United States District Court, E.D. North Carolina, Eastern Division
SHERMAN D. GOODWIN, Plaintiff and Counterclaim Defendant,
ANTOINETTE MAGEE COCKRELL, and JUDY I. SULLIVAN, Co-Executrix of the Estate of ARTHUR E. COCKRELL, Defendants and Counterclaimants.
JAMES C. FOX, Senior District Judge.
This matter is came before the court for a pretrial hearing on November 7, 2014. Plaintiff was present at the hearing and represented by Wesley Cooper and Stevenson Weeks. Defendant Antoinette Cockrell was present at the hearing, and represented by Christopher Abel and Stephen Jackson. This order memorializes and clarifies certain rulings made at the hearing.
Additionally, since the hearing and subsequent first day oftrial in this matter, the parties have filed four motions: (1) Defendants' Motion to Strike the New Report of Ann T. Neulicht, Ph.D. and to Preclude Dr. Neulicht from testifying at trial [DE-91]; (2) Plaintiffs Second Motion to Amend Pretrial Order Based on Newly Discovered Evidence [DE-93]; (3) Defendants' Motion to Strike Certain Portions of Sherman Goodwin's Trial Testimony [DE-96]; and (4) Plaintiffs Motion to Continue [DE-97].
I. PRETRIAL HEARING RULINGS
A. Defendants' motions in limine to exclude testimony of certain opinion witnesses
At the pretrial hearing, the court first considered Defendants' motions in limine to exclude the testimony of Ann T. Neulicht, Ph.D [DE-46] and portions of the testimony of Captain Donald Davis [DE-49]. With regard to Dr. Neulicht, Defendants argued, inter alia, that her opinions are "either unsupported by any explanation of their basis, merely a repetition of what Goodwin himself has told her, are so far afield from her own expertise as to be nothing more than lay opinions, or are so clearly tainted by invalid assumptions and lack of inquiry into the relevant facts as to render them completely unreliable under even the most charitable application of Daubert and its progeny." Def.'s Mot. and Mem. of Law in Support of their Mot. in Limine to Exclude the Testimony of Ann T. Neulicht, Ph.D [DE-46] at 22. Defendants also argued that portions of Captain Davis's testimony should be excluded because his opinion either was unreliable or he lacked a reasonable foundation for proffering his opinion. Def.'s Mot. and Mem. of Law in Support of their Mot. in Limine to Exclude Portions of the Testimony of Captain Donald Davis [DE-49] at 7-10, 13-14.In response to these motions, Plaintiff submitted affidavits from both Dr. Neulicht [DE-55-1] and Captain Davis [DE-62-1]. Defendants, in reply, argued that affidavits either constituted an untimely supplementation or expert disclosure that violates the Scheduling Order in this case, or alternatively, had no bearing on the court's consideration of the motions in limine. Reply [DE-74] at 3-6; Reply [DE-75] at 3-6. Defendants also argued that the affidavits should be excluded under Rule 16(t) of the Federal Rules of Civil Procedure. Reply [DE-74] at 6-10; Reply [DE-75] at 6-10.
At the hearing, the court noted that another district court, when confronted with a similar motion in limine to exclude an opinion witnesses' testimony, determined that it would allow the challenged expert to testify "[b]ecause this is a bench trial and the Court is capable of accessing [sic] the credibility of a witness's expertise, determining what evidence is helpful and what weight the evidence should be given at the time testimony is heard... ."Fruge v. Augusta Barge Co., Civil Action No. 6:08-0010, 2009 WL 742310, at *2 (W.D. La. Mar. 19, 2009). Accordingly, that court determined that "a Daubert hearing is not necessary." Id This court found the same reasoning applicable here, given the parties' arguments regarding the motions in limine. Consequently, the court denied Defendants' motions in limine [DE-46; DE-49] to exclude the testimony of Dr. Neulicht and Captain Davis. As a result, the court did not reach Defendants' arguments regarding excluding the affidavits of those opinion witnesses.
B. Motions concerning the admissibility of Arthur Cockrell's written statement and diagram.
The court also considered Defendants' Motion in Limine to Admit the Written Statement and Diagram of Arthur Cockrell [DE-50] and Plaintiffs Motion in Limine to Preclude the Introduction into Evidence of any Portion of the USCG Report of Investigation, Portions of Report on Defendants' Expert Captain Murphy, and Limit the Testimony of Captain Murphy [DE-60]. Both of these motions concerned, in part, Title 46 of the United States Code, Section 6308. That statute is titled "Information barred in legal proceedings" and provides, in pertinent part:
Notwithstanding any other provision of law, no part of a report of a marine casualty investigation conducted under section 6301 of this title, including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence or subject to discovery in any civil or administrative proceedings, other than an administrative proceeding initiated by the United States.
46 U.S.C. § 6308(a). Courts have observed that "Congress enacted this statute to prevent the Coast Guard from becoming embroiled in private litigation resulting from marine accidents." In re Cozy Cove Marina, Inc., 521 F.Supp.2d 504, 507 (E.D. N.C. 2007) (citing Falconer v. Penn Mar. Inc., 397 F.Supp. 68, 70 (D. Me. 2005)).The parties' briefing on their respective motions raised the issue of whether a written statement and diagram prepared by Arthur Cockrell, which he prepared and later submitted to the United States Coast Guard ("USCG") as part of its investigation, as well as to his insurer, constitute "part of a report of a marine casualty investigation."
The court is of the view that the written statement of Arthur Cockrell and his hand-drawn diagram do not constitute a "part of a report or a marine casualty investigation, " as that term is used in 46 U.S.C. § 6308(a). Some courts have read the statute expansively, and determined that any part of report, regardless of whether it entailed "findings of fact, opinions, recommendations, deliberations, or conclusions" is rendered inadmissible. See In re Eternity Shipping, Ltd., 444 F.Supp.2d 347, 363 (D. Md. 2006) (determining that a transcript of an individual's interview with the Coast Guard, which was an exhibit to a report, was inadmissible); Falconer v. Penn Maritime, Inc., 397 F.Supp.2d 68, 70 (D. Me. 2005) (finding that all parts of a Coast Guard report, including photographs and notes of statements taken by a Coast Guard investigator, were inadmissible under the statute); In re Complaint ofCrosby Tugs, LLC, No. CIV.A.02 1125C/W, 2004 WL 5482859, at *1-2 (E.D. La. Aug. 16, 2005) (determining that a measurement taken by the Coast Guard of the depth of a body of water during an investigation and referenced in a report was inadmissible); In re Am. Milling Co., 270 F.Supp.2d 1068, 1075-75 (E.D. Mo. 2003) (finding the transcript of a Coast Guard investigatory hearing inadmissible), rev'din part on other grounds, 409 F.3d 1005 (8th Cir. 2005). The Coast Guard itself ostensibly agrees with a broad interpretation of the statute. See William R. Dorsey, III, Marine Casualty Investigations by the United States Coast Guard ad the National Transportation Board, 75 Tul. L. Rev. 1387, 1413 (2001) (noting that the Coast Guard considers "written statements, transcribed testimony, or documentary evidence obtained during an investigation... to be part and parcel of the report' to which the prohibition of admissibility in§ 6308 applies").
Other courts have taken a more narrow view of the statute. One court determined that photographs taken by a Coast Guard investigator were not part of the report. In re Danos & Curole Marine Contractors, Inc., 278 F.Supp.2d 783 (E.D. La. 2003). In that case, the court reasoned that "the photographs do not provide findings of fact, opinions, recommendations, deliberations nor conclusions, instead they merely illustrate the conditions of the objects depicted in the photos as they existed" on a certain date. Id. at 785. The court recognized that the "list provided in 46 U.S.C. § 6308(a) is illustrative and not exclusive, " but it nevertheless declined to apply an expansive reading of the statute. Id. Similarly, a court in the Southern District of Florida found that a defendant could not rely on 46 U.S.C. § 6308(a) to withhold in discovery documents or other materials that it produced to the Coast Guard in furtherance of the Coast Guard's investigation. Guest v. Carnival Corp., 917 F.Supp.2d 1242, 1243-47 (S.D. Fla. 2012). The Carnival court reasoned that when the statute is read in conjunction with 46 C.F.R. § 4.07-l(b), which provides that "[t]he investigations of marine casualties and accidents and the determinations made are for the purpose of taking appropriate measure for promoting the safety of life and property at sea, and are not intended to fix civil or criminal responsibility, " it "is clear that the scope of the statutory protection is limited to the Coast Guard's investigative report, and anything included within that report, in order to avoid having the Coast Guard's investigative report and its conclusions influence the litigation process." Id. at 1244-45. The Carnival court viewed the § 6308(a) as extending to "the specific Coast Guard investigative report and, arguably, any other Coast Guard document produced in the course of its investigation that contains any findings of fact, opinion, or conclusions" but not "a litigant's own documents." Id.
The court agrees with the more narrow interpretation of the statute, and finds that Arthur Cockrell's written statement and diagram do not constitute "part of a report of a marine casualty investigation" within the meaning of§ 63 08. For that reason, and for the same reasons that the court denied the Defendants' motions to exclude the opinion witnesses' testimony, the court denied Plaintiffs Motion in Limine to Preclude the Introduction into Evidence of any Portion of the USCG Report oflnvestigation, Portions of Report on Defendants' Expert Captain Murphy, and Limit the Testimony of Captain Murphy [DE-60].
As to Defendants' motion to admit the Arthur Cockrell's written statement and diagram, the court recognized that Defendants had to cross an additional hurdle: Federal Rule of Evidence 807. The court expressed its reservations that Mr. Cockrell's statement "has equivalent circumstantial guarantees of trustworthiness, " as required by Rule 807. Nevertheless, the court allowed Plaintiffs motion to admit the statement and drawing [DE-50], and will determine what weight, if any, should be accorded to that evidence after hearing it.
C. Remaining motions
As to the remaining motions argued at the hearing, the court denied Plaintiffs Motion in Limine to Exclude Evidence of Collateral Source Payments [DE-57] and Defendants' Motion in Limine to Exclude Evidence ofLost Future Wages and Lost Earning Capacity [DE-84], and again explained that it would hear the evidence and consider what weight, if any, should be given to it.
The court also allowed Plaintiffs Motion to Amend Pretrial Order Based on Newly Discovered Evidence [DE-80] and denied Defendants' Motion in Limine to Exclude the Testimony and Affidavit of Luther Terry Yeomans [DE-82]. The parties' cross-motions concerned Plaintiffs last-minute discovery of a North Carolina Department of Transportation employee, Luther Terry Yeomans, to whom Arthur Cockrell allegedly admitted fault regarding the collision between the TONI SEA and the CARTERET. The court believes that Rule 16 governs the Plaintiffs motion, and that rule provides in pertinent part:
(d) Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.
(e). Final Pretrial Conference and Orders. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court ...