District Court for the Eastern District of Louisiana |
| Order Date: | September 27, 2024 |
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