The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ORLANDO SMITH CIVIL ACTION
VERSUS NO. 19-14738-WBV-KWR
TRANSOCEAN OFFSHORE USA, INC. SECTION: D (4)
ORDER AND REASONS
Before the Court is Complainant’s Motion in Limine to Exclude Testimony of
Defendants’ Liability Expert, Mike Jacobs.1 Defendants oppose the Motion.2 After
careful consideration of the parties’ memoranda and the applicable law, the Motion
is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND3
This is an action to recover damages for personal injuries allegedly sustained
by plaintiff, Orlando Smith, on January 22, 2019 while working aboard a vessel
owned and operated by defendants, Transocean RIGP DIN LLC and Triton Asset
Leasing GmbH (collectively, “Defendants”).4 Plaintiff alleges that while employed by
Haliburton Energy Services, Inc. in a slickline crew that was rendering services to
Defendants on the rig floor of the DISCOVERER INSPIRATION, he “was caused to
1 R. Doc. 62.
2 R. Doc. 70.
3 In the interest of judicial economy, and because the factual background of this case was extensively
detailed in the Court’s April 19, 2021 Order and Reasons (R. Doc. 139) the Court will limit its recitation
of the factual and procedural background to matters relevant to the instant Motion
4 R. Docs. 1 & 11.
trip over an unpainted and unmarked pipe racker stop causing serious and disabling
injuries to his right shoulder and spine.”5
Plaintiff filed the instant Motion on July 27, 2020, seeking to exclude the
testimony of Defendants’ liability expert, Captain Mike Jacobs, under Fed. R. Evid.
702 on the basis that his testimony is unreliable and not based upon sufficient facts.6
Plaintiff asserts that Capt. Jacobs rendered a “flawed and improper opinion that Mr.
Smith is at fault herein for his failure to exercise Stop Work Authority at the time of
his January 22, 2019 accident.”7 Plaintiff contends that this opinion is flawed
because Plaintiff testified that he was completely unaware of the latch over which he
tripped at the time of the accident. Plaintiff claims he was unaware of the latch
because it was not painted and it blended into the deck of the vessel.8 Plaintiff
emphasizes that several other witnesses have provided deposition testimony that the
latch involved in his accident was not painted at the time of the accident and that the
crew failed to “engineer out” the potential hazard of the latch before the accident.9
Plaintiff asserts that Defendants’ “untimely attempt” to argue that he was at fault is
“completely contradictory and unsuccessful” because “it is clear that none of
Defendants’ employees ever took the time to properly treat the pipe rack stopper latch
as a real and viable tripping hazard.”10
5 R. Doc. 1 at ¶ IV; R. Doc. 11 at ¶ IV.
6 R. Doc. 62.
7 R. Doc. 62-1 at p. 5.
8 Id.
9 Id. at pp. 2-4 (citing R. Docs. 62-3 through 62-6).
10 R. Doc. 62-1 at p. 6.
Defendants assert that the Motion should be denied as baseless because it
contains no analysis under Fed. R. Evid. 702 regarding why Capt. Jacobs’ testimony
should be excluded.11 Defendants contend that Plaintiff does not question Capt.
Jacobs’ qualifications or argue that his opinions are irrelevant, and instead focuses
on the reliability of his testimony and opinions. Defendants assert that a proper
reliability analysis of an expert’s testimony must focus on the principles and
methodology used by the expert to reach the opinions and conclusions offered, not the
conclusions themselves.12 Defendants contend that Plaintiff’s Motion does not
actually attack the reliability of the methodology used by Capt. Jacobs to arrive at
his opinions, but attempts to question the content and support for his conclusions.13
Defendants assert that Plaintiff will have an opportunity to explore these issues at
trial through cross-examination, noting that questions regarding the bases and
sources of an expert’s opinion affect the weight of the evidence, rather than its
admissibility.14
Defendants further assert that Capt. Jacobs employed a valid methodology and
applied sound reasoning to support his opinions, pointing out that he reviewed the
pertinent pleadings, all discovery responses and documents produced during
discovery, including photographs of the accident scene, investigative reports from
Defendants, Haliburton, and the Coast Guard, as well as Plaintiff’s safety expert’s
11 R. Doc. 70 at p. 1.
12 Id. at pp. 3-4 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993)); Padgett v. Fieldwood Energy, LLC, Civ. A. No. 6:18-CV-00632, 2020
WL 1492836 (W.D. La. Mar. 26, 2020) (Doughty, J.)).
13 R. Doc. 70 at pp. 3, 4, 5.
14 Id. at p. 5.
report. Capt. Jacobs also conducted interviews with members of the crew and
attended depositions of key witnesses via Zoom videoconferencing.15 Defendants
claim that after reviewing these materials, Capt. Jacobs applied his knowledge of the
applicable regulations and standards and used his experience as a licensed Maritime
Master and Independent Marine Consultant regarding safety issues in the offshore
oil and gas industry to the facts of the case, and reached certain conclusions regarding
how the accident occurred, who was at fault, and suggested concrete ways that the
risk could have been mitigated.16 Defendants argue that this Court has repeatedly
recognized that this methodology is reliable.17 As such, Defendants assert that
Plaintiff’s Motion should be denied.
II. LEGAL STANDARD
When expert testimony is challenged, the party seeking to present the
testimony has the burden of proving by a preponderance of the evidence that the
testimony satisfies Federal Rule of Evidence 702. 18 Rule 702 governs the
admissibility of expert testimony and provides the following:
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;
15 Id. at p. 4.
16 Id.
17 Id. at pp. 4-5 (citing Padgett, Civ. A. No. 6:18-CV-00632, 2020 WL 1492836; Compton v. Moncla
Companies, LLC, Civ. A. No. 17-2258, 2020 WL 1638287 (E.D. La. April 2, 2020) (Ashe, J.); Breazeale
v. Parking Drilling Company, Civ. A. No. 14-2614, 2016 WL 3365336 (E.D. La. June 17, 2016) (Barbier,
J.); Arnaud v. Island Operating Co. Inc., Civ. A. No. 09-2368, 2010 WL 936452 (E.D. La. Mar. 11, 2010)
(Lemmon, J.)).
18 Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998).
(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.19
Rule 702 codifies the Supreme Court’s opinion in Daubert v. Merrell Dow
Pharmaceuticals, Inc., which charges district courts to act as gatekeepers when
determining the admissibility of expert testimony.20 “To be admissible under Rule
702, the court must find that the evidence is both relevant and reliable.”21 According
to the Fifth Circuit, reliability is determined by assessing whether the reasoning or
methodology underlying the testimony is scientifically valid, while relevance depends
on whether the reasoning or methodology underlying the testimony can be properly
applied to the facts at issue.22 The purpose of the reliability requirement is to exclude
expert testimony based merely on subjective belief or unsupported speculation.23
The Supreme Court in Daubert set forth the following non-exclusive list of
factors to consider in determining the reliability of expert testimony: (1) whether the
theory has been tested; (2) whether the theory has been subject to peer review and
publication; (3) the known or potential rate of error; (4) whether standards and
controls exist and have been maintained with respect to the technique; and (5) the
general acceptance of the methodology in the scientific community.24 Whether some
or all of these factors apply in a particular case depends on the facts, the expert’s
19 Fed. R. Evid. 702.
20 United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing Daubert, 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993)).
21 United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing United States v. Valencia, 600 F.3d
389, 423 (5th Cir. 2010)).
22 Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).
23 Daubert, 509 U.S. at 590, 113 S.Ct. at 2795.
24 In re: Vioxx, 401 F. Supp. 2d at 573 (citing Daubert, 509 U.S. at 593-95, 113 S.Ct. 2768).
particular expertise, and the subject of his testimony.25 The Fifth Circuit has held
that a trial court may consider additional factors in assessing the scientific reliability
of expert testimony, including: (1) whether the expert’s opinion is based on incomplete
or inaccurate data; (2) whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion; and (3) whether the expert has
adequately accounted for alternative explanations.26 “The overarching goal ‘is to
make certain that an expert, whether basing testimony on professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.’”27 A district court has
considerable discretion to admit or exclude expert testimony under Rule 702.28
III. ANALYSIS
At the outset, the Court notes that Plaintiff does not challenge Capt. Jacobs’
general qualifications as an expert or the relevance of his opinions. Thus, the only
issue before the Court is whether his opinions should be excluded as unreliable. The
Court agrees with Defendants that Plaintiff has made no showing whatsoever that
Capt. Jacobs’ opinions are unreliable. Instead, Plaintiff merely challenges Capt.
Jacobs’ conclusion that Plaintiff is solely responsible for his accident and asserts that
25 In re: Vioxx, 401 F. Supp. 2d at 573 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 13, 119
S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
26 Nola Ventures, LLC v. Upshaw Insurance Agency, Inc., Civ. A. No. 12-1026, 2014 WL 12721798, at
*6 (E.D. La. Oct. 31, 2014) (Brown, J.) (citing Black v. Food Lion Inc., 171 F.3d 308, 313 (5th Cir. 1999);
Moore v. Ashland Chemical Inc., 151 F.3d 269, 278-79 (5th Cir. 1998); In re Vioxx, 401 F. Supp 2d at
573).
27 Nola Ventures, LLC, Civ. A. No. 12-1026, 2014 WL 12721798, at *6 (quoting Kumho Tire, 526 U.S.
at 152, 119 S.Ct. at 1176).
28 See, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Seatrax,
Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000)).
this conclusion contradicts the deposition testimony of other witnesses in this case.
To the extent Plaintiff questions the content of and support for the opinions or
reasoning set out in Capt. Jacobs’ report, Plaintiff will have an opportunity to explore
these issues a trial through cross-examination of Capt. Jacobs and the presentation
of countervailing testimony. Moreover, “questions relating to the bases and sources
of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury’s consideration.”29
Nonetheless, the Court has reviewed Capt. Jacobs’ expert report, which
includes a list of materials reviewed in rendering his opinions, and finds that it is
reliable under Rule 702. According to the report, Capt. Jacobs reviewed several
pleadings in this case, including the Complaint and the First Amended Complaint,
as well as discovery responses from both parties, photographs and videos of the
accident scene provided by Defendants, over 2,000 documents provided by
Defendants, and Plaintiff’s expert report dated June 2, 2020.30 Capt. Jacobs also
attended several depositions via Zoom videoconference, including Plaintiff’s
deposition, participated in telephone interviews with other members of the crew
working aboard the vessel at the time of Plaintiff’s accident, and reviewed applicable
federal regulations and recommended safety practices promulgated by industry
associations.31 Capt. Jacobs also reviewed Defendants’ and Haliburton’s safety
29 Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (quoting United
States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., 80 F.3d 1074, 1077 (5th Cir. 1996))
(emphasis in original; internal quotation marks omitted).
30 R. Doc. 70-1 at pp. 2-3.
31 Id. at pp. 3-4, 7-9, 14-17.
policies and manuals, including Haliburton’s policy regarding Job Safety Analyses
(“JSA’s”),32 and records indicating that Plaintiff participated in a JSA on January 22,
2019, prior to the alleged incident.33 Capt. Jacobs opined that, based upon his review
of the foregoing materials and his training and over 50 years’ experience as a Marine
Surveyor and Merchant Mariner, Plaintiff was solely responsible for the alleged
incident and failed to follow established safety recommendations and procedures.34
The Court finds that Defendants have demonstrated that the reasoning and
methodology underlying Capt. Jacobs’ opinion is a valid and reliable means for
addressing the potential causes of Plaintiff’s fall. “The Daubert test is flexible and
takes into consideration that an expert may be qualified by experience to testify on
matters within his expertise.”35 Here, Capt. Jacobs’ opinions are based on extensive
experience as a Marine Surveyor and Merchant Mariner with a focus on offshore
activities/practices in the Gulf of Mexico.36 The Court finds that Capt. Jacobs’
knowledge of and application of the federal regulations and industry standards to the
safety policies and procedures of Defendants and Haliburton is sufficient to withstand
a Rule 702 challenge. As such, Plaintiff’s Motion to exclude the expert testimony of
Capt. Jacobs is denied.
32 Id. at pp. 9-14, 17-27.
33 Id. at pp. 12, 28.
34 Id. at pp. 1, 29.
35 Padgett v. Fieldwood Energy, LLC, Civ. A. No. 6:18-CV-00632, 2020 WL 1492836, at *3 (W.D. La.
Mar. 26, 2020).
36 R. Doc. 70-1 at p. 29.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Complainant’s
Motion in Limine to Exclude Testimony of Defendants’ Liability Expert, Mike
Jacobs?7 is DENIED.
New Orleans, Louisiana, August 18, 2021.
WENDY B. te
United States District Judge
37 R, Doce. 62.