The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAUL GALLAND, ET AL. CIVIL ACTION
VERSUS NO. 23-3392
HARVEY GULF INTERNATIONAL SECTION: D (5)
MARINE, LLC, ET AL.
ORDER AND REASONS
Before the Court is a Motion in Limine to Exclude all Evidence and Argument
Related to Subsequent Remedial Measures, filed by Harvey Gulf International
Marine, LLC, HGIM Corp., and Harvey Energy, LLC (“Defendants”).1 Paul Galland
and Brennan Cubbedge (“Plaintiffs”) have filed an opposition to the Motion,2 to which
Defendants have filed a reply.3 After careful consideration of the parties’ memoranda,
and the applicable law, the Court GRANTS IN PART and DENIES IN PART the
Motion.4
I. FACTUAL AND PROCEDURAL BACKGROUND
In a previous Order and Reasons,5 the Court has set forth the factual
background in this matter. The Court, however, will briefly recite the factual
allegations as pertinent to the instant Motion. This case arises out of a liquid natural
gas explosion on the PSV HARVEY ENERGY occurring on April 28, 2023, where
1 R. Doc. 53.
2 R. Doc. 77
3 R. Doc. 102.
4 R. Doc. 53.
5 R. Doc. 111.
Plaintiffs were injured while working as deckhands on the vessel.6 After the incident,
Defendants took various actions. Defendants allegedly repaired a loose wire and/or
nut on a valve actuator on the PSV HARVEY ENERGY, painted/stenciled/installed
“No Smoking” and “Hazard” signs on the PSV HARVEY ENERGY, implemented a
safety stand-down after the incident, modified their safety manual and/or policies,
and conducted post-incident investigations.7
On August 4, 2025, Defendants filed the instant Motion in Limine to Exclude
all Evidence and Argument Related to Subsequent Remedial Measures.8 Defendants
assert that “Plaintiffs have indicated their intent to introduce evidence of various
remedial measures taken by Harvey Gulf after the incident, including but not limited
to: (1) repairs on the M/V HARVEY ENERGY and other fleet upgrades or repairs; (2)
installation or stenciling of ‘No Smoking’ or ‘Hazard’ signs on the M/V HARVEY
ENERGY and other vessels; (3) post-incident safety stand-downs and meetings; (4)
changes to safety manuals, policies, and procedures; (5) references to post-incident
investigations or the adequacy thereof; and (6) related photographs, documents, and
communications.”9 Defendants argue that Federal Rule of Evidence 407 (“Rule 407”)
prohibits the admission of these subsequent remedial measures because they are
“offered solely to prove negligence, unseaworthiness, or a need for additional
warnings or instructions.”10
6 R. Doc. 1.
7 R. Doc. 53-1 at pp. 2–4.
8 R. Doc. 53.
9 Id. at p. 2.
10 Id.
Plaintiffs oppose the Motion.11 First, Plaintiffs assert that “most of what
Harvey calls ‘subsequent remedial measures’ are actually required and pre-existing
safety measures that Harvey either failed to implement or negligently implemented
before the fire.”12 Second, Plaintiffs contend that even if the remaining evidence at
issue are subsequent remedial measures, Rule 407 “expressly permits such evidence
for other purposes, including feasibility (if disputed), ownership or control, and
impeachment.”13 Lastly, Plaintiffs maintain that “[t]his Court should decline
Harvey’s invitation to conduct a premature, hypothetical trial on admissibility. This
Court should hear the testimony and then decide whether a particular item qualifies
as a subsequent remedial measure at all, and if so, whether it is admissible for one of
Rule 407’s recognized purposes.”14
In their reply memorandum, Defendants argue that “Plaintiffs seek to avoid
Rule 407 and the policy supporting it by improperly characterizing remedial
measures, alleging pre-existing knowledge or requirements, claiming the absence of
post-incident investigations, or claiming evidence is purportedly offered for
impeachment.”15 Defendants maintain that such characterizations are not applicable
to invoke Rule 407’s illustrative exceptions – “impeachment, feasibility, ownership or
control[.]”16 Even if an exception applied, according to Defendants, “Rule 403 requires
11 R. Doc. 77.
12 Id. at p. 1.
13 Id.
14 Id. at pp. 1–2.
15 R. Doc. 102 at p. 2.
16 Id.
exclusion when the probative value is substantially outweighed by, among other
things, unfair prejudice, confusing the issues, or misleading the jury.”17
II. LEGAL STANDARD
According to the Fifth Circuit, the purpose of a motion in limine is to prohibit
opposing counsel “from mentioning the existence of, alluding to, or offering evidence
on matters so highly prejudicial to the moving party that a timely motion to strike or
an instruction by the court to the jury to disregard the offending matter cannot
overcome its prejudicial influence on the jurors’ minds.”18
Federal Rule of Evidence 407 governs the admissibility of subsequent remedial
measures, in which Rule 407 provides:
When measures are taken that would have made an earlier injury or
harm less likely to occur, evidence of the subsequent measures is not
admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or — if disputed — proving ownership, control, or the
feasibility of precautionary measures.19
“The Advisory Committee Notes explain that the primary justification for [R]ule 407
is the ‘social policy of encouraging people to take, or at least not discouraging them
17 Id.
18 O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (quotation and internal quotation
marks omitted).
19 Fed. R. Evid. 407.
from taking, steps in furtherance of added safety.’”20 Rule 407 “also seeks to ensure
that negligence is properly determined ‘according to what the defendant knew or
should have known prior to the accident, not what the defendant knew as a result of
the accident.’”21 “Any evidence not excluded by Rule 407, of course, must still be
relevant and its probative value must, under Rule 403, outweigh any dangers
associated with its admission.”22
Under Federal Rule of Evidence 401, evidence is relevant if it has any tendency
to make a fact more or less probable than it would be without the evidence, or if the
fact it seeks to prove is of consequence in determining the action.23 While all relevant
evidence is admissible, the Court may exclude relevant evidence if its probative value
is substantially outweighed by danger of “unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”24
However, the Fifth Circuit has held that, “[t]he exclusion of evidence under
Rule 403 should occur only sparingly.”25 Additionally, “[r]elevant evidence is
inherently prejudicial; but it is only unfair prejudice, substantially outweighing
probative value, which permits exclusion of relevant matter under Rule 403.”26
20 Adams v. Chevron USA, Inc., 383 Fed. Appx. 447, 452 (5th Cir. 2010)(quoting Fed. R. Evid. 407,
Advisory Committee Note (1972)).
21 Id. (quoting 2 Stephen A. Salzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence
Manual § 407.02[3], at 407–6 (9th ed. 2006) (emphasis original)).
22 Dixon v. International Harvester Co., 754 F.2d 573, 584 (5th Cir. 1985).
23 Fed. R. Evid. 401.
24 Fed. R. Evid. 403.
25 United States v. Pace, 10 F.3d 1106, 1115 –16 (5th Cir. 1993); See United States v. Powers, 168 F.3d
741, 749 (5th Cir. 1999) (same).
26 Pace, 10 F.3d at 1115-16 (quotation omitted).
District courts are afforded wide discretion in determining the relevance and
admissibility of evidence under Fed. R. Evid. 401 and 402.27 A district court’s ruling
on evidentiary issues is reviewed by an appellate court for an abuse of discretion.28
Thus, when the district court conducts “a carefully detailed analysis of the
evidentiary issues and the court’s own ruling, appellate courts are chary about
finding an abuse of discretion.”29
III. ANALYSIS
Defendants seek to exclude various types of evidence pursuant to Rule 407’s
prohibition on subsequent remedial measures. Defendants specifically ask the Court
to exclude evidence regarding:
(1) a subsequent repair of a loose wire and nut on a valve actuator on the
M/V HARVEY ENERGY, along with any other fleet upgrades or repairs,
including any photographs, videos, documentation, or communications
related to same;
(2) “Painting/stenciling of “No Smoking” or “Hazard” signs after the
incident and any drawings, photographs, documentation, or
communications regarding the purchase, acquisition and/or installation
of “No Smoking” or “Hazard” signs/stencils for or on the M/V HARVEY
ENERGY or any other vessel in the fleet after the incident;
(3) The safety stand-down called by Harvey Gulf’s Chairman of the Board
and Chief Executive Officer Shane Guidry after the incident, including
any and all communications regarding same and all references to post-
incident safety meetings or alerts that addressed the incident,
including any related documents, summaries, or notes;
(4) Changes, additions, or revisions to Harvey Gulf’s Safety Manual or
safety policies and procedures, including but not limited to:
a. Changes to Lock Out Tag Out procedures;
b. Changes to smoking policy;
27 Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
28 Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 356 (5th Cir. 1995).
29 Id.
c. Changes to Hot Work policy;
d. Changes to policy regarding management of records/management
of change;
e. Changes to “Permits to Work”;
f. Change stating Liquid Natural Gas (“LNG”) is not to be burned
when any crew member is present on the flybridge; and
g. Change requiring crew members to bring gas meters with them
when they go to the flybridge[;]
(5) All references to Harvey Gulf’s post-incident investigation, or lack
thereof, including any findings, the absence of any findings, and any
allegations that Harvey Gulf’s post-incident investigation was
substandard or lacking in any way; [and]
(6) Any and all photos, videos, documents, communications,
correspondence, documents by, to, from, between, or on behalf of Harvey
Gulf and/or any governmental agency and/or internally at Harvey Gulf
related to any subsequent remedial measures taken after the incident
forming the basis of Plaintiffs’ Complaint that would have made the
events complained of therein less likely to occur and that are offered to
prove negligence, unseaworthiness, defects in design, a need for warning
or instruction, or any other purposes prohibited by Federal Rule of
Evidence 407.30
The Court will take each argument in turn.
A. Subsequent repair of a loose wire connection or nut on a valve
actuator and other fleet upgrades
Defendants contend that “[a]ny evidence of subsequent repair or fleet upgrades
is irrelevant and unfairly prejudicial under Rules of Evidence 401 and 403 and would
violate the policy goal of Rule 407.”31 Defendants argue that “[e]vidence of the
subsequent repairs, in the words of Rule 407 are inadmissible when such measures
taken post-incident ‘would have made an earlier injury or harm less likely to occur.’”32
Plaintiffs, conversely, argue that “[t]he loose wire connection and/or loose nut on the
30 R. Doc. 53-1 at pp. 2–4.
31 Id. at p. 6.
32 Id. at p. 7.
valve actuator will be offered to prove Harvey’s knowledge and causation of the fire
and to rebut Harvey’s affirmative defense that Plaintiff Paul Galland was
contributorily negligent.”33 Plaintiffs also seek to introduce subsequent remedial
evidence of the loose wire or loose nut valve to show the obviousness of the dangerous
condition.34
1. Knowledge
Defendants contend that “[a]ny evidence aimed at showing Harvey Gulf
repaired a loose wire connection on a valve actuator after the incident, performed
fleet upgrades, or made any other repairs must be excluded under Rule 407.”35
Plaintiffs counter that they seek to introduce evidence of the subsequent actuator
valve repair to show Defendants’ prior knowledge of the alleged defect.36 Plaintiffs
specifically point to James Yanner’s, the vessel manager of Harvey’s LNG fleet,
subsequent repair of the loose wire connection and/or nut and his testimony to show
that “whether Harvey had knowledge of this issue prior to the fire is a disputed issue
of fact.”37 Defendants, in Reply, highlight the portion of Yanner’s testimony in which
he stated that he did not recall a problem with the valve actuator prior to the
incident.38 Relying on this testimony, Defendants assert that Rule 407 bars the
introduction of such evidence because there is no evidence to support that Defendants
had prior knowledge of any defect.39 Further, Defendants argue that “Rule 407’s
33 R. Doc. 77 at p. 4.
34 Id. at pp. 7–8.
35 R. Doc. 53-1 at p. 7.
36 R. Doc. 77 at p. 5
37 Id.
38 R. Doc. 102 at pp. 2–3; R. Doc. 102-1.
39 R. Doc. 102 at pp. 2–3.
exclusion of remedial measures is to be broadly construed, except for the rule’s
narrow, enumerated exceptions; it is not subject to Plaintiffs’ amorphous ‘legitimate
purpose’ standard.”40
Evidence of subsequent remedial measures are admissible “as proof of
subsidiary issues in [a] case, such as knowledge of the dangerous condition or
feasibility of precautionary measures.”41 However, “[a]ny evidence not excluded by
Rule 407, of course, must still be relevant and its probative value must, under Rule
403, outweigh any dangers associated with its admission.”42
Here, the Court finds that evidence of the subsequent repair of the actuator
valve could potentially be admissible to show Defendants’ potential knowledge of the
alleged faulty valve actuator prior to the incident. The Court, however, reserves
ruling on the admissibility of such evidence43 for trial to ensure that it may balance
the probative value and potential for unfair prejudice under Rule 403 in the proper
context.44 If such evidence is admissible under Rule 403 at trial, the jury will of course
40 Id. at p. 1.
41 Rozier v. Ford Motor Co., 573 F.2d 1332, 1343 (5th Cir. 1978). See Kirkland v. Marriott Intern., Inc.,
416 F.Supp.2d 480, 489 (E.D. La. 2006)(Vance, J.)(“Although Rule 407 prohibits the use of evidence of
a defendant's subsequent remedial measures as proof of its negligence, the rule provides that evidence
of such remedial measures may be admissible for certain purposes, including impeachment.
Impeachment in this sense may include proving defendants’ knowledge of the alleged dangerous
condition at the time of the accident.”)(internal citations omitted).
42 Dixon, 754 F.2d at 584.
43 This ruling encompasses the parties’ dispute regarding any fleet upgrades, including but not limited
to the Shipyard to do List, engine room photographs, and the Master’s Handover Log dated 5/18/23.
See R. Doc. 53-1 p. 6 n.5; R. Doc. 77 at pp. 10–12; R. Doc. 102 at p. 5.
44 See Johnson v. City of New Orleans, Civil Action No: 19-12272, 2025 WL 2265699, at *2 (E.D. La.
Aug. 6, 2025)(Guidry, J.)(“Courts typically reserve evidentiary rulings until trial so that questions as
to the evidence may be resolved in the proper context.”)(internal quotation marks omitted).
be “‘suitably instructed as to the purposes for which the evidence may be
considered.’”45
2. Causation
Defendants assert that Rule 407 bars the admission of any evidence of the
subsequent repair of the loose wire and/or loose nut on the actuator valve aboard the
PSV HARVEY ENERGY.46 Plaintiffs counter that because Defendants “did not
conduct a thorough root cause analysis to determine how and why flammable gas was
released in the area where the incident occurred when hot work was ongoing in that
area[,]” causation as to how and why the gas was released is at issue.47 Defendants
reply by maintaining that causation is not at issue because “[n]o one disputes that
liquified natural gas and/or diesel fumes were present in the area near the LNG purge
vents where Paul Galland attempted to light a cigarette. In fact, Harvey Gulf
maintains that the presence of gas fumes near the purge vents should be assumed
because, after all, that is the primary purpose of the vents.”48
The Fifth Circuit “has long recognized that subsequent remedial measures can
be introduced on the issue of causation if that is in controversy.”49 “Yet, the Fifth
Circuit has also cautioned against the admissibility of subsequent remedial measures
45 Jones v. H.W.C. Ltd., No. Civ.A. 01-3818, 2003 WL 42146, at *4 (E.D. La. Jan. 3, 2003)(Vance,
J.)(quoting Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 397 (5th Cir. 1972), abrogated on other
grounds, Rutledge v. Harley-Davidson Motor Co., 364 Fed. Appx. 103, 106 n.4 (5th Cir. 2010)).
46 R. Doc. 53-1 at pp. 6–7.
47 R. Doc. 77 at p. 6.
48 R. Doc. 102 at p. 3.
49 Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 429 (5th Cir. 2006).
when offered as rebuttal to claims of non-negligence, calling such arguments
‘semantic manipulation[s]’ that must be rejected.”50
Defendants straightforwardly advise “[c]ausation is not at issue[.]”51
Defendants explain that:
Harvey Gulf maintains that causation is not a relevant issue in this
matter. No one disputes that liquified natural gas and/or diesel fumes
were present in the area near the LNG purge vents where Paul Galland
attempted to light a cigarette. In fact, Harvey Gulf maintains that the
presence of gas fumes near the purge vents should be assumed because,
after all, that is the primary purpose of the vents.52
Since Defendants concede that the presence of LNG from the vessel’s vents,
along with the spark from the cigarette lighter, caused the explosion, the Court finds
that causation is not at issue. Defendants admit that the “primary purpose” of the
vents was to filter gas to the area of explosion.53 Therefore, the Court determines that
such subsequent remedial evidence is inadmissible to prove causation under Rule
407.
3. Contributory Negligence
Defendants seek to exclude evidence of the subsequent repair of a loose wire
and/or nut on the actuator.54 Plaintiffs, however, contend that “[e]vidence of a
defendant’s subsequent remedial measures may be admitted for the purpose of
50 Chesapeake Louisiana, L.P. v. Innovative Wellsite Systems, Inc., Civil Action No. 12-2963, 2015 WL
339022, at *2 (W.D. La. Jan. 23, 2015)(quoting Hardy v. Chemetron Corp., 870 F.2d 1007, 1011 (5th
Cir. 1989)).
51 R. Doc. 102 at p. 3.
52 Id. The Court discussed this representation in the brief with Counsel for Defendants at the pre-trial
conference held on October 3, 2025. Counsel for Defendants reaffirmed their position at the pre-trial
conference.
53 Id.
54 R. Doc. 53-1 at p. 6.
considering the defendant’s contributory negligence.”55 In Reply, Defendants invoke
the Fifth Circuit’s decision in Relf v. Wal-Mart Stores, Inc.56 to assert that subsequent
remedial measure may not be used to rebut a defense of comparative fault.57 The
Court agrees.
“[R]emedial measures should be excluded when offered to show the degree of
fault under comparative negligence regimes.”58 The Fifth Circuit has determined that
a plaintiff is not entitled to offer evidence of a subsequent remedial measure solely
because a defendant raises the defense of contributory negligence.59 Although
Plaintiffs aptly point to a prior section of this Court that held that “evidence of
defendant’s subsequent remedial measures may be admitted for the purpose of
considering defendant's defense of contributory negligence[,]”60 the Court declines to
adopt this position in light of the Fifth Circuit’s decision in Relf.61 While Relf is an
unpublished opinion, the Court finds the Fifth Circuit’s decision persuasive.62 As a
final point, and perhaps most importantly, the text of Rule 407 prohibits the
introduction of evidence of subsequent remedial measures to prove negligence.63 The
55 R. Doc. 77 at 7.
56 Relf v. Wal-Mart Stores, Inc., No. 94-30335, 1995 WL 103360, at *2 n.7 (5th Cir. Mar. 1, 1995).
57 R. Doc. 102 at p. 4.
58 23 Wright & Miller’s Federal Practice & Procedure § 5285 (2d. ed. 2025)(finding that “[t]here do[es]
not appear to be any cases considering the application of the [subsequent remedial measure] rule in
this context[]”).
59 Relf, 1995 WL 103360, at *2 n.7 (“Relf also apparently argues that he is entitled to offer evidence of
subsequent remedial measures merely because Wal-Mart raised contributory negligence as a defense,
but that is not the law.”).
60 Scurlock Marine, Inc. v. W.W. Patterson Co., No. Civ.A. 95-528, 1997 WL 573405, at *2 (E.D. La.
Sept. 12, 1997)(Clement, J.).
61 Relf, 1995 WL 103360, at *2.
62 Id.
63 Fed. R. Evid. 407.
Court thus finds that such evidence is inadmissible to prove contributory negligence
under Rule 407.64
4. Obviousness
Plaintiffs further argue that “evidence of defendant’s subsequent remedial
measures may be admitted for the purpose of establishing whether a dangerous
condition was obvious.”65 Specifically, Plaintiffs allege that because Defendants may
assert the defense of open and obvious – that it was obvious that Galland should not
have attempted to light a cigarette in a non-smoking designated area – evidence of
the subsequent actuator valve repair is admissible under Rule 407.66 Defendants, in
turn, assert that obviousness of the repaired actuator valve is not at issue in this
case.67 Defendants further argue that if Plaintiffs were allowed to present such
subsequent remedial measures, it would cause unfair prejudice and mislead the
jury.68 The Court agrees.
Here, the Court finds that even if obviousness is a disputed issue and
admissible under Rule 407, the Court finds that evidence of the subsequent repair of
the actuator valve would be excluded under Rule 403. At its core, the actuator valve
repair is probative of causation of the explosion. However, as noted, causation is not
disputed as Defendants concede that natural gas was present where Galland
attempted to light a cigarette, as the purpose of the vents was to release natural gas
64 Even if the evidence was admissible to prove contributory negligence—which the Court disputes—
the Court would exclude it under the Rule 403 analysis provided herein.
65 R. Doc. 77 at p. 7 (internal quotation marks omitted).
66 Id. at pp. 7–8.
67 R. Doc. 102 at pp. 4–5.
68 Id.
in that area.69 Therefore, the probative value is actually quite minimal because it
would merely confirm what Defendants have already conceded. But the same cannot
be said for the potential for unfair prejudice, confusion of issues, and misleading the
jury resulting from the introduction of the subsequent actuator repair. Allowing
Plaintiffs to introduce evidence of this subsequent remedial measure would violate
the policy goals of Rule 407 and unfairly prejudice the Defendants, as the jury would
likely imply culpability upon Defendants from such evidence. Thus, the Court finds
such evidence inadmissible under Rule 403.
B. Painting/stenciling of “No Smoking” or “Hazard” signs
Defendants contend that the Court should “exclude all evidence of post-
incident warnings, including all evidence related to placement of ‘No Smoking’ or
‘Hazard’ signs on the M/V HARVEY ENERGY or any other vessel, and any drawings,
photographs, documentation, or communications regarding the purchase, acquisition,
and/or installation of ‘No Smoking’ or ‘Hazard’ signs/stencils for or on the M/V
HARVEY ENERGY or any other vessel after the incident.”70 Plaintiffs, in opposition,
maintain that because such markings “were a part of the original plans for the
ENERGY that were approved by the America Bureau of Shipping (“ABS”) and the
Coast Guard before the vessel went into operation[,]” they are not truly subsequent
remedial measures.71 Instead, Plaintiffs assert that such markings were required by
regulations and that such evidence is impeachment evidence because it “goes directly
69 Id. at p. 3.
70 R. Doc. 53-1 at p. 8.
71 R. Doc. 77 at p. 12.
to Harvey’s knowledge about the danger presented by the vents and is admissible to
impeach Harvey’s testimony to the contrary, including whether the danger was so
obvious that no warnings were necessary.”72 In reply, Defendants point to Harvey
Gulf’s corporate deposition in which Harvey Gulf’s corporate officer “testified
unequivocally that the drawings with stenciled lettering of ‘No Smoking’ and ‘Hazard’
were shipyard drawings that were never submitted to the ABS or the USCG for
approval.”73 Defendants further argue that “[t]here was no regulatory requirement to
put these signs above the pilot house where the incident occurred.”74 The Court finds
Plaintiffs’ argument unpersuasive.
“Evidence of the placement of warning signs or tape around an area with an
alleged defect constitutes exactly the type of evidence contemplated by Rule 407.”75
Plaintiffs attempt to circumvent this rule by arguing that such evidence can be used
for impeachment purposes for Harvey Gulf’s open and obvious defense.76 Defendants,
however, state that obviousness of the repaired actuator valve is not at issue in this
case.77 “[T]he Fifth Circuit has cautioned district courts against the ‘liberal
application’ of the impeachment exception to ‘guard against the improper admission
of evidence to prove prior negligence under the guise of impeachment.’”78 Further,
because such evidence would be tangentially related, if at all, to any testimony
72 Id. at p. 14.
73 R. Doc. 102 at p. 6.
74 Id. at p. 7.
75 Reddin v. Robinson Property Group Ltd. Partnership, 239 F.3d 756, 760 (5th Cir. 2001).
76 See R. Doc. 77 at p. 14.
77 R. Doc. 102 at pp. 4–5.
78 Robert v. Maurice, Civil Action No. 18-11632, 2020 WL 4043318, at *6 (E.D. La. July 17,
2020)(Brown, J.)(quoting Blythe v. Bumbo Int'l Trust, 634 F. App'x. 944, 950 (5th Cir. 2015) (citation
modified)).
regarding the obviousness of the alleged defect of the actuator valve, the Court finds
that such argument is a “semantic manipulation, and [the evidence] must therefore
be rejected.”79
C. The safety stand-down
Defendants allege that the Court should “exclude evidence of the safety stand-
down that was called by [Harvey Gulf’s Chairman and CEO] after the incident,
including any communications regarding same, as well as all references to post-
incident safety meetings or alerts that addressed the incident, including any related
documents, summaries, or notes[]” pursuant to Rule 407.80 Defendants further argue
that any post-incident safety meeting, safety alert, or stand-down is irrelevant as “it
does not have the tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would
without the evidence.”81 Finally, Defendants argue that such evidence is excludable
under Rule 403.82 Plaintiffs, in contrast, contend that “[t]he safety stand-down and
post-incident safety meetings or alerts at issue in this case involved reminders about
existing rules, not the implementation of new procedures; such evidence is outside
the scope of Rule 407.”83 Plaintiffs fail to respond to Defendants’ arguments that the
evidence lacks relevance and further should be excluded under Rule 403. Defendants
reply by asserting that “[t]he CEO’s order and safety meeting were done to make
79 Hardy, 870 F.2d at 1011.
80 R. Doc. 53-1 at 9. See R. Docs. 53-12 and 53-13.
81 R. Doc. 53-1 at p. 10.
82 Id. at pp. 10-11.
83 R. Doc. 77 at 15.
accidents like Plaintiffs' less likely to occur[,]” and thus the Court should grant its
Motion pursuant to Rule 407.84
Rule 407 “only prohibits evidence . . . of subsequent remedial measures, not
evidence of a party’s analysis” of an accident.”85 “[B]y themselves, post-accident
investigations would not make the event ‘less likely to occur;’ only the actual
implemented changes make it so.”86 Post-incident investigative reports “implicate the
policies of Rule 407[,]” so any investigative reports that recommend remedial
measures should be excluded to the extent it does as much.87 Defendants’ arguments
that the notice of a stand down at issue here88 meeting is akin to a subsequent
remedial measure is a strained interpretation of Rule 407. Even if, arguably, the
stand down notice included a recommendation,89 the Court agrees with another
section of this court and finds that such are also not remedial measures and are not
excludable.90 Further, to the extent that Defendants argue that the stand down is not
relevant, the Court disagrees. The Court thus finds that evidence of Defendants’
84 R. Doc. 102 at p. 8.
85 Brazos River Authority, 469 F.3d at 430 (citation modified).
86 Id.
87 Walker v. Pioneer Prod. Servs., Inc., No. 15-0645, 2016 WL 3459881, at *1 (E.D. La. June 24, 2016)
(Zainey, J.). See Ponds v. Force Corp., No. 16-1935, 2017 WL 67530, at *2 (E.D. La. Jan. 6, 2017)
(Africk, J.); Thornton v. Diamond Offshore Drilling, Inc., No. 07-1839, 2008 WL 2315845, at *5 (E.D.
La. May 19, 2008) (Vance, J.).
88 R. Doc. 53-12 and 53-13.
89 “Please remind everyone that they are only to smoke in the designated posted smoking area which
every boat has, and for no reason is anyone to smoke cigarettes anywhere else on the vessel.” R. Doc.
53-12 at p. 3.
90 Robinson v. Diamond Offshore Mgmt. Co., No. 04-1899, 2006 WL 197010, at *3 (E.D. La. Jan. 26,
2006). Moreover, as reflected, the stand down seemingly gave notice of a “reminder,” rather than a
subsequent remedial measure. See 23 Wright & Miller’s Federal Practice & Procedure § 5283 (2d.
ed. 2025)(“But the key to designating an action as a remedial measure . . . is whether the action
‘would have made an earlier injury or harm less likely to occur.’”).
safety stand-down is admissible to the extent it does not mention a recommendation
of remedial measures. Any mentioning of remedial measures in the safety stand-
down shall be precluded from trial.
D. Modifications to Harvey Gulf’s safety manual
Defendants assert that “all evidence of changes, additions, or revisions to
Harvey Gulf’s Safety Manual or safety policies and procedures” should be excluded
pursuant to Rule 407 as irrelevant subsequent remedial measures.91 Plaintiffs
disagree and argue that the Court “should reserve ruling on the admissibility of
evidence of changes, additions, or revisions to Harvey’s Safety Manual or safety
policies and procedures; some of this evidence is plainly admissible for impeachment
purposes and evidence of other measures falls outside the scope of Rule 407 because
it was undertaken at the behest of regulatory authorities.”92 In reply, Defendants
maintain that none of their policy revisions were ordered by governmental authorities
and were instead voluntary changes.93
Defendants correctly highlight that “[p]ost-incident revisions to safety
manuals aimed at making an event less likely to occur are not admissible.”94 And
Plaintiffs correctly note that evidence of subsequent remedial measures may be used
for other purposes, such as impeachment.95 Accordingly, the Court defers ruling on
this issue until objections are properly made at trial to determine whether evidence
91 R. Doc. 53-1 at p. 11.
92 R. Doc. 77 at p. 18.
93 R. Doc. 102 at p. 9.
94 R. Doc. 53-1 at 11.
95 R. Doc. 77 at p. 11.
of subsequent modifications to Harvey Gulf’s safety manual can properly be used for
impeachment.
E. Harvey Gulf’s post-incident investigations
Defendants ask the Court to “exclude all references to Harvey Gulf’s post-
incident investigation, or lack thereof, including any findings, the absence of any
findings, and any allegations that Harvey Gulf’s post-incident investigation was
substandard or lacking in any way.”96 Plaintiffs, in opposition, state that Defendants’
request is overbroad and that the “appropriate, narrowly tailored approach is
redaction of any implemented corrective actions, not exclusion of investigative facts,
methodology, or analysis.”97 Plaintiffs contend that Defendants’ Motion should be
denied because Defendants have “failed to point to any remedial measures
recommended by its investigation that were actually implemented.”98 Defendants, in
their Reply, assert that such evidence should be excluded under Rule 403 because
“Plaintiffs’ continued efforts to use the unavailability of investigatory findings to
suggest that Harvey Gulf’s safety culture is deficient invites confusion and punitive
inference by the jury—precisely the danger that Federal Rule of Evidence 403 seeks
to prohibit.”99
As noted, Rule 407 “only prohibits evidence . . . of subsequent remedial
measures, not evidence of a party’s analysis” of an accident.”100 “Rule 407 does not
96 R. Doc. 53-1 at p. 13.
97 R. Doc. 77 at p. 22.
98 Id.
99 R. Doc. 102 at pp. 9–10.
100 Brazos River Authority, 469 F.3d at 430 (citation modified).
apply to investigative reports or post-accident inspections that analyze the cause or
reasons for an accident.”101 Plaintiffs correctly highlight that Defendants have “failed
to point to any remedial measures recommended by its investigation that were
actually implemented.”102 Because the record indicates that Defendants’ post-
incident investigations do not entail implemented subsequent remedial measures but
instead are “more akin to a post-accident report or investigation[,]”103 the Court finds
that such evidence does not fall under the ambit of Rule 407. The Court, however,
will defer on a Rule 403 analysis until trial as it is not clear what the records are that
Defendants sought to exclude under this category.
F. Photos, videos, documents, communications, and
correspondence from Defendants to governmental agencies
pertaining to subsequent remedial measures
Defendants aver that “[t]he Court should enter a catch-all ruling to exclude all
photos, video, documents, communications, and correspondence by, to, from or on
behalf of Harvey Gulf and/or any governmental agency and/or internally at Harvey
Gulf related to any subsequent remedial measures.”104 Defendants advance this
request on the premise that such “evidence is inadmissible under Rule 407 for the
purpose of encouraging defendants to take post-incident action to make future
accidents less likely.”105 In opposition, Plaintiffs assert that Defendants’ request
101 Robert, 2020 WL 4043318, at *6.
102 R. Doc. 77 at 22.
103 Robert, 2020 WL 4043318, at *6.
104 R. Doc. 53-1 at 15.
105 Id.
should be denied as premature due the lack of adequate context in which such
evidence may be raised at trial.!°* The Court agrees.
Motions in Jimine should be granted sparingly,!°7 and the grant of a sweeping,
overly broad motions in Jimine should be avoided.!°8 Accordingly, the Court denies
Defendants’ request as premature and overbroad. Without context, the Court declines
to enter such a sweeping motion. The Court will issue a ruling based on proper
objections made at trial.
IV. CONCLUSION
For the above reasons, IT IS HEREBY ORDERED that the Motion?!°® is
GRANTED IN PART and DENIED IN PART as stated herein.
New Orleans, Louisiana, October 7, 2025.
WENDY B. ts
United States District Judge
106 R, Doc. 77 at 24.
107 Pace, 10 F.3d at 1115-16 (quotation omitted).
108 See U.S. v. Lowery, 135 F.3d 957, 969 (5th Cir. 1998).
109 R, Doc. 53.
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