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Volume XI, Number 64


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Western District of Louisiana Says Plaintiff’s Marine Engineering Expert’s Opinions Don’t Hold Water

It is not often that a federal district court limits an expert witness’s proffered testimony on the ground that the expert is not qualified to offer it, and it is also uncommon for a court to exclude expert testimony on the ground that it would not assist the trier of fact. However, the Western District of Louisiana recently limited a proffered engineering expert’s testimony on both of those grounds.

In Terral River Service, Inc. v. SCF Marine, Inc., No. 3:19-CV-00406, Plaintiff purchased a barge from Defendant and later found it partially submerged due to a fracture in the bow. The parties disputed the timing of the fracture, with Plaintiff alleging that it existed prior to delivery of the barge. Plaintiff offered as an expert witness a metallurgical and mechanical engineer with experience in evaluating barge fractures.

In an effort to mitigate its damages, Defendant had repaired the hull before Plaintiff retained the expert in question. The expert therefore did not perform the testing he would normally perform and could not date the fracture precisely or obtain “conclusive evidence” of his opinions. However, he opined that the fracture must have occurred before Plaintiff took possession of the barge because the facility at which Plaintiff had docked the barge was shielded from river currents and was configured in a way that did not require any difficult maneuvering for the barge. He admitted that he had not tested the current in Plaintiff’s facility and had never personally piloted a barge. However, he cited conversations with Plaintiff’s personnel and his own inference as sources of support for his beliefs.

Defendant moved to exclude the plaintiff expert’s opinion regarding the timing of the fracture on several grounds under Federal Rule of Evidence 702 and Daubert, first arguing that he was not qualified to offer such an opinion. The court acknowledged that the expert was an experienced marine engineer with expertise in metallurgical and mechanical engineering. However, the court held that his opinion about the date of the fracture “strays far from his claimed area of expertise.” The expert had no qualifying knowledge, training, or experience regarding the effect of river currents on the piloting of a towboat or on the hazards of mooring barges at different locations. Because his opinion about the timing of the fracture was based solely on topics on which he had no expertise, the court held that he was not qualified to offer the opinion.

Defendant also moved to exclude the opinion on the ground that it could not assist the trier of fact. Defendant argued that his opinion was “merely a gratuitous interpretation of the factual record” and that it concerned an ancillary issue of the relative safety of piloting in Plaintiff’s facility, rather than the central issue of whether the barge had a fracture before it was accepted by Plaintiff. Plaintiff argued that the opinion would assist the trier of fact because it reflected the expert’s investigation and his conclusion that he had “not found any evidence that the fracture to the barge could have occurred while at [Plaintiff’s] facility.” The court agreed with Defendant and excluded the opinion, noting that the expert had not performed any testing, experiments, or interpretation of specialized literature but merely interpreted the facts of record without adding anything. As quoted by the court from a prior opinion, “If an expert’s testimony does nothing more than attorneys can do in final arguments, it is not admissible because it is providing not knowledge, but mere opinion and advocacy.”

Finally, Defendant challenged the expert’s opinions on the timing of the fracture for not having been formed on the basis of a reliable methodology under FRE 702 and Daubert. The court denied this part of the motion, holding that the expert’s reliance on “witness marks” on the barge was an accepted methodology in metallurgical failure analysis.

It is refreshing to see a federal district court exclude an opinion under FRE 702 by an expert who, although well-qualified in other areas, strays from his qualifications and offers conclusions that are merely advocacy, not expertise.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 14



About this Author

William Essing, Product Liability and Tort Lawyer, Drinker Biddle

William V. Essig is a trial lawyer focused on defending pharmaceutical and medical device companies in mass tort and products liability litigations in federal and state courts across the country.

Bill’s recent trial experience includes winning a defense verdict as co-trial counsel in a pharmaceutical failure-to-warn case in the mass tort program in the Court of Common Pleas in Philadelphia. He has been a member of successful trial teams in federal MDL and state court litigations in defense of pharmaceutical companies.

(312) 569-1497
Eric M. Friedman Product Liability Litigation Attorney Faegre Drinker Biddle & Reath Indianapolis, IN

Eric Friedman guides clients through all stages of product liability litigation, particularly working with expert witnesses to present the science behind clients' products. By leaning on his pre-law history as a biochemist, he is able to identify key arguments for and against clients and craft winning strategies for both motion practice and trial.

Before joining Faegre Drinker, Eric was an associate with a well respected defense firm in the San Francisco Bay Area. During his time there, he assisted clients with a wide variety of tort matters ranging from personal injury/wrongful...