Maritime Expert Witness’s Testimony Questioned for Speculation

An employee of a subcontractor fell to his death down an elevator trunk while working on repairs on a warship.

Zach Barreto

Written by
— Updated on January 7, 2022

Maritime Expert Witness’s Testimony Questioned for Speculation

Court: United States District Court for the Southern District of California
Jurisdiction: Federal
Case Name: Ocampo v. United States
Citation: 2019 U.S. Dist. LEXIS 116618

The United States contracted NASSCO to work on repairs and maintenance. NASSCO subcontracted part of the work. The plaintiff claimed the defendants’ negligence resulted in the deceased’s death. The United States retained a maritime expert witness to opine on the causation of the fall. 

Facts

The defendant United States contracted the defendant National Steel and Shipbuilding Company (NASSCO) to conduct repairs and maintenance on warships. The deal included the removal of the non-skid floor on the elevator platform on the USS Boxer. The defendant NASSCO subcontracted to get the work done. The deceased, a worker of the subcontractor, fell through an unguarded opening at the rear end of the elevator frame.

The plaintiff sought damages for the defendants’ negligence. The plaintiff claimed the defendants’ negligence resulted in the deceased slipping off the unguarded side of the elevator platform. The deceased fell nearly 98 feet down the elevator trunk while operating on the warship in navigable waters. The defendant United States filed a complaint and cross-claim against the defendant NASSCO. The United States alleged negligence and contribution charges, and violation of an express maritime contract. The United States sought to provide the testimony of a maritime expert witness on the causation of the fall.

The State’s Maritime Expert Witness

The maritime expert witness was a naval engineer, naval architect, and forensic expert. He testified that he had 20 years of experience in the construction of navy ships or contracts for the navy. As such, this experience gave him an understanding of the relationship between the prime contractor and the subcontractor and the prime contractor and the government. He also had extensive experience serving as a contracting officer in the navy and operating for NASSCO.

The expert witness gave the following views as to the cause of the fall:

  1. The deceased fell off the cargo elevator because his employer and the principal contractor did not ensure that the fall protection of OSHA was in place as required by Title 29, Code of Federal Regulations Part 1915, OSHA Shipyard Employment Standards
  2. When the navy signed over the cargo elevator to NASSCO, the navy’s safety stanchions and chains were in operation on the elevator frame, alerting NASSCO of the imminent collapse danger that NASSCO was expected to eliminate
  3. The navy contractually required NASSCO to conform with the fall safety provisions on the transfer of the elevator. Title 29 excludes naval operations and the construction of naval vessels from the application of OSHA regulations

Arguments

NASSCO contended that the maritime expert witness’s opinions were based on speculation and conjecture. NASSCO insisted that the expert’s experience working in or around navy vessels was more than 30 years ago. Additionally, the defendant NASSCO argued the expert’s experience was unrelated to the subject matter of causation. NASSCO claimed it was unclear how the interpretation of maritime contractual relationships was likely to give rise to any question of causation. Moreover, NASSCO argued that the expert has no safety regulations and no human factors experience. NASSCO claimed the expert’s opinions on causation were inadmissible. NASSCO argued the expert did not use reliable methodology or base his opinion on sufficient facts or data.

The United States argued the expert was qualified to give expert opinions in this maritime case. According to the United States, the expert possessed the necessary training and skill. Furthermore, he had direct personal knowledge and experience in overseeing ship repair contracts. Additionally, the expert had worked in the NASSCO shipyard as a contracting officer overseeing ship repairs. The United States also argued that the expert’s views were based on a reliable basis for this maritime dispute.

Discussion

The court found that the expert’s experience gave him an extensive understanding of the conduct of work on a ship. The court observed that his experience allowed him to understand the relationship between the United States and the prime contractor. Additionally, the expert had an understanding of the relationship between the prime contractor and the subcontractors. The subcontractors sought relief as a result of an accident during ship repairs and the obligations of the various parties. The court also noted the expert testified that he used a scientific method. The maritime expert witness analyzed the possible causes of the crash. The expert then removed those that didn’t prove to be accurate as per the facts. He relied on his research notes, the trial transcripts, the Admiralty Letter Report, and his observation on board the vessel.

Ruling

The court found, given his experience, the expert’s opinion was based on sufficient facts and data, and denied NASSCOM’s motion.

Key Takeaways for Experts

When opining about causation, it’s important to rely on your own research and observations. In this case, NASSCO argued the expert’s opinions were based on speculation and conjecture. However, the court noted that the expert used a scientific method when testifying about the possible causes of the crash. Your experience should support what you’re opining about. But also, you should base your opinions on your own observations and research along with other documents provided.

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