U.S. District Court Judge Lance M. Africk in the Eastern District of Louisiana recently heard a motion in limine in a maritime case filed by Defendant seeking to exclude the testimony of Plaintiff’s maritime expert regarding the requirements provided by applicable Federal Coast Guard Regulations pertaining to the operation and management of the vessel at issue. The captain of the vessel had consumed several drinks of alcohol prior to an accident.
The pretrial conference order stated that “if either party intends to argue or introduce testimony relating to the regulations applicable to ‘uninspected vessels,’ then . . . that party shall file a brief with the Court identifying the applicable regulation(s) and explaining why the regulation(s) is/are relevant.”
Plaintiff filed a brief indicating that his maritime expert would testify on the requirements of certain Coast Guard regulations applicable to the vessel here and its lack of compliance with those regulations, namely Operating a Vessel While Under the Influence of Alcohol or a Dangerous Drug, Chemical Testing, and Mandatory Chemical Testing Following Serious Marine Incidents involving Vessels in Commercial Service. However, the judge noted that his brief didn’t quote the substance of those regulations or attempt to explain their relevance.
Defendant argued that Plaintiff’s maritime expert’s opinions with respect to the regulations shouldn’t be permitted for procedural reasons. Defendant argued that because the expert opinions were only being disclosed now, they should not be admitted. If Plaintiff intended its expert to offer these opinions, he should’ve filed a supplemental expert report disclosing them in accordance with the Federal Rules, it argued. The opinions weren’t contained in the maritime expert’s deposition, his expert report, or the final pretrial order prepared by the parties after the pretrial conference. Defendant said that allowing Plaintiff’s expert offer his undisclosed opinions now would be trial by ambush.
Defendant cited the judge’s previous opinion in United States v. Land (E.D. La. 2014) for the proposition that “A party must supplement [an expert’s] report and ‘[a]ny additions or changes to [the] information [in the report] must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due,’ which is ‘at least 30 days before trial.'”
The judge agreed with Defendant and concluded that Plaintiff failed to adequately disclose the applicability of the Coast Guard regulations. Judge Africk held that his order stating that the expert “may testify as to the requirements of the regulations applicable to ‘uninspected vessels'” did not relieve Plaintiff of the obligation to file a supplemental expert report. At the time the judge issued his order and reasons, Plaintiff’s maritime expert had yet to offer his opinions regarding the regulations applicable to uninspected vessels. By holding that Plaintiff’s maritime expert could offer such opinions (if they were relevant and a proper foundation was laid), the judge didn’t eliminate Plaintiff’s obligation under Rule 26(a) to give notice of whether his expert would offer such an opinion and to specify which opinions he would offer. Although the judge didn’t order Plaintiff to file a supplemental report in its order and reasons, a court order isn’t needed to put a party on notice that he must comply with the Federal Rules of Civil Procedure.
Plaintiff should’ve supplemented his expert’s report months ago, the judge explained, to include the new opinions. Instead, he waited until Africk ordered their disclosure a week before trial to reveal them. The judge said that while he might be inclined to overlook Plaintiff’s untimeliness if the recently filed brief been adequate, it wasn’t. In order to prepare for trial and to avoid the necessity of ruling on the applicability of regulations without the benefit of thorough research and analysis, Judge Africk’s minute entry following the pretrial conference ordered any party intending to introduce evidence of allegedly applicable Coast Guard regulations to file a brief “identifying the applicable regulation(s) and explaining why the regulation(s) is/are relevant.”
Plaintiff’s brief didn’t explain the applicability of the regulations or even quote them in their entirety. Without this, Judge Africk said he couldn’t determine the applicability of the regulations under the facts of this case. In addition, Defendant wasn’t given an adequate opportunity to defend.
As a result, based on Plaintiff’s failure to file an appropriate supplemental expert report and failure to comply with Judge Africk’s minute entry, the maritime expert’s opinions regarding the applicability of the Coast Guard regulations were excluded.
Shawler v. Ergon Asphalt & Emulsions, Inc., No. 15-259, 2016 U.S. Dist. LEXIS 72734 (E.D.La. June 3, 2016)