Ahmed v. Keystone Shipping Co.
| Decision Date | 25 October 2012 |
| Docket Number | Case No. 10-14642 |
| Parties | HUSSEIN AHMED, Plaintiff, v. KEYSTONE SHIPPING CO. and KEY LAKES, INC. and KEY LAKES I, INC., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Paul D. Borman
United States District Judge
(1) DENYING AS MOOT PLAINTIFF'S MOTION IN LIMINE TO BAR DEFENDANTS'
EMPLOYEES FROM TESTIFYING AT TRIAL (ECF NO. 25): AND
This matter is before the Court on Plaintiff's Motion in Limine to Bar Defendants' Employees from Testifying at Trial (ECF No. 25) and Defendants' Motion in Limine to Preclude the Testimony of Plaintiff s Expert, Robert O. Andres (ECF No. 26). The parties each filed responses and the Court heard oral argument on the motions on October 17, 2012. For the reasons that follow, the Court DENIES AS MOOT Plaintiff's motion to bar certain trial testimony and DENIES IN PART AND GRANTS IN PART Defendants' motion to preclude the testimony of Plaintiff s expert.
This is an action for personal injury under the Jones Act, 46 U.S.C. § 30104 and general maritime law. Plaintiff Hussein Ahmed worked as a seaman on the M/V Presque Isle, a vesseloperated by Keystone Shipping Co., Key Lakes, Inc., and Key Lakes I, Inc. (collectively "Defendants"). Plaintiff alleges that on April 19, 2010, he tripped and fell down a companionway in the cargo tunnel of the vessel. Plaintiff alleges that he sustained injuries in the fall, including a herniated disk, which necessitated surgery and physical rehabilitation. Plaintiff claims that (1) Defendants failed to provide a reasonably safe work place and are liable for negligence under the Jones Act and (2) Defendants failed to provide a seaworthy vessel, breaching their duties under general maritime law.1 Before the Court are Plaintiff's motion in limine to preclude the trial testimony of certain employees of Defendants and Defendants' motions in limine to preclude the trial testimony of Plaintiff s expert witness.
Plaintiff, a seaman who worked aboard Defendants' vessel, the M/V Presque Isle, seeks damages under the Jones Act and general maritime law for personal injuries he alleges he sustained as a result of his trip and fall aboard Defendants' vessel. Plaintiff claims that the companionway stair on which he fell and sustained his injuries was unreasonably safe and rendered the vessel unseaworthy. Plaintiff seeks compensatory and exemplary damages, including damages for medical expenses, pain and suffering and wage loss/loss of earning capacity. Defendants deny that the companionway was unfit for its ordinary purpose and deny that the condition of the stairway rendered the vessel was unseaworthy.
Presently before the Court are two motions in limine: (1) Plaintiff's motion to strike certain witnesses from Defendants' trial witness list, and to preclude their testimony at trial, based on Defendants' repeated refusal to produce the witnesses for deposition; and (2) Defendants' motion to preclude the testimony of Robert O. Andres, Plaintiff's expert witness, who proposes to testify regarding the hazardous conditions in the companionway where Plaintiff sustained his injuries, the engineering solution that Defendants should have employed to correct the hazardous condition and to opine that the M/V Presque Isle was not a seaworthy vessel because its equipment and appurtenances were not fit for their intended purpose.
"The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and in some cases require, parties and the court to utilize extensive pretrial procedures-including motions in limine-in order to narrow the issues remaining for trial and to minimize disruptions at trial." United States v. Browner, 173 F.3d 966, 970 (6th Cir.1999). District courts have broad discretion over matters involving the admissibility of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir.1991).
Federal Rules of Civil Procedure 26 and 30 permit a party to depose any person upon proper notice. Beginning as early as June 16, 2011, Plaintiff began to request via correspondence with Plaintiff's counsel that certain of Defendants' employees, whom Defendants had listed in response to Plaintiff's Interrogatories as potential witnesses in this action, be produced for deposition. (ECF No. 25, Pl.'s Mot. Exs. C and D.) On July 13,2011, Plaintiff's counsel served Defendants' counselwith a Notice of Taking Depositions of Defendants' employees Terry L. Belmore, Kenneth E. Seneff, Waleed Mohsin, Naji Kuraish and Casey Matheson. Id. Ex. E.) Correspondence from Plaintiff's counsel to Defendant's counsel dated August 5, 2011, indicates that Defendants failed to produce the requested witnesses for deposition on July 28, 2011, as properly noticed in Plaintiff's July 13, 2011 Notice. Id. Ex. F. Subsequent correspondence from Plaintiff's counsel dated August 12, 2011, October 7, 2011, December 21, 2011 and January 17, 2012 indicates that Plaintiff continued to request, unsuccessfully, that Defendants produce these witnesses for depositions. Id. Exs. G-J.
Correspondence from Plaintiff's counsel to Defendants' counsel dated February 3, 2012, indicates that Defendants narrowed their list of employees whom they may call at trial to Tim Knapp, Steve Roane, Ali Ali and Seddik Ali and requesting that these witnesses be produced for deposition. Id. Ex. K. In various correspondence beginning on March 21, 2012 and ending on April 30, 2012, Plaintiff sought without success to have these witnesses produced for deposition. Id. Exs. L, M. Accordingly, on April 30, 2012, Plaintiff filed the instant motion in limine to exclude their trial testimony. In the Joint Final Pretrial Order ("JFPTO"), filed by the parties on May 4, 2012, Defendants list as may call witnesses Terry L. Belmore, Kenneth E. Sneff, Tim Knapp, Steve Roan, Ali Ali, and Sedik Ali. (ECF No. 28, Joint Final Pretrial Order 10.)
Federal Rules of Civil Procedure 26 and 30 authorize a party to depose any person upon proper written notice. There is no question that "[Plaintiff] should have had the opportunity to depose [Defendants'] material witnesses] on important issues prior to the close of discovery..." and certainly prior to their appearance at trial. Scozzari v. City of Clare, No. 08-10997, 2012 WL 1988129, at * 1 (E.D. Mich. June 4, 2012) (citing JAT, Inc. v. Nat 7 City Bank of the Midwest, No.06-cv-11037, 2008 WL 1820841, at *3 (E.D. Mich. April 22, 2008)). Defendants' only response to Plaintiff's motion to bar these witnesses from testifying at trial was Defendants' assertion that Plaintiff's counsel should have known that it was "customary" in a Jones Act case for Plaintiff's counsel to come aboard the vessel to depose crew members.
On October 15, 2012, this Court ordered Defendants to appear at the October 17, 2012 hearing on the instant motions in limine with specific dates on which these employee witnesses would be available for deposition, on shore in the City of Detroit, within three weeks of the date of the Court's Order. (ECF No. 42.) At the October 17, 2012 hearing, counsel for Defendants stipulated on the record that the only employee witnesses that Defendants intended to call at trial are Timothy Knapp and Terry Belmore. Defendants will produce Mr. Knapp for deposition on shore in the City of Detroit on Thursday, October 25, 2012 in the afternoon. Mr. Belmore, who is now retired and lives in Rogers City, Michigan, also will be produced for deposition but Defendants request that Plaintiff's counsel consider deposing Mr. Belmore by telephone to obviate the need for Mr. Belmore to travel to Detroit. Plaintiff's counsel agreed to consider this proposal but noted that document review during the deposition and other matters might make a remote deposition difficult. If Plaintiff s counsel concludes that he cannot effectively conduct the deposition by telephone or by video, Mr. Belmore will be produced in Detroit on a date to be mutually agreed upon by the parties as soon as practicable. Regarding the remaining employee witnesses listed by Defendant in the JFPTO, Defendants' counsel will provide Plaintiff's counsel with contact information for those individuals so that Plaintiff's counsel can interview those employees to determine if any of them has information that Plaintiff may wish to present at trial.
Accordingly, the parties having resolved these issues, the Court DENIES AS MOOTPlaintiff's motion in limine to bar the trial testimony of certain witnesses. (ECF No. 25.)
Under Rule 702, as amended December 1, 2011:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The proponent of evidence under Rule 702 bears to burden of establishing its admissibility. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 593 n. 10 (1993). Daubert instructs that this Court is charged with the duty of acting as the "gatekeeper" of expert testimony that fails to meet certain baseline standards of relevance and reliability:
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset...whether the expert...
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