The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
ANIKA WARNER CASE NO. 2:18-CV-01435 LEAD
VERSUS JUDGE JAMES D. CAIN, JR.
TALOS E R T L L C ET AL MAGISTRATE JUDGE KAY
MEMORANDUM ORDER
Before the court are Motions to Strike [docs. 103, 104, 105, 106] filed by defendant
Talos ERT LLC (“Talos”), seeking to exclude the reports and opinion testimony of
witnesses Martin Gee, Stan Smith, Rex Anderson, and Edward Ziegler under the standards
set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Plaintiffs oppose the motions. Docs. 116–19.
I.
BACKGROUND
This suit arises from the death of Walter Jackson in an accident on February 17,
2018. Jackson was employed as a rigger by DLS, LLC (“DLS”) on an oil and gas
production platform owned and operated by Talos ERT, LLC (“Talos”) and situated on the
Outer Continental Shelf off the coast of Louisiana. Plaintiffs, who are Jackson’s surviving
spouse and the guardian of his minor child, allege that he and other DLS employees were
attempting to lower sections of pipe that were to be removed from the platform when one
of the sections came loose and struck Jackson, resulting in his death. Doc. 1, ¶¶ 4, 6. They
also allege that the injuries were caused by unsafe scaffolding provided by Diverse
Scaffolding, LLC (“Diverse”) and by deficient safety instructions. Id. at ¶ 5.
Plaintiffs filed separate suits for negligence against Diverse and Talos, which the
court consolidated. Doc. 19. Both defendants filed motions for summary judgment. Docs.
91, 93. By separate rulings the court has granted Diverse’s motion and denied Talos’s.
Several motions in limine and Daubert motions are also pending before the court. Docs.
103–10. This opinion relates to Talos’s Daubert motions, which seek exclusion of the
following experts: Martin Gee [doc. 103], Rex Anderson [doc. 105], and Edward Ziegler
[doc. 106], who have all offered opinions on Talos’s compliance with federal safety
standards on the pipe removal project; and Stan Smith [doc. 104], an economist who will
opine on the value of certain losses resulting from Walter Jackson’s death. Plaintiffs oppose
all of the motions. Docs. 116–19.
II.
LAW & APPLICATION
A. Governing Law
The trial court serves as gatekeeper in determining the admissibility of expert
testimony, by making an initial determination of whether the expert’s opinion is relevant
and reliable. See Daubert, 509 U.S. at 589. This gatekeeping function extends to all expert
testimony, whether scientific or not. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147 (1999). Accordingly, Federal Rule of Evidence 702 provides that the court must
consider the following three requirements on challenges to experts: 1) qualifications of the
expert witness; 2) relevance of the proposed testimony; and 3) reliability of the principles
and methodology on which the testimony is based.1 The proponent of the expert testimony
bears the burden of proving its admissibility, by a preponderance of the evidence. Mathis
v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
The trial court has broad latitude in determining the admissibility of expert
testimony. Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Rejection of
expert testimony is the exception rather than the rule, and the court’s role as gatekeeper
“does not replace the traditional adversary system and the place of the jury within the
system.” Johnson v. Samsung Electronics Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011);
Scordill v. Louisville Ladder Grp., LLC, 2003 WL 22427981, at *3 (E.D. La. Oct. 24,
2003). Instead, “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Scordill, 2003 WL 22427981 at *3 (quoting
Daubert, 509 U.S. at 596).
B. Application
1. Liability Experts
Pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1348(d), and
applicable regulations, the Bureau of Safety and Environmental Enforcement (“BSEE”) is
authorized to regulate oil and gas exploration, production, and development operations on
1 The Daubert Court identified several additional factors for assessing whether the expert’s methodology is valid and
reliable, including whether the expert’s theory had been tested and subjected to peer review, the known or potential
error rate for the expert’s theory or technique, the existence and maintenance of standards and controls, and the degree
to which the technique or theory has been generally accepted in the scientific community. Moore v. Ashland Chemical,
Inc., 151 F.3d 269, 275 (5th Cir. 1998). However, the same standards cannot be applied to all possible fields of
expertise. Accordingly, the Daubert analysis is necessarily flexible and fact-specific. Kumho, 526 U.S. at 150.
the Outer Continental Shelf. 30 C.F.R. § 250.101. Experts Gee, Anderson, and Ziegler have
all issued reports describing Talos’s alleged failure to exercise due care in this matter, based
on industry standards including those established by the BSEE. Talos moves to strike these
reports and exclude the experts from testifying on the grounds that they offer impermissible
legal conclusions about Talos’s conduct, and that these conclusions are at any rate flawed
because they are based on federal regulation rather than the Louisiana law applicable to
this matter. Accordingly, Talos maintains that the expert testimony and reports fail the
balancing test set forth under Federal Rule of Evidence 403 because their probative value
is substantially outweighed by the danger of unfair prejudice, confusing the issues, and
misleading the jury.
Talos does not challenge the training, qualifications, or methodology of any of these
witnesses. Gee, Anderson, and Ziegler all have decades of experience in offshore/onshore
oil and gas and have been accepted as experts in other courts on, inter alia, industry safety
standards. Gee’s report provides the following conclusions:
1. It is our opinion that the death of Mr. Jackson was due to the failure
of TALOS, the platform owner, to properly plan the pipe removal operations
which consequently led to an unsafe pipe removal operation.
2. It is our opinion that TALOS did not assess the hazards of the pipe
removal operation and had not documented or maintained the documentation
as required by BSEE 30 CFR 250.1911. If they had then the dangers posed
by using unrated, worn and damaged manilla rope for lowering pipe sections
down to an area of the platform that was not properly controlled would have
been recognized.
3. It is our opinion that TALOS did not ensure the pipe removal
operation was covered by written procedures as required by BSEE 33 CFR
250.1913
4. It is our opinion that TALOS allowed a dedicated firewatcher to
lower cut sections of pipe at variance with Talos policies and generally
accepted offshore industry practice.
5. It is our opinion that TALOS did not reassess the changed work
arrangements when the position of the snatch block changed and the gas
cutting slag stream caused the two riggers to change positions.
6. It is our opinion that TALOS failed to clearly define the landing
zone beneath the work area where DLS workers were cutting/lowering
sections of firewater pipe. The workers receiving the lowered pipework
should have been prohibited from entering the landing zone when lowering
operations and/ or cutting operations were taking place.
7. It is our opinion that TALOS allowed sections of cut pipe to be
lowered to the landing area below without ensuring that the person
controlling the lowering had a positive visual confirmation that it was clear.
8. It is our opinion that TALOS did not ensure that there was a
procedure for inspecting the manilla rope prior to use.
9. It is our opinion that TALOS did not ensure that their PIC/ UWA
properly carried out the JSA prior to the commencement of the operation
which was consequently not effective in capturing all the potential risks and
identifying steps to eliminate them.
10. It is our opinion that TALOS has a significant history of serious
accidents and BSEE safety and pollution rules violations stretching back
many years, including three fatalities.
11. It is our opinion that TALOS failed to conduct a hot work permit
for cutting operations that were being carried out on the day of the incident
involving Mr. Jackson.
12. It is our opinion that TALOS and specifically their PIC, Mr.
Jeremy Bourque, failed to adequately control the safety of operations on the
WC 215 platform, resulting in the situation which led to the death of Mr.
Jackson.
13. It is our opinion that DSS failed to properly install, inspect and
maintain the hanging scaffolding which was erected for the piping removal
job. This led to the omission of toe boards on the scaffolding despite
documentation on site which indicate the toe boards were installed.
14. It is our opinion that TALOS failed to provide the tools, training
or equipment to enable the pipe removal job to be accomplished in a safe
manner.
Doc. 116, att. 1, pp. 12–13. He also concludes that Jackson did not “violate any regulations,
requirements or industry standard practices or procedures that led to his death on 17th
February 2018.” Id. at 14.
Anderson states that he was retained by plaintiff Anika Warner as an expert in HSE
and offshore security, with special emphasis on industry standards. Doc. 117, att. 1, p. 1.
He provided the following conclusion in his report:
Ultimately, from the testimony, documents and prior incidents reviewed, it
is my opinion that there was a culture on the Platform that this job, and others
like it, were not important enough to give the minimum safety attention and
oversight required to perform this task. It is assumed that other jobs may have
also been performed with lack of oversight, adding to the culture issue. Had
Talos leadership played a more integral part in the operation, as specified in
their own SWP and JSA process, the probability of this incident being
prevented would have increased.
Doc. 117, att. 1, p. 5.
Finally, Ziegler offers the following opinions relevant to causation and industry
standards:
6.1. I formed opinions to a reasonable degree of and to other high standards
as required to and for engineering, oil and gas, and safety industry certainty.
6.2. BSEE determined the probable cause of the incident was the ½-inch
manila rope parting and dropping the heavy piece of pipe. Talos controlled
and allowed the use of that rope and that work process---as the authority with
overall safety responsibility at the facility---as the Talos JSA form recites.47
6.3. The undocumented ½-inch manila rope was in use and was used without
a proper mechanical material handling device or system as Talos through its
PIC/UWA allowed that process to occur.
6.4. Talos: (a) did not properly implement, use, or enforce the PIC/UWA,
SEMS, SIMOPS, or BSEE-regulated unsafe condition avoidance process and
responsibilities; (b) did not properly implement, use, or enforce its JSA
process; (c) did not properly implement, use, or enforce its Hot Work Permit
process; and (d) did not reasonably follow industry standards for hoist or
winch standards and for keeping workers from under loads. Again, Talos
participated in a PIP program and through prior incidents had knowledge of
similar issues before this incident.
6.5. Talos performed below, far below, and grossly below the industry
standard, violated safety regulations or standards; failed to follow industry
standards and practice, was not reasonable, and failed to follow its own safety
programs or failed to implement proper safety programs.
6.6. Based on failing to correct issues documented by BSEE in investigations
of 2011 and 2013 incidents on Talos facilities: (a) Talos proceeded with
knowledge of such incidents and issues; (b) Talos knew what it was required
or expected or had to do to improve safety; (c) Talos did not adequately
improve safety; and (d) Talos performed in a fashion that shows conscious
disregard as to whether serious injury or death might occur.
6.7. The failures of Talos were causes of the incident and resulted in Mr.
Jackson being killed.
. . . .
6.12. DLS used the equipment and methods it was allowed to use by Talos.
The Talos PIC/UWA signed off on the process and tools and equipment and
reportedly did not perform a walk-around (or a proper walk-around) before
(or during) the work as required by Talos safety procedures---with
conflicting information on some of these issues reviewed by me as of this
time.
6.13. DLS did not contribute to the problematic and unsafe simultaneous
work on multiple levels---the Talos work and platform configuration allowed
or required such work---but it only could and only did occur in that fashion
because the Talos PIC/UWA signed off on it, allowed it, failed to correct it,
and/or did not stop the work.
6.14. Mr. Jackson was working where and as allowed or required.
6.15. Based on my review to date Mr. Jackson did not contribute to the
incident.
Doc. 118, att. 1, pp. 30–32.
Only two of Gee’s opinions (2, 3) and a portion of one of Ziegler’s conclusions (6.4)
rely on BSEE regulations. The court agrees that these standards may impose different and
additional duties on platform owners for the operations of lessees compared to those
afforded under Louisiana law for independent contractors.2 However, Talos may still be
held liable for DLS’s negligence if it “retain[ed] operational control over the contractor’s
acts or expressly or impliedly authorize[d] those acts.” Coulter v. Texaco, Inc., 117 F.3d
2 Under Louisiana law, a principal cannot be held liable for the actions of an independent contractor unless (1) the
liability arises from ultrahazardous activities performed by the contractor on the principal’s behalf or (2) “the principal
retains operational control over the contractor’s acts or expressly or impliedly authorizes those acts.” Coulter v.
Texaco, Inc., 117 F.3d 909, 912 (5th Cir. 1997).
909, 912 (5th Cir. 1997). As set forth in the court’s summary judgment ruling, Talos may
also be held vicariously liable if it is found that DLS acted more as employee than
independent contractor. It is well settled that regulations may provide evidence of the
applicable standard of care, even if violation of the regulation does not amount to
negligence per se. Campbell v. Keystone Aerial Survs., Inc., 138 F.3d 996, 1003 (5th Cir.
1998). Assuming that plaintiffs lay the proper foundation of Talos’s potential liability, then
expert testimony as to its compliance with standards of care imposed by federal regulation
or industry publication or practice is relevant and helpful to the jury. Again subject to a
proper foundation and any necessary jury instructions, the probative value of this evidence
is not outweighed by its danger of confusion, unfair prejudice, or misleading the jury.
Talos further argues that the testimony of these experts should be limited because
they are “needlessly repetitive and virtually identical.” Under Rule 403, relevant evidence
may also be excluded when its probative value “is substantially outweighed by a danger of
. . . undue delay . . . or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Given the liability issues in this case, Talos fails to meet this high bar. If necessary to
streamline the case and complete the trial within the time allotted, the court will divide
time over trial week between the parties.
2. Damages Expert
Talos also moves to exclude the testimony of Stan Smith, who provided a report for
plaintiff Anika Warner on the value of losses caused by Walter Jackson’s death to their
minor son, Y.J. Smith calculated that Y.J. suffered economic losses for the loss of his
father’s (1) wages and employee benefits, (2) household and family services, (3) value of
life, and (4) society and relationship. In response to Talos’s motion, he withdraws his
opinions on the third and fourth category. Talos maintains that the opinions on Categories
1 and 2 should still be excluded, based on assumptions made by Smith.
In particular Talos points to Smith’s treatment of Warner, Jackson, and Y.J. as a
family unit for the purposes of calculating lost wages and his inclusion of employment
benefits therein, though Warner and Y.J. lived in a different state and Jackson provided
somewhere between $220 and $500–1,000/month in support to him (while also supporting
himself and his spouse, Vantrece Jackson). Talos also criticizes Smith’s supposition that
Jackson would have continued to work and provide some measure of support to Y.J. until
Y.J. was 40 years old, when Louisiana law only provides for support until the age of
majority.3 La. Civ. Code art. 224. Finally, it asserts that Smith’s calculation of loss of
advice and counsel is improperly high given that Y.J. lived in a separate state from his
father, only saw him in person occasionally, and primarily communicated with him over
video chat services.
The court finds no evidentiary basis for extending any loss of support award beyond
age 18. Accordingly, Smith must limit his calculations under this category of damages. As
for the other areas of criticism, these provide excellent fodder for cross-examination. They
are also straightforward enough that the jury can use them in determining how much of
3 The duty to educate may continue, thus providing a basis for increasing the award, when the child is (1) a full-time
student in good standing at a secondary school, has not attained the age of 19, and is dependent on either parent or (2)
has a developmental disability as provided under Louisiana law. La. Civ. Code art. 224. The only case cited by plaintiff
in support of calculating this loss beyond 18 years of age extends it to age 22 and thus fails to support Smith’s position.
See Rhine v. Bayou Pipe Coating, 79 So.3d 430 (La. Ct. App. 3d Cir. 2011).
Smith’s testimony to credit. They are insufficient, however, to show a basis for exclusion
under Rule 702. Accordingly, the motion will be denied.
III.
CONCLUSION
For the foregoing reasons the Motions to Strike [docs. 103, 104, 105, 106] are
DENIED, subject to the limitation above regarding Stan Smith’s testimony and the
calculation of loss of support.
THUS DONE AND SIGNED in Chambers on this 22nd day of February, 2022.
Vv. D. CAINTR. t .
UNITED STATES DISTRICT JUDGE
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