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Hurricane season with symbol sign against a stormy background and copy space. Dirty and angled sign adds to the drama.Plaintiffs in an action for damage to an oil company’s flowlines and pipelines from a hurricane sought to prevent the introduction of testimony from three experts with respect to hurricanes or storms beyond the parameters discussed at a pre-trial conference.

Plaintiffs sought to exclude “any testimony concerning hurricanes/storms by any witness, including, but not limited to expert witnesses, beyond the fact that hurricanes occur, hurricanes have hit south Louisiana and that hurricanes can cause damage to structures.” Specifically, Plaintiffs sought to exclude “testimony about hurricanes moving objects.”

Corporate Expert

Plaintiffs contend Oil Company’s corporate representative (“Representative”) testified during her deposition that hurricanes or storms moved flowlines from an abandoned facility to a second site. Plaintiffs argue this theory originated from Oil Company’s damages expert. As such, Representative’s testimony with respect to the effect of hurricanes on the flowlines was inadmissible under Rule 701 because she has no personal knowledge upon which to base her testimony.

With respect to her testimony, Oil Company represented that it had no intention of presenting testimony through her that hurricanes or storms moved flowlines or pipelines from an abandoned facility to the site. Oil Company, however, argued that Representative’s deposition testimony established that she had extensive personal knowledge regarding Oil Company’s historic and customary practice of cutting and capping lines that run from wells that have been plugged and abandoned. Oil Company contended that Representative should be permitted to testify that based on Oil Company’s practices, if a line remained in the field that was once associated with an Oil Company well, it could be capped and not broken-ended.

United States District Judge Susie Morgan of the Eastern District of Louisiana stated that the Court ruled in the pre-trial conference that Representative wouldn’t be permitted to testify about hurricanes. As such, Plaintiffs’ motion with respect to Representative was moot, she held. Oil Company stated it will not present testimony through Representative that hurricanes or storms moved flowlines or pipelines from an abandoned facility to allision. However, the judge ruled that Representative would be allowed to testify about Oil Company’s historic and customary practice of cutting and capping flowlines or pipelines that run from wells that have been plugged and abandoned, provided her testimony was based on her personal knowledge.

The judge order that Representative couldn’t testify that—based on Oil Company’s practices—if a line remained in the field that was once associated with an Oil Company well, it would be capped and not broken-ended. This testimony wasn’t within her personal knowledge and amounted to speculation, the judge held. But Oil Company claimed that the Representative did have extensive personal knowledge regarding its historic and customary practice of cutting and capping lines that run from wells that have been plugged or abandoned.

Plaintiffs further argued no other witness should be allowed to testify about hurricanes or storms beyond the parameters set by the judge at the pre-trial conference. However, Oil Company asserted that its damages expert would present testimony based on his experience and observations that were within the scope of the court’s order. Judge Morgan ruled that the damages expert “may testify, based on his experience in the field, about his having personally witnessed the effects of hurricanes on oil fields and hurricane surge tides moving pipes and line segments. He can discuss the hurricane damage to the nearby abandoned tank battery he observed when he was in the field with the survey crew.”

Judge Morgan wrote that Plaintiffs too narrowly construed the Court’s ruling when they argued that no witnesses should be allowed to testify “about hurricanes moving objects.” The judge countered that witnesses may testify generally, if based on their own personal knowledge, they are aware of hurricane and surge tides moving pipes and line segments within oil fields.

Damages Expert

Judge Morgan stressed the damages expert couldn’t testify as to the likelihood that particular flow lines or pipelines in the specific well’s vicinity were moved by hurricane surge tide for two reasons: (i) the damages expert lacked personal knowledge that this occurred; and (ii) the judge found his opinion to that effect contained in his expert report was not based on sufficient facts or data to be the product of reliable principles and methods. Further, the damages expert was not allowed to offer meteorological testimony about particular hurricanes that have impacted South Louisiana.

Meteorology Expert

Oil Company claimed that its meteorology expert would present testimony that was consistent with the conclusions in his expert report that it wasn’t uncommon for oil and gas infrastructure to be moved by storm surge; that the damage sustained to the facility was likely a result of storm surge; the field at issue had been subject to the effects of numerous hurricanes and storms; and that it was more likely than not that the uncapped line segment involved in the alleged allision was transported by storm surge from the facility to the site of the allision.

Oil Company argued that Plaintiffs didn’t file a Daubert motion to exclude or limit meteorology expert’s testimony, and the deadline for filing that motion has expired. The judge explained that in the trial court, challenges to an expert may be raised at any time, although it was preferable and more likely to succeed if the challenge is raised in compliance with the scheduling order. Judge Morgan treated Plaintiffs’ motion in limine as a Daubert motion with respect to meteorology expert’s expert testimony.

Judge Morgan held that the meteorology expert could testify regarding hurricanes and storm surges within the same parameters established for damages expert’s testimony. The expert was permitted to testify based on his personal knowledge of the effects of hurricanes on oil fields and hurricane surge tides moving pipes and line segments. However, the Court said the meteorology expert couldn’t testify as to whether the particular flowlines or pipelines in the specific well’s vicinity were moved as a result of a hurricane or storm surge tide. Oil Company provided no evidence that this expert had personal knowledge of those facts. Based on his expert report, his expert opinion on whether particular flowlines or pipelines in the well’s vicinity were moved as a result of a hurricane or storm surge tide wasn’t based on sufficient facts or data to be the product of reliable principles and methods. And finally, the judge held that the meteorology expert wouldn’t be allowed to offer meteorological testimony about particular hurricanes that have affected South Louisiana.

As a result of the judge’s finding, Plaintiffs’ motion in limine regarding testimony about the effect of hurricanes and storms on flowlines and pipelines was granted in part and denied in part.

 

 

Fick v. Abbott Labs, 2017 U.S. Dist. LEXIS 1410 (E.D. La. January 5, 2017)