Published: June 23, 2015
By: Frederick B. Goldsmith
In Paster v. Ingram Barge Company, 2015 WL 3680700 (E.D. La. June 12, 2015), deckhand Tommy Paster sued Ingram, his employer and the owner/operator of the towboat, the M/V O.A. FRANKS, alleging he seriously injured his back while standing on the edge of a barge and using a three to four-foot pole with a hook attached to it to grab equipment from the deck of the towboat located several feet below. After hooking the equipment, Paster was able to pull it up to the barge, unassisted. And while he was able to work the rest of the day, Paster claims the next day he awoke with pain radiating from his back down his leg — classic signs of a vertebral disc injury. When he was lifting the equipment the day before, Paster claims he felt a “twinge” in his back. Paster’s attorney made claims against Ingram in a federal court lawsuit under the Jones Act, for negligence, and under the general maritime law, for unseaworthiness.
Paster’s lawyer hired a liability expert, Robert E. “Bob” Borison, to opine on the cause of Paster’s accident. In his report, Borison attributed the accident to, among other things, Ingram’s failure to have conducted essentially a job hazard analysis of the lifting operation in question, and failure to have properly trained Paster on proper lifting techniques in these circumstances. The Court (U.S. District Judge Sarah S. Vance) summarized Borison’s three principal opinions as follows:
“Taken together, Borison’s expert testimony seeks to establish that (1) plaintiff’s work assignment required him to assume an unsafe lifting position, thereby causing his injury, (2) a reasonably competent safety professional would have assigned more manpower or mechanical power to assist plaintiff with the lift, and (3) defendant failed to adequately train plaintiff on proper lifting techniques under the circumstances.”
Ingram filed a pre-trial motion to strike Borison as an expert, to keep the jury from hearing his testimony. Ingram argued Borison’s opinions were based on insufficient facts, misleading, and would not be helpful to the jury. Ingram did not attack Borison’s qualifications, just his opinions.
In addressing Ingram’s motion, Judge Vance first ruled that “Borison’s proposed testimony is not within the scope of a layman’s common experience. Contrary to the defendant’s assertions, Borison’s testimony is not simply that ‘someone should not lift something that is too big or too awkward for them to handle.’ Instead, Borison evaluates the specific posture plaintiff allegedly assumed, and opines that defendant failed to provide the necessary manpower or mechanical assistance to allow plaintiff to make the lift safely. Borison is undoubtedly more familiar with the tools plaintiff was using, the equipment plaintiff was lifting, and the safety risks associated with working on barges than the average layperson. Moreover, as an instructor ‘in the proper method of manual material handling,’ Borison is qualified to opine about the appropriate or customary level of training in the maritime industry.” So, the Court found that, “Borison’s experience and specialized knowledge regarding maritime safety and industry custom will assist the trier of fact in determining whether [Ingram’s] conduct fell beneath the applicable standard of care in this case.”
Judge Vance was also unpersuaded by Ingram’s argument that Borison’s opinions were misleading or factually deficient. As to Ingram’s criticism of Borison’s report insofar as it, in Ingram’s counsel’s words, “creates negligent-sounding section titles that imply Ingram did something wrong, and then declines to identify how Ingram actually merited his condemnation or discusses something entirely different …,” the Court found Borison’s report’s section titles were not evidence and the defendant’s argument “exalts form over substance and erroneously focuses on Borison’s section headings and typeface rather than on the content of Borison’s report.” Judge Vance noted that Borison had written in his report that Ingram had caused plaintiff to assume an unsafe lifting position, failed to allocate sufficient resources to allow plaintiff to make the lift safely, and failed to adequately train plaintiff.”
Finally, in ruling that Borison would be permitted to testify before the jury as to each of the opinions appearing in his report, Judge Vance wrote:
“Although the Court agrees that Borison’s report is not the model of clarity, defendant’s cavils about Borison’s headings do not render Borison’s underlying opinions inadmissible. Moreover, Borison states that he bases his opinions on an interview with plaintiff, defendant’s records, and thirty years of experience in the industry. To the extent defendant disputes the underlying facts or disagrees with Borison’s interpretation of those facts, defendant may cross-examine Borison at trial.”