Diamond Offshore Co. v. Survival Sys. Int'l, Inc.
| Decision Date | 29 January 2013 |
| Docket Number | CIVIL ACTION H-11-1701 |
| Parties | DIAMOND OFFSHORE COMPANY, Plaintiff, v. SURVIVAL SYSTEMS INTERNATIONAL, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the court are (1) a motion to exclude the testimony of L.J. Gunter, Robert Kahak, Gregory Scheig, and Dennie Rygaard, filed by defendant Survival Systems International, Inc. ("SSI") (Dkt. 55); (2) a motion to strike SSI's expert reports filed by plaintiff Diamond Offshore Company ("Diamond") (Dkt. 57); (3) a motion to exclude the expert testimony of Kurt Vandervort filed by SSI (Dkt. 59); (4) a motion to strike SSI's untimely supplemental Daubert motion filed by Diamond (Dkt. 87), which refers to a supplement SSI filed to its motion to exclude the testimony of Kurt Vandervort (see Dkt. 82); and (5) a supplemental motion to strike SSI's experts (Dkt. 98). Having considered the motions, responses, replies, and applicable law, the court is of the opinion that SSI's motion to exclude (Dkt. 55) should be GRANTED IN PART AND DENIED IN PART, Diamond's motion to strike (Dkt. 57) should be GRANTED IN PART AND DENIED IN PART, SSI's motion to exclude Vandervort's testimony (Dkt. 59) should be DENIED, Diamond's motion to strike SSI's supplemental Daubert motion (Dkt. 87) should be DENIED, and Diamond's supplemental motion to strike SSI's motion (Dkt. 98) should be GRANTED IN PART AND DENIED IN PART.
This case arose on May 17, 2010, when the crew of the Ocean Ambassador, a mobile offshore drilling unit, was conducting lifeboat drills. Four crewmembers, Mauro Cesar Oliveria Salamao, Jorge Luis Barbosa Souza, Carlos Mango Batista Pereira, and Joshua Anderson were passengers in Lifeboat #2 during the drill. The lifeboat was suspended with Triple 5 hooks, which are manufactured by SSI. The Triple 5 hook is designed to use the weight of the lifeboat to hold the hook closed. Dkt. 6, Ex. 2. Diamond contends that the hook opened, causing the lifeboat to fall into the water below. Dkt. 31. Two of the crewmembers were killed in the accident, and the other two crewmembers were injured. Dkt. 6.
Diamond contends that the accident occurred because the Triple 5 hooks have a latent design defect that allows the hooks to open, even while bearing the full load of the lifeboat, and Diamond seeks to provide expert testimony supporting this position. Dkt. 31. SSI proposes to submit expert testimony that the hooks could have partially opened because the crew did not operate the release gear to launch the boat and maneuvered the boat while it was attached to the falls, and that the crew was not alerted to this issue because the release handle was missing. See Dkt. 57-3. The release handle was not on the lifeboat when it was recovered. Id.
Diamond has filed a motion to strike SSI's expert reports and bar the testimony of SSI's experts. Dkt. 57. SSI has filed a motion to exclude the testimony of Diamond's experts L.J. Gunter, Robert Kahak, Gregory Scheig, and Dennis Rygaard, and a separate motion to exclude the testimony of Kurt Vandervort. Dkts. 55, 59. Diamond filed a response to SSI's motions (Dkt. 75), and SSI filed a response to Diamond's motion (Dkt. 74). SSI filed a reply with regard to Diamond's response to its motion to exclude the testimony of Kurt Vandervort (Dkt. 81), and it filed a supplement to itsmotion to exclude Vandervort's testimony on the same day (Dkt. 82). It also filed a reply to Diamond's response to its motion to strike Diamond's other experts. Dkts. 84, 85. Diamond filed a reply to SSI's response to its motion to strike SSI's experts. Dkt. 83. Diamond then filed a motion to strike the supplement to the motion to strike Vandervort's testimony, claiming that it is merely a new motion to strike that was filed after the dispositive motion deadline. Dkt. 87. Then, Diamond filed a supplemental motion to strike SSI's expert reports. Dkt. 98. Before proceeding to the merits, the court notes that both supplements were merely supplements to motions already on file that were provided after receipt of new information. See Dkts. 82, 98. Diamond's motion to strike SSI's supplement (Dkt. 87) as untimely is therefore DENIED.
In cases where federal subject matter jurisdiction is based on diversity, state law governs substantive matters while federal law governs procedure. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817 (1938); Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003). Admissibility of evidence is a procedural matter. Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1182 n.7 (5th Cir. 1975). The admissibility of expert testimony is therefore governed by the Federal Rules of Evidence. Fed. R. Evid. 702; Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
The Supreme Court of the United States acknowledged in Daubert v. Merrell Dow Pharmaceuticals that Federal Rule of Evidence 702 serves as the proper standard for determining the admissibility of expert testimony. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597-98, 113 S. Ct. 2786 (1993). 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.
Fed. R. Evid. 702. Under Daubert, a trial court acts as "gatekeeper," making a "preliminary assessment of whether the reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93; Kumho Tire v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167 (1999); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir.2002). Daubert and its principles apply to both scientific and non-scientific expert testimony. Kumho Tire, 526 U.S. at 147. Experts need not be highly qualified to testify, and differences in expertise go to the weight of the testimony, rather than admissibility. Huss, 571 F.3d at 452. Nonetheless, courts need not admit testimony that is based purely on the ipse dixit of the expert. Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146, 118 S. Ct. 512 (1997); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
In addition to being qualified, an expert's methodology for developing the basis of his or her opinion must be reliable. Daubert, 509 U.S. at 592-93; Moore, 151 F.3d at 276. Even if the expert is qualified and the basis of her opinion reliable, the underlying methodology must have also been correctly applied to the case's particular facts in order for her testimony to be relevant. Daubert, 509 U.S. at 593; Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). The party proffering expert testimony has the burden of establishing by a preponderance of the evidence that the challenged expert testimony is admissible. See Fed. R. Evid. 104(a); Moore, 151 F.3d at 276. The proponent does not have to demonstrate that the testimony is correct, only that the expert is qualified and that the testimony is relevant and reliable. Moore, 151 F.3d at 276.
Diamond offers the testimony of several different experts—Kurt Vandervort, Lovelace James Gunter, Bob Kahak, Dennis Rygaard, and Greg Scheig—to support its position that the lifeboat accident occurred because the Triple 5 hooks have a design defect that caused the hooks to open when the lifeboat was onload. Vandervort investigated the incident, inspected the hook design and operation, inspected the actual lifeboat and component remains from the accident, modeled the lifeboat motion, and devised a test plan to create a situation similar to the conditions on the date of the accident. Dkt. 75. Gunter, who is an approved U.S. Coast Guard instructor for Proficiency in Survival Craft, opines about the training of the crew onboard the lifeboat and the maintenance programs for the Ocean Ambassador's lifeboats. Id. Kahak, who is a manager of engineered products at one of SSI's competitor companies, discusses the historical background for mechanical disengaging devices or hooks and the standard of care for these devices and concludes that the Triple 5 hook does not meet the standard of care. Id.; Dkt. 55-4. Rygaard performed an investigation to determine the root cause of the accident. Dkt. 75. Scheig discusses the damages in this case. Id. SSI contends that none of these experts is qualified and that their opinions are neither reliable nor relevant. Dkts. 55, 59.
Diamond engaged Kurt Vandervort of Stress Engineering Services, Inc., to help investigate and develop an understanding of the events on the Ocean Ambassador on the day of the lifeboat accident. Dkt. 59-5. Vandervort has a Ph.D. in mechanical engineering and has worked in engineering related jobs for more than 20 years. Dkt. 75, Ex. 22. Vandervort conducted numerousstatic and dynamic tests on the Triple 5 hooks, reviewed extensive technical records and discovery, and traveled to Brazil to inspect the lifeboat and hooks from the Ocean Ambassador and compare them to other Triple 5 hooks. Dkt. 75; Dkt. 59-5 (Report).
SSI argues that Vandervort's testimony should be excluded because Vandervort is a mechanical engineer, not a naval architect, and he relied on computations and simulations that he did not perform himself. Dkt. 59. Instead, Vandervort relied on data provided by Diamond and on computations and simulations performed by two of his associates—one of whom has a Ph.D. in mechanical engineering and the other associate holds a masters in mechanical engineering. Id. SSI also argues that Vandervort's methods are unreliable because the weight Vandervort used for the...
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