Fifth Circuit Affirms Exclusion of Expert Affidavit in Section 905(b) Claim

Plaintiff, a longshoreman, was injured while unloading steel pipes from a vessel.  A bundle of pipes shifted, rolled towards the longshoreman, and pinned his leg against a wall.  The crush injury resulted in a below-the-knee amputation.  Plaintiff filed a Section 905(b) claim against the vessel, its operator and its charterer. 

Under Section 905(b), a longshoreman may recover damages for injuries “caused by the negligence of a vessel.”  The duties owed to longshoremen include the (1) turnover duty, (2) a duty to exercise reasonable care in the areas of the ship under active control of the vessel, and (3) a duty to intervene.

Plaintiff designated Captain Joe Grace as his liability expert.  Captain Grace’s report opined that Plaintiff’s injury was caused by the improper stowage of the pipes.  Defendants then moved for summary judgment, arguing that Plaintiff failed to prove that they breached a duty owed to him.  Plaintiff responded by filing a new affidavit prepared by Captain Grace.  Upon Defendants’ motion, the district court struck the affidavit except to the extent that it “proved up” Captain Grace’s original report.  Defendants argued that the affidavit contained new opinions not previously disclosed during the discovery process. 

On appeal, Plaintiff argued that Captain Grace’s affidavit had no new opinions–it was merely support for the original report.  The Fifth Circuit disagreed:

For example, Captain Grace stated for the first time in his affidavit that stowing pipe hard aft to the bulkhead is an “abnormal and unsafe” practice of stowing pipe.  He further stated that stowing pipe in this manner “makes it much more likely, almost certain, the pipe will shift diagonally during the unloading process.”  Additionally, Captain Grace claimed for the first time that his opinions were “the product of reliable principles and standards generally accepted and utilized by experts in the field of proper stowage[,] inspection of stowage[,] and stevedoring principles.”  As the district court noted, though, he provided no details regarding these principles and standards.

In addition to finding that the district court properly excluded the affidavit, the Fifth Circuit determined that summary judgment was appropriate for Plaintiff’s Section 905(b) claim.  Plaintiff could not demonstrate a breach of the turnover duty because the alleged defects in the cargo were open and obvious to him.  Plaintiff could not demonstrate that the ship maintained active control because no one from the vessel directed the manner in which Plaintiff and his crew unloaded the pipes.  Finally, Plaintiff could not demonstrate a breach of the duty to intervene because there was nothing about the unloading process that was so hazardous that the vessel’s intervention was required.  

Sobrino-Barrera v. Anderson Sipping Co., Ltd., No. 11-20826, slip op. (5th Cir. 2012).