United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE DEFENDANT CRESCENT COATINGS AND SERVICES, INC.'S MOTION IN LIMINE FOR ADVERSE INFERENCE
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is the Motion in Limine for Adverse Inference  filed by Defendant Crescent Coatings & Services, Inc. ("Defendant") on June 18, 2015. This Motion has 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 Defendant's Motion in Limine  should be denied without prejudice.
Plaintiff Gulf Coast Shipyard Group, Inc., brought the instant civil action to recover damages sustained when electrical panels located in the control room of a vessel under construction at Plaintiff's shipyard were damaged. Plaintiff alleges that on the weekend of October 12-13, 2013, while Defendant's employees were sandblasting in the ballast tank area onboard the HARVEY ENERGY, 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. This matter is currently set for a bench trial in October 2015.
Defendant moved for summary judgment  on April 7, 2015, arguing that the report of its retained expert, analytical chemist Dr. David Engel, established that Defendant's sand was not found among the contaminants sampled from the electrical panels, and thus, Defendant could not have caused the damage to the electrical equipment. See Def.'s Mot. Summ. J. . Plaintiff also took samples around the same time as Defendant, but is "not choosing to test [those] samples" because it asserts that "the eye-witness evidence has shown [the samples] did not need to be tested." Pl.'s Resp. , at 1. On June 12, 2015, in denying Defendant's motion for summary judgment, the Court noted that among the genuine issues of material fact remaining in dispute was the concern raised by Plaintiff "about the reliability of the samples provided to Defendant's expert." Order , at 5.
On June 18, 2015, Defendant filed the instant Motion in Limine , addressing the reliability of its samples and Plaintiff's decision not to submit a similar chemical analysis of the samples it collected. In this Motion, Defendant seeks two adverse inferences on the issue of causation:
First, because Gulf Coast admits it took no action to preserve the condition of the electrical panels, it cannot challenge the analysis of the samples secured and later tested by Crescent. Second, because Gulf Coast secured its own samples but chose not to test them-not even after confronted with the report of Crescent's expert-Crescent is entitled to an adverse inference that any test of Gulf Coast's samples would have shown that Crescent's sand did not cause the contamination that Gulf Coast complains of.
Mot. in Limine , at 1-2 (emphasis in original).
Plaintiff makes four arguments in response to Defendant's Motion:
(1) Defendant "had daily access to the... damaged equipment and could have obtained samples at any time, " thus any delay in securing samples is not Plaintiff's fault;
(2) Defendant cannot establish the bad faith element to support a claim of spoilation;
(3) Plaintiff is under "no obligation to hire an expert or conduct testing to prove its case or avoid an adverse inference;" and
(4) Defendant's motion amounts to an untimely motion to compel production of ...