Garcia v. Vitus Energy, LLC
| Decision Date | 06 June 2022 |
| Docket Number | Case No. 3:20-cv-00249-JMK |
| Citation | 605 F.Supp.3d 1179 |
| Parties | Christina GARCIA, Plaintiff, v. VITUS ENERGY, LLC, Defendant. |
| Court | U.S. District Court — District of Alaska |
Michele L. Power, Whitney Power Wilson, Power and Power Law, Anchorage, AK, for Plaintiff.
Dustin C. Hamilton, Nathan John Beard, LeGros Buchanan & Paul, Seattle, WA, for Defendant.
ORDER GRANTING IN PART DEFENDANT'S MOTION IN LIMINE
Before the Court at Docket 39 is Defendant Vitus Energy, LLC's ("Vitus") Motion in Limine to Exclude the Testimony of James T. Cushman ("the Motion"). Plaintiff Christina Garcia responded in opposition at Docket 44. Vitus replied at Docket 48. For the foregoing reasons, Vitus's Motion in Limine is GRANTED IN PART.
The facts of this case are summarized in this Court's Order Denying Plaintiff's First Motion for Sanctions at Docket 53, incorporated by reference herein. In the present motion, Vitus seeks to exclude certain opinions contained in Plaintiff's liability expert Captain James T. Cushman's expert report.1 Captain Cushman is a retired Coast Guard captain with seventeen years of sea-duty experience.2 Throughout his career in the maritime industry, Captain Cushman has served as a Commanding Officer/Master of three vessels in Alaska.3 He also has served as a Safety & Training Officer, Port Captain, and Relief Master in the cruise ship industry and has held various positions in inland, coastal, ocean, and ship assist towing.4 Captain Cushman has written two Safety Management Systems for two companies and has served as a Regulatory Compliance Auditor for a towing company operating in Alaska.5 Captain Cushman currently serves as an independent maritime consultant in ports and waterways safety and management, a marine mishap analyst, and an expert witness.6 Plaintiff retained Captain Cushman as an expert in this matter to testify regarding Vitus's liability, relying on his "education, training, experience, and skill" to render his opinions.7
A motion in limine is "a procedural mechanism to limit in advance testimony or evidence in a particular area."8 A district court's power to rule on motions in limine arises out of its "inherent authority to manage the course of trials."9 Rulings on motions in limine are preliminary in nature, as a "district court may change its ruling at trial because testimony may bring facts to the district court's attention that it did not anticipate at the time of its initial ruling."10
A trial court must ensure that expert testimony is "relevant to the task at hand" and "rests on a reliable foundation."13 "Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry."14 "The reliability inquiry is ‘a flexible one.’ "15 Expert testimony is reliable if "the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline."16 Evidence is unreliable if it is based on "subjective belief and unsupported speculation."17 The requirements of Rule 702 are to be applied liberally.18 The Ninth Circuit has cautioned that "[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion."19
Vitus moves in limine to exclude or limit the testimony of Plaintiff's expert Captain James T. Cushman.20 Specifically, Vitus seeks to exclude Captain Cushman's opinions related to (1) Mr. Dewitt's alcohol intoxication; (2) legal issues, including negligence, vicarious liability, and unseaworthiness; (3) the condition of the skiff; (4) Vitus's training; and (5) Mr. Dewitt's decision-making process.21 The Court addresses the admissibility of each of these opinions in turn.
In his expert report, Captain Cushman offered several opinions related to Mr. Dewitt's level of intoxication on the night of October 19, 2018.22 Specifically, Captain Cushman opined that Mr. Dewitt "would have been determined intoxicated if tested, but in the least, his mental and physical capabilities diminished significantly"23 and that "[d]ue to his consumption of alcohol that evening, Captain DeWitt's mental and physical ability to safely navigate the skiff were impaired."24 Vitus argues that Captain Cushman's opinions are unreliable and based solely on his personal speculation, as he lacks the expertise to testify as to whether Mr. Dewitt was impaired by alcohol on the night of October 19, 2018.25 The Court agrees. As an expert on the maritime industry, Captain Cushman does not have any scientific, specialized, or technical knowledge related to alcohol intoxication, or the effects of alcohol on the body.26 In addition to the lack of subject-matter expertise, Captain Cushman also admitted in his deposition testimony that he did not know how much alcohol Mr. Dewitt consumed on the night of October 19, 2018.27 The evidence in the record shows that Plaintiff bought Mr. Dewitt one beer prior to the grounding.28 In her opposition, Plaintiff advances a series of substantive arguments regarding Mr. Dewitt's intoxication, but fails to explain how Captain Cushman could discern Mr. Dewitt's impairment level based on the available facts.29
Captain Cushman's alcohol-related opinions lack the requisite reliability for expert opinions.30 Without a sufficient factual basis to determine how much alcohol Mr. Dewitt consumed, and without the expertise to infer that a certain amount of alcohol would impair Mr. Dewitt's mental and physical capabilities, Captain Cushman's alcohol-related opinions are impermissibly based on "subjective belief or unsupported speculation."31 The Court therefore GRANTS Vitus's Motion in Limine as to Captain Cushman's opinions that Mr. Dewitt was impaired by alcohol on the night of the grounding.
Vitus moves in limine to exclude Captain Cushman's opinions pertaining to the legal issues of negligence, vicarious liability, and unseaworthiness.32 Captain Cushman offers opinions that both Vitus and Mr. Dewitt were negligent, and that the skiff was unseaworthy.33 Under Federal Rule of Evidence 704(a), expert testimony is not objectionable solely "because it embraces an ultimate issue"; however, "an expert witness cannot give an opinion as to her legal conclusion , i.e., an opinion on an ultimate issue of law."34 The reasoning behind this prohibition is that "when an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert's judgment for the jury's."35
Plaintiff contends that Captain Cushman's opinions are not legal conclusions on the ultimate issues of law in this case; he merely uses language "couched in legal terms" and "incorporate[s] legal assumptions" in his analysis.36 Plaintiff argues that, because Captain Cushman does not attempt to define negligence, vicarious liability, and unseaworthiness, his opinions on these subjects do not improperly usurp the role of the jury.37 The Ninth Circuit in Hangarter v. Provident Life & Accident Insurance Co. found an expert's opinion admissible because, while the expert's opinion that "Defendants deviated from industry standards supported a finding that they acted in bad faith, [the expert] never testified that he had reached a legal conclusion that Defendants actually acted in bad faith (i.e., an ultimate issue of law)."38 In that case, the expert's references to the law were "ancillary to the ultimate issue."39
Captain Cushman's opinions that Mr. Dewitt and Vitus were "negligent in [their] actions" are legal conclusions on the ultimate issues of law in this case and must be excluded.40 Mr. Dewitt's negligence and Vitus's direct and vicarious negligence are not "ancillary" issues in this matter; rather, these issues strike at the heart of exactly what the trier of fact will be asked to decide. The Court therefore GRANTS Vitus's Motion in Limine as to Captain Cushman's opinions that Mr. Dewitt and Vitus were negligent.
Regarding Captain Cushman's opinion that Mr. Dewitt should be considered "on duty" at the time of the grounding, the Court does not find that this opinion is an improper legal conclusion on an ultimate issue of law.41 Captain Cushman offered his opinion on the scope of a captain's duties based on his experience as a captain.42 While this opinion may be relevant to the issue of whether Mr. Dewitt was acting within the scope of his employment at the time of the grounding, the opinion stops short of offering an impermissible legal conclusion that Vitus is vicariously liable for Mr. Dewitt's actions. Vitus's Motion in Limine as to Captain Cushman's opinion that Mr. Dewitt was on duty at the time of the grounding is DENIED WITHOUT PREJUDICE.
Finally, Vitus seeks to exclude Captain Cushman's opinion that the skiff was unseaworthy. Vitus is correct that unseaworthiness is its own cause of action and Plaintiff has not brought a claim based on the doctrine of unseaworthiness.43 Because the legal doctrine of unseaworthiness is...
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