Opinion
Civil Action No. 01-0856, Section "N" (2)
August 19, 2002
MINUTE ENTRY
Before the Court are the following motions filed on behalf of the defendant: (1) Motion in Limine to Exclude Opinions of G. Fred Liebkemann and (2) Motion for Summary Judgment. The Court will address the defendant's Motion in Limine to Exclude Economic Testimony of Shanel Wolfson/Thomas Dalton by separate order. The plaintiff filed formal opposition to all of the defendant's motions, requesting that the Court schedule an oral hearing. In light of the extensive record made with respect to the subject motions and further considering that the pre-trial conference is scheduled for September 5, 2002, the Court believes that oral argument is unnecessary, will not aid it in the disposition of these matters, and will only serve to distract from trial preparation. The Court GRANTS defendant's Motion in Limine to Exclude Opinions of G. Fred Liebkemann, but DENIES the Motion for Summary Judgment for the reasons set forth below.
I. BACKGROUND
The plaintiff, Captain Joseph Enna ("Enna"), was injured aboard the M/V ANGUS COOPER, which vessel the defendants contend was reasonably fit for its intended purpose in all relevant respects. The ANGUS COOPER is a diesel powered harbor tug approximately 100 feet long and 26 feet wide. The means of entry to the mess deck (the galley) from the starboard exterior deck is a watertight door. The center of the sill of that watertight door is 17" above the main deck, while the deck of the galley is 23" below the sill.
The accident occurred on July 8, 2000, when Captain Enna attempted to enter the galley from an exterior deck on the ANGUS COOPER. Specifically, Enna stepped over the red lip of the starboard watertight door sill with his right foot, but when his foot brushed the lip of the door sill, he lost his balance falling forward into the galley landing on his right hip and back. According to the plaintiff, he lost his balance before his right foot ever reached the deck of the galley floor. Enna did not make use of the protruding lip at the hatch opening or other handholds when entering the galley from the starboard deck. According to the plaintiff, the accident occurred because there was nothing to hold onto. Conditions at the time of the accident in question were static, to wit: (1) the vessel was not moving; and (2) the hatchway door was in the locked open position ( i.e., the normal position for inland tugs not operating).
Captain Enna filed suit against his employer Crescent Towing Salvage Co., Inc. ("Crescent"), claiming both Jones Act negligence and unseaworthiness under the general maritime law. Defendant contends that: (1) the vessel is fit for its intended purpose; (2) tripping hazards which cannot be removed exist on boats, such as cletes, bitts, hatches or the lip in question, and that is why the instant lip was painted bright red; and (3) under the Jones Act, Captain Enna was obligated to act with ordinary prudence under the circumstances and that a reasonable seaman under the circumstances would have utilized handholds in the area, and thus would not have lost his balance and injured himself.
See Crescent's Memorandum in Support of Summary Judgment, at p. 5 (citing Kiger v. Doucet Adams, 1998 WL 717912 (E.D. La.), affirmed without opinion, 209 F.3d 719 (5th Cir. 2000)).
See id. (citing Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)).
II. DISCUSSION A. Motion in Limine to Exclude Opinions of G. Fred Liebkemann
Central to the issue of legal fault in this litigation is whether the hatchway or door sill at issue was causally defective. Plaintiff produced an expert, G. Fred Liebkemann ("Liebkemann"), who is neither a naval architect nor a marine structural engineer and has no expertise whatsoever in the specialty of vessel design. Liebkemann's area of special expertise is instead mechanical engineering. Mechanical engineering has absolutely nothing to do with the incident which occurred on ANGUS COOPER, which instead involved a fixed door sill, a hatchway which was fixed in an open position, customary for an inland tug, and a stationary vessel. The Court has reviewed the video presentation of the vessel inspection depicting the hatchway and various experts, including Liebkemann, utilizing the lip of the door frame as a hand hold while transiting through the particular hatchway in question. The only motion or moving object involved in this accident was the plaintiff Captain Enna, who, for the stated reason that there was no handhold in the area, failed to grasp the lip of the opening or other handholds upon entering the galley through the starboard hatch.The opinions of Liebkemann that the defendant seeks to suppress are fourfold, to wit: (1) a moving watertight door would provide the only appropriate stable handhold under the circumstances, and thus the door itself should have been in working condition so that it could be utilized as a handhold; (2) the hinges and other moving parts of the watertight door on the starboard side of the ANGUS COOPER were not properly maintained; (3) the step height differences and deck angle differences on the starboard side between the outside deck and the galley door were excessive; and (4) there was a twelve inch standard in the design field which was violated in this case because a person had to raise his leg more than twelve inches when entering the hatchway to the galley. Liebkemann concludes that the improper features of the starboard galley hatchway were the probable causes of Captain Enna's fall.
A trial court has wide discretion to admit or exclude expert testimony; challenges to rulings on expert testimony are reviewed under the manifestly erroneous standard. See Edmonds v. Illinois Central Gulf R.R., 910 F.2d 1284, 1287 (5th Cir. 1990); and Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 2235 (5th Cir. 1986) (noting the trial judge is in the best position to determine both the claimed expertise of the witness and the helpfulness of his testimony). Based upon the extensive record to date regarding the qualifications, testimony, and lack of appropriate methodology and standards Liebkemann seeks to import into the proceedings, a ruling separating the chaff from the wheat need not await the jury trial of this matter.
Crescent's attack on the testimony and report of Liebkemann under Daubert v. Merrill Dow Pharmaceutical, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) has merit. Liebkemann is not qualified because of his lack of specialized knowledge, skill, experience, training or education in the relevant field ( i.e., naval architecture or marine structural/hull design). See Fed.R.Evid. 702. Liebkemann is a mechanical engineer and not a naval architect or marine structural engineer. His opinions are not based upon scientific, technical or other specialized knowledge within his particular area of expertise, and the Court has no difficulty discerning that the two-page report is all chaff. The instrumentalities involved in the subject accident involved the raised fixed door sill of a stationary hatchway, the lip of which was painted bright red all the way around, with the hatch door fixed in the open position as is customary on a stationary inland tug.
Liebkemann's opinions are based upon his working knowledge of riser heights between steps on a stairway or rungs on a ladder (and not necessarily vessel-based stairways or ladders), and other matters including opening and closing hatchway doors, none of which is pertinent to the accident at issue in this case. As to the slope of the deck of the vessel and hatchway design, these are clearly matters beyond Liebkemann's area of expertise. None of the standard measurements which Liebkemann claims were breached in this case prescribe criteria which are applicable to the design of hatchways or watertight door openings on either inland harbor tugs, or any vessel for that matter.
The Court has reviewed the video of the vessel inspection filed and made part of the record in this proceeding, the photographs of the hatchway in question, and the documents provided along with the motion papers, including the deposition and the report of Mr. Liebkemann. Mr. Liebkemann discusses the poor condition of the watertight door which was fixed open, as if such was the linchpin of this case. The hatchway door which was fixed in the open position may well have been in poor condition, but according to the plaintiff, the lack of a handhold near the hatchway opening was the culprit. Moreover, as was the customary practice, even if the hatchway door had been in mint condition it would have been latched open, and thus not available for use as a hand hold in any event.
Turning to Liebkemann's discussion of the slant of the starboard deck just outside of the galley vis a vis the pitch of galley floor just inside the starboard hatchway, the plaintiff testified that his right foot never touched the galley's deck. Captain Enna admittedly lost his balance right when his right foot brushed the lip of the hatchway entrance, following which he tumbled through the watertight door opening and fell directly on his right side and back. Under the circumstances, it is difficult to imagine how the addition of a step on the inside ( i.e., the blind side) of the coaming, as suggested by Mr. Liebkemann, could possibly do anything other than add insult to injury. Whereas Liebkemann surmises that perhaps Captain Enna may have stumbled but he would not have fallen to the galley deck, he points to no studies, surveys, or learned treatises on hatchway or water tight door design which support his theory. Mr. Liebkemann points to no standards for the construction of watertight doors on vessels which prescribe this type of sill/step arrangement. Even the realm of common sense lends no visible means of support for Liebkemarm's theory that a step positioned on the inside lip of the raised coaming ( i.e., the blind side) somehow constitutes a safer structural design for a watertight hatchway or entrance between spaces on a vessel.
See Deposition of G. Fred Liebkemann, at 44-45 [Exhibit "A" to Crescent's Motion in Limine to Exclude the Opinions of Liebkemann].
The Court recognizes that Liebkemann spent some time in the United States Navy, however, that does not necessarily qualify one as an expert in the field of marine structural design. Moreover, the record is uncontroverted that Liebkemann never worked on a harbor tug, never designed any equipment or watertight door entrances for harbor tugs, and never measured step heights on any harbor tug's watertight doors, aside from the ANGUS COOPER in this case. His opinion that "an abnormally high number of mishaps at that excessively high step," is rank speculation unrooted in any factual basis or empirical data. In conclusion, Liebkemann's proffered expert testimony runs afoul of both of the primary concerns highlighted by the Supreme Court in Daubert, supra. Specifically, both reliability and relevance are absent. See Daubert, 509 U.S. at 592. Absent the requisite qualifications in the appropriate area of expertise, and concomitantly absent the proper methodology and technique supporting theories of causation, his testimony is simply a source of confusion, being grounded in landlubbers' standards, which find no parallel in the penumbras peculiar to specialty of marine structural design and naval architecture. Because his testimony proceeds from a factually infirm premise, it will not aid the jury in understanding the simple trip and fall accident that occurred, and therefore the Court GRANTS the defendant's Motion in Limine regarding Mr. Liebkemann.
Id. at 51, 52, 56.
Id. at 51.
B. Motion for Summary Judgment
Crescent cites the district court's decision in Kiger v. Doucet and Adams, Inc., 1998 WL 249221 (E.D. La. 1998)(Porteous, J.), suggesting that without the expert testimony of Liebkemann, summary disposition of this matter is appropriate. It is important to note that the decision in Kiger, supra, is an opinion on the merits pursuant to a bench trial. In that case, the plaintiff was descending the stairs to the engine room of a 72-foot diesel powered, sea-going tug built in 1965, when he caught his foot on the lip or coaming at the tip of the stair-ladder, tripped and fell. Plaintiff claimed that the toe board or kick plate on the vessel, over which he tripped, constituted an unseaworthy condition. It was determined pursuant to trial on the merits that the lip was a common feature on such vessels designed and necessarily present to divert water from running over the deck onto the engines. The Court further recognized that the "lip which could be a tripping hazard was painted in the regulation yellow to signal danger" and "so that it would be more visible." Id. at 2. Applying the reasonable seaman standard set forth in the Fifth Circuit's decision in Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir. 1997), Judge Porteous concluded on the basis of a complete trial record on the merits that the "plaintiff should have lifted his foot as he did many times before to clear the negligible 5/8" coaming." Id. at 2-3. The district court determined that the sole cause of the accident was due to the plaintiffs inattention and distraction at the time he tripped. Id. at 3.
The Court further notes that the district judge in the Kiger case denied the defendant's Motion for Summary Judgment filed prior to trial on the merits. See Kiger v. Doucet Adams, Inc., 1997 WL 644086 (E.D. La.). The issue before the Kiger court on defendant's Motion for Summary Judgment was whether the 5/8" toe plate purposefully built around the perimeter of the fidley deck above the engine room rendered the sea-going tug unseaworthy or an unsafe place to work under the Jones Act. The Court concluded that there were material issues of material fact regarding whether the toehold made the vessel unsafe and whether there was any contributory negligence on the part of the plaintiff, who was carrying a cup of coffee at the time of accident. Id. at 3.
Notwithstanding this Court's ruling granting the defendant's Motion in Limine excluding the testimony of Liebkemann, there remain material issues of fact as to whether sheer height of the coaming made the vessel unsafe and whether any negligence on the plaintiff's part contributed to the accident in question. The Court also makes mention of the fact that at the time of the accident, Captain Enna had previously injured his right hand, which was bound at the time of accident in question. On this summary judgment record, there is some question as to whether Captain Enna should have been working under the circumstances. For all of the foregoing reasons, the Court is of the opinion that the matter is not susceptible of summary determination at this juncture of the proceedings. Accordingly,
IT IS ORDERED that the defendant's Motion for Summary Judgment is DENIED, however, without prejudice to the defendant's right to reurge its motion as one for judgment as a matter of law pursuant to Fed.R.Civ.P. 50.