Maritime Safety Expert Witness’ Opinion on Unseaworthiness Excluded
Posted on January 29, 2025 by Expert Witness Profiler
Plaintiff Brandeon Alexander (“Alexander”), a deckhand employed by Defendant Intracoastal Tug and Barge Company, LLC (“Intracoastal”), sustained serious injuries while working aboard the M/V California Chrome. As Alexander was reaching for a line on a piling, Alexander’s arm was crushed between the barge and the piling. Captain Paul Smith (“Captain Smith”) was operating the barge, and Frederick Deliphose (“Deliphose”) was the other deckhand at the time of the accident.
After the incident, Alexander filed a lawsuit alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure. To support his claims, he retained Gary Hensley as a marine safety expert in order to review the actions and omissions of the parties in this litigation. Hensley prepared a 16-page report (“the report”) which consisted of three part: an introduction, a fact section, and a section outlining his opinions. The report also included a list of the materials which Hensley reviewed to produce the report.
In response, Intracoastal, along with Navigators Insurance Company, Ascot Insurance Company, and Mitsui Sumitomo Insurance USA, Inc. (collectively, “Defendants”) sought to exclude 15 of Hensley’s opinions. They asserted three grounds for exclusion:
(i) that several opinions constituted improper legal conclusions
(ii) that several others opinions were speculative and unsubstantial
(iii) that the remaining opinions either invaded the province of or did not assist the factfinder
Maritime Safety Expert Witness
Gary Hensley is an experienced Towboat Pilot/Relief Captain and Captain (Master) of inland towing vessels with over 30 years of hands-on experience with various towing companies. Throughout his career, Hensley has worked with both single and multi-engine vessels, moving barges, supervising crews, and training new crew members, including deckhands, tankermen, Steersmen, and Pilots. With extensive experience working and operating under every type of conditions, both natural and man-made, he has expertly managed various sized barges and tows with different configurations of the tow.
Discussion by the Court
a. Opinions 1 through 3
Defendants asserted that opinions 1 through 3 should be excluded as impermissible legal conclusions. Those opinions were as follows:
1. Based on my 30 plus years of training, knowledge, and experience in the maritime industry, it is my opinion that Intracoastal Tug and Barge, LLC. did not provide Brandeon Alexander with a safe place to work and that the M/V California Chrome was not adequately crewed for its intended purpose.
2. Given the facts set forth herein, it is my opinion that the vessel was unseaworthy as it lacked an adequate, and trained crew.
3. Alexander testified that Intracoastal Tug and Barge had taken the other captain, John Joseph, off the M/V California Chrome and put him on another vessel. With Captain Smith being the only captain onboard the vessel, it is a great possibility that he violated the 12-hour rule. The master logs show that Captain Smith was the only captain onboard by himself for a few days, and he even testified that he was in bed asleep when they were called to dock.
Analysis of opinions 1 to 3
The Court concluded that opinion 1 was not inadmissible as an improper legal conclusion. The Court had previously found that expert testimony about the safety of the vessel was helpful and did not constitute impermissible legal conclusions. It held that Hensley might testify relative to his opinion that the vessel had an inadequate crew. The Defendants were free to raise an objection at trial if there was an insufficient evidentiary foundation.
Regarding opinion 2, the Court held that Hensley was not permitted to testify that the vessel was unseaworthy, as that opinion most bluntly tells the jury how the verdict form should read. However, Hensley was allowed to opine on the lack of an adequate and trained crew.
Defendants’ challenge to the admissibility of Opinion 3 was on the ground that it constituted a legal conclusion rather than its applicability. The Court cannot conclude that opinion 3 would not “bring to the jury more than the lawyers can offer in argument,” and that it is therefore an impermissible legal conclusion. Further, it should be noted that Hensley’s opinion as to the 12-hour rule did not tell the jury how the verdict form should read.
b. Opinion 4 through 8
Defendants asserted that opinions 4 through 8 were inadmissible because they were speculative and unsubstantiated. Those opinions were as follows:
Opinions 4 to 6
4. Captain Smith testified that 19 days after Alexander’s injury, as the M/V California Chrome was turning into Galveston, Texas, one of the rudders just fell off the vessel. With the rudder missing, you have very limited control of a vessel. Since the rudder fell off very shortly after Alexander’s accident, there is a great possibility that there were already problems with the rudder, such as a cracked rudder stock, bent rudder, so many things could have caused the rudder to fall off, but if it were bent prior to falling off, that could have contributed to Alexander’s injury.
5. Alexander testified that while his arm was between the piling and the barge, he informed Deliphose to call Captain Smith and have him back the tow up, but Deliphose was on the wrong VHF Channel, and Alexander was unable to tell Captain Smith to back up. If Deliphose had been trained in the proper use of the VHF Radio, he would have known that his radio had jumped channels, and he could have corrected it, but he was inexperienced and untrained.
6. Alexander testified that the only training he got while working at Intracoastal was some Safety Orientation videos. He continued by saying that the other companies had regular safety meetings, but they did not have regular safety meetings at Intracoastal Tug and Barge. With Deliphose being an inexperienced deckhand, and had only been on the boat for 2 days before Alexander’s injury, he should have had some type of land-based training, other than safety videos, before he went and caught a vessel.
Opinion 7 and 8
7. It is my opinion that since Captain Smith testified that he was in bed asleep and had to be awoken to go to the dock, and had only been to HOTFOOT Ship Dock #3 one time previously, I can tell you from my 35 years’ experience that doing this IS a very stressful situation, for you have no idea what the dock looks like.
Houston Ship Channel is one of the busiest ship channels in America, and with the M/V California Chrome and her tow going to ship dock 3, Captain Smith should have unsecured the vessel from the end he was made fast to and run around to the other end of the tow, and make fast to that end. That way he would not have had to top the tow around and he could have went straight on dock, instead of coming into the dock at an angle, like he did.
8. It is also my opinion that Captain Smith possibly became distracted by all the tows and ships on dock, traffic moving in the Houston Ship Channel, radio chatter, and attempting to listen to Alexander and Deliphose calling out instructions since Captain Smith was 400′ away from them, it was at night, and he had only been to HOTFOOT Ship Dock once previously.
Analysis of opinions 4 to 6
At the outset, the Court noted that the format in which Hensley produced his report—a facts section followed by three pages summarily listing his opinions—made it more difficult to discern the specific facts underlying each opinion. Alexander himself recognized that the report is not “artfully crafted.”
With respect to opinion 4, the Court concluded that it was inadmissible speculation. The report offered no evidence to support the opinion that the rudder was impaired at the time of the accident, except for the fact that it broke weeks after the accident. The jury could determine if this was the case, and counsel could argue the same. The Court also noted that the term “great possibility” was too vague and would confuse the jury as to the governing burden of proof—i.e., a preponderance of evidence.
With respect to opinions 5 and 6, the Court concluded that Alexander, as the proponent of the expert testimony, has not met his burden to show their admissibility because he does not show that the opinions are based on the record. Both opinions refer to the training that Deliphose did not have prior to the accident. However, as Defendants point out, there is no citation in the report to any document or record regarding Deliphose’s training prior to the accident.
Nor is there an indication that Hensley reviewed company records addressing the Deliphose’s training. Hensley’s opinions as to which training Deliphose should have had is necessarily speculative because the embedded assumption as to the training (or lack thereof) that he had is unsubstantiated.
Analysis of Opinion 7 and 8
With respect to opinion 7, the Court found that the opinion was admissible. Defendants asserted that the opinion was unsubstantiated because it misstated that Captain Smith had only visited dock no. 3 once before the accident. The Court determined that the accuracy of this statement was a matter for cross-examination at trial. Yet, Hensley’s opinion on how Captain Smith should have navigated the ship was deemed admissible, as it was based on his specialized knowledge and experience as a ship captain. Further, the opinion provided insight on a topic which the jury could not itself assess with common knowledge and experience.
With respect to opinion 8, the Court found that the opinion was speculative and therefore inadmissible. The opinion cited reasons as to why Captain Smith could have been distracted but cited no evidence to support the claim that he was, in fact, distracted. Such opinion had an insufficient basis in fact. Further, this is not the type of testimony that requires an expert as the jury is fully capable of discerning whether Captain Smith was distracted.
c. Opinions 9 through 15
Defendants asserted that opinions 9 through 15 were inadmissible because they either invaded the province of the jury or did not assist the factfinder. They argued that those opinions relate to issues discernible to the “common sense” of the jury. The opinions stated as follows:
Opinion 9 to 12
9. Reviewing the safety meeting documents submitted to me, there was not a single safety meeting on securing a tow to the dock, throwing a line, proper use of a spike/pike pole, and Alexander was not present for any of the safety meetings that were possibly being conducted.
10. In Intracoastal Tug and Barge, L.L.C.’s “Towing Safety Management System (TSMS)” there is a section on Job Safety Analysis (JSA) that is to be completed and filled out and signed, but on the night of Alexander’s injury, there was not a JSA performed by Captain Smith, even though it is required, and should have been done since Deliphose was inexperienced and new to the maritime industry. However, Captain Smith testified that he held a “toolbox talk” which only lasted a few minutes and did not cover all the topics of a JSA.
11. In the “TSMS”, the spike/pike pole is only mentioned one time, and that was for locking. There were no segments in the “TSMS” as to where it would give you details for securing a line to a piling, grabbing a line hanging off a piling, and the proper use of the spike/pike pole.
12. Intracoastal Tug and Barge, LLC. had the duty to exercise Safety Procedures & Precautions to their employees, but they failed to do so, resulting in Alexander’s injuries.
Opinions 13 to 15
13. Alexander testified in his deposition that he was initially going to catch their 1st line on the piling, and then flatten out on the dock. He went on to say that Captain Smith was on the wrong end of the barges, and was going to have to top the tow around. He continued by saying that when he reached down in front of the barge to retrieve the line that was hanging off the piling, Captain Smith started twisting the barges into the piling, instead of flattening out on the dock, which caused Alexander’s arm to be crushed. Alexander continued by saying that Captain Smith was holding the head of the barges against the piling, and had been doing so for approximately 5 seconds before he reached down to retrieve the line hanging off the piling.
14. If Captain Smith would have flattened the tow out on the dock, which would have brought the head of the barge off and away from the piling. Instead he chose to twist (turn) the head of the tow into the piling, which brought the stern away from the dock, thus catching and crushing Alexander’s arm and hand.
15. Captain Smith had the duty to exercise such reasonable care and skill as a prudent mariner would exercise under similar circumstances and conditions that existed the night of Alexander’s injury.
Analysis of opinions 9 to 15
The Court excluded opinions 9, 10, 11, and 13 to the extent they were factual recitations that did not form the basis of Hensley’s expert opinions. The opinions at issue are merely recitations of the facts and Hensley’s factual conclusions. On their own, they are plainly inadmissible because they do not serve to assist the trier of fact. At trial, the Court held that Hensley might recite these facts only if Alexander showed that these factual recitations and conclusions form the basis of Hensley’s admissible expert opinions.
With respect to opinion 12, the Court partly sustained the objection. The latter part of the opinion merely serves to “supply the jury with no information other than the expert’s view of how its verdict should read.” However, at trial, Hensley was permitted to testify about the relevant safety procedures and precautions, as well as Intracoastal’s compliance or noncompliance therewith.
The Court concluded that opinion 14 was admissible, though the opinion was somewhat cryptic because it included an incomplete sentence. However, the opinion plainly involved expertise in steering the ship, which is not within the common sense or experience of the jury.
With respect to opinion 15, the Court concluded that it was an inadmissible statement of the law, which did not assist the jury and encroached upon the role of the Court.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude the Plaintiff’s expert, Gary Hensley.
Key Takeaway:
The Court excluded certain opinions offered by Hensley because they were legal conclusions. An opinion which “would supply the jury with no information other than the expert’s view of how its verdict should read” is an unhelpful and therefore impermissible legal conclusion. The jury is fully capable of determining whether the vessel was indeed unseaworthy. That being said, Hensley’s specialized knowledge and experience as a ship captain provided valuable insights.
Case Details:
| Case Caption: | Brandeon Alexander V. Intracoastal Tug And Barge Company, L.L.C. |
| Docket Number: | 2:23cv2566 |
| Court: | United States District Court for the Eastern District of Louisiana |
| Order Date: | January 27, 2025 |
