Tajonera v. Black Elk Energy Offshore Operations, L.L.C.

EDNA TAJONERA, et al. v. BLACK ELK ENERGY OFFSHORE OPERATIONS, L.L.C., et al.

CIVIL ACTION NO. 13-0366 SECTION: "G"(5)

c/w 13-0550 SECTION: "G"(5)

c/w 13-5137 SECTION: "G"(5)

c/w 13-2496 SECTION: "G"(5)

c/w 13-5508 SECTION: "G"(5)

c/w 13-6413 SECTION: "G"(5)

c/w 14-374 SECTION: "G"(5)

c/w 14-1714 SECTION: "G"(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

March 28, 2016

ORDER

Before the Court is Plaintiffs Edna Tajonera and Jade Tajonera's ("Tajonera Plaintiffs") "Motion to Exclude Calvin Barnhill's Opinions Regarding Welding Procedures"¹ seeking to exclude a portion of the expert report on the grounds that this portion and the opinions expressed therein are unreliable and not based on any objective standard, rule, or regulation.² Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant the motion.

I. Background

This litigation arises out of an explosion that occurred on November 16, 2012 on the Black Elk Energy West Delta 32 Block Platform ("West Delta 32"), located in the Gulf of Mexico approximately 17 miles southeast of Grand Isle, Louisiana. The explosion killed three men and injured many more.

On May 6, 2015, Tajonera Plaintiffs filed the instant motion seeking to exclude a portionof the expert report and testimony of Calvin Barnhill ("Barnhill"), an expert seeking to testify on behalf of Wood Group PSN, Inc. ("Wood Group").³ Wood Group filed an opposition on May 19, 2015,⁴ to which Tajonera Plaintiffs filed a reply on May 29, 2015.⁵ In addition, on January 15, 2016, D&R Resources, LLC ("D&R") filed a motion adopting the motion to exclude Barnhill's expert opinions.⁶ In response, on January 26, 2016, Wood Group filed a memorandum adopting and incorporating its opposition to Tajonera Plaintiffs' motion to exclude Barnhill's testimony.⁷

II. Parties' Arguments

A. Tajonera Plaintiffs' Arguments in Support of Motion to Exclude Barnhill's Opinions Regarding Welding Procedures⁸

Tajonera Plaintiffs assert that, in his expert report, Barnhill makes essentially three conclusions: (1) the explosion "could have been prevented if [Grand Isle Shipyards] personnel had simply complied with the GIS WP/SEA" by ensuring "that the permit to work and the HWP [Hot Work Permit] reflected the current work location;" (2) "Prior to the actual hot work beginning[,] the welder, grinder and fire watch should have checked all potential supply routes and made sure they were either locked out, blanked off by skillet or otherwise secured and that any lines and or vessels were opened, purged and ready to receive hot work before striking an arc, cutting with a torch or grinding. Furthermore, a gas detector should have been utilized at thesite of the hot work[;]" and (3) "[T]here was poor communication among the [Black Elk] construction and production management as to the scope and manner of the work to be done on the LACT modification project."⁹ Tajonera Plaintiffs seek to exclude only the second of Barnhill's conclusions, arguing that it is inappropriate because Barnhill "is not a welder, has never created or implemented welding processes or procedures, and freely admits he is not a welding expert."¹⁰

According to Tajonera Plaintiffs, Federal Rule of Evidence 702 requires the Court to disqualify experts if they do not "possess a higher level of knowledge, skill, experience, training, or education than an ordinary person."¹¹ Tajonera Plaintiffs argue that, although Barnhill "may have expertise in certain disciplines," with regard to welding procedures, Barnhill lacks the requisite expertise, citing deposition testimony in which Barnhill stated that he was not a welding expert or a certified welder, and that he had "written procedures that require welding be done, but as far as the specifics of how the welder did his work, [he] did not [write such procedures]."¹² By comparison, Tajonera Plaintiffs cite the deposition testimony of Plaintiffs' expert Geoffrey Egan, who stated that he had expertise in welding processes and procedures based on decades of experience focused on welding.¹³

Furthermore, Tajonera Plaintiffs assert, Barnhill's opinion that workers should take certain steps before welding is not based on any objective standard, and is an inadmissible"common sense" conclusion.¹⁴ According to Tajonera Plaintiffs, the Fifth Circuit has explained that experts who reach their conclusions by using generally accepted principles, including standards and customs common in a particular profession, do not offer admissible evidence.¹⁵ Here, Tajonera Plaintiffs contend, that is exactly the sort of testimony offered by Barnhill.¹⁶ According to Tajonera Plaintiffs, Barnhill compared his own methodology to that employed by the Bureau of Safety and Environmental Enforcement ("BSEE"), which conducted a year-long panel investigation into the accident at issue, by stating that his relied on a "practical, commonsense having worked in the industry standpoint," in contrast to the BSEE's discussion of "supervising and regulatory things."¹⁷

Tajonera Plaintiffs argue that not only are common sense opinions excluded, but also those offered under the guise of "common sense as it relates to years of a particular experience."¹⁸ Tajonera argues that Barnhill claims that he can opine as to welding procedures because he has 45 years of experience in the oil business, and "welding is an integral part of what we do in the oil industry."¹⁹ Tajonera Plaintiffs contend, however, that such experience no more qualifies him as an expert on welding than it would a landman, reservoir engineer,geologist, or oil and gas attorney with 40 years of experience in the business.²⁰

Tajonera Plaintiffs aver that Barnhill bears the burden of furnishing some objective, independent validation of his methodology, and "the expert's assurances that he has utilized generally accepted [principles] is insufficient."²¹ However, Tajonera Plaintiffs assert, Barnhill testified that he had no objective basis, such as a statute, regulation, or even corporate procedure, for his opinion that welders should take certain steps before welding.²² Tajonera Plaintiffs quote Barnhill's deposition testimony, in which he stated that he was "not basing [his opinion] on a regulation . . . [He was] basing it on 45 years of experience in the business."²³ Therefore, Tajonera Plaintiffs contend, Barnhill's testimony clearly shows that his opinion is impermissibly based on a layman's observations of welders and his own common sense.²⁴

B. Wood Group's Arguments in Opposition to Motion to Exclude Barnhill's Opinions Regarding Welding Procedures

In opposition, Wood Group first avers that Barnhill is the leading expert in oil and gas operations, widely sought by litigants in the industry, including at least two other parties in this case who sought his expertise after he had already been retained by Wood Group.²⁵ Wood Group also argues that it is uncontroverted that the explosion and fire in this matter began when welders employed by D&R were instructed by the GIS supervisor to cut into a pipe that ran from a sumpto the wet oil tank, and which had not been isolated.²⁶ Furthermore, Wood Group contends, most parties agree that GIS and Compass Engineering and Consultants failed to request a hot work permit for the area or advise any Wood Group operator of their intent to do hot work on the pipe at the time in question.²⁷ Therefore, Wood Group avers, this case does not involve the quality of any weld, the choice of welding equipment, the method selected for welding, or the mechanics of welding, but instead involves practices and procedures universally utilized in offshore operations, the interaction of construction and production activities, the method by which contractors (including welders) communicate their intentions to others, and the methods and procedures whereby hot work can be performed safely offshore.²⁸

Wood Group asserts that Barnhill, a certified petroleum engineer with more than 45 years of experience in oil and gas operations, has extensive experience in both production and construction activities, has served in the same capacity as a number of the individuals involved in the operations in question, has performed the activities necessary to "safe out" areas for hot work on offshore and onshore locations, has worked for and with welders, and has had welders work for him.²⁹ Wood Group argues that the Fifth Circuit has recognized that an expert witness is not strictly confined to his area of practice, but may testify concerning related applications.³⁰

Furthermore, Wood Group avers that although the Supreme Court in Daubert v. Merrel Dow Pharmaceuticals, Inc. recognized that courts may look to a number of factors that may berelevant to the reliability analysis, such as whether the technique can be tested or whether it has been subjected to peer review, those factors do not constitute "a definitive list or checklist."³¹ According to Wood Group, because not every expert opinion will be based on a test or study that may be subject to scientific testing, "[t]he reliability inquiry must remain flexible."³² Similarly, Wood Group contends, although testimony should be excluded if it deals only with common sense matters that would not assist the trier of fact, expert testimony is relevant if it would assist the jury by shedding light on facts at issue.³³ For example, Wood Group argues, testimony concerning the safe offshore operation of a pneumatic wrench has been accepted as relevant and not merely "common sense" when offered by an offshore safety expert.³⁴

Wood Group argues that Barnhill's opinion is based on his experience supervising oil and gas workers, and his report outlines that the methodology he used in making his assessment of the incident and forming his opinions included reviewing job safety analyses, hot work permits, and extensive testimony of witnesses to the incident, methods which are comparable to those used by experts in...