Garcia v. Vitus Energy, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CHRISTINA GARCIA,
Plaintiff,
vs.
VITUS ENERGY, LLC,
Defendant.
Case No. 3:20-cv-00249-JMK
ORDER GRANTING IN PART
DEFENDANT’S MOTION IN
LIMINE
Before the Court at Docket 39 is Defendant Vitus Energy, LLC’s (“Vitus”)
Motion in Limine to Exclude the Testimony of James T. Cushman (“the Motion”). Plaintiff
Christina Garcia responded in opposition at Docket 44. Vitus replied at Docket 48. For
the foregoing reasons, Vitus’s Motion in Limine is GRANTED IN PART.
I. 	BACKGROUND
The facts of this case are summarized in this Court’s Order Denying
Plaintiff’s First Motion for Sanctions at Docket 53, incorporated by reference herein. 	In
the present motion, Vitus seeks to exclude certain opinions contained in Plaintiff’s liability
expert Captain James T. Cushman’s expert report.1 	Captain Cushman is a retired Coast
1 Docket 39.
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Guard captain with seventeen years of sea-duty experience.2 Throughout his career in the
maritime industry, Captain Cushman has served as a Commanding Officer/Master of three
vessels in Alaska.3 He also has served as a Safety & Training Officer, Port Captain, and
Relief Master in the cruise ship industry and has held various positions in inland, coastal,
ocean, and ship assist towing.4 	Captain Cushman has written two Safety Management
Systems for two companies and has served as a Regulatory Compliance Auditor for a
towing 	company 	operating 	in 	Alaska.5 	Captain 	Cushman 	currently 	serves 	as 	an
independent maritime consultant in ports and waterways safety and management, a marine
mishap analyst, and an expert witness.6 Plaintiff retained Captain Cushman as an expert
in this matter to testify regarding Vitus’s liability, relying on his “education, training,
experience, and skill” to render his opinions.7
II. 	LEGAL STANDARD
A motion in limine is “a procedural mechanism to limit in advance testimony
or evidence in a particular area.”8 	A district court’s power to rule on motions in limine
arises out of its “inherent authority to manage the course of trials.”9 Rulings on motions
in limine are preliminary in nature, as a “district court may change its ruling at trial because
2 Docket 44 at 5; Docket 44-11 at 3.
3 Docket 44 at 5; Docket 44-11 at 3.
4 Docket 44 at 7; Docket 44-11 at 3.
5 Docket 44-11 at 3–4.
6 Docket 44-12 at 1.
7 Docket 31 at 7.
8 United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009).
9 Luce v. United States, 469 U.S. 38, 41 n.4 (1984).
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testimony may bring facts to the district court’s attention that it did not anticipate at the
time of its initial ruling.”10
Vitus moves in limine to exclude certain opinions from Plaintiff’s expert
Captain James T. Cushman’s report and to preclude Captain Cushman from testifying to
the same.11 	The party who is the proponent of the expert has the burden of proving
admissibility.12 	The admissibility of expert opinions is controlled by Federal Rule of
Evidence 702, which provides
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.
A trial court must ensure that expert testimony is “relevant to the task at hand” and “rests
on a reliable foundation.”13 	“Expert opinion testimony is relevant if the knowledge
underlying it has a valid connection to the pertinent inquiry.”14 “The reliability inquiry is
‘a flexible one.’”15 	Expert testimony is reliable if “the knowledge underlying it has a
10 United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing id. at 41–42).
11 Docket 39.
12 Lust By & Through Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996).
13 Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert v. Merrell Dow
Pharms, Inc., 509 U.S. 579, 597 (1993)).
14 Id. at 565.
15 Specter v. Texas Turbine Conversions, Inc., 505 F. Supp. 3d 936, 943 (D. Alaska 2020)
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)) reconsideration denied by
Specter v. Rainbow King Lodge, Inc., No. 3:17-cv-00194-TMB, 2020 WL 7396919 (D. Alaska
Dec. 16, 2020).
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reliable basis in the knowledge and experience of the relevant discipline.”16 Evidence is
unreliable if it is based on “subjective belief and unsupported speculation.”17 	The
requirements of Rule 702 are to be applied liberally.18 	The Ninth Circuit has cautioned
that “[s]haky but admissible evidence is to be attacked by cross examination, contrary
evidence, and attention to the burden of proof, not exclusion.”19
III. 	DISCUSSION
Vitus moves in limine to exclude or limit the testimony of Plaintiff’s expert
Captain James T. Cushman.20 	Specifically, Vitus seeks to exclude Captain Cushman’s
opinions related to (1) Mr. Dewitt’s alcohol intoxication; (2) legal issues, including
negligence, vicarious liability, and unseaworthiness; (3) the condition of the skiff;
(4) Vitus’s training; and (5) Mr. Dewitt’s decision-making process.21 The Court addresses
the admissibility of each of these opinions in turn.
A. 	Alcohol-Related Opinions
In his expert report, Captain Cushman offered several opinions related to
Mr. Dewitt’s level of intoxication on the night of October 19, 2018.22 Specifically, Captain
Cushman opined that Mr. Dewitt “would have been determined intoxicated if tested, but in
16 Primiano, 598 F.3d at 565 (quoting United States v. Sandoval-Mendoza, 472 F.3d 645,
654 (9th Cir. 2006)).
17 Daubert, 509 U.S. at 590.
18 StarStone Nat’l Ins. Co. v. Indep. Cities Risk Mgmt. Auth., et al., No. CV 19-1130 PA
(Ex), 2020 WL 6143608, at *1 (C.D. Cal. Aug. 19, 2020).
19 Primiano, 598 F.3d at 564.
20 Docket 39.
21 Id. at 7–17.
22 Docket 44-11 at 5.
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the least, his mental and physical capabilities diminished significantly”23 and that “[d]ue
to his consumption of alcohol that evening, Captain DeWitt’s mental and physical ability
to safely navigate the skiff were impaired.”24 	Vitus argues that Captain Cushman’s
opinions are unreliable and based solely on his personal speculation, as he lacks the
expertise to testify as to whether Mr. Dewitt was impaired by alcohol on the night of
October 19, 2018.25 	The Court agrees. 	As an expert on the maritime industry, Captain
Cushman does not have any scientific, specialized, or technical knowledge related to
alcohol intoxication, or the effects of alcohol on the body.26 	In addition to the lack of
subject-matter expertise, Captain Cushman also admitted in his deposition testimony that
he did not know how much alcohol Mr. Dewitt consumed on the night of October 19,
2018.27 The evidence in the record shows that Plaintiff bought Mr. Dewitt one beer prior
to the grounding.28 In her opposition, Plaintiff advances a series of substantive arguments
regarding Mr. Dewitt’s intoxication, but fails to explain how Captain Cushman could
discern Mr. Dewitt’s impairment level based on the available facts.29
Captain Cushman’s alcohol-related opinions lack the requisite reliability for
expert opinions.30 	Without a sufficient factual basis to determine how much alcohol
Mr. Dewitt consumed, and without the expertise to infer that a certain amount of alcohol
23 Id.
24 Id. at 9–10.
25 Docket 39 at 7–10.
26 Docket 44 at 5–9 (describing Captain Cushman’s qualifications).
27 Docket 39 at 10; Docket 40-6 at 46.
28 Docket 44-5 at 4; Docket 44-15 at 36.
29 Docket 44 at 11–14.
30 See Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).
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would impair Mr. Dewitt’s mental and physical capabilities, Captain Cushman’s alcohol-
related 	opinions 	are 	impermissibly 	based 	on 	“subjective 	belief 	or 	unsupported
speculation.”31 	The Court therefore GRANTS Vitus’s Motion in Limine as to Captain
Cushman’s opinions that Mr. Dewitt was impaired by alcohol on the night of the
grounding.
B. 	Legal Conclusions
Vitus moves in limine to exclude Captain Cushman’s opinions pertaining to
the legal issues of negligence, vicarious liability, and unseaworthiness.32 Captain Cushman
offers opinions that both Vitus and Mr. Dewitt were negligent, and that the skiff was
unseaworthy.33 	Under 	Federal 	Rule 	of 	Evidence 	704(a), 	expert 	testimony 	is 	not
objectionable solely “because it embraces an ultimate issue”; however, “an expert witness
cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of
law.”34 The reasoning behind this prohibition is that “when an expert undertakes to tell the
jury what result to reach, this does not aid the jury in making a decision, but rather attempts
to substitute the expert’s judgment for the jury’s.”35
Plaintiff contends that Captain Cushman’s opinions are not legal conclusions
on the ultimate issues of law in this case; he merely uses language “couched in legal terms”
31 StarStone Nat’l Ins. Co. v. Indep. Cities Risk Mgmt. Auth., No. CV 19-1130 PA (Ex),
2020 WL 6143608, at *4 (C.D. Cal. Aug. 19, 2020) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 589 (1993)).
32 Docket 39 at 10–12.
33 Id. at 12; Docket 44-11 at 9–11.
34 United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017) (emphasis in original).
35 Id. (quoting United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (emphasis in
original)); see also StarStone National Insurance Co., 2020 WL 6143608, at *1.
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and “incorporate[s] legal assumptions” in his analysis.36 	Plaintiff argues that, because
Captain 	Cushman 	does 	not 	attempt 	to 	define 	negligence, 	vicarious 	liability, 	and
unseaworthiness, his opinions on these subjects do not improperly usurp the role of the
jury.37 The Ninth Circuit in Hangarter v. Provident Life & Accident Insurance Co. found
an expert’s opinion admissible because, while the expert’s opinion that “Defendants
deviated from industry standards supported a finding that they acted in bad faith, [the
expert] never testified that he had reached a legal conclusion that Defendants actually acted
in bad faith (i.e., an ultimate issue of law).”38 In that case, the expert’s references to the
law were “ancillary to the ultimate issue.”39
Captain Cushman’s opinions that Mr. Dewitt and Vitus were “negligent in
[their] actions” are legal conclusions on the ultimate issues of law in this case and must be
excluded.40 Mr. Dewitt’s negligence and Vitus’s direct and vicarious negligence are not
“ancillary” issues in this matter; rather, these issues strike at the heart of exactly what the
trier of fact will be asked to decide. 	The Court therefore GRANTS Vitus’s Motion in
Limine as to Captain Cushman’s opinions that Mr. Dewitt and Vitus were negligent.
Regarding Captain Cushman’s opinion that Mr. Dewitt should be considered
“on duty” at the time of the grounding, the Court does not find that this opinion is an
improper legal conclusion on an ultimate issue of law.41 	Captain Cushman offered his
36 Docket 44 at 14, 18.
37 Id. at 14–15.
38 373 F.3d 998, 1016 (9th Cir. 2004).
39 Id. at 1017.
40 Docket 44-11 at 9–11.
41 Id. at 10.
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opinion on the scope of a captain’s duties based on his experience as a captain.42 While
this opinion may be relevant to the issue of whether Mr. Dewitt was acting within the scope
of his employment at the time of the grounding, the opinion stops short of offering an
impermissible legal conclusion that Vitus is vicariously liable for Mr. Dewitt’s actions.
Vitus’s Motion in Limine as to Captain Cushman’s opinion that Mr. Dewitt was on duty at
the time of the grounding is DENIED WITHOUT PREJUDICE.
Finally, Vitus seeks to exclude Captain Cushman’s opinion that the skiff was
unseaworthy. Vitus is correct that unseaworthiness is its own cause of action and Plaintiff
has not brought a claim based on the doctrine of unseaworthiness.43 	Because the legal
doctrine of unseaworthiness is not at issue in this case, Captain Cushman’s opinions
regarding unseaworthiness do not usurp the role of the jury in deciding the ultimate issues.
Any jury confusion resulting from Captain Cushman’s definition of seaworthiness may be
mitigated by thorough cross examination. 	The Court therefore DENIES WITHOUT
PREJUDICE 	Vitus’s 	Motion 	in 	Limine 	Regarding 	Captain 	Cushman’s 	opinions
pertaining to the seaworthiness of the skiff.
42 See StarStone Nat’l Ins. Co. v. Indep. Cities Risk Mgmt. Auth., No. CV 19-1130 PA
(Ex), 2020 WL 6143608, at *4 (C.D. Cal. Aug. 19, 2020) (denying motion in limine and finding
that expert with decades of experience in the reinsurance industry could offer opinions about the
custom and practice in the reinsurance industry).
43 Docket 39 at 11 n.1; see also Arvidson v. Dillingham Corp., 462 F.2d 1, 4 (9th Cir.
1972). As Vitus correctly points out in its Motion, Plaintiff is precluded from bringing a claim
based on unseaworthiness because the doctrine of unseaworthiness is limited to seamen and
maritime workers and cannot be extended to passengers. See Yamaha Motor Corp. v. Calhoun,
516 U.S. 199, 202 (1996).
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C. 	Opinions on the Condition of the Skiff
Vitus moves to exclude Captain Cushman’s opinion that Vitus “provided
JACKIE M an ill-equipped skiff to complete it [sic] intended purpose, and not in
accordance 	with 	industry 	standards 	and 	the 	Navigation 	Rules 	and 	Regulations
Handbook/COLREGS.”44 Vitus contends that Captain Cushman’s opinion regarding the
condition of the skiff is unreliable because (i) Captain Cushman never personally inspected
the skiff at issue in this case or any other skiff used by any fuel and barge tug company;
(ii) he has no personal experience working in shallow draft fuel and barge operations; and
(iii) he testified that he was unsure whether the photograph he examined while preparing
his opinion depicted the correct skiff.45
The Federal Rules of Evidence set forth “a broad conception of expert
qualifications.”46 An expert need not have personal experience in an area to offer testimony
pertaining to that area.47 “A lack of specialization as to the specific issues on which the
expert opines is an issue of weight not admissibility, as long as the testimony remains
‘within the reasonable confines of [the expert’s] subject area.’”48 Captain Cushman has
ample experience working in the maritime industry, including working on and operating
44 Docket 39 at 12; Docket 44-11 at 10.
45 Docket 39 at 13.
46 United States for use & benefit of Midstate Equip., Inc. v. Ahtna Constr. & Primary
Prod., LLC, No. 4:19-cv-00010-JWS, 2020 WL 7050170, at *2 (D. Alaska Nov. 23, 2020)
(quoting Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)).
47 See Abaxis, Inc. v. Cepheid, No. 10-CV-02840-LHK, 2012 WL 2979019, at *3 (N.D.
Cal. July 19, 2012) (“Rule 702 imposes no requirement that experts have personal experience in
an area to offer admissible testimony relating to that area”).
48 Ahtna Construction & Primary Products, 2020 WL 7050170, at *2 (quoting Avila v.
Willits Envtl. Remediation Trust, 633 F.3d 828, 839 (9th Cir. 2011)).
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sounding skiffs.49 Applying this experience, as well as his knowledge of industry standards
and safety management systems, he analyzed the photograph of the skiff and concluded
that it was ill-equipped for its intended purpose.50 Vitus offers no explanation as to why
Captain Cushman’s lack of experience with skiffs used by fuel and barge tug companies in
rural Alaska renders his methodology unreliable.51 Vitus does not persuade the Court that
there is “too great an analytical gap between [Captain Cushman’s] experience and his
conclusion” to render this testimony admissible.52 	The apparent weaknesses in Captain
Cushman’s assessment of the skiff, as well as the fact that Captain Cushman expressed
confusion about whether the photograph he analyzed depicted the correct skiff, go to the
weight of his testimony, rather than its admissibility. The purported shakiness of Captain
Cushman’s opinion regarding the condition of the skiff thus is best exposed on cross
examination, not by exclusion.53 Vitus’s Motion to exclude Captain Cushman’s opinion
about the condition of the skiff is DENIED WITHOUT PREJUDICE.
D. 	Opinion on Vitus’s Training
Captain Cushman opined that Vitus “failed to adequately train its employees
on company policies, including the company’s [Safety Management System] and its
functionality requirements” and that Vitus “failed to indoctrinate its employees on the
importance and requirements of 46 CFR Part 4 and other applicable Coast Guard
49 Docket 44 at 20; Docket 44-15 at 8.
50 Docket 44-15 at 24–25.
51 See Docket 39 at 14–15.
52 See United States v. Valencia-Lopez, 971 F.3d 891, 901 (9th Cir. 2020) (internal
quotation omitted).
53 See Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).
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regulations.”54 Vitus asserts these opinions are irrelevant because they have no bearing on
whether Vitus’s purported failure to train its employees is causally related to Plaintiff’s
injuries.55
Expert testimony is relevant if it assists the trier of fact in understanding
evidence or in determining a fact in issue.56 As such, “[e]xpert testimony is inadmissible
if it concerns factual issues within the knowledge and experience of ordinary lay people
because it would not assist the trier of fact in analyzing the evidence.”57 The adequacy of
a tugboat crew’s training regarding Coast Guard regulations and their employer’s Safety
Management System is not within the purview of ordinary lay people. Captain Cushman’s
opinion 	regarding 	Vitus’s 	training 	is 	helpful 	to 	a 	jury 	deciding 	whether 	Vitus’s
implementation of its training program was negligent. 	Although Captain Cushman’s
opinion does not establish a causal connection between Vitus’s training and plaintiff’s
injuries, this does not render Captain Cushman’s opinion inadmissible. 	“Reliable expert
testimony need only be relevant, and need not establish every element that the plaintiff
must prove, in order to be admissible.”58 	Vitus’s argument that its allegedly inadequate
training did not cause Plaintiff’s injuries presents a dispute best addressed on summary
judgment. The Court DENIES WITHOUT PREJUDICE Vitus’s Motion in Limine with
respect to Captain Cushman’s opinions regarding Vitus’s employee training.
54 Docket 44-11 at 10–11.
55 Docket 39 at 15–16.
56 Daubert, 509 U.S. at 591.
57 Cosmos Granite (W.), LLC v. Minagrex Corp., No. C19-1697RSM, 2021 WL 5140226,
at *6 (W.D. Wash. Nov. 4, 2021).
58 Primiano, 598 F.3d at 565.
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E. 	Opinions on Mr. Dewitt’s State of Mind
Finally, 	Vitus 	moves 	to 	exclude 	Captain 	Cushman’s 	opinion 	that
Mr. Dewitt’s “decisions and actions were of commission versus omission. 	Based on his
experience he knew he was taking a risk for personal reasons, yet he elected to take the risk
– in other words, he knew better, but did it anyway . . . .”59 	Vitus asserts that Captain
Cushman is speculating as to Mr. Dewitt’s state of mind and, to the extent Captain
Cushman is offering an opinion as to what Mr. Dewitt knew, this opinion is unhelpful to
the jury.60 Plaintiff, in opposition, posits that Captain Cushman’s testimony will assist the
jury 	in 	determining 	whether 	Mr. 	Dewitt’s 	decision-making 	was 	within 	industry
standards.61 However, Captain Cushman’s opinion that Mr. Dewitt “knew better, but did
it anyway” does not discuss industry standards and is instead concerned with what Mr.
Dewitt knew. 	Courts have recognized that the issue of what other parties did or did not
know is not a proper subject of expert testimony.62 “Expert testimony is inadmissible if it
addresses lay matters which a jury is capable of understanding and deciding without the
expert's help.”63 	A trier of fact is in as good a position as Captain Cushman to discern,
based on the evidence in the record, what was in Mr. Dewitt’s mind on the night of the
grounding. Accordingly, the Court concludes that this opinion is unhelpful to the trier of
59 Docket 39 at 17; Docket 44-11 at 9.
60 Docket 39 at 17.
61 Docket 44 at 33–34.
62 See, e.g., Gomez v. Am. Med. Sys. Inc., No. CV-20-00393-PHX-ROS, 2021 WL
1163087, at *5 (D. Ariz. Mar. 26, 2021).
63 Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., No. 17cv205-MMA (MDD), 2020
WL 2553181, at *6 (S.D. Cal. May 20, 2020), aff'd, 9 F.4th 1102 (9th Cir. 2021) (quoting In re
Novatel Wireless Sec. Litig., No. 08-CV-1689, 2011 WL 5827198, at *4 (S.D. Cal. Nov. 17,
2011)).
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fact and should be excluded. The Court GRANTS Vitus’s Motion in Limine as to Captain
Cushman’s opinions about what Mr. Dewitt knew.
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, 	Vitus’s 	Motion 	in 	Limine 	to 	Exclude 	the
Testimony of James T. Cushman is GRANTED IN PART.
IT IS SO ORDERED this 6th day of June, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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