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Admiralty Experts

Admissibility Rate: .556    (5/9) 

Poulis-Minott v. Smith, 388 F.3d 354 (1st Cir. 2004).  Man sets sail on fishing trip and never returns.  Estate's administrator sues vessel owner.  On summary judgment, owner offers affidavits from various experts.  Estate moves to exclude their testimony in whole or in part, based on late disclosure, unreliability, and lack of qualifications.  District court addresses objections paragraph by paragraph, admitting some testimony and excluding other testimony, before awarding summary judgment to owner.  Estate appeals.  Admissibility affirmed.  District court exercised sound discretion in its decisions on preclusive sanctions and reliability.  Greater clarity in addressing experts' qualifications would have been desirable, but district court did not abuse its wide discretion, given great procedural latitude enjoyed by district courts in discharging gatekeeping function.

Diefenbach v. Sheridan Transp., 229 F.3d 27 (1st Cir. 2000).  Boatswain is injured during undocking of ship.  In Jones Act claim against employer, boatswain offers testimony from vessel's captain re docking and undocking procedures.  Admissibility affirmed.  Employer waived "reliability" objection, and captain was qualified by training and experience to testify on docking and undocking procedures.

Reliance Ins. Co. v. Keystone Shipping Co., No. 00-7950 (2d Cir. Apr. 5, 2001) (unpublished).  Was corrosion of ship's cargo holds caused primarily by ordinary wear and tear (not covered under maritime insurance policy), or was it microbiologically induced (covered)?  In bench trial, district court hears but later excludes testimony of two shipping company experts who blame microbes.  Judgment for insurer affirmed.  Sitting as trier of fact, district judge could and did reasonably discount testimony of shipping company's experts without committing clear error, and it would therefore be pointless to remand for purposes of revisiting their testimony's "exclusion" under Daubert.

Brooks v. Outboard Marine Corp., 234 F.3d 89 (2d Cir. 2000).  Boy's hand is amputated after being caught in motorboat propeller blade.  In design defect suit against motor's manufacturer, boy offers testimony from engineer [?] that motor should have incorporated kill switch, which would have prevented injury.  Exclusion affirmed.  Plaintiff argues that district court erred in entertaining Daubert objection not itself supported by expert testimony, but Daubert and Kumho Tire do not require that objections be thus supported.  Meanwhile, plaintiff's expert never saw relevant motorboat, whether in photographs or in person, never spoke with boys involved in accident, was unaware of dimensions of boat and placement of seats in relation to motor, did not know details of accident, and never attempted to reconstruct accident or test his theory.  Failure to test theory of causation can justify exclusion of testimony.

Golden Nugget, Inc. v. Chesapeake Bay Fishing Co., No. 03-1339 (4th Cir. Apr. 2, 2004) (unpublished), cert. denied, 543 U.S. 1053 (2005).  Vessel catches fire.  Did shipyard negligently leave fan switched on, causing it to overheat, sparking conflagration?  On eve of trial in vessel owner's suit against shipyard, shipyard's causation expert, Frederick West, examines remains of fan.  At trial, West testifies, based in part on his examination, that fan had thermal cutout that would cause fan's deactivation if heat built up.  West also opines that voltage spike was true cause of fire.  Vessel owner objects to testimony on both subjects, because testimony was not disclosed in expert's pretrial report.  District court overrules objections, as well as vessel owner's post-judgment motions for judgment as matter of law or new trial.  Owner appeals.  Affirmed.  Testimony should have been excluded insofar as it was founded on undisclosed examination of fan, but error was harmless.  From West's deposition, ship owner was already on notice of West's position that fan probably incorporated thermal cutout, and owner failed to avail itself of opportunities to cure any prejudice after testimony on thermal cutout was admitted.  Expert's position on fire's true cause could have been more definitively stated in his report, but district court legitimately found that report did generally disclose it.

Holesapple v. Barrett, No. 00-1537 (4th Cir. Mar. 2, 2001) (unpublished).  Woman sues son-in-law in admiralty after suffering two broken ankles in boating mishap.  District court awards summary judgment after excluding admiralty expert's opinion that son-in-law was negligent in piloting boat.  Exclusion affirmed.  Expert was qualified but his opinion was unsupported by scientific analysis, attempts at reconstruction, or reference to any authority for operation of small vessels.  "This affidavit presents an almost perfect example of an ipse dixit opinion." 

Certain Underwriters at Lloyd's v. Sinkovich, 232 F.3d 200 (4th Cir. 2000).  Yacht owner hears loud bump while at sail.  Owner disengages autopilot and attempts to steer, but steering mechanism is locked.  Owner shifts motor to neutral and goes to inspect yacht, from topside and below.  Having determined that yacht is taking on water, owner returns to helm and again attempts to steer, whereupon yacht strikes submerged rocks.  Elapsed time from initial bump to collision with rocks is perhaps twenty minutes.  Maritime insurer retains marine surveyor to investigate accident.  Insurer subsequently brings declaratory judgment action, seeking declaration that owner violated "sue and labor" clause in policy requiring insured to take appropriate steps to mitigate damage.  Insurer does not list marine surveyor as expert or disclose his report in pretrial discovery.  District court rules that surveyor may nevertheless testify, but only as lay witness.  At trial, surveyor proceeds to answer hypothetical questions and offer opinions requiring specialized knowledge.  Admissibility reversed.  Surveyor had no personal knowledge of events, and his opinions required specialized knowledge that only experts could supply.

Stolt Achievement, Ltd. v. Dredge B.E. Lindholm, 440 F.3d 266 (5th Cir.), amended on rehearing, 447 F.3d 360 (5th Cir. 2006).  Chemical tanker and dredge boat collide.  Owners of tanker sue in admiralty.  At trial, dredge boat owners rely on testimony from master mariner David Scrunton.  Trial court apportions fault equally and awards damages accordingly.  Admissibility affirmed.  Tanker owners complain that expert was not qualified to testify on specific hydrodynamic effects associated with collision.  But he did not do so.  He offered only general qualitative testimony on bow waves, based on his experience.

Tex. A&M Research Found. v. Magna Transp., 338 F.3d 394 (5th Cir. 2003).  Oceanographic research is delayed when shippers fail to deliver equipment to vessel in timely manner.  In suit against shippers, research foundation submits testimony from its vice-president, Richard McPherson, re cost of chartering vessel for three days during which no research could be performed.  District court excludes this portion of McPherson's testimony as speculative lay opinion, although it does award other damages.  Exclusion reversed.  Officers and directors of corporation may testify as lay witnesses re industry pricing and practices without qualifying as experts.  In any event, witness's testimony was not actually opinion testimony at all, since costs of lost ship time represent amounts actually paid by research foundation.  District court therefore erred in excluding testimony.   But error did not prejudice research foundation, because relevant losses represented unforeseeable and nonrecoverable consequential damages.

Beck v. Haik, 377 F.3d 624 (6th Cir. 2004).  Man jumps or falls off bridge into river.  County sheriff's department bars private diving service from attempting rescue, but county undertakes only desultory rescue efforts of its own before later recovering drowned man's body.  His survivors sue county and offer testimony from Steven J. Linton, experienced dive rescue instructor, who opines that county's conduct indicates it did not intend to rescue decedent but only to recover his body, and also that private rescue service would have located drowning man promptly if permitted to try.  District court excludes testimony as unhelpful to trier of fact, and jury returns verdict for defendants.  Exclusion reversed.  District court correctly observed that county had no legal obligation to provide perfect rescue operations but was merely required to offer meaningful alternative to private rescue.  However, mere attempt at recovering body would fall far short of meaningful rescue alternative, and so expert's testimony would have assisted trier of fact.  Remanded for new trial.

Marin Tug & Barge, Inc. v. Westport Petroleum, Inc., No. 99-17154 (9th Cir. Jan. 18, 2001) (unpublished).  Contaminated oil is loaded on barge.  Defendant's expert testifies that flushing adequately cleaned the barge.  Admissibility affirmedDaubert challenge raised only on appeal comes too late.

Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003).  Ship repair company sues ship owner for balance due.  At trial, repair company offers several of its personnel to testify to their lay opinion that charges were reasonable.  Ship owner objects that such opinions would properly be subject of expert testimony and are therefore inadmissible as lay opinion under Fed. R. Evid. 701 as amended in 2000.  District court admits testimony and finds for ship repair company.  Admissibility affirmed.  Business owners and managers have traditionally been competent to offer lay opinions of this sort, and commentary indicates that amendments to Rule 701 were not intended to alter that result, but rather to foreclose attempts to circumvent Rule 702 by offering testimony traditionally reserved for experts under guise of lay opinion.

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