White v. Dynamic Industries, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DWIGHT WHITE CIVIL ACTION

v. NO. 19-9310

DYNAMIC INDUSTRIES, INC., ET AL. SECTION “F”

ORDER AND REASONS

Before the Court is PHI’s motion for summary judgment

dismissing Dwight White’s claims. For the reasons that follow, the

motion is DENIED.

Background

Scaffolding struck a rigger working aboard an offshore

platform. The rigger says that downdraft from a helicopter landing

on the platform’s helideck caused the scaffolding to dislodge and

strike him. Claiming grave injuries, he sued the scaffolding

installer and the helicopter owner. At issue is whether the rigger

needs an expert to prove the helicopter owner’s liability for the

pilot’s alleged negligence. He does not.

The material facts are few. Dwight White was working as a

rigger for Fluid Crane & Construction aboard an offshore platform

owned by Fieldwood Energy and located in block 281 of the South

Marsh Island area. Block 281 lies off the coast of central

Louisiana, on the outer Continental Shelf.

One morning, a helicopter owned by PHI and piloted by Adam

Ferris landed on the platform’s helideck. Downdraft from the

helicopter caused scaffolding installed by Dynamic Industries to

dislodge and strike White. White sued PHI and Dynamic Industries

for negligence, invoking federal jurisdiction under the Outer

Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1349(b)(1).

White’s theories of liability are straightforward. He says

that Dynamic Industries negligently failed to secure and assemble

the scaffolding that struck him. He says that PHI is directly

liable for negligently training its helicopter pilot and

vicariously liable for the pilot’s careless operation of the

helicopter. According to White, PHI’s pilot “approach[ed] too

close” to the scaffolding, causing the scaffolding to break free

and fall on him.

Expert discovery has closed, and White has not hired an expert

to testify to the standard of care that applies to helicopter

pilots. But White deposed PHI’s helicopter pilot, Adam Ferris, who

testified to the “high/low recon” procedure he follows when landing

offshore. Ferris said the presence of an obstruction near the

helipad would raise a “red flag.” He also agreed that if he saw

any “obstructions or any scaffoldings or barricades that [he]

thought posed a hazard,” he would radio someone on the platform or

land somewhere else.

Now, PHI moves for summary judgment on the ground that White

failed to retain an expert helicopter pilot.

I.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017) (citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003). Ultimately, to avoid summary

judgment, the non-movant “must go beyond the pleadings and come

forward with specific facts indicating a genuine issue for trial.”

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th

Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

II.

Absent from the papers is any discussion of the law that

governs this OCSLA case. The omission is a startling one,

considering the Supreme Court’s recent pronouncements on the

subject. See Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S.

Ct. 1881 (2019).

The OCSLA “gives the Federal Government complete

‘jurisdiction, control, and power of disposition’ over the [outer

Continental Shelf], while giving the States no ‘interest or

jurisdiction’ over it.” Parker Drilling, 139 S. Ct. at 1888-89

(quoting 43 U.S.C. §§ 1332(1), 1333(a)(3)).

Under the OCSLA, federal law applies to the outer Continental

Shelf “to the same extent as if the outer Continental Shelf were

an area of exclusive Federal jurisdiction located within a State.”

43 U.S.C. § 1333(a)(1). So, “the only law on the [outer Continental

Shelf] is federal law, and state laws are adopted as federal law

only ‘to the extent that they are applicable and not inconsistent

with’ federal law.” Parker Drilling, 139 S. Ct. at 1889 (quoting

43 U.S.C. § 1333(a)(2)(A)) (internal brackets omitted). State law

is “applicable and not inconsistent with” federal law “only if

federal law does not address the relevant issue.” Parker Drilling,

139 S. Ct. at 1889.

Here, the parties seem to assume that Louisiana law applies

because “federal law does not address the relevant issue.” Parker

Drilling, 139 S. Ct. at 1889. That may prove correct. Because the

parties failed to brief the issue, however, the Court declines to

resolve it. And given the parties’ failures in this regard, the

Court assumes, for purposes of this motion only, that Louisiana

law governs the question whether White needs an expert to prove

PHI’s negligence. Moving forward, any motion raising an issue of

substantive law should contain a discussion of the governing law

under OCLSA; any motion without one will be denied.

III.

PHI moves for summary judgment dismissing White’s negligence

claims. PHI contends that White needs an expert helicopter pilot

to prove its duty, and because White failed to hire one, he cannot

prove negligence. The Court disagrees.

As a general rule, a plaintiff needs expert testimony to prove

a professional’s duty. See, e.g., Schultz v. Guoth, 2010-0343 (La.

1/19/11); 57 So. 3d 1002, 1009 (physicians); Brennan’s Inc. v.

Colbert, 2015-0325 (La. App. 4 Cir. 4/13/16); 191 So. 3d 1101,

1123 (attorneys); City of Alexandria v. Ratcliffe Const. Co., 2011-

1200 (La. App. 3 Cir. 2/8/12); 95 So. 3d 1075, 1079 (design

professionals).

That general rule covers aircraft pilots, too. See Allen v.

PHI, Inc., 2015-461 (La. App. 3 Cir. 12/9/15); 181 So. 3d 890,

899-900 (affirming directed verdict awarded to helicopter owner

where plaintiff failed to present expert testimony to prove the

duty owed by helicopter pilot); Schwamb v. Delta Air Lines, 516

So. 2d 452, 459 (La. App. 1 Cir. 1987) (noting that “airplane

safety and operational negligence” are “sufficiently beyond the

understanding of the average juror” to warrant expert testimony).

Like most general rules, however, this one is subject to

exceptions. For example, an expert is not needed when “the

negligence is so obvious that a lay person can infer negligence

without the guidance of expert testimony.” Penn v. CarePoint

Partners of La., L.L.C., 2014-1621 (La. App. 1 Cir. 7/30/15); 181

So. 3d 26, 30. Nor is an expert needed when the professional’s

testimony suffices to show duty and breach. See, e.g., Pfiffher v.

Correa, 94-0924 (La. 10/17/94); 643 So. 2d 1228, 1234. An expert

is equally unnecessary when the professional’s alleged negligence

is his violation of standards of his industry or his employer. Id.

at 1234.

Here, the exceptions govern. No expert is needed because the

testimony of PHI’s pilot, Adam Ferris, can establish the relevant

standard of care. Ferris testified to PHI’s policies, as well as

the “high/low recon” procedure he follows when landing helicopters

on offshore platforms. He testified that the presence of an

obstruction near the helipad would raise a “red flag.” And he

agreed that if he saw any “obstructions or any scaffoldings or

barricades that [he] thought posed a hazard,” he would radio

someone on the platform or land somewhere else. At the time of the

landing, a “barricade was clamped to handrails” about ten feet

from the helideck. A jury could find that Ferris violated PHI’s

policies or performed an inadequate “high/low recon” when he landed

the helicopter despite the presence of this “barricade.” So, no

expert helicopter pilot is needed.

IIl.

White does not need expert testimony to prove PHI’s negligence

because the testimony of PHI’s helicopter pilot can establish the

standard of care, and the testimony of the pilot and others can

establish breach. Accordingly, IT IS ORDERED: that PHI’s motion

for summary judgment is DENIED.

New Orleans, Louisiana, July 15, 2020

MARTIN|L. C.\FELDMAN

UNITED STATES DISTRICT JUDGE