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Botelho v. Nordic Fisheries, Inc.

United States District Court, D. Massachusetts

May 18, 2018

KEVIN BOTELHO, Plaintiff,
v.
NORDIC FISHERIES, INC., Defendant.

          OMNIBUS MEMORANDUM AND ORDER ON BOTH PARTIES' DAUBERT MOTIONS

          F. Dennis Saylor, IV United States District Judge.

         This action arises out of an injury suffered by a seaman aboard a fishing vessel. Plaintiff Kevin Botelho was working on the F/V AMBITION, owned by defendant Nordic Fisheries, Inc., when he fell and injured his head. The complaint assets claims for negligence, unseaworthiness, maintenance and cure, and intentional and/or negligent failure to provide maintenance and cure. The principal factual dispute concerns whether Botelho slipped on the metal deck of the vessel or whether he slipped because he stepped on a skate fish.

         Defendant has filed three motions seeking to exclude the entire testimony of three of plaintiff's experts at trial. Plaintiff has filed two more limited motions seeking to preclude certain portions of the defendant's experts' testimony. For the reasons given below, defendant's motions will be denied; plaintiff's motion to exclude a portion of one opinion will be granted; and plaintiff's motion to exclude the findings of the IFISH Conference will be granted in part and denied in part.

         I. Background

         Plaintiff filed the complaint in this action on May 26, 2015. The complaint alleges (1) negligence under the Jones Act, 46 U.S.C. § 30104 et seq.; (2) unseaworthiness under general maritime law; (3) maintenance and cure in the amount of $200, 000, together with costs and interest; and (4) intentional and/or negligent failure to provide maintenance and cure. (Compl. ¶¶ 15-29).

         In anticipation of trial, the parties have filed motions in limine to exclude certain expert testimony. Five motions are presently pending:

• Defendant's Motion to Exclude the Testimony of Plaintiff's Expert, Mr. Christopher D. Barry, P.E. and/or for Leave to Conduct His Deposition before Trial;
• Defendant's Motion to Exclude the Testimony of Plaintiff's Expert, Mr. William H. Burke, Ph.D.;
• Defendant's Motion to Exclude the Testimony of Plaintiff's Expert, Neal McGrath, Ph.D. and/or for Leave to Conduct His Deposition before Trial;
• Plaintiff's Motion Pursuant to F.R.E. 702 to Preclude Defendant from Introducing at Trial Simon Bellemare's Opinion # 3; and
• Plaintiff's Motion in Limine to Exclude Expert Opinions Relating to Claimed “Findings of the IFISH Conference.”

         The Court will consider each motion in turn.

         II. Standard of Review

         Federal Rule of Evidence 702 provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The adoption of Rule 702 in its present form codified the standard of admissibility for expert testimony that was set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). United States v. Diaz, 300 F.3d 66, 73 (1st Cir. 2002).

         Under Rule 702, district courts considering the admissibility of scientific testimony must “act as gatekeepers, ensuring that an expert's proffered testimony ‘both rests on a reliable foundation and is relevant to the task at hand.'” Samaan v. St. Joseph Hosp., 670 F.3d 21, 31 (1st Cir. 2012) (quoting Daubert, 509 U.S. at 597). That gatekeeping function requires that the court consider three sets of issues: (1) whether the proposed expert is qualified by “knowledge, skill, experience, training or education”; (2) whether the subject matter of the proposed testimony properly concerns “scientific, technical, or other specialized knowledge”; and (3) “whether the testimony [will be] helpful to the trier of fact, i.e., whether it rests on a reliable foundation and is relevant to the facts of the case.” Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 476 (1st Cir. 1997) (quoting Fed.R.Evid. 702) (internal quotation marks omitted).

         The requirement that an expert's testimony must be based on a reliable scientific foundation is often the “central focus of a Daubert inquiry.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998). In Daubert, the Supreme Court enumerated a non-exhaustive list of factors that a court may consider in undertaking its reliability analysis: (1) whether the scientific theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a known rate of error; (4) whether there are standards controlling its application or operation; and (5) whether it is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94; see also Samaan, 670 F.3d at 31-32.

         Less centrally, but importantly, Rule 702 requires the court to examine whether those methods have been reliably applied. In other words, the court must “ensure that there is an adequate fit between the expert's methods and his conclusions.” Samaan, 670 F.3d at 32 (citing Daubert, 509 U.S. at 591).

         In evaluating whether expert testimony will be helpful to the trier of fact, the court must determine whether it is relevant, “not only in the sense that all evidence must be relevant, but also in the incremental sense that the expert's proposed opinion, if admitted, likely would assist the trier of fact to understand or determine a fact in issue.” Ruiz-Troche, 161 F.3d at 81 (citations omitted); see also Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st Cir. 2000) (“The ultimate purpose of the Daubert inquiry is to determine whether the testimony of the expert would be helpful to the jury in resolving a fact in issue.”).

         The focus of the Rule 702 inquiry is on the principles and methodology employed by the expert, not the ultimate conclusions. Daubert, 509 U.S. at 595. The court may not subvert the role of the fact-finder in assessing credibility or in weighing conflicting expert opinions. Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. at 596; see also Ruiz-Troche, 161 F.3d at 85 (admitting testimony notwithstanding a lack of peer-reviewed publications because the opinion rested upon good grounds generally and should be tested by the “adversary process”).

         Expert scientific testimony that is admissible under Rule 702 may nonetheless be excluded under Rule 403 “if its probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403; see alsoDaubert, 509 U.S. at 595. Thus, expert testimony that is relevant and that ...


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