United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT CRESCENT COATINGS AND SERVICES' MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION TO STRIKE EXPERT TESTIMONY OF BOBBY SURENDRA, AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE NON-RETAINED EXPERTS
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT are three motions filed by Defendant Crescent Coatings & Services, Inc. ("Defendant"). Defendant's Motion  for Summary Judgment was filed on April 7, 2015. On April 20, 2015, Defendant also filed a Motion  to Strike the non-retained expert witnesses designated by Plaintiff Gulf Coast Shipyard Group, Inc. ("Plaintiff"), and a Motion  to Strike Gulf Coast's designation of Captain Bobby Surendra ("Surendra") as a retained expert. All three Motions have been fully briefed. After due consideration of the record, relevant legal authorities, and the parties' submissions, and for the reasons stated herein, the Court finds that: (1) Defendant's Motion  for Summary Judgment should be denied; (2) Defendant's Motion  to Strike Plaintiff's non-retained expert witnesses should be granted in part and denied in part, allowing the named persons to provide only lay witness testimony as to facts and personal observations; and (3) Defendant's Motion  to Strike Plaintiff's designation of Surendra as an expert witness should be denied.
Trinity Yachts, L.L.C. ("Trinity") entered into a contract with Defendant to provide sandblasting services in connection with Trinity's construction of several platform service vessels. Compl. , at 1. Plaintiff Gulf Coast succeeded to Trinity's rights under the contract in May 2013. Id. at 2. One of the vessels under construction at Plaintiff's shipyard in Gulfport, Mississippi, was to be the HARVEY ENERGY, a state-of-the-art dual-fuel platform supply vessel commissioned by Harvey Energy, LLC, and Harvey Power, LLC. Pl.'s Resp.  to Mot. Summ. J., at 2. On the weekend of October 12-13, 2013, while Defendant's employees worked onboard the HARVEY ENERGY, Plaintiff alleges that Defendant "allowed sand and other sandblasting residue from its operations to come into contact with and contaminate certain electrical equipment onboard the vessel." Id.
Plaintiff filed suit on August 19, 2014, advancing claims for negligence and breach of contract, and claiming damages exceeding $350, 000.00, plus interest, costs, and attorneys' fees. Pursuant to the discovery deadlines set forth in the Court's Case Management Order  for this non-jury trial, Plaintiff's expert designations were due on December 15, 2014, and Defendant's expert designations were due on January 15, 2015. Both parties timely filed expert designations.
Defendant's retained expert, Dr. David Engel with Nexo Solutions, issued a report stating that, in his opinion as an analytical chemist, "the samples of contaminants taken from inside of the electrical control room and electrical panels" did not contain particles matching "a sample of unused blasting sand that Crescent... used during the time of the alleged contamination." Aff. of David B. Engel [37-8]. Pursuant to Federal Rule of Civil Procedure 26, Plaintiff's deadline to designate any rebuttal expert would have been February 16, 2015. FED. R. CIV. P. 26. Because Plaintiff has not designated an expert chemist to rebut Engel's conclusion, Defendant argues that it is entitled to summary judgment in its favor. Defendant also objects to the sufficiency of Plaintiff's expert designations as to Plaintiff's retained expert Surendra  and as to its non-retained experts , based on Plaintiff's failure to produce reports or relate the subject matter of the witness' testimony.
Plaintiff responds that this is a "simple, " "common-sense" case for which expert testimony is not necessary. Pl.'s Resp. , at 6, 8. Plaintiff argues that it has presented evidence in the form of affidavit testimony that:
(1) The equipment was clean and dry at the end of the day Friday and on Saturday morning;
(2) No work was done in the control room over the weekend;
(3) Defendant was the only sandblaster who had ever worked on the vessel up to that point;
(4) Over the weekend, Defendant was working on a ballast tank directly below the control room separated only by a manhole; and
(5) On Monday, when employees returned to work, they observed that the manhole cover leading to the ballast tank was open and the control room was "covered in what appeared to be sandblast residue."
Id. at 6. Plaintiff further contends that Defendant's expert report is of questionable reliability because the samples upon which Defendant's expert relied were collected from the vessel one month after the contamination occurred, and after the equipment had been cleaned, ...