Entergy New Orleans, LLC v. Magnolia Fleet, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ENTERGY NEW ORLEANS, LLC CIVIL ACTION

VERSUS NO. 22-5285

MAGNOLIA FLEET, LLC, ET AL. SECTION “R” (5)

ORDER AND REASONS

Before the Court is defendants’ motion for summary judgment1 and

motion in limine to exclude the expert testimony of Randy Bullard.2 Plaintiff

opposes the motions.3 For the following reasons, the Court denies the

motion for summary judgment, and grants in part and denies in part the

motion in limine.

I. BACKGROUND

This case arises from a maritime allision in the Inner Harbor

Navigation Canal (“Inner Harbor”). On December 15, 2021, the tugboat

vessel “The M/V Lucille Brooks,” owned by defendant Magnolia Midstream,

LLC and operated by defendant Magnolia Fleet, LLC, struck a sign and two

concrete-filled steel pilings owned by plaintiff Entergy New Orleans, LLC

1 R. Doc. 26.

2 R. Doc. 32.

3 R. Docs. 27 & 38.

(“Entergy”).4 At the time of the allision, the vessel was pushing a tow

consisting of five empty barges through the locks in the Inner Harbor.5 The

vessel’s engine allegedly failed, causing winds to push the tow into Entergy’s

pilings located on the eastside bank of the canal.6 The damaged pilings were

36 inches in diameter and used to mark the location of two 16-inch gas main

pipeline pilings that cross under the Inner Harbor.7 There were four pilings

in total, two of which were undamaged by the allision.

Entergy filed this action against Magnolia Midstream, LLC, Magnolia

Fleet, LLC, and Magnolia Tugs, LLC (collectively, “Magnolia”), seeking

reimbursement for all repair costs necessitated by the allision.8 The dispute

centers on the amount of damages Magnolia owes to Entergy. In Magnolia’s

motion for summary judgment, it contends that damages must be based on

the market value of the two pilings at the time of the destruction less the

salvage value.9 Entergy contends that the proper measure of damages is

repair or replacement cost less depreciation.10

4 R. Doc. 26-4 ¶¶ 1, 5; R. Doc. 27-3 ¶¶ 1, 5.

5 R. Doc. 26-4 ¶ 1; R. Doc. 27-3 ¶ 1.

6 R. Doc. 26-4 ¶¶ 4-5; R. Doc. 27-3 ¶¶ 4-5.

7 R. Doc. 26-4 ¶ 5; R. Doc.27-3 ¶ 5.

8 R. Docs. 1 & 15.

9 R. Doc. 26-1.

10 R. Doc. 27.

Magnolia also moves to exclude the testimony and report of Entergy’s

maritime expert surveyor, Randy Bullard.11 Magnolia asserts that the report

is unreliable because it contains unsupported assumptions, extends beyond

Bullard’s expertise, and lacks credible sources.12 Entergy asserts that

Bullard’s report is admissible, and that Magnolia’s objections concerning the

weight of Bullard’s opinions are more properly addressed at trial.13

The Court considers the motions below.

II. MOTION FOR SUMMARY JUDGMENT

A. Legal Standard

Summary judgment is warranted when “the movant shows that there

is 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); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

11 R. Doc. 32.

12 R. Doc. 32-1.

13 R. Doc. 38.

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008) (first citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and then citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). All

reasonable inferences are drawn in favor of the nonmoving party, but

“unsupported allegations or affidavits setting forth ‘ultimate or conclusory

facts and conclusions of law’ are insufficient to either support or defeat a

motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d

1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little,

37 F.3d at 1075 (noting that the moving party’s “burden is not satisfied with

‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of

evidence” (citations omitted)). “No genuine dispute of fact exists if the

record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party must put forth evidence that would

“entitle it to a directed verdict if the evidence went uncontroverted at trial.”

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991)

(quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)

(internal quotation marks omitted)). “[T]he nonmoving party can defeat the

motion” by either countering with evidence sufficient to demonstrate the

“existence of a genuine dispute of material fact,” or by “showing that the

moving party’s evidence is so sheer that it may not persuade the reasonable

fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

B. Discussion

As this matter falls within the Court’s admiralty jurisdiction,

substantive maritime law, which incorporates common law tort principles,

applies. See McCormick v. United States, 680 F.2d 345, 347-48 (5th Cir.

1982) (allision between vessel and piling in navigable waters came within

admiralty jurisdiction); see also Great Lakes Bus. Tr. v. M/T Orange Sun,

855 F. Supp. 2d 131, 148 (S.D.N.Y. 2012) (“Federal maritime law

incorporates common law negligence principles generally.” (quoting Becker

v. Poling Transp. Corp., 356 F.3d 381, 388 (2d Cir. 2004)). In this context,

an award of damages serves a compensatory purpose. See Pizani v. M/V

Cotton Blossom, 669 F.2d 1084, 1088 (5th Cir. 1982). “The purpose of

compensatory damages . . . is to place the injured person as nearly as possible

in the condition he would have occupied if the wrong had not occurred.” Id.

(quoting Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 304 (5th Cir.

1976) (internal quotation marks omitted)); see also Gaines Towing &

Transp., Inc. v. Atlantia Tanker Corp., 191 F.3d 633, 635 (5th Cir. 1999)

(“The proper measure of damages in a tort action ‘is to place the injured

person as nearly as possible in the condition he would have occupied if the

wrong had not occurred.’” (quoting Pizani, 669 F.2d at 1088)); Pillsbury Co.

v. Midland Enters., Inc., 715 F. Supp. 738, 763 (E.D. La. 1989) (“Under

general maritime law, ‘where property is destroyed by wrongful act, the

owner is entitled to its money equivalent, and thereby to be put in as good a

position pecuniarily as if his property had not been destroyed.’” (quoting

Standard Oil Co. v. S. Pac. Co., 268 U.S. 146, 155 (1925))). Defendants

“cannot be held liable for damages that [they have] not been shown to have

caused, or for the cost of repairs that enhance the value of the damaged

property compared with its pretort condition.” Gaines Towing, 191 F.3d at

635 (citing Pizani, 669 F.2d at 1088). Plaintiff must prove both the amount

and the fact of damages. See Pizani, 669 F.2d at 1088; Gaines Towing, 191

F.3d at 635.

Property damaged in an allision is considered a “constructive total

loss” when the repair cost exceeds the precasualty value of the property, or

an “actual total loss” when damaged beyond physical repair. Pillsbury Co.,

715 F. Supp. at 763 (citations omitted). “In either case, the measure of

damages is generally the market value of the property just before the loss

(less the value of any salved equipment or materials) and does not include

loss of use or other consequential damages.” Id. (citations omitted).

But when there is no established market value “by recent and

comparable sales,” courts rely upon “other evidence such as replacement

cost, depreciation, expert opinion, and the amount of insurance” to

determine the value of damaged property. Carl Sawyer, Inc. v. Poor, 180

F.2d 962, 963 (5th Cir. 1950) (holding that “other evidence is admissible

touching value” when market value is not established); Pillsbury Co., 715 F.

Supp. at 763 (quoting King Fisher Marine Serv., Inc. v. NP Sunbonnet, 724

F.2d 1181, 1185 (5th Cir. 1984) (internal quotation marks omitted)); see also

Freeport Sulphur Co., 526 F.2d at 304 (“When there is a tortious injury to

property and the market value of that property is unknown, the amount of

damages must be determined by the cost of repairs to the property.”);

Orange Beach Water, Sewer, & Fire Prot. Auth. v. M/V Alva, 680 F.2d 1374,

1384 (11th Cir. 1982) (“Where no market value has been established by recent

comparable sales, ‘other evidence is admissible touching value such as the

opinion of marine surveyors, engineers, the cost of reproduction, less

depreciation, the condition of repair which the (structure) was in, . . . and the

like.” (alteration in original) (quoting Carl Sawyer, Inc., 180 F.2d at 963 (5th

Cir. 1950))). For instance, when the property was used for a special purpose,

or “there otherwise may be no true market, replacement costs may be the

most accurate basis for determining damages, which are recoverable

whether or not the property is repaired or replaced.” Pillsbury Co., 715 F.

Supp. at 763 (citing King Fisher, 724 F.2d at 1185-87; Bunge Corp. v. Am.

Com. Barge Line Co., 630 F.2d 1236, 1242 (7th Cir. 1980); and United

Overseas Export Lines, Inc. v. Medluck Compania Maviera, S.A., 785 F.2d

1320, 1327 (5th Cir. 1986)).

In these “new for the old” cases, the “party suffering injury is entitled

to recover only that which is necessary to restore his damaged property to

the same condition as existed immediately prior to the delict.” City of New

Orleans ex rel. Sewerage & Water Bd. of New Orleans v. Am. Com. Lines,

Inc., 662 F.2d 1121, 1124 (5th Cir. 1981). In other words, when “repair or

replacement costs form the basis of the damage award, the Court must

determine whether the repair or replacement adds new value to or extends

the useful life of the property.” Pillsbury Co., 715 F. Supp. at 763 (citations

omitted). If it does, then the Court must make “an appropriate reduction

from the full repair or replacement costs.” Id. (citations omitted). The

purpose of this rule is to “avoid giving the injured person a windfall by

furnishing something entirely new ‘for that which was old and depreciated

and would in the normal course of things have to be replaced in any event.’”

Sewerage & Water Bd. of New Orleans, 662 F.2d at 1124 (quoting State

Highway Comm’n v. Tug Go-Getter, 468 F.2d 1270, 1273 (9th Cir. 1972)).

Here, the issue is whether the fair market value of the damaged pilings

immediately before the loss can be discerned. If so, the market value at the

time of the loss is the proper basis for determining damages. See Carl

Sawyer, 180 F.2d at 963 (“[T]he usual and customary method in

determining damages in cases of maritime collision is the market value of the

[property] in the case of loss.”). If not, replacement cost is the more suitable

basis. See Pillsbury Co., 715 F. Supp. at 763.

The property at issue is two concrete-filled steel pilings partially

submerged in water that were installed between 39 and 42 years before the

allision.14 Entergy asserts that there is no resale or general trading market

for property of this nature.15 This position comports with a number of cases

that have either used the replacement-cost approach to calculate damages

for marine structures such as pilings, docks, mooring cells, and mooring

dolphins, or held that no general, trading market exists for these structures.

See Pizani, 669 F.2d at 1086 (using replacement cost of dock pilings, less

noncompensable improvements, to determine damages in maritime allision

case); Freeport Sulphur Co., 526 F.2d at 306 (calculating damages for dock

as the cost of repairs less “the percentage of the repair expenses representing

the cost of the useful life extension”); Pillsbury Co., 715 F. Supp. at 763-65

(holding that replacement costs “are the best indicia of ‘market value’” of

mooring cell and mooring dolphin damaged in allision because “no general,

14 See R. Doc. 26-4 ¶ 30; R. Doc. 27-3 ¶ 30.

15 R. Doc. 27 at 10.

trading market exists” for these structures); Allied Chem. Corp. v.

Edmundson Towing Co., 320 F. Supp. 448, 449 (E.D. La. 1970) (using the

replacement cost of damaged piling clusters, less reasonable depreciation, to

calculate damages); Gen. Am. Transp. Corp. v. The Patricia Chotin, 120 F.

Supp. 246, (E.D. La. 1954) (using replacement cost of piling clusters, less

depreciation, to calculate damages); see also Bunge Corp. v. Am. Comm.

Barge Line Co., 630 F.2d 1236, 1240-42 (7th Cir. 1980) (using replacement

cost, less depreciation, to calculate damages to conveyor structure and

dolphin); Orange Beach, 680 F.2d at 1379-80, 1383-84 (using replacement

cost, less depreciation, to calculate damages to pipeline beneath waterway).

While Magnolia argues that the market-value standard must be used

to calculate damages for the pilings, it neither cites authority applying this

standard to comparable structures, nor offers evidence for the

counterintuitive proposition that there is a resale or trading market for

decades-old steel pilings filled with concrete. Accordingly, the Court finds

that replacement cost, less depreciation and noncompensable

improvements, may be used as the more appropriate measure of damages.

Because Magnolia has failed to demonstrate that the damages in this case

must be determined using the market-value standard, the Court denies its

motion for summary judgment.

Magnolia also argues that Entergy has no evidence of the pretort

condition of the pilings.16 In response, Entergy has cited witness testimony

and satellite imaging on the pilings’ condition before the allision, including

testimony from Magnolia’s deckhand, Brandan Winkel.17 Magnolia contests

the credibility of Entergy’s evidence, but credibility determinations have no

place in summary judgment. See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000) (holding that on summary judgment a court

“may not make credibility determinations or weight the evidence”). The

Court finds that there are issues of material fact as to the pretort condition

of the pilings precluding summary judgment.

III. MAGNOLIA’S MOTION IN LIMINE

A. Legal Standard

The district court has considerable discretion to admit or exclude

expert testimony under Federal Rule of Evidence 702. See Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200

F.3d 358, 371 (5th Cir. 2000). Rule 702 provides that an expert witness

16 R. Doc. 26-1 at 2, 5-6.

17 R. Doc. 27 at 4.

“qualified . . . by knowledge, skill, experience, training, or education may

testify” if:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence

or determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(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.

Fed. R. Evid. 702.

In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the

Supreme Court held that Rule 702 “requires the district court to act as a

gatekeeper to ensure that ‘any and all scientific testimony or evidence

admitted is not only relevant, but reliable.’” Metrejean v. REC Marine

Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D. La. Sept. 21,

2009) (quoting Daubert, 509 U.S. at 589). This gatekeeping function applies

to all forms of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S.

137, 147 (1999).

The Court’s gatekeeping function consists of a two-part inquiry into

reliability and relevance. First, the Court must determine whether the

proffered expert testimony is reliable. The party offering the testimony bears

the burden of establishing its reliability by a preponderance of the evidence.

See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The

reliability inquiry requires the Court to assess whether the expert’s reasoning

and methodology underlying the testimony are valid. See Daubert, 509 U.S.

at 593. The aim is to exclude expert testimony based merely on subjective

belief or unsupported speculation. See id. at 590. “[F]undamentally

unsupported” opinions “offer[ ] no expert assistance to the [trier of fact]” and

should be excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir.

2005). The Court may consider several nonexclusive factors in determining

reliability, including: (1) whether the technique has been tested, (2) whether

the technique has been subject to peer review and publication, (3) the

technique’s potential error rate, (4) the existence and maintenance of

standards controlling the technique’s operation, and (5) whether the

technique is generally accepted in the relevant scientific community.

Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004). The

Supreme Court has emphasized that these factors “do not constitute a

‘definitive checklist or test.’” Kumho, 526 U.S. at 150 (quoting Daubert, 509

U.S. at 593). Rather, courts “have considerable leeway in deciding in a

particular case how to go about determining whether particular expert

testimony is reliable.” Id. at 152.

Expert testimony “must be reliable at each and every step or else it is

inadmissible.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th

Cir. 2007). “The reliability analysis applies to all aspects of an expert’s

testimony: the methodology, the facts underlying the expert’s opinion, the

link between the facts and the conclusion, et alia.” Id. (quoting Heller v.

Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999) (internal quotation marks

omitted)). “Where the expert’s opinion is based on insufficient information,

the analysis is unreliable.” Paz v. Brush Engineered Materials, Inc., 555

F.3d 383, 388 (5th Cir. 2009). Further, the Supreme Court has explained

that “nothing in either Daubert or the Federal Rules of Evidence requires a

district court to admit opinion evidence that is connected to existing data

only by the ipse dixit of the expert.” Joiner, 522 U.S. at 146. Rather, “[a]

court may conclude that there is simply too great an analytical gap between

the data and the opinion proffered.” Id.

Second, the Court must determine whether the expert’s reasoning or

methodology “fits” the facts of the case, and whether it will thereby assist the

trier of fact to understand the evidence. In other words, it must determine

whether it is relevant. See Daubert, 509 U.S. at 591. “Expert testimony

which does not relate to any issue in the case is not relevant and, ergo, non-

helpful.” Id. (quoting 3 J. Weinstein & M. Berger, Weinstein’s Evidence

¶ 702[02] (1988)).

The Court also considers this motion recognizing that the case involves

a non-jury trial. In Daubert, the Supreme Court’s overriding concern was

the problem of exposing the jury to confusing and unreliable expert

testimony. Id. at 595-97. Following Daubert, several courts have recognized

that in the context of a bench trial the Daubert gatekeeping obligation is less

pressing. See, e.g., Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) (“Most

of the safeguards provided for in Daubert are not as essential in a case such

as this where a district judge sits as the trier of fact in place of a jury.”);

Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1301-02 (Fed. Cir.

2002) (explaining that in a bench trial the Daubert standard must still be

applied but the concerns about expert evidence misleading a jury “are of

lesser import”). Nevertheless, Daubert still applies in bench trials, and this

Court must ensure that the proffered testimony is reliable. See Gibbs, 210

F.3d at 500.

B. Discussion

Magnolia’s motion in limine addresses the admissibility of Entergy’s

maritime survey expert, Randy Bullard.18 Bullard presents an expert report

in which he opines that the remaining usable life of the damaged pilings was

18 R. Docs. 32 & 32-1.

60 to 70 years at the time of the allision,19 and the total replacement cost for

the pilings is $151,083.64.20 He based the usable life calculation on several

opinions expressed in the report, including that: (1) the apparent original

thickness of the pilings was 1/2 inch based on industry standard practices,

the existing wall thickness, and remaining coatings;21 (2) the damaged

pilings were in position and undamaged before the allision based on Google

Earth imagery recorded in November 2021 and a report filed by the Lucille

Brooks’ captain, James Raybon;22 (3) the average thickness of the pilings

after the allision was 3/8 inch based on readings obtained from ultrasonic

thickness readings;23 (4) the pilings were 39.5 to 42.5 years old at the time of

the allision based on pile permit documents; (5) there was a loss of 1/8 inch

or 20% over the lifespan of the pilings; and (6) the estimated total usable

lifespan of the pilings was 100 to 110 years based on studies of steel pipe piles

in freshwater environments.24

Magnolia now moves to exclude Bullard’s testimony on the grounds

that it lacks foundation, relies on irrelevant sources, asserts opinions beyond

19 R. Doc. 32-2 at 9-10.

20 Id. at 9.

21 Id. at 2, 6.

22 Id. at 5, 81.

23 Id. at 6.

24 Id. at 6-7.

Bullard’s expertise, and lacks credible sources detailing the pretort condition

of the pilings.25 The Court addresses each of Magnolia’s Daubert objections

in turn.

1. Not Based upon Sufficient Facts and Data

Magnolia first contests the reliability of Bullard’s report because it

contains unsupported assumptions about the original thickness of the

pilings, which Bullard uses to calculate the rate of deterioration. Magnolia

specifically asserts that the report utilizes the “assessment of industry

standard practices” to determine the 1/2-inch thickness, but Bullard does not

cite to any source supporting this conclusion.26

Bullard recognizes in his report that the installation drawings attached

to the permit for the four concrete-filled steel pilings did not identify the

pilings’ original thickness.27 He was thus required to infer their original

thickness.28 Bullard’s inferential determination was based on “industry

standard practices,” without elaboration.

25 R. Doc. 32-1.

26 Id. at 6-7.

27 R. Doc 32-2 at 6, 83, 93-94.

28 Id. at 2, 6.

Bullard has more than eighteen years of experience working as a

marine surveyor and salvage master and is the Principal of a marine

surveying company.29 He was certified by the Association of Certified Marine

Surveyors in 2010 and is accepted as a marine survey expert in this Court

and the Southern District of Alabama.30 And Bullard states in his report that

he based his findings in part on his extensive experience “as a certified

marine surveyor conducting inspections, investigations, surveys, and root

cause analyses as related to marine incidents.”31 The Court finds that

Bullard’s reliance upon his training and experience to testify about the

industry standard for piling thickness does not render his opinion unreliable

or inadmissible. See, e.g., Williams v. Manitowoc Cranes, L.L.C., 898 F.3d

607, 625 (5th Cir. 2018) (holding that expert with lengthy career working

with cranes and crane controls understands industry standards for safety

warnings and district court did not err in qualifying him as a warnings

expert); United States v. Empire Bulkers, Ltd., No. 21-126, 2022 WL

1811158, at *4 (E.D. La. June 2, 2022) (allowing defendant’s maritime expert

to testify, “to the extent that he can within his expertise, as to relevant

industry standards and expectations”).

29 Id. at 4; R. Doc. 32-3.

30 R. Doc. 32-3.

31 R. Doc 32-2 at 4.

Magnolia may challenge any of Bullard’s inferences and assumptions

about the piling-wall thickness at trial on cross-examination and with

countervailing expert testimony. See Williams, 898 F.3d at 625 (“[T]his

battle should be fought with the conventional weapons of cross-examination

and competing testimony — not the nuclear option of exclusion.” (citing

Daubert, 509 U.S. at 596)); United States v. 14.38 Acres of Land, More or

Less Situated in Leflore Cnty., State of Miss., 80 F.3d 1074, 1077 (5th Cir.

1996) (“As a general rule, 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.” (quoting

Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (internal

quotation marks omitted))).

2. Reliance on Irrelevant Sources and Assertion of Opinions

Beyond Expertise

Magnolia also argues that Bullard’s reliance on two documents in

determining the expected useful life of the pilings in the Inner Harbor

renders his opinion unreliable.32 Bullard first cites to a guidance note by the

Steel Piling Group from November 2020 in support of his conclusion that

32 R. Doc. 32-1 at 7-8.

“steel pipe piles in freshwater environments can regularly achieve useable

lifespans in excess of 125 years.”33 The guidance note specifically states that,

“[f]or situations where limited deterioration rate is applicable and/or

economic protective measures can be employed, design lives [of steel piles]

in excess of 125 years can regularly be achieved.”34 This guidance note bases

the information it provides on steel pile design guidance found in the United

Kingdom, and on durability information provided within the United

Kingdom National Annex for different environmental conditions.35

Bullard also cites to a 2020 study entitled “Environmental Impact on

Corrosion Rates of Steel Pipes Employed in Marine Environment.”36 This

study examined corrosion rates based on two environmental variables:

(1) water temperature, for which the researchers examined the monthly

average maximum and minimum water temperatures in Cork, Ireland; and

(2) the availability of dissolved inorganic nitrogen (“DIN”) in the water,

based on a threshold value used by the Environmental Protection Agency of

Ireland.37 Based on these environmental factors, the researchers concluded

that the capacity of a steel piling to resist buckling will reduce by about 41%

33 R. Doc. 32-2 at 6, 132-134.

34 Id. at 132.

35 Id. at 132.

36 Id. at 6, 135-141.

37 Id. at 138-139, 141.

after 81 years of exposure.38 Bullard utilizes this study to extrapolate a

matching 40% deterioration loss at an effective lifespan of 79 years for

Entergy’s two damaged pilings.39

Magnolia contends that these reports are geographically limited to the

United Kingdom and Ireland, and they cannot be applied to the pilings in the

different conditions of the Inner Harbor in New Orleans, Louisiana.40

Magnolia specifically argues that the Inner Harbor “has an entirely different

mud bottom, geology, underwater currents, and temperatures” than the

conditions relied upon in the studies.41 It also argues that Bullard, who is not

a geologist or metallurgist, “lacks the requisite expertise” to determine that

Entergy’s pilings would deteriorate at the same rate as steel pilings of

unknown composition in vastly different environments.42 Thus, without any

data likening the conditions of the United Kingdom and Ireland to those in

the Inner Harbor, Magnolia concludes that Bullard’s findings are

unreliable.43 Entergy contends that the documents are more broadly

38 Id. at 140.

39 Id. at 6.

40 R. Doc. 32-1 at 7-8.

41 Id.

42 Id.

43 Id.

applicable and “pertain to coastal and marine environments around the

world.”44

To the extent that Magnolia challenges Bullard’s qualifications to

render an opinion about the condition and useful life of the pilings, the Court

finds no merit in this objection. See Cashman Equip. Corp. v. Rozel

Operating Co., No. 08-363, 2012 WL 2519970, at *5-6 (E.D. La. June 28,

2012) (finding expert’s testimony reliable and relevant when based on

experience as marine surveyor even when he had no experience as a

metallurgist). Although Bullard may not be a metallurgist or geologist, he is

“not strictly confined to his area or practice” and may properly testify

“regarding related applications.” Id. at *6. And Bullard’s “lack of

specialization does not affect the admissibility of the opinion, but only its

weight.” Id. (quoting Wright v. John Deere Co., 935 F.2d 1090, 1100 (10th

Cir. 1991) (internal quotation marks omitted)).

Nevertheless, the Court finds that Bullard’s opinions founded upon the

two cited documents are unreliable, and any portion of his report based on

these documents is inadmissible. First, the Steel Piling Group document

does not even purport to be a “study,” but rather is a “guidance note.”45 It

44 R. Doc. 38 at 8-9.

45 R. Doc. 32-2 at 132-34.

contains no data or information about the methods used to make the

statement about the potential useable life of steel pilings in the United

Kingdom. Nor does the guidance note include the professional qualifications

of its authors. Moreover, the document is based upon U.K. standards and is

clearly aimed towards the U.K. steel-piling industry. It does not even purport

to suggest that these standards or the information it provides apply generally

outside of the United Kingdom, and Bullard does not attempt to reconcile

geographic disparities with New Orleans. Without any evidence that the

potential useable life statement in the Steel Piling Group document is reliably

derived and applicable to the facts and conditions of this case, Bullard’s

opinion about the useable life of Entergy’s pilings is unreliable and must be

excluded. See Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307, 309-10

(5th Cir. 1989) (“[C]ourts must critically evaluate the reasoning process by

which experts connect data to their conclusions in order for courts to

consistently and rationally resolve the disputes before them.”); Joiner, 522

U.S. at 146 (holding that a court may exclude an expert’s analysis “if there is

simply too great an analytical gap between the data and the opinion

offered”).

The 2020 “Environmental Impact” study likewise is an unreliable basis

for Bullard’s opinions. This study indisputably utilizes data from Ireland to

calculate the rate of corrosion for steel piles in marine environments.46 For

instance, the study utilizes the average water temperatures in Cork, which

was recorded as 12.56 degrees Celsius (54.61 degrees Fahrenheit) in 2019.47

The study also bases its calculations on DIN levels found in Ireland.48

Bullard fails to explain how Ireland’s environmental conditions are

comparable to those in New Orleans’ Inner Harbor, which is significant since

these regions are more than 4,000 miles apart in geographically distinct

locations. Indeed, the study itself acknowledges that the water temperature

and DIN levels of a particular environment have large effects on corrosion

rates.49 Bullard also fails to explain how the study’s finding of a 41%

reduction in buckling resistance supports, or in any way relates to, his

opinion on the deterioration of Entergy’s pilings. The study predicts future

rates of section loss due to corrosion and loss in buckling resistance projected

to occur between 2019 and 2100 based on the anticipated increases in sea

water temperature caused by climate change.50 Bullard leaves unexplained

how the study’s predicted rates over the next 80 years is of any relevance to

46 Id. at 138-39.

47 Id. at 138.

48 Id. at 139.

49 Id. at 136, 140.

50 Id. at 135, 138.

the deterioration rate of pilings that were installed sometime between 1979

and 1982 in the Inner Harbor of New Orleans.

Accordingly, Bullard’s opinions based on these two documents—

including the expected usable life of Entergy’s pilings and the matching

deterioration rate—are excluded. See Allen v. Pa. Eng’g Corp., 102. F.3d 194,

199 (5th Cir. 1996) (“[I]f the foundational data underlying opinion testimony

are unreliable, an expert will not be permitted to base an opinion on that data

because any opinion from that data is likewise unreliable.”).

3. Lack of Credible Sources on Pretort Condition

Magnolia objects to Bullard’s reliance on Google Earth satellite

imagery, the statements of an Entergy contractor about the condition of one

of the removed pilings, and Bullard’s own physical survey of one of the

damaged pilings. The Court finds that Magnolia’s critique of the evidence

Bullard relies on to establish the pretort condition of the pilings does not

render his report lacking in a reliable foundation.

It is undisputed that the Google Earth image is of Entergy’s pilings and

dated from the month before the allision, and it appears to show the pilings

in an upright position. And Bullard relied only in part on the Google Earth

image to form his opinion about the pre-tort condition of the pilings. In

addition to the Google Earth image, Bullard relied on a report filed by the

captain of the Lucille Brooks, James Raybon, in which he states that the

pilings are “leaning at an angle now,”51 without any indication that they were

leaning before the allision.52 Bullard also relied on a physical inspection of

one of the damaged pilings and his experience in other monopile failure cases

to determine where the failure occurred.53 His physical survey of the piling

revealed “an absence of pre-existing damage to the pile in way of the point of

failure as evidenced by a lack of areas of wastage, or excessively thin wall.”54

Magnolia’s critique that Bullard’s physical survey was conducted after the

allision does not negate his observations about the point of failure and the

lack of pre-existing damage in the form of wastage or excessively thinned

walls. The Court does not find that the physical survey provided an

unreliable basis for Bullard’s opinion of the absence of pre-existing damage

to the piling at issue.

Magnolia also objects to Bullard’s reliance on the observations of Mike

Vogt regarding the northernmost pile, which Bullard was unable to inspect

at the time of the survey. Vogt is the contractor hired by Entergy to replace

51 R. Doc. 26-2 at 2.

52 R. Doc. 32-2 at 4-5.

53 Id. at 7.

54 Id. at 7.

the pilings and who was allegedly present when both pilings were removed.55

Bullard specifically refers to Vogt’s observations that the noted point of

separation of this piling was about six feet sub bottom, that there were no

other visible locations of damage or areas of wastage, and that there was

intermittent weathered and aged coatings and scattered areas of advanced

corrosion blistering. Based on the similarities between Vogt’s observations

and the piling Bullard actually observed, as well as the similar time of

installation and environment, Bullard concluded that “the two piles would

be similar in condition and degree of loss.”56 According to Magnolia, Vogt’s

observations constitute “uncorroborated hearsay,” and Bullard’s reliance

upon them makes his report unreliable.57 But that Bullard relied on Vogt’s

statements in forming his expert opinion does not render his testimony or

report unreliable. “[A]n expert is permitted wide latitude to offer opinions,

including those that are not based on firsthand knowledge or observation.”

Daubert, 509 U.S. at 592. This includes hearsay if “experts in the particular

field would reasonably rely on those kinds of facts or data in forming an

opinion on the subject.” Fed. R. Evid. 703; see also Soden v. Freightliner

Corp., 714 F.2d 498, 502 (5th Cir. 1983) (“[U]nder Rule 703 an expert can

55 R. Doc. 38 at 3.

56 R. Doc. 32-2 at 7-8.

57 R. Doc. 32-1 at 3, 9.

discuss as the basis for an opinion facts or data which are otherwise

inadmissible hearsay, ‘if of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the subject.’” (quoting

Fed. R. Evid. 703)). Here, Magnolia “has not demonstrated that the hearsay

relied upon by [Bullard] would not be reasonably relied upon by other

experts in the field.” Trevelyn Enters., L.L.C. v. SeaBrook Marine, L.L.C.,

No. 18-11375, 2021 WL 65689, at *2 (E.D. La. Jan. 7, 2021). The Court also

notes that both parties have listed Vogt as a witness at trial, which further

undermines Magnolia’s hearsay objection.58

In summary, the Court finds that Magnolia’s objections to Bullard’s

reliance on the Google Earth imagery, his survey of the piling, or Vogt’s

observations, do not demonstrate that the basis for Bullard’s opinion was

unreliable. Magnolia may explore this critique more fully on cross-

examination or with countervailing expert testimony. See Williams, 898

F.3d at 625.

58 R. Docs. 23 & 41.

IV. CONCLUSION

For the foregoing reasons, the Court denies Magnolia’s motion for

summary judgment, and grants in part and denies in part Magnolia’s motion

in limine.

New Orleans, Louisiana, this_ist__ day of September, 2023.

bern Yorer.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

30