now take up the last case of the morning that as far as i'm concerned is a run through procedure but you all may prove me wrong so second yeah i can't to me that's to be issue but you know you again you all may prove me wrong but well that's that's what i plan on focusing on this morning so under rule fifty six the way that it reads now as of two thousand and ten the party who is moving for opposing summary judgment needs to support their assertions by and then at that point under fifty sixty one a congress lists a lot of items in its non exclusive list and it says depositions documents electronically stored information affidavits or declarations stipulations admissions in iraq atory answers or other materials and it's that last item that i think gives a very broad listing all the possible information that can be placed into the record to support or oppose a motion for summary judgment if you compare this to the old rule fifty six that was in effect before two thousand and ten it relied heavily on the use of affidavits to support or oppose summary judgment and then also said you could use pleading discovery and disclosure materials this is a much more comprehensive listing of things that you could put into the record to support or oppose summary judgment and i would argue that the other material that last little phrase in rule fifty sixty one i really could encompass expert reports if a restricted list of items was contemplated it wasn't really written into the rule i think if you want to see a restrictive list of items in louisiana they recently read article nine sixty six which governs motions for summary judgment and their code article it says only quote only documents that can be filed into the record and it's a very restrictive list and it says pleadings memos affidavits depositions goes on said are certified medical records written stipulations admissions and we know you know if you go into a court over there new try to put something in that isn't specifically stated that's no longer workable in louisiana you don't have that in the federal code code of civil procedure and the rules of the silver seizure i'm sorry the other thing that i think is that needs to be looked at in connection with real fifty six is rule twenty six and how an expert port needs to be prepared and the information needs to be provided in an expert report in order for it to be admissible in court anyways  me the question isn't so much whether if you went to trial you could proffer the expert reporting get it in mid but whether the expert report embodies information that you can at trial present it in a simple form and you have argued well captain can james and i believe captain jamieson can testify to this i mean he signed this report didn't swear to it but he signed it and come in and testify to what's in  and that's how it would be presented in miscible form and that issue wasn't really litigated because frankly it looks like everybody was applying pre twenty ten rule fifty six i mean the citations and everything there's no other way to understand this  he's going to testify to what's in the report and that's really all the rule contemplates is that what you're basically presenting here that is your honor and i think if you look at the southern district of texas his ruling in the valentine versus hoddinott case it's not an expert  rip police report and in that case you know they used the police report to support their motion for summary judgment the defendant the plaintiff objected the trial court said you know this is itself this report is not coming in at trial but we know it's probably it's probably it's very likely going to be authenticated by either affidavit or the live testimony officer who wrote it so considerate in support of this motion for summary judgment and i think if you look a lot of times and just  practical matter when you do put in an expert report with the declaration or the affidavit many times that i've seen in the eastern district is a one page my name is you know my name is captain jamieson i wrote the report nsworn and we can certainly debate that i guess the question to me is why wasn't this discussed in the district court in so many words i think he did keep saying the briefing kept saying we'll present him  timeline in the schedule and order the motion submission date was july twenty seventh and the reply was filed in august for i thought this third was put in the record and so by that point we can file server apply it's past the submission deadline conference coming up and next couple of weeks so we didn't file it's a reply or a declaration or a sort of by saying this isn't really necessary anymore and then we get the ruling and just all it is is a one or two sentence statement saying this is an i have seen lawyers nonetheless move for a leave and say i can fix this that this problem that they raised in whatever but where we are where we are so so the next question that i have which to me is equally important to the rule fifty six question and that is if we were to vacate because the wrong rule version of the rules apply if you only won the battle and you still going to lose the war because when you go back counsel office is going to say well jamieson unqualified to testify to this his report doesn't support x y and z anyway even if we consider it and so on and so forth so if you would address that like can you still get to trial with jamison if if we remain for consideration of jamieson's report i think so because what we would also argue is that the deadline to file a motion for summary judgment was in fact same deadline to file a motion to exclude or limit its testimony and there was no motion filed to do so the first arguments about captain jamieson's qualifications his abilities to testify apple on the on the scheduling order you know you could have filed them a motion to exclude him you didn't this is where it is and at this point you would be limited to defending you'd be limited to questioning his bases at trial or you know not through a motion for summary judgment in supporter or reply brief because at that point in the m s j i think you're going to think the court district court is limited to not weighing the evidence or determining the credibility it's just does he say this does that create a fact enough that it presents an opera trial and then we go to trial and for you to question captain jamison about his abilities to render these opinions in front of a jury well ok i guess if we're sort of resetting the dial here if we said let's have a do over because i was using the wrong rule i don't seem right so let's just send it back and have a do over then in the do over the argument instead of being well there is no affidavit is it can't be presented in a miscible form do you not think that would also in compas whether captain jamieson should be allowed to testify at all i think that is i think that should be i think that is something that is limited to a different emotion i think that that is a motion that is separate and that is a dollar motion that something that's going to be addressed during a different matter i don't think that is appropriate to bring up in a motion for summary judgment because that that again that just goes into weighing the evidence but to me what ability it's remained there in the district court has discretion it's going to  can do what she wants basically begins a back and of course she can she can and we would certainly strongly argue in a scheduling conference that listen the saying was ready to go to trial three weeks before and the only thing that needs to be done is updated medical depositions think it i think it certainly tell us have i think it gets us there by both showing an issue of fact on the breach of the duty under the jones act because the thing one of the important things this is a jones act case even if you think this is  marginal case those are left for jury determinations because it's a featherweight causation standard i think we've got the breach of duty under the jones act you know the duty to provide a safe place to work captain jamieson says there was no nonskid on this wooden deck of the vessel you can see it in the photographs in the record that's not appropriate that makes it an unsafe place to work in my opinion and my expertise and my experience and then he testifies he slipped because there was no nonskid that is very likely could have caused the reason for his falls so i think that gets you both breach and causation testimony enough to get you to the jury because again just it's a jones act case that you know it may not get to the jury or the seaworthiness but jones act i think we just had the case of austin v kroger like the third iteration of that case that we just granted in order to publish it and it's a texas not subscriber worker's comp it's not a jones act but it has to do with this question of whether they gave him the necessary instrumentalities to do his job and failing which this guy spilled even though he knew there was on the floor he still spilled in it and we sent it back there is a little procedural part of that but we did send it back and considered that there was at least some evidence about this the spill magic and all of that so many kind of sounds similar to what you're arguing here yeah i mean what it is is it's i think it at least gives more than enough for a jury to say ok well listen if there's not nonskid that can create an unsafe work environment that's probably why i slept and fine in its favor i don't i mean all safety features can which i think we i think we have your argument thank you very much good morning bill schwartz representing shore logistical i guess first i should address our procedural issues because it seems to be way in the court i'm a procedure kind of gal i'm i'm all with you judge so tell me why it is that everybody followed an old rule well i sided to an old fist circuit case because i couldn't find another fist circuit case that was more recent that's not siding at all rule  but the district judge clearly is citing the old version of the rule has no it doesn't make sense otherwise ok if i might you know that the cases that the court gave us to look at in looking that court said that counsel could have come in and done some things to make the report of captain jamison evidence that they would consider that was never done here as the court has pointed out so opposing counsel wants to say i did that in my reply brief actually i mean in my reply memo at trial i actually did it in the motion for summary judgment i raised that issue and their response was captain jamieson captain jamieson captain james and captain jamison i think if this corps wants to make a procedural precedent on rule fifty six and make a point unfortunately i don't think this is the case to do it in i think what i want to do is resolve the case correctly under the proper rules i don't have some ambition to write the definitive work on civil procedure and that is your insinuation no it's not my insinuation but what i am suggesting to this court is any expert who is going to testify any expert who is going to write a report has to base it on the facts of the case and the one thing that i haven't heard mentioned in this court room yet in the discussion with opposing counsel and in the discussion about this appeal is where is captain lee  testified under oath in and bear with me if you don't mind because up here in the statement of uncontested material facts and the attached deposition of captain lee the plaintiff i'm a licensed master i was one of the first employees hired by the company i was there to get the boat ready for its certificate of inspection it was operating under its is for to give inspection under me it was my job he admits it was my job to maintain the vessel and keep it see where they i was a senior captain i brought my son on board this vessel during this job off shore my nine ten year old son i walked the deck five to seven times and circled the deck the questions were asked of him what were you doing i was making sure that the deck was kept up it all falls on may was there anything wrong with the equipment or loaded on the deck no was there any reason you're concerned about your son walking around the deck no did you see anything that gave you any concern about the ability to walk the deck five to seven times know was there anything wrong with your shoes no did your son have any problem walking the deck no do you know of any action by any other crew member that could have caused your need to buckle no we in any hurry no do you know why your need buckled no i don't know where the deck boards painted with nonskid no did you expect them to be painted with nonskid no what are you telling us that caused you to be hurt on july twentieth i don't have a clue now are we going to go by our testimony it's not testimony of captain jamieson captain jamison is bought and paid for he's an expert accompanist true of all experts and it's not uncommon for a plaintiff to not know the source of their injury the cause of their injury and hire an expert who says this that or the other i mean that's not bad uncommon it's not uncommon to the reason for the injury well that's what are you doing ok they are standing before this case that's what the district judge would have rested her opinion on no she rested on the absence of a proof of a sworn captain james jamieson's may i read from the orders and reasons plaintiff testified as deposition he does not know what caused the accident plaintiff cannot identify any act of the go to answer a breach of duty by defendant that caused his injury she had it then they say play it she says plaintiff attempts on  page seven to satisfy his burden regarding causation by pointing to the expert port however it is not accompanied by a sworn affidavit and discussion not it doesn't matter whether he has an expert or not his admissions are not so i mean i realize you can still argue that as a matter of law the admissions are enough but that's not what the district judge ruled upon plaintiff has to point to sufficient evidence in the record what is captain j is that's not the ruling at this point judge in my room and i share your concern he says the expert reports as nonskid paint and all walking areas will prevent incidents like lee's not even with plaintiffs councillors saying contributing factor could prevented i don't know how you can say one hundred percent it will prevent this incident when you haven't you weren't there at the time i don't these even inspected the boat since but to me that goes to i mean that happens all the time  foundational challenge and reliability challenges raised all the time judge i did cite in my reply to the court at the trial level if you go going to consider captain jamieson and i went through his report in the record from page two thirty three to page two sixty three i dressed every single line in word of what he said and what was the basis for those opinions i would suggest to you that the court looked at the only real evidence that was before the captain's testimony the plaintiff's testimony and she said this doesn't reach the level of negligence this doesn't reach the level of i have nothing here to support this expert about the nothing was because it was on sworn that was the only reason given and so to me i i am not going to prejudge a doctorate hearing that may or may not occur in this case that is there's a lot of discretion vested in the district court in da matters there is obviously a parameter is to that discretion but i don't think it's appropriate for an appellate court in the first instance to conduct a diver hearing in oral argument so to me the question is was the error of relying on old rule fifty six sufficiently infecting the process here that we should send it for a do over at which you can make the argument you make you can make the army she's making and that's why i said you may win the battle and lose the war and that may be the case i just think it's a little premature for us to decide the dollar challenge at this point that may or may not be allowed to be made given the timing well with all due respect and i understand where the court's coming from on the pursuit rule there has to be some factual support for the conclusions that want to be reached and i think this judge not only had it in our you know our memoranda trial but she went through it over eight pages nine pages of her order and reasons why she was relying on the plaintiff himself in reaching the conclusion she reached i mean you make a very passionate argument it seems to me you're ready to go to trial and and show why you think this is a ridiculous case the plane is bringing and i'll i tried a lot of these jones act cases in galveston some of them involve this whole nonskid there the exact one being made here and if all they've got is the plaintiff saying i don't have any idea what happened in this this one quote expert coming in saying it must have been the nonskid even though i wasn't there i mean from what i saw you've got a very good chance of winning that's i mean i wonder there's a lot of defense and then i see some what you're saying you don't just try me how many how many days you just take to try to at most two to three judge but i didn't number one i filed a motion for summary judgment i won they filed an appeal you know there's going to be  appeal i mean this is that it's really more a comment where i just often wonder why the more efficient task isn't to go to trial and then it's over and done with i'm just again going to point out at the very end  after captain lee not captain james and after captain leia testified under oath that he he could not identify what happened or why he hurt himself that day and is nisco asked him some questions and basically for the first time put out the word did you slip or you slipped on the deck were just slip on the deck he didn't testify to that but i came back and at page one sixty of the record on appeal the questions were asked as follows what prevented us captain on that boat from putting nonskid on the deck boards answer nothing well why are you saying that you slipped because there wasn't any nonskid his answer i'm not saying i did or i didn't i'm saying i don't have a clue this court has given multiple decisions or it's speculation and conjecture can not support a decision and if if we ignore the testimony of captain lee and then say well judge morgan should have considered captain jamison because you know he's this expert over here captain jamieson has to be put in context of captain lee this guy's walking that back five to seven times with this sign and says i cannot point to one thing that's not right with this deck or with this  can point to nothing any other crew member has done to me but that's not going to be definitive let's take another hypothetical there's another person on the vessel who sees what happens and so the plane is you know i don't know i just ended up on the ground and the other person says well  no i saw he walked on this area where you know there was some some oil so i saw there that piece of fish i mean it doesn't exist not in this case right but you know argue or argument seems to be that if the plaintiff doesn't know what happened end of case it's over well here's this plaintiff who knows nothing about what i mean they're not relying on the plaintiff to get personally judgment the sole question is is the expert statement admissible reliable sufficient for some original purposes and what they're doing is ignoring the fact that the only evidence in the case is their captain's testimony about what happened out there that is truly the only evidence in the case there's no other witness is going to come in and refute what he had to say that we don't have to refute what he had to say well to my point t win in the district court we're not faulting you for that what we're saying is practically a lot of this stuff kind of ends up my mom always funnily enough when i was a kid said don't make a failed or a federal case out of it well here we are right and  we kind of have gotten a bit far afield from kind of what's what's what but again i don't fault you for being here defending the case i do think it ought to be determined under the proper current rules of civil procedure and so that's what led to the letter to yalit cetera et cetera so i appreciate that and all i would suggest to the court is in reading judge's judge morgan's ruling she spent quite a bit of time nine pages in going over why she reached the conclusion she did certainly she did make the statement that she was not considering having jamison and i think if you recapping jamieson's report this captain jamison he's talking about the medical doctors can't do this  he's talking about up for an operations manual can't do this and some were in there this for opinions he kind of said all nonskid should have been on the deck to and he substituting what he has to say that  there's a hick up there about the timing of presenting the expert that that has to go back to the district court so i don't want to prejudge that but i would just say that it is kind of a similar thing this guy knew there was a sticky substance on the floor it's a texas non subscribers not but you know there's a stick he says on the floor is trying to clean it up he's not given in his view or in the argument of the expert the proper equipment to do it i e this this spill magic stuff and he ends up spilling on sticky stuff you know is there and that case i still alive after a trip to the texas supreme court on a referral on a certified question and i think two or three appeals to our court so you know it happened and without having read the austin case i cannot believe that the expert failed to rely on some of the testimony in the case i'm sure he did captain jamieson doesn't mention mr lee's testimony at all and i see that this to me sounds like a pretty decent d'albret argument your counsel opposite saying you miss the d deadline i don't know will their bad be reinstated whatever but again i definitely know that we aren't the place to decide an original dobber challenge hasn't yet been ruled upon by the district court well i respectfully disagree with the court i don't think this is a dog or to issue i think captain jamison could probably get over the hurdle of having the experience qualifications to be able to testify at trial i certainly believe his testimony would be limited and i'm like like you have a job or challenge not just on qualifications or because what he's saying is not reliable because he didn't talk to the witnesses it inspect the boat would i'm not saying you'd win or not but those challenges happen all the time that it's just sheer speculation not founded on any only if the court has any additional questions i think that counsel's argument about it's only it's only captain lee whatever he said i don't think it plaintiffs testimony is the end all be all of  summary judgment is a problem for you at trial but i'm not here to give advice to either side about how to try the case my i've sat through a good many such trials as a state district judge it wouldn't jones act but similar kind of stuff where there's a little the case is under submission