Slatten, LLC v. Royal Caribbean Cruises Ltd., CIVIL ACTION NO: 13-673 SECTION: R(5)

• Decision Date: 23 October 2014
• Docket Number: CIVIL ACTION NO: 13-673 SECTION: R(5)
• Parties: SLATTEN, LLC, et al. v. ROYAL CARIBBEAN CRUISES LTD., et al.
• Court: U.S. District Court — Eastern District of Louisiana

SLATTEN, LLC, et al. v. ROYAL CARIBBEAN CRUISES LTD., et al.

CIVIL ACTION NO: 13-673 SECTION: R(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

October 23, 2014

ORDER AND REASONS

Before the Court are four motions in limine to exclude expert testimony offered by Royal Caribbean Cruises Ltd. ("Royal Caribbean"). Marquette Transportation Company Gulf-Inland, L.L.C. ("Marquette") moves the Court to exclude the opinions of three experts retained by Royal Caribbean.¹ Beverley Navigation, Inc. and Pleiades Shipping Agents, S.A. (collectively, "Beverley") move to exclude the testimony of one of Royal Caribbean's experts.² For the following reasons, Marquette's motions are GRANTED in part and DENIED in part. Beverley's motion is DENIED.

I. Background

This consolidated maritime action arises out of a breakaway incident on the lower Mississippi River, the details of which are discussed elsewhere.³

Marquette now moves to exclude all or part of the testimony of three experts offered by Royal Caribbean: Arthur Sargent,⁴ Christopher Karentz,⁵ and Jason Fernandes.⁶ Beverley also moves to exclude part of the testimony of Karentz.⁷

II. Legal Standard

Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony, provides:

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.

Fed. R. Evid. 702. A district court has considerable discretion to admit or exclude expert testimony under the Federal Rules of Evidence. See General Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000).

In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court held that Rule 702 requires the district court to act as a gatekeeper to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. 579, 589 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert gatekeeping function applies to all forms of expert testimony). The Court's gatekeeping function thus involves a two-part inquiry into reliability and relevance.

First, the Court must determine whether the proffered expert testimony is reliable. The party offering the testimony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 592-93. The aim is to exclude expert testimony based merely on subjective belief or unsupported speculation. See id. at 590. The Court in Daubert articulated a flexible, non-exhaustive, five-factor test to assess the reliability of an expert's methodology. These factors include: (1) whether the expert's theory can be or has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and maintenance of standards andcontrols; and (5) the degree to which the technique or theory has been generally accepted in the scientific community. Id. at 593-95.

Second, the Court must determine whether the expert's reasoning or methodology is relevant. The question here is whether the reasoning or methodology "fits" the facts of the case and will thereby assist the trier of fact to understand the evidence. See id. at 591.

In addition to requiring relevant and reliable opinions, Rule 702 also requires that an expert be properly qualified. In assessing an expert's qualifications, the Court's gatekeeping function does not replace the traditional adversary system. See Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). "As long as some reasonable indication of qualifications is adduced, the court may admit the evidence without abdicating its gatekeeping function. After that, qualifications become an issue for the trier of fact, rather than for the court in its gate-keeping capacity." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999); see also United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996). A witness qualified as an expert is not strictly confined to his area of practice, but may testify concerning related applications;"a lack of specialization does not affect the admissibility of the opinion, but only its weight." Wright v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991).

The Fifth Circuit has stated, however, that most of the safeguards provided for in Daubert are not as essential when, as here, the Court sits as the trier of fact in place of a jury. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000). This is because, in a bench trial, "there is no risk of tainting the trial by exposing a jury to unreliable evidence." Whitehouse Hotel Ltd. P'ship v. C.I.R., 615 F.3d 321, 330 (5th Cir. 2010).

III. Marquette's Motion to Exclude Testimony Regarding Fleet Boat Operations by Arthur Sargent

Arthur Sargent is a naval architect and marine engineer retained by Royal Caribbean.⁸ He opines that UBT's mooring equipment was of insufficient strength or inadequate design, UBT's fleeting personnel did not regularly inspect or properly maintain the mooring equipment, UBT failed to moor only raked barges at the head of a block, the presence of the ALLISON S created additional drag, and UBT's use of ING 5534 as a spar barge "presented unusual securing conditions which were not properly addressed by the UBT Fleet Boats."⁹

Marquette seeks to exclude portions of the testimony offered by Sargent.¹⁰ Marquette contends that Sargent is not qualified to provide an opinion on vessel operations by a fleet tug because he has no expertise in towing and fleeting operations.¹¹ Further, Marquette argues that Sargent's opinion regarding the use of the barge ING 5534 is not based on any specific expertise and is not helpful because this barge did not even break away.¹² Finally, Marquette argues that Sargent's opinions on fleet boat operations related to inspection and mooring "box barges" are neither relevant nor within the scope of his expertise.¹³

The Court finds that Sargent is sufficiently qualified to provide opinions on fleet boat operations. Sargent has a degree in naval architecture and marine engineering and has decades of experience working in the industry.¹⁴ He is a governor of the Greater New Orleans Barge Fleeting Association, and has spoken to the association on fleet strength.¹⁵ In addition, Sargent published an article for the association discussing fleeter mooringproblems.¹⁶ For the same reasons, the Court finds that Sargent's testimony on UBT's inspection and maintenance of its mooring system is within the scope of Sargent's expertise. Further, this testimony is relevant to the issue of the cause of the failures of the mooring system of the barges at issue. Sargent's testimony regarding the use of ING 5534 as a spar barge is also relevant because the configuration of the barges and their mode of attachment is relevant to the forces exerted on them. Accordingly, Marquette's motion is DENIED.

IV. Marquette and Beverley's Motion to Exclude the Testimony of Christopher Karentz

Christopher Karentz is Royal Caribbean's retained marine liability expert. Karentz opines that the NAVIGATOR did not cause the breakaway at UBT's fleet, that the ALLISON S's damage could have been avoided had her crew moored in a different location and followed proper precautions, and that UBT's mooring system was not sufficient based on the history of breakaways and its noncompliance with Plaquemines Parish regulations as well as its United States Army Corps of Engineers ("USACE") permit.¹⁷

Marquette and Beverley seek to exclude the testimony of Karentz.¹⁸ Marquette offers three grounds for excluding Karentz's report: (1) he offers opinions as to matters of common knowledge and not based on his expertise; (2) he speculates that based upon other incidents involving breakaways at the UBT facility, the barges at buoy 3(c) on January 26, 2013 were also improperly moored; and (3) his remaining theories and opinions are not helpful because they are based on other experts' findings and are not reliable.¹⁹ Beverley moves to exclude Karentz's testimony as to the hydrodynamic effects of the NESTOS or NAVIGATOR because he is not an expert in marine hydrodynamics.²⁰

A. Reliance on Prior Breakaways

As an initial matter, Marquette is wrong that Karentz bases his conclusion that UBT's barges were improperly moored solely on the existence of prior breakaways. Karentz cites UBT and Marquette's noncompliance with Plaquemines Parish regulations and UBT's USACE permit as evidence of improper mooring.²¹ Specifically, Karentz relies on UBT and Marquette's failure to utilize a requireddownstream mooring device.²² He also cites documents and other expert reports, which, taken together, tend to suggest the moorings were overloaded.²³ These opinions are within his expertise and are helpful to the Court. Karentz's opinion is therefore admissible to the extent that it relies on this evidence.

The Court accepts Marquette's argument that Karentz's conclusion that the barges were improperly moored and that UBT and Marquette disregarded safety operations, based on the history of prior breakaways, does not...