Opinion
No. 1:01-cv-147.
March 23, 2005
MEMORANDUM AND ORDER
Plaintiffs filed a notice challenging two of the defendants' expert witnesses, Mark Peterson ("Peterson") and Robert F. MacNeill ("MacNeill"). [Court File No. 290]. Plaintiffs have a motion in limine pending to exclude Peterson's expert testimony. [Court File No. 227].
Defendants Ritchey and Jimmy Edmondson filed a notice challenging the plaintiffs' expert witness, Robert Warren ("Warren"). [Court File No. 291]. Defendants have a motion in limine pending to exclude Warren's expert testimony. [Court File No. 226].
On March 14, 2005, the Court held a Daubert hearing pursuant to Rule 702 of the FEDERAL RULES OF EVIDENCE and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the commencement of the Daubert hearing, the plaintiffs withdrew their challenge to witness Peterson. Accordingly, the plaintiffs' motion in limine to exclude the expert testimony of Mark Peterson [Court File No. 227] is DENIED.
The parties submitted briefs after the Daubert hearing. [Court File Nos. 296, 299, 301]. After reviewing the record, the Court concludes that Warren and MacNeill will not be permitted to testify at trial as expert witnesses. MacNeill may testify solely as a fact witness concerning the videotape of the pontoon boat that was involved in the accident.
I. Standard of Review
Rule 702 of the FEDERAL RULES OF EVIDENCE has been amended in response to Daubert. Rule 702 provides:
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.
In Daubert, 509 U.S. at 597, the Supreme Court held that Rule 702 requires district courts to ensure that an expert's scientific testimony "both rests on a reliable foundation and is relevant to the task at hand." Rule 702 imposes a "gatekeeping" duty on this Court to exclude from trial expert testimony that is unreliable and irrelevant. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S. at 589; Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002); Hardyman v. Norfolk W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001); Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 250 (6th Cir. 2001); Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000); Wynacht v. Beckman Instruments, Inc., 113 F. Supp.2d 1205, 1207-08 (E.D. Tenn. 2000). In Kumho Tire, 526 U.S. at 152, the Supreme Court extended Daubert to include any expert testimony based on "technical" and "other specialized knowledge." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 907 (6th Cir. 2004); United States v. Tarwater, 308 F.3d 494, 512-13 (6th Cir. 2002).
When determining the admissibility of expert testimony under Rule 702 and Daubert, the Court considers: (1) whether the testimony is based upon sufficient facts and data; (2) whether the testimony is the product of reliable principles and methods, i.e. whether the reasoning and methodology underlying the expert's opinion is scientifically valid; and (3) whether the witness has applied the principles and methods reliably to the facts of the case. See United States v. Smithers, 212 F.3d 306, 315 (6th Cir. 2000); Wynacht, 113 F. Supp.2d at 1207.
Expert testimony is relevant under Rule 702 when it will aid or assist the trier of fact. Wynacht, 113 F. Supp.2d at 1207. Under Rule 702, the Court must determine whether the expert's opinion will assist the trier of fact to understand the evidence or to determine a material fact in issue. Daubert, 509 U.S. at 592-93; Conwood, 290 F.3d at 792; Nelson, 243 F.3d at 250; Jahn, 233 F.3d at 388; Pride v. BIC Corp., 218 F.3d 566, 578(6th Cir. 2000).
The party proffering the expert testimony bears the burden of showing its admissibility under Rule 702 by a preponderance of the proof. Daubert, 509 U.S. at 592 n. 10; Nelson, 243 F.3d at 251; Pride, 218 F.3d at 578; Wynacht, 113 F. Supp.2d at 1207. If the Court decides that the expert testimony is both reliable and relevant, then the Court must also determine if the probative value of the expert testimony is outweighed by its prejudicial effect. Daubert, 509 U.S. at 595; United States v. Beverly, 369 F.3d 516, 528 (6th Cir. 2004).
II. Robert Warren
Warren will be excluded from testifying as an expert witness pursuant to Rule 702 and Daubert. The Court finds that Warren's expert testimony is not reliable. Moreover, for the reasons expressed by the Court on the record during the Daubert hearing, the Court finds that Warren's proffered expert testimony would not assist the trier of fact to understand the evidence or to determine a material fact in dispute. The issues of negligence that remain for trial are not complex. The parties have not shown there is any need for the application of scientific, technical, or other specialized knowledge through the testimony of expert witnesses.
A. Warren's Expert Opinion Not Reliable
Plaintiffs contend that Warren's expert testimony is admissible because there are specialized standards of care applicable to the operation and piloting of vessels arising out of general seamanship principles and the Inland Navigational Rules Act of 1980, 33 U.S.C. §§ 2001- 2071. Plaintiffs primarily focus their attention on the rules that require vessels to maintain a proper lookout by sight and hearing to avoid collisions as codified in 33 U.S.C. §§ 2005 and 2007. Warren's expert opinion is that Ritchey Edmondson violated 33 U.S.C. §§ 2005 and 2007 when the pontoon boat accidentally collided with plaintiff Rachael Vanderpool who was in the water underneath the front deck of the boat. At the time of the accident, Rachel was in the position of a swimmer in the water.
Based on these facts and circumstances, the Court concludes that 33 U.S.C. §§ 2005 and 2007 are not applicable in this case. 33 U.S.C. §§ 2005 and 2007 were not created and designed to protect swimmers in the water. Consequently, the Court finds that Warren's expert testimony is not reliable because it is predicated on the incorrect and false premise that the actions of Ritchey Edmondson in piloting the pontoon boat violated 33 U.S.C. §§ 2005 and 2007. 33 U.S.C. § 2005 provides: "Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision." This same language is contained in Coast Guard "Rule 5 Look-out" in the Inland Navigation Rules published by the United States Department of Homeland Security, United States Coast Guard. [ Daubert Hearing, Plaintiffs' Exhibit 1 p. 13].
33 U.S.C. § 2007 provides:
(a) Determination if risk exists
(b) Radar
Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.
Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.
Assumptions shall not be made on the basis of scanty information, especially scanty radar information.
(d) Considerations taken into account in determining if risk exists
In determining if risk of collision exists the following considerations shall be among those taken into account:
(i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; and
(ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.
This same language is in Coast Guard "Rule 7 Risk of Collision" in the Inland Navigation Rules published by the United States Coast Guard. [ Daubert Hearing, Plaintiffs' Exhibit 1 p. 16]. 33 U.S.C. §§ 2005 and 2007 (Coast Guard Inland Navigation Rules 5 and 7) clearly apply to collisions between ships or vessels. In Grosse Ile Bridge Co. v. American Steamship Co., 302 F.3d 616, 622-23 (6th Cir. 2002), the Sixth Circuit analyzed § 2005 in a situation where a cargo freighter collided with a drawbridge. In McAllister Bros. v. United States, 709 F. Supp. 1237 (S.D.N.Y.), aff'd, 890 F.2d 582 (2nd Cir. 1989), the court held that a barge's failure to maintain a proper lookout caused its grounding on a reef and violated 33 U.S.C. § 2005.
The Supreme Court and the Sixth Circuit have never construed 33 U.S.C. §§ 2005 and 2007 (Coast Guard Inland Navigation Rules 5 and 7) as stretching and expanding so far as to apply to collisions between a vessel and a person/swimmer in the water. There is a dearth of reported caselaw on the subject. Two courts have been very cautious to avoid deciding this particular question.
In Lyon v. Ranger III, 858 F.2d 22 (1st Cir. 1988), a whale-watch ship accidently struck and killed a scuba diver in the water. The district court found there was no statutory negligence (negligence per se) under 33 U.S.C. §§ 2005 and 2006. On appeal, the First Circuit commented that this "likely reflects no more than its [district court's] view that the particular statutes at issue seek to prevent collisions among vessels, not collisions with divers." Lyon, 858 F.2d at 29. The First Circuit went on to state: "Given its findings of ordinary negligence, the district court need not have reached the statutory negligence question (nor need we). . . ." Id. Lyon is of little or no help here.
In Schumacher v. Cooper, 850 F. Supp. 438 (D.S.C. 1994), a pontoon pleasure boat struck and injured a swimmer. The injured swimmer and his wife brought an action in admiralty claiming that the defendant was negligent in the operation of his boat and violated 33 U.S.C. § 2005 by failing to keep a proper lookout. The Schumacher court discussed the question whether § 2005 is applicable where a vessel collides with a swimmer. It said that the lookout rule, § 2005, is difficult to apply to pleasure boats such as pontoon boats which may be operated by only one person. "Clearly, Congress and the courts did not intend that any person who alone operates a pontoon boat should be in violation of 33 U.S.C. § 2005. In fact, it is possible that 33 U.S.C. § 2005 was never meant to apply to accidents between swimmers and pleasure boats that can be operated by one person." Id. at 449. Recognizing this possibility, the Schumacher court declined to attempt to resolve the question. It reasoned that the same result can be reached by applying either general negligence principles or 33 U.S.C. § 2005. Id. at 449-52.
The legislative history from the United States Senate provides that the Inland Navigation Rules were designed and intended to prevent "ship collisions." S. Rep. No. 96-979, 96th Congress 2nd Session 1, reprinted 1980 U.S. Code Cong. Admin. News, p. 7068. It is not entirely clear whether "ship collisions" refers only to collisions between ships or boats, or whether it might also encompass collisions between pleasure boats and swimmers. See Schumacher, 850 F. Supp. at 449.
In the absence of a definitive precedent directly on point, this Court declines to stretch and expand 33 U.S.C. §§ 2005 and 2007 (Coast Guard Inland Navigation Rules 5 and 7) to apply to a fact situation where a pleasure pontoon boat accidentally strikes and collides with a person/swimmer in the water. There is nothing in the plain language and legislative history of 33 U.S.C. §§ 2005 and 2007 that makes them applicable to a collision between a pleasure (recreation) boat and a person/swimmer in the water. As the Court construes the plain language in 33 U.S.C. §§ 2005 and 2007 and their legislative history, these statutes are not applicable to the instant case where a pontoon pleasure boat collided with Rachael Vanderpool who was in the water underneath the front deck of the boat. This case can be properly adjudicated based on ordinary principles of negligence without resorting to 33 U.S.C. §§ 2005 and 2007 (Coast Guard Inland Navigation Rules 5 and 7).
The Court's opinion is buttressed by the testimony of the plaintiffs' own expert, Warren who relies heavily upon a general boating reference book, CHAPMAN PILOTING SEAMANSHIP BOAT HANDLING authored by Elbert S. Maloney. ("Chapman Piloting"). According to Warren, Chapman Piloting is "the bible" for sailing recreation boats. The book contains a section captioned "RULES OF THE ROAD" which provides general rules for seamanship. The "rules of the road" in Chapman Piloting do not have the force and effect of law since they have never been adopted by the State of Tennessee or the United States government.
Defendant submits a copy of relevant portions of Chapman Piloting 63rd Edition. [ Daubert Hearing, Defendant's Exhibit 1]. On page 137 of this excerpt from Chapman Piloting, it states: "Both the Inland and International Rules are designed solely to prevent collisions between vessels." This is a direct reference to and explanation of 33 U.S.C. §§ 2005 and 2007 (Coast Guard Inland Navigational Rules Rules 5 and 7). Warren's expert opinion that Ritchey Edmondson violated 33 U.S.C. §§ 2005 and 2007 when the pontoon boat collided with Rachael Vanderpool is directly contradicted by Chapman Piloting, the very source that Warren contends is the leading and most authoritative reference book on the proper rules and standards of conduct for sailing recreation boats. Consequently, Warren's expert opinion that Ritchey Edmondson violated 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7) is fatally flawed.
In sum, the plaintiffs have not met their burden of showing that Warren's proffered expert testimony is sufficiently reliable to be admissible as evidence under FED. R. EVID. 702 and Daubert. B. Pennsylvania Doctrine
One reason the plaintiffs urge the Court to apply 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7) is to permit the plaintiffs to invoke what is commonly referred to as the Pennsylvania doctrine adopted by the Supreme Court in The S.S. Pennsylvania v. Troop, 86 U.S. 125 (1873). This case established a standard for shifting the burden of proof in maritime and admiralty cases.
The Pennsylvania doctrine holds that when a statutory or regulatory rule intended to prevent an admiralty accident exists and a party violates that statute injuring a party whom the statute was created to protect, the party violating the statute, to avoid liability, bears the burden of showing that its statutory violation could not have been the cause of the accident. In other words, where a vessel at the time of collision is in violation of a statutory or regulatory rule intended to prevent the collision, the violation is presumed to be at least a contributory cause of the accident. To rebut this presumption, the vessel in violation must prove not only that the violation of the statute or rule was not in fact the cause of the collision, but also prove that the violation could not have been the cause of the collision. Id. at 136; Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004); Grosse Ile Bridge Co., 302 F.3d at 622; Pearce v. United States, 261 F.3d 643, 648 (6th Cir. 2001).
The Pennsylvania doctrine does not apply in the instant case. Plaintiffs cannot show that Ritchey and Jimmy Edmondson violated a federal statute, administrative regulation, or other rule that has the force and effect of law. 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7) are not applicable to the collision between the pontoon boat and Rachel Vanderpool who was in the water underneath the front deck of the boat. Ritchey Edmondson did not, as a matter of law, violate 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7). These federal statutes and corresponding Coast Guard rules were not created and designed to prevent collisions between vessels and persons/swimmers in the water in the same position as Rachael Vanderpool.
Part of Warren's expert opinion is predicated on the premise that Ritchey Edmondson violated or negligently failed to comply certain rules of conduct and standards of general seamanship provided in Chapman Piloting. Warren's theory lacks merit because the "rules of the road" in Chapman Piloting that Warren cites and relies upon have never been adopted by either the State of Tennessee or the United States government. The "rules of the road" in Chapman Piloting do not have the force and effect of law necessary to invoke the Pennsylvania doctrine. Cf. Pearce, 261 F.3d at 648 (explaining when rules and regulations are deemed to have the force and effect of law for purposes of applying the Pennsylvania doctrine).
The Pennsylvania doctrine does not apply in the case at bar.
C. Warren's Expert Opinion Not Relevant
The Court further finds that Warren's expert opinion is not admissible at trial because it does not meet the test of relevancy. Expert testimony is relevant under Rule 702 and Daubert when it will assist the trier of fact to better understand the evidence or to decide a material fact in issue. Warren's proffered expert testimony would not assist the trier of fact.
Because 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7) are not applicable, this Court must follow and apply only ordinary principles of common law negligence. Stripped down to its essence, Warren's proffered expert testimony at most would amount to nothing more than his opinion that defendants Ritchey and Jimmy Edmondson were negligent. Based on the facts and circumstances in this case, the advisory jury and the Court do not need any expert testimony from Warren to assist in making a decision about whether these defendants are liable for common law negligence. Plaintiffs have not met their burden of demonstrating that Warren's proffered expert testimony would assist the trier of fact under Rule 702 and Daubert.
Defendants further argue that Warren should not be permitted to express an expert opinion on the ultimate issue whether they were negligent. Rule 704(a) of the FEDERAL RULES OF EVIDENCE provides in pertinent part: "[T]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The Advisory Committee Notes to Rule 704 state that the "abolition of the ultimate issue rule does not lower the bar so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact." The combination of Rules 403, 701, and 702 protect against the admission of opinions by witnesses which merely tell the jury what result to reach. Woods v. Lecureux, 110 F.3d 1215, 1219-20 (6th Cir. 1997); Black v. Ryder/P.I.E. Nationwide, Inc., 930 F.2d 505, 510 (6th Cir. 1991). The Sixth Circuit has held that Rule 704 removes the general proscription against opinions on ultimate issues and shifts the focus to the question whether the testimony is otherwise admissible. Id. at 1219; United States v. Sheffey, 57 F.3d 1419, 1425 (6th Cir. 1995); Heflin v. Stewart County, Tenn., 958 F.2d 709, 715-16 (6th Cir. 1992).
After reviewing Rule 704 and the Sixth Circuit precedent, this Court concludes that Warren cannot testify that in his expert opinion defendants Ritchey and Jimmy Edmondson were negligent. Such testimony would be nothing more than a legal conclusion. The terms "negligent" and "negligence" have a distinct and specialized meaning in the law different from that present in the common vernacular. It is the responsibility of the Court, not expert witnesses, to define what constitutes negligence as a matter of law. Warren's expert opinion is properly excluded under Rules 702 and 704(a) where it is merely a legal conclusion that does little more than tell the jury what result to reach. Woods, 110 F.3d at 1220; Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir. 1994); Hygh v. Jacobs, 961 F.2d 359, 363-64 (2nd Cir. 1992); Andrews v. Metro North Commuter R. Co., 882 F.2d 705 (2nd Cir. 1989) (negligence). It is appropriate to exclude Warren's "ultimate issue" expert testimony on the ground that it would not assist the trier of fact. Wood, 110 F.3d at 1220.
Even if we assume arguendo that 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7) would be applicable in the instant case, the plain language of these federal statutes is not confusing, complicated, or difficult to comprehend. A reasonable person of average intelligence is capable of readily understanding and applying the statutes. As a matter of common sense, a person piloting a boat should maintain a lookout by sight and hearing to avoid collisions. It would be an easy task for the Court and advisory jury to understand and accurately apply 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7) at trial without expert testimony.
This Court is not persuaded that there is any need or reason to have Warren give expert testimony concerning the issue whether Ritchey Edmondson violated a duty imposed by 33 U.S.C. §§ 2005 and 2007 to "maintain a proper look-out by sight and hearing." The facts of this case do not require specialized knowledge or technical expertise to assist in making a determination whether the pilot of the recreation pontoon boat maintained a proper look-out by sight and hearing. The Court and the advisory jury are just as capable as Warren in deciding this issue using common sense and logic. The basic operation of a recreation boat is within the common knowledge of the average person/juror insofar as it involves maintaining a lookout by sight and hearing to avoid collisions. Consequently, Warren's proffered expert testimony would not substantially aid and assist the trier of fact. 29 CHARLES ALAN WRIGHT VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6264 pp. 214-15 and n. 29 (1997) (Expert testimony does not assist where the jury has no need for an expert opinion because it can easily be derived from common sense, common experience, the jury's own perceptions, or simple logic).
Plaintiffs shall not be permitted to call Warren to testify as an expert witness. The defendants' motion in limine to exclude Warren's the expert testimony [Court File No. 226] is GRANTED. III. Robert MacNeill
It appears that the defendants plan to use the testimony of Robert MacNeill ("MacNeill") to counter the plaintiffs' expert, Warren. During the Daubert hearing, MacNeill testified that in his opinion Rachael Vanderpool was negligent and Ritchey Edmondson was not negligent. MacNeill states that Ritchey Edmondson did not violate 33 U.S.C. §§ 2005 and 2007.
There is no need for any expert to testify at trial concerning whether Ritchey Edmondson violated 33 U.S.C. §§ 2005 and 2007 (Coast Guard Rules 5 and 7). For the reasons expressed on the record by the Court at the Daubert hearing, MacNeill's expert opinion is not relevant. Defendants have not met their burden of showing under Rule 702 and Daubert that MacNeill's proffered expert testimony would assist the trier of fact to understand the evidence or to determine a material fact in issue. The Court and the jury are capable of making a decision concerning the issue of negligence without the need for expert testimony from MacNeill. Determination of the negligence issues in this case does not require the application of any specialized knowledge or unusual technical expertise. Accordingly, the defendants shall not be permitted to call MacNeill to testify as an expert witness at trial. This is consistent with the Court's decision to exclude Warren as an expert witness for the plaintiffs on the ground that his expert testimony would not assist the trier of fact.
MacNeill may testify as a fact witness to identify and explain the videotape he has prepared of the pontoon boat owned by Jimmy Edmondson and piloted by Ritchey Edmondson. Defendants played the videotape for the Court at the Daubert hearing. Defendants may present and use the MacNeill videotape of the boat as evidence at trial if it is properly authenticated.
SO ORDERED.