Expert Witness Profiler

Tag: Prejudice

  • Safety Expert Witness Testimony on Safe Means of Access as per Maritime Industry Standards Admitted

    Safety Expert Witness Testimony on Safe Means of Access as per Maritime Industry Standards Admitted

    The Plaintiff, William Austin, III, sustained injuries while disembarking from the dredging vessel W308 RS WEEKS (the “vessel”). The Plaintiff alleged that, during his course of employment with Sontheimer Offshore/Catering Co. and Weeks (collectively, the Defendants), he suffered severe and permanently disabling injuries. The Plaintiff contends that the Defendants were negligent in various aspects, including failure to properly supervise, direct, and control operations, provide or utilize safe equipment, offer adequate assistance, ensure safe egress from the vessel, give adequate warning of known dangers, and provide a safe working environment. Under the Jones Act, the Plaintiff claims that Weeks had a duty to furnish a safe workplace, a competent and adequate crew, safe gear, equipment, and a seaworthy vessel. The Plaintiff argues that Weeks’ alleged failures, coupled with the unseaworthiness of the vessel, were the proximate causes of his injuries.

    On December 19, 2023, Weeks filed a Daubert motion seeking to exclude testimony from the Plaintiff’s maritime safety expert, Robert E. Borison. Weeks asserted that Borison’s testimony was unhelpful, conclusory, and usurped the role of the factfinder. On December 26, 2023, the Plaintiff provided Weeks with a supplemental report from Borison. In response, Weeks filed another motion aiming to exclude Borison’s supplementary report. Weeks contended that the Plaintiff submitted the supplemental report because they acknowledged that Borison’s initial report contained opinions that did not meet the requirements of Federal Rule of Evidence 702. Weeks argued that the information in the supplemental report was available to Borison when the original report was prepared, and it would be impermissible to use this information to undermine Weeks’s Daubert motion. Additionally, Weeks contended that the report should be excluded as it allegedly violated the Court’s scheduling order.

    In response, the Plaintiff argued that Borison was qualified to testify and would offer testimony that is both helpful and non-conclusory regarding safety policies. The Plaintiff also contended that Borison’s supplemental report should not be excluded despite its untimeliness. The Plaintiff explained that the delay was a result of the Defendants’ procrastination in producing the vessel’s captain for a deposition and the Plaintiff’s difficulties in locating specific photographs. Furthermore, the Plaintiff asserted that none of the “new” information in the supplemental report was unknown to Weeks, thereby causing no prejudice to them.

    On December 27, 2023, Weeks requested an extension of its expert report deadline until January 8, 2024, to allow time for supplementing its expert report if deemed necessary after reviewing Borison’s supplemental report. The Plaintiff did not oppose this extension request, and the Court granted Weeks’ motion for an extension.

    Safety Expert Witness

    Robert E. Borison possesses over 50 years of safety experience in industries related to the exploration, production, and transport of oil and gas, as well as the marine, general, and commercial sectors. His expertise encompasses safety issues across various settings, including production platforms, barges, structural and fabrication yards, as well as vessels/boats, commercial and industrial buildings, and building projects. Borison obtained his degree in Business Administration from Louisiana State University. He currently serves as the President of Total Safety Services, Inc.

    Discussion by the Court

    Weeks contested the relevance of Borison’s proposed testimony under Rule 702, asserting that his opinions pertained to common-sense matters unrelated to his expertise. Weeks argued that Borison’s opinions encroached upon the factfinder’s role and included impermissible conclusions of law.

    Weeks contended that Borison’s testimony was unnecessary and unhelpful, asserting that it delved into common-sense matters that did not necessitate expert testimony and usurped the factfinder’s role. In response, the Plaintiff argued that Borison’s extensive experience, with testimony in over eighty-five cases related to maritime safety, qualified him to educate the jury on relevant rules, regulations, and acceptable practices pertinent to the case.

    The U.S. Fifth Circuit Court of Appeals has outlined that expert testimony ought to be excluded when the jury can effectively assess a situation through common experience and knowledge, as stated in Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir.1990). The primary consideration for the Court is whether the expert testimony consists of conclusions derived from common sense or serves to explain technical issues that aid the jury in understanding the relevant facts of the case.

    Weeks relied on a precedent where another section of the Court concluded that Borison could not testify because his opinion didn’t require or utilize any expertise, and it wouldn’t assist the jury in resolving any case issues. However, in the current case, Borison’s opinion, as outlined in his report, asserted that Weeks breached health and safety requirements by failing to provide a “safe means of access.” His opinion clarified that a ladder should have been supplied as a secure method of disembarking the vessel. Defining what constitutes a “safe means of access” in accordance with maritime safety standards and the maritime industry is not a matter of common sense the Court was readily familiar with. Borison’s specialized knowledge and experience in marine safety were asserted to be crucial in illuminating this specific issue.

    Subsequently, Weeks contended that Borison’s report lacked thorough analysis as it did not consider whether the water taxi captain should have assigned a deckhand to assist the Plaintiff during the transfer and did not assess the feasibility and safety of repositioning the tug closest to the vessel’s bow ladders. The Court observed that this challenge pertained to the foundation and source of Borison’s opinion, suggesting that it should be addressed through cross-examination rather than exclusion.

    Weeks additionally asserted that Borison’s opinions went beyond factual analysis and ventured into offering legal conclusions, thereby impinging on the factfinder’s ability to draw its own conclusions. Weeks referenced Rule 704(a), which stipulates that testimony in the form of an opinion or inference, otherwise admissible, is not objectionable because it addresses an ultimate issue for the trier of fact. However, Weeks argued that Fifth Circuit case law makes it clear that Rule 704(a) does not permit a witness to provide legal conclusions, citing Shawler v. Big Valley, L.L.C., 728 F. App’x 391 (5th Cir. 2018).

    Weeks argued that Borison’s statements, asserting that supervisors “failed to install, or request to install, a gangway” and that captains should have provided specific instructions, were improper conclusions. However, these statements did not constitute legal conclusions regarding Weeks’ negligence. The Court found that that Borison’s testimony was permissible as he did not offer opinions on unseaworthiness, negligence, or causation.

    The Court was not persuaded that Borison had crossed the line by providing legal conclusions. The Court held that Borison offered expert opinion testimony that could potentially assist the jury in determining the ultimate legal question, specifically, legal fault. The Court acknowledged that the admissibility of such testimony depended on how the actual questions and answers were framed during the trial, as it could be either objectionable or not in specific circumstances. The Court indicated that it would be better positioned during the trial to assess whether Borison genuinely reached legal conclusions that fall within the jury’s purview or if he instead presented admissible opinions intended to suggest a particular legal conclusion.

    As previously mentioned, Weeks sought to strike Borison’s supplemental report. Weeks argued that the supplemental report should be stricken due to procedural violations, untimeliness, and the perceived unnecessary nature of the additional opinions.

    Weeks contended that it was procedurally impermissible for the Plaintiff to attempt to address the issues raised in Weeks’ Daubert motion through a supplemental report. Since the Court had previously addressed Weeks’ motion to exclude and deemed Borison’s original conclusions admissible, the Court did not have to consider this argument as the supplemental report does not remedy the alleged defects in the original report.

    Weeks argued that the supplemental report introduced new opinions based on evidence previously available to Borison, characterizing it as an impermissible attempt for a “second bite at the apple” to offer opinions complying with Federal Rule of Evidence 702. Weeks contended that the supplemental report violated the case management order and should be excluded. In response, the Plaintiff argued that the delay in the supplemental report was due to defense counsel’s tardiness in producing Captain Isaac Martinez (“Captain Martinez”) for a deposition and the Plaintiff’s difficulty in locating photographs that he took of the scene. The Plaintiff further asserted that there was no prejudice or unfair surprise to Weeks regarding the information presented in the supplemental report.

    Contrary to Weeks’ claim that exclusion is mandatory, the decision to admit or exclude evidence produced in violation of the Court’s scheduling order is within the Court’s broad discretion. In exercising this discretion, the Court takes into account several factors, including the importance of the evidence, the prejudice to the opposing party of including the evidence, the potential for curing such prejudice through a continuance, and the explanation provided for the party’s failure to disclose.

    Concerning the first factor, the Plaintiff clarified that the supplemental report incorporated photographs taken by the Plaintiff at the scene and details obtained during Captain Martinez’s depositions regarding responsibility for methods of transferring personnel on and off the dredge. The Plaintiff asserted that Borison’s testimony would significantly assist in explaining safety statutes, industry guidelines, and Weeks’s safety rules to the jury. However, the Plaintiff did not explicitly elaborate on how the information in the supplemental report was crucial to the case. As a result, this factor did not weigh in either direction.

    Regarding the second and third factors, Weeks argued that the supplementation of the report would cause prejudice, but failed to specify any particular harm beyond the timing issue of its expert report being due one day after receiving the supplemental report. However, Weeks later requested a ten-day extension to produce a supplemental expert report if deemed necessary after reviewing Borison’s supplemental report. The Court granted this extension, thereby remedying any identified prejudice, and no further continuance was sought or deemed necessary.

    Regarding the fourth factor, the Plaintiff clarified that the delayed disclosure was attributed to the postponed deposition of Captain Martinez and the Plaintiff’s challenges in locating photographs of the accident scene. While Plaintiff did not take Captain Martinez’s deposition until after the original report, the Plaintiff had possession of the accident photographs throughout the entire period as they were found on an old mobile phone that proved challenging to locate. The Plaintiff explained that some of the information was available at the time of the initial report, while some was not. Consequently, this factor did not strongly favor either direction.

    Upon evaluating the four factors discussed earlier, the Court concluded that excluding the supplemental report was inappropriate. This decision was based on the limited prejudice to Weeks and the possibility of remedying any identified prejudice by allowing Weeks to submit its own supplemental report.

    Held

    The Court denied Weeks’ Daubert motion to exclude Borison’s testimony. Additionally, the Court also denied Weeks’ motion to strike Borison’s supplemental report. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In the legal proceedings involving the injuries sustained by the Plaintiff while disembarking from the dredging vessel, the Court addressed Weeks’ motions to exclude testimony from the Plaintiff’s maritime safety expert, Robert E. Borison, and to strike Borison’s supplemental report. Weeks argued that Borison’s testimony was unhelpful and conclusory, and the supplemental report was procedurally flawed, untimely, and contained unnecessary opinions. However, the Court denied both motions, ruling that exclusion was inappropriate. The Court emphasized the importance of its discretion in such matters and considered factors such as the importance of the evidence, prejudice to the opposing party, the possibility of curing such prejudice, and the explanation for the delayed disclosure. While Weeks claimed potential prejudice, the Court found it to be limited, and any identified issues were remedied by granting Weeks an extension to submit its own supplemental report. Overall, the Court determined that excluding Borison’s testimony and the supplemental report was not warranted, allowing for a comprehensive presentation of expert evidence during the trial.

    Case Details

    Case Caption Austin v. Sontheimer Offshore/Catering Co.
    Docket Number 2:23cv1602
    Court United States District Court, Louisiana Eastern
    Citation 2024 U.S. Dist. LEXIS 9764
    Order Date January 19, 2024
  • Questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion, not admissibility; Court admits the testimony of Structural Engineering Expert Witness in insurance coverage dispute

    Questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion, not admissibility; Court admits the testimony of Structural Engineering Expert Witness in insurance coverage dispute

    This insurance coverage dispute arose when the Plaintiff, Fiberco’s building was damaged by a hailstorm in April 2020 while insured under a policy issued by Defendant, Acadia Insurance Company effective from April 10, 2020 to April 10, 2021. FiberCo subsequently filed a claim with Acadia for the hail damage to the building. After an assessment, Acadia’s engineer identified at least seven places on the roof of the building with openings at the seams of overlapping metal panels, which reduced the water shedding capability of the roof in those areas, and additional hail dents. Acadia denied FiberCo’s claim, explaining that while the seven open seams were considered a covered loss, the dents to the roof fell under the Policy’s cosmetic damage exclusion. Consequently, the overall amount of the covered loss was deemed to be below the Policy’s deductible amount. In response, FiberCo initiated legal proceedings by filing a lawsuit against Acadia Insurance Company and also Union Standard Lloyds, underwriter of the insurance policy to which Fiberco and Acadia Insurance Company (Acadia) were parties.

    During discovery, Fiberco’s expert David Day provided a report concluding that all of the building’s metal roofing needed replacement due to the functional damage arising from the hail and the wetted insulation also needed replacement. He also opined that the hail dents which have not opened seams would cause accelerated corrosion and reduce the roof’s useful life by 25%. Fiberco provided initial expert designations and first amended designations to Acadia and Union, which had listed Day as a retained expert. Acadia and Union then deposed Day and learned his assistant, not Day himself, had inspected Fiberco’s building. Later, Day personally inspected the building for the first time. Fiberco subsequently filed a second amended expert designation for Day, after the deadline and without leave of court. The second designation did not include a supplemental report or declaration from Day at that time, but stated Day’s testimony would rely on his previous deposition and later inspection of the property. 

    Acadia and Union Standard moved to strike Day’s expert testimony, objecting to Day’s characterization of the dents as “functional” and questioning the scope and reasonableness of the necessary repairs to FiberCo’s building. They argued that Day’s opinions lacked a basis in reliable facts or data, were not the product of reliable scientific principles and methods, had not applied any reliable principles and methods to the facts of the case, and did not aid the trier of fact. Additionally, they claimed that Day’s second expert designation was untimely and prejudicial.

    Structural Engineering Expert Witness 

    David Vaughan Day holds a Bachelor of Science in Construction and is a registered professional engineer and an expert in foundation and structural defects in residential and commercial construction. He has been a structural forensic engineer since 1998 and has performed over 1,000 structural forensic inspections, and at least half are wind/hail assessment inspections. Day is the President and Chief Engineer for CASA Engineering, L.L.C., and has been designated a Diplomate in Forensic Engineering Board by the National Academy of Forensic Engineers.

    Discussions by the Court

    Federal Rule of Evidence 702 governed the admissibility of expert testimony, allowing opinion testimony from qualified experts if it assisted the trier of fact and met specific criteria. The Court, acting as a gatekeeper, required the party presenting expert testimony to prove its reliability and relevance by a preponderance of evidence. Expert testimony was considered relevant if it aided in understanding the evidence or determining a fact in question, aligning with Federal Rule of Evidence 401. Reliability necessitated scientifically valid reasoning or methodology, avoiding subjective belief or unsupported speculation. The Court, applying the Daubert factors, assessed the reasonableness of the expert’s approach rather than focusing solely on the conclusions drawn.

    The crux of the dispute concerned the reliability of Day’s testimony and the timeliness of the second amended expert designations. As an initial matter, however, Day was clearly qualified, and his reports were relevant to the issues in the case. His reports were also relevant to the issues in the case; in fact, they were highly relevant. Day’s report provided information concerning whether the building had suffered hail damage and the extent of the damage—both issues at the heart of the dispute. Thus, Day’s testimony was considered relevant because it assisted the trier of fact in determining facts in issue.

    Testimony was deemed reliable when “the reasoning or methodology underlying the testimony is scientifically valid.” Acadia and Union had urged the Court to strike Day’s expert testimony, asserting that his opinions on accelerated corrosion and microfractures lacked support from reliable sources or data and were contradictory to the publications Day referred to. FiberCo countered that these opinions were based on Day’s personal observations and experience, arguing that the Defendants’ objections were suitable for cross-examination but not grounds for striking Day’s testimony. The Court sided with FiberCo, emphasizing deference to the jury’s role in resolving conflicting expert opinions. It held that questions regarding the bases and sources of an expert’s opinion affected the weight assigned to the opinion rather than its admissibility, leaving such considerations for the jury’s deliberation.

    Ultimately, the Defendants sought to strike Day because they disagreed with his application of scientific methodology to the facts of the case, asserting that he misinterpreted the publications he relied upon. The Court, considering this disagreement, emphasized that the traditional and appropriate methods for addressing shaky but admissible evidence were vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Consequently, the Court denied Acadia and Union’s motion to strike Day.

    The Court, however, had taken issue with the untimeliness of FiberCo’s second amended expert designations, its failure to seek leave from the Court, and its misrepresentation that Day had examined and inspected the property, which he had not personally done. The Court found that Acadia would be unfairly prejudiced without the chance to depose Day after he had inspected the property, especially given that FiberCo had led Acadia to believe Day had already done so before his deposition. As a result, the Court had ordered that Acadia be given the opportunity to redepose Day, if it chose to, at FiberCo’s expense.

    Held

    The Court denied the motion to strike Day’s expert testimony. The Court found him qualified, his opinions relevant, and arguments about his factual bases went to weight rather than admissibility. However, the Court agreed the late expert designation was prejudicial, so it ordered Day to be re-deposed by Acadia about his late personal inspection at Fiberco’s cost. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates that objections with regard to an expert’s factual bases and application of methodology generally call into question the weight assigned to the testimony, not admissibility. The Court rejected Acadia’s motion to strike Day’s testimony despite Acadia’s arguments that Day misapplied the science. The Court stated that vigorous cross-examination is the appropriate means to address shaky expert opinions. However, this case also shows that unfair prejudice from a late expert designation can warrant a supplemental deposition. Here, Acadia relied on Day having inspected the property when deposing him initially. Allowing a late inspection and designation without a new deposition would be prejudicial. Finally, Courts consider if the opinions will assist the trier of fact, meaning they must be relevant to disputed issues. Courts act as gatekeepers to admit only useful expert testimony.