Marine Operations Expert Partly Allowed to Opine on the Prospects of the Plaintiff

This matter arises from an alleged personal injury involving Plaintiff Joshua Davis while working as a deckhand on Jantran’s towing vessel, the LUCY JANOUSH which was owned and operated by Jantran.

Defendant sought to exclude certain opinions of Captain John R. Sutton, Plaintiff's marine operations and liability expert.

Marine Operations Expert Witness

Captain John R. Sutton is an active professional mariner and marine accident investigations litigation consultant with 44 plus years of practical experience as a United States Coast Guard licensed Master mariner.

Want to know more about the challenges John Sutton has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Defendant sought to exclude the following opinions of Sutton: (1) Sutton's opinion that Plaintiff, who was a deckhand at the time of the incident, would have eventually obtained a U.S. Coast Guard issued pilot's license sometime in the future but for the subject incident; and (2) Sutton's opinion that the watch rotation and bunking assignments aboard the subject vessel violated a U.S. Coast Guard regulation and caused Plaintiff to become fatigued which contributed to the incident in question.

A. Opinion Regarding Plaintiff Obtaining a Pilot's License

Sutton opined that it is "highly likely" Plaintiff would have obtained his pilot's license had he not been injured.

Defendant argued that Sutton failed to explain how Plaintiff might satisfy the requirements set forth in 46 C.F.R § 10.227(i) "Re-issuance of expired credentials."

The Court found that Defendant has not shown that exclusion of Sutton's opinion is warranted. Defendant correctly noted that reissuance of Plaintiff's expired credentials was not automatic, and Sutton's report does not expressly address each of the regulatory requirements set forth in 46 C.F.R. § 10.227(i). Nevertheless, this omission does not render his opinion wholly speculative.

Sutton's opinion is based on more than the mere possibility that Plaintiff might have obtained the credentials. In reaching his conclusion, Sutton considered Plaintiff's prior experience as a Coast Guard-licensed towing vessel officer, the additional sea service necessary for reissuance, Plaintiff's work history, and Plaintiff's own deposition testimony. Taken together, this evidence provides a factual basis from which Sutton, relying on his experience as a licensed Master Mariner and familiarity with Coast Guard credentialing requirements, could offer an opinion concerning Plaintiff's prospects of obtaining the credentials absent his injury.

To the extent Defendant argued that Sutton failed to account adequately for the requirements imposed by 46 C.F.R. § 10.227(i), this criticism bears on the weight of the opinion rather than its admissibility. Defendant may explore on cross examination whether Plaintiff has completed, or could complete, the required courses and practical requirements. Sutton, however, is not permitted to testify with certainty that the Coast Guard would have reissued Plaintiff's credential or offer a legal conclusion concerning Plaintiff's eligibility under the regulation.

B. Opinion Regarding Fatigue and Failure to Train

Sutton also opined that the M/V Lucy Janoush's watch rotation was a violation of U.S. Coast Guard regulations and caused fatigue on the part of Plaintiff.

Defendant argued that Sutton's reliance on 46 C.F.R. § 144.720 is erroneous, and his opinion will not assist the jury. In opposition, Plaintiff contended that 46 C.F.R. § 144.720 is applicable and towboat work is not within the common knowledge of the average juror.

As an initial matter, Defendant argued that 46 C.F.R. § 144.720 is inapplicable here because the statute does not concern vessel operations, manning, or watch rotations. The Court agreed. Part 144 concerns the "Construction and Arrangement" of vessels. Section 144.720 provides that "the condition of the crew accommodations must consider the importance of crew rest" and identifies "vibration, ambient light, noise levels, and general comfort" as relevant considerations. The regulation further requires that "every effort...be made to ensure that quarters help provide a suitable environment for sleep and off-duty rest." This language addresses whether the physical condition of crew quarters provides an environment conductive to rest. It does not prescribe particular watch rotations or regulate the assignment of crewmembers. Sutton's opinion extends beyond the language of Section 144.720. Accordingly, Section 144.720 does not support Sutton's opinion that the challenged watch rotations or room assignments violated federal regulations.

Further, Sutton's opinion is a conclusion of law. Sutton's opinion interprets 46 C.F.R. § 144.720  and applies that regulation directly to the conduct of Defendant and Captain Mitchell. Specifically, Sutton opines that: (1) Defendant "failed to properly train"; (2) Captain Mitchell "failed" to follow federal regulations;(3) Defendant "knowingly failed to correct" Captain Mitchell; and (4) Defendant was "ignorant of the topic of mariner fatigue." Sutton then concludes that Defendant "was negligent and failed to provide a reasonably safe place of employment." These opinions constitute impermissible legal conclusions because they apply the governing legal standards to the facts and effectively instruct the jury that Defendant breached duties owed to Plaintiff.

As such, the Court excluded Sutton's opinions to the extent he offers legal conclusions concerning Defendant's non-compliance, negligence, or breach of the duty to provide Plaintiff with a reasonably safe place to work. Sutton, however, is permitted to offer admissible testimony regarding maritime industry practices, watch rotations, crew rest, or other matters within his specialized knowledge, provided that he does not couch his opinions in legal conclusions or instruct the jury how the governing law should be applied.

Held

The Court granted in part and denied in part the Defendant's motion to exclude the testimony of John Sutton.

Key Takeaway

With respect to the proper scope of expert testimony, an opinion is not objectionable just because it embraces an ultimate issue. Nevertheless, an expert may never render conclusions of law. Nor, may an expert go beyond the scope of his expertise in giving his opinion.

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