Maritech Marine Services, LLC v. Bay Welding Services, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARITECH MARINE SERVICES,
LLC,
Plaintiff,
v.
BAY WELDING SERVICES, INC.,
Defendant.
Case No. 3:20-cv-00231-SLG
ORDER RE MOTION TO STRIKE ERIC ENGEBRETSEN AND MICHAEL
STOCKBURGER AS EXPERT WITNESSES
Before the Court at Docket 35 is Plaintiff Maritech Marine Services, LLC’s
(“Maritech”) Motion to Strike Eric Engebretsen and Michael Stockburger as Expert
Witnesses. Defendant Bay Welding Services, Inc. (“Bay Weld”) responded in
opposition at Docket 39, to which Plaintiff replied at Docket 42. Oral argument was
not requested and was not necessary to the Court’s decision.
BACKGROUND
This action stems from the alleged defective repair and modification of a 44-
foot aluminum catamaran, the M/V LIGHTNING, owned by Maritech, a vessel
chartering company based in Anchorage, Alaska. Maritech alleges that Bay Weld,
a custom boat manufacturer based in Homer, Alaska, negligently retrofitted the
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Case No. 3:20-cv-00231-SLG, Maritech Marine Services, LLC v. Bay Welding Services, Inc.
Order re Motion to Strike Eric Engebretsen and Michael Stockburger as Expert Witnesses
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vessel with a defective control system, among other issues, which resulted in the
vessel’s allision with a fuel dock in Cordova, Alaska.1
On October 22, 2021, Bay Weld filed two affidavits, one from Eric
Engebretsen and one from Michael Stockburger, in support of its opposition to
Maritech’s September 17, 2021 motion for summary judgment.2 Mr. Engebretsen
is the owner and operator of Bay Weld.3 Mr. Stockburger was employed by Bay
Weld in the fall of 2019 to assist in the renovation of the vessel.4 Each affiant
stated that he was competent to be an expert witness in this case and purported
to offer expert opinions.
Maritech now moves to exclude Mr. Engebretsen and Mr. Stockburger as
expert witnesses on two separate grounds, which are discussed below.
DISCUSSION
I. Mr. Engebretsen’s and Mr. Stockburger’s Expertise
Maritech asserts that both Mr. Engebretsen and Mr. Stockburger are not
qualified to serve as experts under Federal Rule of Evidence 702. In particular,
Maritech contends that both individuals qualify themselves as experts based only
1 See generally Docket 1 (Compl.).
2 See Docket 29 (Opp’n); Docket 17 (Mot. for Summary Judgment).
3 Docket 30 at 1, ¶ 1 (Engebretsen Aff.).
4 Docket 31 at 2, ¶ 2 (Stockburger Aff.).
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Case No. 3:20-cv-00231-SLG, Maritech Marine Services, LLC v. Bay Welding Services, Inc.
Order re Motion to Strike Eric Engebretsen and Michael Stockburger as Expert Witnesses
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upon their employment histories, which it maintains is insufficient for purposes of
Rule 702.5
Bay Weld responds that Rule 702 permits expert qualification based on
employment history and that “both Engebretsen and Stockburger have decades of
experience in the vessel repair, retrofit, and renovation industry.”6
Under Rule 702, a witness may be qualified as an expert by “knowledge,
skill, experience, training, or education.” “[T]he text of Rule 702 expressly
contemplates that an expert may be qualified on the basis of experience.”7 “In
certain fields, experience is the predominant, if not sole, basis for a great deal of
reliable expert testimony.”8 Rule 702 “contemplates a broad conception of expert
qualifications” and is “intended to embrace more than a narrow definition of
qualified expert.”9
Contrary to Maritech’s assertions, Rule 702 clearly permits a person to be
qualified as an expert on the basis of that person’s experience alone. In this
5 Docket 35 at 5–7 (Mot.) (“A person is not qualified to be an expert by mere virtue of their
employment history.”).
6 Docket 39 at 3–6 (Opp’n) (“Having overseen and completed Bay Weld’s work on the M/V
LIGHTNING, they are also uniquely qualified to testify regarding these issues in the instant
matter.”).
7 Fed. R. Civ. P. 702 advisory committee’s note to 2000 amendment.
8 Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004) (quoting
Fed. R. Civ. P. 702 advisory committee’s note to 2000 amendment).
9 Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994).
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regard, Mr. Stockburger has over a decade of experience in “repair[ing],
retrofit[ting], and renovat[ing]” maritime vessels;10 and Mr. Engebretsen has
“decades of experience . . . in the vessel manufacturing, repair, and remodeling
industry.”11 Maritech does not contest either individual’s employment history or
experience; and the Court finds it sufficient for purposes of Rule 702.12
Accordingly, the Court will not exclude Mr. Engebretsen’s and Mr. Stockburger’s
affidavits based on an asserted lack of expertise when considering the summary
judgment motion.
II. Mr. Engebretsen’s Financial Conflict of Interest
Maritech also asserts that the Court should exclude Mr. Engebretsen as an
expert witness under its inherent powers because of his financial conflict of interest
as the owner and operator of Bay Weld. Citing principally to Perfect 10, Inc. v.
Giganews, Inc.,13 Maritech asserts that permitting Mr. Engebretsen, “who has a
direct financial stake in the outcome of [this] case,” to testify as an expert witness
10 Docket 31 at 1, ¶ 1 (Stockburger Aff.).
11 Docket 30 at 1–2, ¶ 1 (Engebretsen Aff.).
12 See, e.g., Oswalt v. Resolute Indus., Inc., Case No. C08-1600MJP, 2012 WL 10785726, at *1
(W.D. Wash. Feb. 9, 2012) (“At the very least, Ms. Mazons’ background as owner of a marine
service company, where she completed repairs of electrical systems and heating systems on
pleasure craft, qualifies her by experience . . . .”).
13 Case No. CV 11-07098-AB (SHx), 2014 WL 10894452 (C.D. Cal. Oct. 31, 2014).
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would “compromise[] confidence in the legal system and is therefore contrary to
public policy.”14
Bay Weld responds that under Ninth Circuit precedent, Federal Rule of
Evidence 702 “establishes that the issue of an expert’s alleged bias or financial
conflict go to the credibility of the expert’s testimony, not to its admissibility.”15 Bay
Weld further asserts that Perfect 10 “is distinguishable for several reasons and its
central holding has not been adopted in this circuit.”16
In Perfect 10, the District Court for the Central District of California excluded
the testimony of Perfect 10’s CEO not under Rule 702, but under its “separate,
inherent authority to exclude expert testimony that would be against public
policy.”17 In reaching this decision, the court reasoned both that the CEO had “the
only direct financial stake in the outcome of this litigation” and that he “almost
certainly lack[ed] the specialized knowledge to qualify as an expert.”18
14 Docket 35 at 3–5 (Mot.).
15 Docket 39 at 6–7 (Opp’n) (citing United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir.
2001)).
16 Docket 39 at 6 (Opp’n).
17 2014 WL 10894452, at *5 (distinguishing two other cases because they did not “address[] a
district court’s separate, inherent authority to exclude expert testimony that would be against
public policy”).
18 Id. at *5–6.
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Case No. 3:20-cv-00231-SLG, Maritech Marine Services, LLC v. Bay Welding Services, Inc.
Order re Motion to Strike Eric Engebretsen and Michael Stockburger as Expert Witnesses
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The Court recognizes that Mr. Engebretsen has a financial interest in the
outcome of this litigation. However, Perfect 10 is distinguishable because Mr.
Engebretsen does not “almost certainly” lack the specialized knowledge relevant
here, for the reasons discussed above.19 Further, the integrity of the adversarial
process and public confidence in the legal system can be protected by Plaintiff’s
opportunity to cross examine Mr. Engebretsen about his financial interest, with the
ultimate question of credibility to be determined by the trier of fact.20 Accordingly,
the Court declines to exercise its inherent powers to strike Mr. Engebretsen’s
affidavit and to preclude his testimony as an expert witness at trial at this time
because it does not find that excluding Mr. Engebretsen’s testimony would
advance important public policies regarding the judicial process.
CONCLUSION
In light of the foregoing, Maritech’s Motion to Strike Eric Engebretsen and
Michael Stockburger as Expert Witnesses at Docket 35 is DENIED WITHOUT
PREJUDICE to renew the motion at trial after the voir dire of each witness as to
that witness’s qualifications.
DATED this 14th day of January, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
19 See supra Section I.
20 Abonce-Barrera, 257 F.3d at 965 (“Generally, evidence of bias goes toward the credibility of a
witness, not his competency to testify, and credibility is an issue for the jury.”).
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