The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARQUETTE TRANSPORTATION CO. GULF- CIVIL ACTION
INLAND, LLC
VERSUS CASE NO. 19-10927
NAVIGATION MARITIME BULGAREA et al. SECTION: “G”(2)
ORDER AND REASONS
Before the Court is Third-Party Defendant Robert Johnson’s (“Johnson”) “Motion in
Limine to Exclude Cumulative Expert Testimony.”1 In the motion, Johnson requests that the Court
limit Plaintiff Marquette Transportation Co. Gulf-Inland, LLC (“Marquette”) to a single expert
who will opine on causation, rather than the three experts Marquette has proposed.2 Marquette
opposes the motion.3 Having considered the motion, the memoranda in support and in opposition,
the record, and the applicable law, the Court denies the motion.
I. Background
According to the Complaint, on January 3, 2019, Marquette’s vessel, the Kieffer Bailey
(the “Bailey”), was proceeding down the middle of the Mississippi River near Chalmette,
Louisiana when Defendants Navigation Maritime Bulgarea and Balkan Navigation, Ltd.’s
(collectively, “Defendants”) vessel, the Strandja, allegedly steered directly into the Bailey’s
navigational path.4 Marquette alleges that Defendants’ vessel struck and damaged Marquette’s
1 Rec. Doc. 97.
2 Id.
3 Rec. Doc. 101.
4 Rec. Doc. 1 at 1–2.
vessel.5 Marquette’s crewmembers allegedly sustained physical and emotional injuries.6
On June 6, 2019, Marquette filed a Complaint in this Court against Defendants.7 On June
21, 2019, Defendant Balkan Navigation Ltd. answered the Complaint and filed a counterclaim
against both Marquette and the Bailey to recover damages incurred by the Strandja.8 On September
11, 2019, Marquette answered the counterclaim and filed a third-party complaint against Crescent,
the alleged owner of the assist tug, M/V Providence (the “Providence”), that pulled Defendants’
vessel on the date of the collision.9 Marquette also filed a third-party complaint against Johnson,
the compulsory pilot aboard the Strandja.10
II. Parties’ Arguments
A. Johnson’s Arguments in Support of the Motion to Exclude
Johnson moves the Court to limit Marquette to eliciting causation testimony from a single
expert, rather than the three experts currently proposed by Marquette.11 According to Johnson,
Marquette has designated three experts that will testify to Johnson’s alleged errors: Captain Wayne
E. Wilson (“Wilson”), Captain Michael Berry (“Berry”) and Captain Garreth Fernandes
(“Fernandes”) (collectively, the “Experts”).12 Johnson argues that the Experts’ opinions are
cumulative and redundant because they “offer the same vantage point, rely on the same evidence
5 Id. at 3.
6 Id.
7 Id. at 1.
8 Rec. Doc. 6.
9 Rec. Doc. 17 at 4–5.
10 Id. at 6.
11 Rec. Doc. 97.
12 Rec. Doc. 97-1 at 1.
and methodology, and arrive at the same . . . conclusion.”13 Specifically, Johnson notes that all
three experts concluded that the Strandja’s crew caused the collision.14 Johnson asserts that
because the Experts are all “similarly qualified and trained” and all reviewed “the same evidence,”
their testimony is duplicative, repetitious, and cumulative.15
Additionally, Johnson argues that allowing Marquette to put on three substantially identical
experts would be severely prejudicial for two reasons.16 First, Johnson asserts that allowing three
experts to offer the same opinion unnecessarily multiplies the cost of preparing for trial.17 Second,
Johnson contends that because this is a jury trial, multiple experts offering the same conclusion
“may confuse the jury and may cause the jury to give additional weight to the testimony.”18
Therefore, Johnson “requests that this Court limit the duplicative expert testimony . . . by allowing
Marquette to designate one of its three proffered” experts as a testifying witness for trial.19
B. Marquette’s Arguments in Opposition to Johnson’s Motion
In opposition, Marquette asserts that Johnson’s motion should be denied for three
reasons.20 First, Marquette argues that the testimony is not cumulative because each expert offers
a “distinct category[y] of maritime navigational expertise.”21 Marquette avers that Berry is an
13 Id. at 1, 6–8.
14 Id. at 7–8.
15 Id.at 7.
16 Id.at 8.
17 Id.
18 Id.
19 Id.
20 Rec. Doc. 101 at 1.
21 Id. at 2,
expert in inland towboats, Fernandes is an ocean-going vessel navigation expert, and Wilson is a
Mississippi river pilot expert.22 Additionally, Marquette asserts that each expert’s qualifications
are “vastly different” and that each expert uses different methodologies.23 Thus, Marquette
contends that, although the Experts concur in their opinion that the collision was caused by the
Strandja, “the supporting opinions of all three experts are substantially different and reflect the
distinct focus of each expert’s testimony.”24 For example, Marquette asserts that Wilson discusses
the reasonableness of Johnson’s actions “under the rules, regulations, and customs” of Mississippi
River pilots, but Fernandes and Berry do not opine on this issue.25
Second, Marquette argues that the proposed testimony’s probative value substantially
outweighs its potential prejudicial effect.26 Marquette asserts that the Experts’ testimony will aid
the jury because liability in maritime collision cases “often depends on several factors” like duties
of the individuals involved, the type of vessel, that vessel’s maneuverability, environmental
conditions, and more.27 Additionally, Marquette avers that Johnson has not identified any
prejudice he will suffer.28 Marquette notes that “the jury will be specifically instructed to weigh
evidence based on the quality of the witness[’] testimony, not the sheer number of witnesses
22 Id. at 6–7.
23 Id. at 10–11.
24 Id. at 11–12.
25 Id. at 12. Marquette also asserts that Fernandes opines on the reasonableness of the Strandja’s master,
while Berry and Wilson do not, Id. at 11–12, and that Berry discusses the reasonableness of the captain of the Bailey’s
actions, while Wilson and Fernandes do not. Id. at 12.
26 Id. at 2, 14–16.
27 Id. at 14.
28 Id. at 15.
presented on a particular point.”29 Marquette further contends that “Rule 403 is ‘not designed to
permit the court to even out the weight of the evidence’” or to “reduce costs incurred by counsel
during the prosecution of a lawsuit.”30 Third, Marquette argues that Johnson’s motion is premature
because no expert has testified yet.31 Thus, Marquette contends that Johnson’s motion is premature
and should be denied or deferred to trial.32
C. Johnson’s Further Arguments in Support of the Motion to Exclude
In reply, Johnson argues that Marquette misrepresents that the Experts offer distinct
expertise and opinions.33 Instead, Johnson asserts that the Experts’ reports are cumulative because
“each expert repeatedly strays from their alleged area of expertise into one [an]other’s, creating so
much overlap that their opinions are practically indistinguishable.”34
Johnson also argues that Marquette’s representations about the limited scope of each
expert’s report are contradicted by Marquette’s own opposition.35 First, Johnson notes that
Marquette claimed that Berry will testify about the actions of the Bailey and will not discuss the
29 Id.
30 Id. at 15 (first quoting Moore v. Ashland Chem., Inc., 126 F.3d 679, 692 (5th Cir. 1997), vacated, 151 F.3d
269 (internal quotation omitted); and then quoting Piskura v. Taser Int’l, No. 10-248, 2012 WL 1267990, at *3 (S.D.
Ohio Apr. 13, 2012)).
31 Id. at 2, 16–17.
32 Id. at 16.
33 Rec. Doc. 129 at 2.
34 Id.
35 Id. at 2–3.
reasonableness of Johnson’s conduct.36 However, Johnson asserts that Berry’s report “offers
repeated assessments of . . . Johnson’s conduct.”37
Next, Johnson notes that Marquette stated that Wilson’s testimony would be limited to the
actions of Johnson.38 However, Johnson asserts that Wilson’s and Berry’s opinions are duplicative
because they offer the “same opinions” on Johnson’s actions.39 Additionally, Johnson contends
that Wilson’s report also goes beyond its purported scope.40 For example, Johnson notes that
Wilson opines on the reasonableness of the Bailey’s actions,41 and that Wilson’s opinion on the
Strandja’s maneuvers is virtually identical to Berry’s.42 Third, Johnson states that Marquette
averred Fernandes would testify about the actions of the Strandja’s crew.43 Yet Johnson points to
“numerous opinions” offered by Fernandes as to the actions of Johnson and the Bailey.44
36 Id. at 3. See also Rec. Doc. 101 at 12 (“Captain Wilson discusses the reasonableness of Pilot Johnson’s
conduct at the time of the collision, specifically under the rules, regulations, and customs applicable to Mississippi
River pilots. Captain Fernandes and Captain Berry do not.”).
37 Rec. Doc. 129 at 3. See also Rec. Doc. 97-3 at 8–10.
38 Rec. Doc. 129 at 5. See also Rec. Doc. 101 at 12 (“Captain Wilson discusses the reasonableness of Pilot
Johnson’s conduct at the time of the collision, specifically under the rules, regulations, and customs applicable to
Mississippi River pilots. Captain Fernandes and Captain Berry do not.”).
39 Rec. Doc. 129 at 5.
40 Id.
41 Id. See also Rec. Doc. 97-2 at 5 (“In conclusion I think the [Bailey] was piloted in a safe and prudent
manner and did not contribute to the collision.”).
42 Rec. Doc. 129 at 6. Compare Rec. Doc. 97-2 at 5 (“[Strandja’s] intentional and unannounced movement
. . . violated Mississippi river piloting practices, and the following Rules: [2, 5, 6, 7, 8, 9, and the Vessel Bridge to
Bridge Radiotelephone Act].”) with Rec. Doc. 97-3 at 8–9 (“The [Strandja’s] unauthorized and unannounced
departure from the designated General Anchorage . . . [was] in violation of Rule [2, 5, 6, 7, 8, 9, 34, and the Vessel
Bridge to Bridge Radiotelephone Regulations].”).
43 Rec. Doc. 129 at 6.
44 Id. See also Rec. Doc. 97-3 at 8 (“[Johnson] did not assess the traffic in the area . . . .”), 10 (“Johnson, with
all his extensive experience[,] makes some concerning statements in his Deposition . . . .”), 11 (“[The Bailey] took all
necessary measures to stay clear of the [Strandja] and was in compliance with the Rules of the Road.”).
Johnson reasserts his argument that the Experts did not use different methodologies.45
Specifically, Johnson contends that the Experts relied on the same materials, opine on the
“potentially negligent behaviors,” namely, “phone usage, rushing to get underway, and allegedly
failing to make or respond to radio calls.”46 In relying on the same evidence, Johnson argues that
the Experts offer “substantially the same conclusions.”47 Therefore, Johnson asserts that allowing
all three experts to offer the same conclusions “will have a seriously prejudicial influence on the
jurors’ minds.”48
Johnson advances three other miscellaneous arguments. Johnson asserts that his motion is
not premature because “[t]he purpose of a motion in limine is for the Court to rule on certain
evidentiary issues before trial.”49 Johnson also asks the Court to “recognize that Marquette is
judicially estopped from taking a contrary position in later proceedings by offering testimony of
any of its experts inconsistent with the narrow scope its Opposition represents each expert will
adhere to.”50 Finally, in his supplemental reply, Johnson asserts that Marquette contradicted itself
in a separate brief filed in opposition to Johnson’s motion for summary judgment.51 In that brief,
45 Rec. Doc. 129 at 7.
46 Id.
47 Id.
48 Id. at 8.
49 Id. at 9 (quoting Robert v. Maurice, No. 18-11632, 2020 WL 4035523, at *10 (E.D. La. July 17, 2020)
(Brown, C.J.)) (emphasis omitted).
50 Id. at 10.
51 Rec. Doc. 145 at 2. See also Rec. Docs. 123, 131.
Johnson avers that Marquette stated that Berry and Fernandes “will . . . testify regarding the
propriety of Johnson’s conduct.”52
III. Law and Analysis
Johnson moves the Court to exclude two out of three of Marquette’s experts, arguing that
their testimony is cumulative.53 Marquette opposes, arguing that its three experts will each testify
to “distinct categories of maritime navigational expertise,” and thus their testimony will not be
cumulative.54
Pursuant to Federal Rule of Evidence 403, “the court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” The Fifth Circuit instructs that “[t]he exclusion of evidence
under Rule 403 should occur only sparingly[.]”55 “It is well established that testimony which is
merely repetitious and cumulative of testimony already introduced may be excluded by the trial
court in its discretion.”56 In Leefe v. Air Logistics, Inc., the Fifth Circuit deferred to the district
judge’s decision to, at trial, exclude testimony by a second expert doctor as cumulative.57 There,
the Fifth Circuit explained that there is no “precise limit on the number of experts who can testify
in a given area,” although attorneys are “discourage[d] . . . from parading additional experts before
52 Rec. Doc. 145 at 2 (quoting Rec. Doc. 131 at 10).
53 Rec. Doc. 97.
54 Rec. Doc. 101.
55 United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).
56 Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985), cert. denied, 471 U.S. 1126 (1985) (citing Meadows
& Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir. 1969)); Fed. R. Evid. 403.
57 876 F.2d 409, 411 (5th Cir. 1989).
the court in the hope that the added testimony will improve on some element of the testimony by
the principal expert.”58 However, as stated above, the Fifth Circuit instructs that “[t]he exclusion
of evidence under Rule 403 should occur only sparingly[.]”59 Additionally, a decision to reject
“expert testimony is the exception rather than the rule.”60
Here, the Experts’ reports do seem to overlap. Each expert offers an opinion on Johnson’s
conduct.61 Each expert offers an opinion as to the propriety of the Bailey’s conduct.62 Wilson and
Berry’s reports come to nearly identical conclusions about the rules violated by the Strandja.63
Additionally, the experts seem to rely on substantially the same information.64 Conversely,
Marquette avers that each expert “is uniquely qualified and will testify regarding discrete issues of
maritime navigation with respect to the tugboat, the ocean-going ship, and the pilot in terms of
how each of these parties should navigate in relation to the other.”65
At this juncture, the Court cannot determine whether the Experts’ testimony is merely
cumulative or whether each expert is opining on “discrete issues of maritime navigation.”66 Given
58 Leefe, 876 F.2d at 411.
59 Pace, 10 F.3d at 1115.
60 Fed. R. Evid. 702 advisory committee’s note to 2000 Amendments.
61 See, e.g., Rec. Doc. 97-2 at 3 (discussing Johnson’s cell phone use); 97-3 at 9 (same); 97-4 at 7 (same).
62 See, e.g., Rec. Doc. 97-2 at 3; 97-3 at 11; 97-4 at 11.
63 Compare Rec. Doc. 97-2 at 5 (“[Strandja’s] intentional and unannounced movement . . . violated
Mississippi river piloting practices, and the following Rules: [2, 5, 6, 7, 8, 9, and the Vessel Bridge to Bridge
Radiotelephone Act].”) with Rec. Doc. 97-3 at 8–9 (“The [Strandja’s] unauthorized and unannounced departure from
the designated General Anchorage . . . [was] in violation of Rule [2, 5, 6, 7, 8, 9, 34, and the Vessel Bridge to Bridge
Radiotelephone Regulations].”).
64 See, e.g., Rec. Doc. 97-2 at 2; 97-3 at 1–4; 97-4 at 12.
65 Rec. Doc. 101 at 1.
66 See id.
the guidance from the Fifth Circuit to exclude evidence under Rule 403 only sparingly, the Court
will not arbitrarily limit Marquette to just one expert. However, if Marquette seeks to introduce
testimony that is “merely repetitious and cumulative of testimony already introduced[, it] may be
excluded” at trial.°”
Therefore, Johnson’s concerns about the allegedly cumulative nature of Marquette’s expert
testimony can be addressed at trial. Additionally, other safeguards will discourage needlessly
presenting cumulative evidence. For example, at the pretrial conference, the Court will apportion
each side a certain number of minutes to present their cases at trial. The parties are advised to use
this time wisely and not present cumulative testimony. Accordingly, the Court denies Johnson’s
motion. However, to the extent Marquette attempts to elicit duplicative or cumulative testimony
at trial, Johnson may re-raise his objection, if necessary.
IT IS HEREBY ORDERED that Third-Party Defendant Robert Johnson’s (“Johnson”)
“Motion in Limine to Exclude Cumulative Expert Testimony”® is DENIED.
NEW ORLEANS, LOUISIANA, this 17th day of January, 2022.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
67 Harvey, 754 F.2d at 572.
68 Rec. Doe. 97.
10