The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JOSEPH SYLVESTER, ET AL CIVIL ACTION NO. 22-5192
VERSUS JUDGE S. MAURICE HICKS, JR.
TALOS ENERGY OFFSHORE, LLC, MAGISTRATE JUDGE WHITEHURST
ET AL
MEMORANDUM RULING
Before the Court is a Motion to Exclude/Motion to Strike Simon Varley (“Varley”)
or Any Individuals at Purpose Legal as a Witness filed by Plaintiffs Joseph Sylvester (“Mr.
Sylvester”) and Melinda Sylvester (“Mrs. Sylvester”) (collectively, “Plaintiffs”). See Record
Document 57. Plaintiffs’ grounds for this motion are that Defendants failed to timely
identify Varley as an expert, produce an expert report, and identify Varley in their
discovery responses or witness lists. See Record Document 57 at 1–2. Defendants Talos
Energy Offshore, LLC, Talos Energy, LLC, Talos ERT, LLC, Rodi Marine, L.L.C., Rodi
Marine Management, LLC, Wood Group PSN Inc., and XYZ Insurance Company
(collectively, “Defendants”) oppose the motion. See Record Document 68. Plaintiffs filed
a reply as to this motion. See Record Document 81. For the reasons set forth below,
Plaintiffs’ motion (Record Document 57) is DENIED.
BACKGROUND
This is a maritime negligence case that arises out of an accident involving Mr.
Sylvester that allegedly occurred on September 23, 2021. In 2021, Talos was the operator
of the South Marsh Island 130 (“SMI 130”) field, located in the Gulf of Mexico on the Outer
Continental Shelf. See Record Document 53-3 (Declaration of Lonnie Smith) at 1. Talos’s
SMI 130 field consists of several oil and gas production platforms. See id.
Mr. Sylvester was employed as a crane mechanic by Gulf Crane Services, Inc.
("GCS"). See Record Document 1 at 3; Record Document 55-4 (Declaration of Shane
Theunissen) at 2. Between April 2021 and October 2021, Mr. Sylvester was assigned to
work for Talos on Talos's offshore production platforms in SM1130 field. See Record
Document 55-5 (Deposition of Joseph Sylvester) at 7. On the date of the accident, Mr.
Sylvester claims that he sustained personal injuries at approximately 9:30 a.m. while
being transferred in a personnel basket from the M/V MISS PEGGY ANN ("the vessel")
to Tabs's SMI 130 platform. See Record Document 1 at 2–6. He claims that when the
crane operator, Brian Spears ("Spears"), lifted him in the basket, the basket swung rapidly
causing it and Mr. Sylvester to "slam violently" into a Connex box that was on the deck of
the vessel. See id. Mr. Sylvester contends that the negligent operation of the SMI 130
platform crane by Spears caused or contributed to his injuries. See id. at 11.
Mr. Sylvester notified his wife about his incident via text message. See Record
Document 57-2 at 3. Those messages were printed out by Plaintiffs’ counsel and
produced to Defendants through discovery. See id. Mr. Sylvester was first questioned
about these text messages during his deposition on June 21, 2023. See id. Defendants
moved for an order asking this Court to allow them to extract data and text messages for
an extended period of time from the Plaintiffs’ phones. See id. at 3–4. The Court entered
an order limiting the search of Plaintiffs’ phones for text messages from September 23,
2021, and September 24, 2021. See id. at 4.
Defendants retained Varley, a forensic analyst employed by Purpose Legal, to
search and collect all available text messages from Plaintiffs’ cell phones. See Record
Document 68 at 9. Defendants’ deadline to identify experts and provide expert reports
was November 27, 2023. See Record Document 46 at 1. Defendants failed to identify
Varley or anyone at Purpose Legal as an expert witness or provide an expert report. See
Record Document 57 at 1. Defendants assert that neither Varley nor anyone at Purpose
Legal was retained as an expert witness. See Record Document 68 at 10. Rather, Varley
served as a neutral third party for the limited purpose of collecting two days’ worth of text
messages from Plaintiffs’ phones. See id. at 5. Defendants maintain that if Varley is called
to testify at trial or if excerpts from his deposition are offered at trial, the questioning will
be limited pursuant to the Protocol issued by the Court. See id.
Defendants assert that even if Varley is considered an expert witness, Defendants
could not have disclosed his status prior to the deadline due to delays in the collection
and review of the text messages purposely caused by Plaintiffs and their counsel. See id.
at 5–6. Furthermore, his testimony should be allowed under an application of the four
factors derived from Stewart v. Gruber, No. 23-30129, 2023 WL 8643633 (5th Cir. Dec.
14, 2023). See id. at 13.
LAW AND ANALYSIS
I. Lay Testimony versus Expert Testimony.
Federal Rule of Evidence 701 discusses the limitations of a lay witness testimony.
Lay testimony is limited to information that is: “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Fed. R. Evid. 701. Federal Rule of Evidence 702 discusses
testimony by expert witnesses. An expert witness is qualified by their “knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702. Expert testimony is admissible 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;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert’s opinion reflects a reliable application of the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The Fifth Circuit has further clarified that the “‘distinction between lay
and expert witness testimony is that lay testimony “results from a process of reasoning
familiar in everyday life,” while expert testimony “results from a process of reasoning
which can be mastered only be specialists in the field.”’” U.S. v. Breland, 366 Fed. Appx.
548, 552 (5th Cir. 2010) (quoting Fed. R. Evid. 701, advisory committee’s note to 2000
amendments).
II. Standards for Disclosure of Expert Witnesses.
Federal Rule of Civil Procedure 26 deals with the duty to disclose. Under Rule
26(a)(2)(A), “a party must disclose to the other parties the identity of any witness it may
use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” FED.
R. CIV. P. 26(a)(2)(A). “Unless otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report…if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the party’s
employee regularly involved giving expert testimony.” FED. R. CIV. P. 26(a)(2)(B).
If a party fails to disclose the identity of an expert witness, accompanied by the
expert report, that party may face sanctions under Rule 37. Under FRCP 37(c)(1):
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on that motion,
at a hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an opportunity
to be heard:
(A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any
of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
FED. R. CIV. P. 37(c)(1). In Stewart v. Gruber, the Fifth Circuit established four factors to
consider when determining whether a party was justified in failing to disclose an expert
witness. 2023 WL 8643633, at *4. The four factors are the following: “‘(1) the explanation
for the failure to identify the witness; (2) the importance of the testimony; (3) potential
prejudice in allowing the testimony; and (4) the availability of a continuance to cure such
prejudice.’” Id. (quoting Geiserman v. MacDonald, 893 F. 2d 787, 791 (5th Cir. 1990)).
III. Analysis.
Plaintiffs contend Varley is an expert witness because he orchestrated the search
and extraction of data from the cell phones with a specialized software and tool. See
Record Document 57-2 at 4. Plaintiffs maintain Varley is an expert witness because he
has served as a litigation expert witness in several other cases. See id. Furthermore, his
performed task requires specialized knowledge in order to extract, collect, and interpret
the data. See id.
Defendants oppose, stating Varley and Purpose Legal were retained to perform
an independent service for the purpose of collecting text messages from the Plaintiffs’
cell phones over a specified time period. See Record Document 68 at 7. Defendants
submit that Varley has offered expert testimony is previous cases; however, he is not
acting as an expert in the instant case. See id. at 10. In his deposition, Varley explained
that some of his assignments are investigation cases, in which he is called upon to
perform a detailed analysis and serve as an expert witness after preparation of an expert
report. See id. However, other assignments are simply data collection cases for which he
is tasked only with collecting a specific set of data from an electronic device and producing
said data to the customer. See id. The Court agrees with Defendants that this is a data
collection case.
In U.S. v. McMillan, the Fifth Circuit held that the three-fact witnesses did not
qualify as expert witnesses; thus, their testimony was not improper. 600 F. 3d 434, 455
(5th Cir. 2010). Even though some of the testimony included specialized knowledge and
conclusions, the court ultimately concluded the witnesses were fact witnesses because
they testified “about their observations and perceptions in the case in response to specific
solicitations….” Id. at 456. In McMillan, the court cited to U.S. v. Rigas, in which the
Second Circuit held, “‘A witness’s specialized knowledge, or the fact that he was chosen
to carry out an investigation because of this knowledge, does not render his testimony
“expert” as long as it was based on his “investigation and reflected his investigatory
findings and conclusions, and was not rooted exclusively in his expertise….”’” Id. at fn 72
(quoting U.S. v. Rigas, 490 F. 3d 208, 244 (2nd Cir. 2007)).
The instant case was purely a collection and e-discovery case. See Record
Document 92-7 at 9. Varley only provided opinions as to the collection, not the case itself.
See id. Even though Varley is using some specialized knowledge, he is providing an
opinion on how the forensic tool operates, not as to the actual case. See id. at 17–18.
Similar to the fact witnesses in McMillan, Varley is presenting information relating to his
observations and perceptions in response to specific solicitations from Purpose Legal and
Defendants, all in accordance with Magistrate Judge Whitehurst’s order issued on
October 17, 2023. See Record Document 52.
Another Fifth Circuit case that helps illustrate the difference between lay testimony
and expert testimony is U.S. v. Miranda. 248 F. 3d 434 (5th Cir. 2001). The defendant
argued “that the district court abused its discretion because [the witness’s] testimony
‘crossed the line’ from lay to expert opinion testimony.” Id. at 441. The Fifth Circuit
disagreed with the defendant. Id. The witness was an FBI agent who “identified various
code words that callers had used and the English drug terms to which the words referred.”
Id. The court held that the agent was not testifying as an expert witness; rather, he had
“‘the necessary expertise to be able to give this testimony in light of his experience in the
law enforcement area.’” Id. The agent heavily participated in the investigation, and the
court still found that he was a fact witness. Id.
In the instant case, Varley was not given any details about this case. See Record
Document 92-7 at 4. In fact, in his deposition, he testified that he did not have any idea
of the subject matter of the case or the text messages. See id. Additionally, Varley had
not reviewed any deposition transcripts in this case. See id. at 8. Varley’s job is not to
testify as to whether the text messages and screenshots are fabricated or to interpret the
text messages in any way. See id. at 6. He has less involvement in this case than the fact
witnesses in McMillan and Miranda. As long as Varley limits his testimony to observations
in this case in response to the specific solicitation from Defendants, he is not an expert
witness. Therefore, Defendants did not have to disclose Varley as an expert or produce
an expert report. Defense counsel, Varley, and Purpose Legal are cautioned to strictly
adhere to the protocol issued by the Court, thereby preventing any veer into the realm of
expert testimony."
CONCLUSION
Based on the foregoing analysis, this Court finds that there are no sufficient
grounds to exclude or strike Varley or any individual at Purpose Legal as a witness. Varley
and any individual from Purpose Legal are lay, fact witnesses and not experts. Neither
Varley nor any individual from Purpose Legal may testify as an expert witness.
Accordingly, Plaintiff's Motion to Exclude/Motion to Strike Simon Varley or Any Individuals
at Purpose Legal as a Witness (Record Document 57) shall be DENIED.
An order consistent with this Memorandum Ruling shall issue herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 25th day of September,
2024. , full.
1 Since Varley is not an expert witness, discussion of the Stewart factors is not warranted.