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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE SKANSKA USA CIVIL §

SOUTHEAST INC. AND § ADMIRALTY RULE 9(H)

SKANSKA USA, INC. AS §

OWNERS OF THE BARGE KS § CIVIL ACTION NO.

5331, PRAYING FOR § 3:20-CV-05980 – RV/MJF

EXONERATION §

FROM OR LIMITATION § SENIOR DISTRICT JUDGE

OF LIABILITY § LACEY A. COLLIER

§

§ MAGISTRATE JUDGE

§ HOPE THAI CANNON

SKANSKA USA CIVIL SOUTHEAST INC. AND

SKANSKA USA, INC.’S MOTION IN LIMINE TO EXCLUDE 

EVIDENCE OF OTHER STORMS AND MEMORANDUM IN SUPPORT

Skanska USA Civil Southeast Inc. and Skanska USA, Inc. (collectively, 

“Skanska”) respectfully submit this motion in limine to exclude testimony and 

evidence pertaining to other hurricanes and/or tropical storms (collectively, 

“storms”) prior to and following Hurricane Sally. The present limitation action 

relates solely to Skanska’s alleged negligence in responding to and preparing for

what became Hurricane Sally in September 2020. Skanska anticipates that 

Claimants will seek to introduce evidence relating to other storms, including 

Skanska’s decisions regarding implementation of hurricane preparedness plans, 

demobilization of the project site, and additional precautions, in an attempt to show 

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that Skanska acted unreasonably in preparing for what became Hurricane Sally. 

Skanska submits that this Court should exclude all evidence and testimony 

pertaining to other storms absent a showing of substantial similarity of 

circumstances.

Skanska contends that evidence related to preparations for other storms in 

2017, 2018, and 2019 is inadmissible under Federal Rule of Evidence (“FRE”) 402 

because the evidence is irrelevant pursuant to FRE 401. To the extent Claimants 

assert that conduct in prior storms is admissible, Skanska contends that Claimants 

cannot meet their burden of showing substantial similarity as required by Eleventh 

Circuit precedent. Evidence of storms after Hurricane Sally is also irrelevant, and is 

inadmissible as it constitutes subsequent remedial measures pursuant to FRE 407. 

Skanska also submits that absent a showing of substantial similarity, evidence 

regarding other storms will constitute a waste of time and lead to confusion of the 

issues, and should thus excluded pursuant to FRE 403.

I. FACTUAL BACKGROUND

This case involves a breakaway of barges during Hurricane Sally in 

Pensacola, Florida in September 2020. Skanska’s contract to construct a 

replacement for the existing Pensacola Bay Bridge required Skanska to work over a 

three mile length of Pensacola Bay, utilizing various barges, including crane barges, 

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material barges, demolition removal barges, man lift barges, and other special use 

barges. As of the second week of September 2020, Skanska had 55 barges deployed. 

The first National Hurricane Center/National Weather Service (“NHC/NWS”) 

advisory for Tropical Depression 19 was issued at 5:00 p.m. EDT on September 11, 

2020 (Advisory 1). Tropical Depression 19 ultimately developed into Hurricane 

Sally and made landfall west of Pensacola on September 16, 2020. Hurricane Sally 

generated hurricane force winds, significant wave heights, and a devastating storm 

surge in Pensacola Bay that were not predicted by the NHC/NWS forecasts on 

September 11, 12, 13, or 14. Despite this, Skanska began securing the project site 

on September 12, 2020. Skanska moved and secured its barges at pilings and sea 

anchor locations on September 13, 2020. The NHC/NWS advisories did not predict

waves in excess of two feet for Pensacola Bay until 10:00 a.m. on Monday, 

September 14, by which time most of the barges had already been secured. When 

Skanska decided to move and secure its barge fleet on September 13, 2020, the 

NOAA Marine text forecast predicted winds up to 23 mph and maximum waves of 

two feet for September 14-15 in Pensacola Bay. 

During the pendency of Skanska’s work on the Pensacola Bridge project, 

multiple tropical storms and hurricanes were forecast and/or impacted the project 

site. For each of these unique storms, Skanska faced different circumstances, risks, 

threats, and hazards. Claimants have not asserted that Skanska suffered barge 

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breakaways during prior storms and have not suggested that Skanska acted 

negligently in preparing for prior or subsequent storms. However, Claimants have 

attempted to submit evidence and testimony pertaining to Skanska’s actions and 

activities related to prior storms in the 2017, 2018, 2019, and 2020 hurricane 

seasons.1 Further, Claimants attempt to submit evidence and testimony pertaining 

to Skanska’s post-Sally tropical weather preparations and activities.2 For example, 

Claimants have cited Skanska’s actions for Tropical Storm Fred in August, 2021.3

This Court should not admit evidence and testimony pertaining to Skanska’s 

activities and actions for a prior storm unless Claimants show that the storm was 

substantially similar to the weather for which Skanska prepared and a substantially 

similar condition of the project, including, stage of construction of the project and 

number and location of barges and the locations to which the barges were moved.

Evidence and testimony related to preparations for other storms, without a showing 

of substantial similarity, is not relevant to the actions taken by Skanska in 

preparation for the forecasted weather. This Court should preclude Claimants from 

relying on false equivalency to obscure the reasonableness of the actions taken by 

Skanska in preparation for Hurricane Sally. 

 

1 See Proposed Pretrial Order by Claimants, Rec. Doc. 1296, p. 16 – 24.

2 See Proposed Pretrial Order by Claimants, Rec. Doc. 1296, p. 41-42.

3

Id.

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II. PRIOR RULINGS ON OTHER STORMS 

On June 24, 2021, Magistrate Judge Cannon issued Discovery Order No. 3 

regarding the scope of discovery into prior storm preparations and additional search 

terms for ESI discovery.4 Magistrate Judge Cannon reasoned “[a]s an initial matter, 

the Court agrees with the Claimants that some information relating to Skanska’s 

conduct concerning prior storms ... is relevant.”5 For the reasons set forth in 

Discovery Order No. 3, Magistrate Judge Cannon permitted discovery into 

Skanska’s actions for prior storms. Discovery Order No. 3 did not pertain to 

subsequent storms. 

Discovery Order No. 3 set the broadest parameters of discovery into 

Skanska’s actions for prior storms but does not establish admissibility and did not 

define “some”. Skanska acknowledges the Court’s broad discretion in handling 

discovery matters.6 The Supreme Court has stated that the discovery rules “are to 

be accorded a broad and liberal treatment.”7 However, “information within [the] 

scope of discovery need not be admissible into evidence to be discoverable,”8and a 

 

4 See Discovery order No. 3, Rec. Doc. 1197.

5

Id. at p. 3 (emphasis in original). 

6 See Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188 (11th Cir. 2013).

7 Hickman v. Taylor, 329 U.S. 495, 507 (1947); see also Rosenbaum v. Becker & 

Poliakoff, P.A., 708 F. Supp. 2d 1304, 1306 (S.D. Fla. 2010) (collecting cases 

regarding the scope of discovery).

8 Fed. R. Civ. P. 26(b)(1).

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ruling on discoverability does not address whether that evidence is admissible at 

trial.

III. LAW AND ANALYSIS

Skanska submits this motion to give the Court notice of its intent to seek 

exclusion of other storm evidence in order to avoid the introduction of damaging 

evidence, which could affect the fairness of the trial.9 Skanska submits that this 

Court should exercise the “broad discretion” afforded to it by FRE 403 to exclude 

evidence for the reasons set forth below.10

1. The Court should exclude evidence of prior storms in 2017, 2018, and 

2019 as irrelevant.

Evidence of Skanska’s storm preparations during the 2017, 2018, and 2019 

hurricane seasons is irrelevant to whether Skanska properly prepared for what 

eventually became Hurricane Sally in September 2020. Pursuant to FRE 401, 

“[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable 

than it would be without the evidence; and (b) the fact is of consequence in 

determining the action.” As each prior storm presented unique considerations and 

forecast, track, wave height, wind, duration, direction, severity etc., for the project 

at that time, the actions taken by Skanska for other storms do not make a fact at issue 

 

9 Smith v. Royal Caribbean Cruises, Ltd., No. 13-20697-CIV, 2014 U.S. Dist. 

LEXIS 151212, 2014 WL 5312534, at * 1 (S.D. Fla. Oct. 10, 2014). 

10 Stallworth v. Ill. Cent. Gulf R.R., 690 F.2d 858, 868-69 (11th Cir. 1982).

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more or less probable or relevant to Skanska’s actions in September 2020. Because 

this evidence is not relevant, it is inadmissible under FRE 402. 

2. The Court should exclude evidence of prior storms absent a showing of 

substantial similarity. 

The Eleventh Circuit has developed limitations governing the admissibility of 

similar incidents “because of the potential prejudicial impact” of such evidence.11 

The Eleventh Circuit reasoned, “[f]irst, conditions substantially similar to the 

occurrence in question must have caused the prior [incident]. Second, the prior 

[incident] must not have occurred too remote in time. Determining the remoteness 

of evidence is within the trial judge's discretion.” 12 “For evidence of prior incidents 

to be admissible, the conditions substantially similar to the occurrence in question 

must have caused the prior accident, and the prior accident must not have occurred 

too remote in time.”13 The substantial similarity “doctrine applies to protect parties 

against the admission of unfairly prejudicial evidence, evidence which, because it is 

not substantially similar to the accident or incident at issue, is apt to confuse or 

mislead the jury.”

14 Importantly, Claimants bear the burden regarding admission of 

other incident evidence.15

 

11 Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988)

12 Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988)

13 Acevedo v. NCL (Bahamas) Ltd., 317 F. Supp. 3d 1188, 1193 (S.D. Fla. 2017).

14 Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997).

15 Stern v. NCL Bah. Ltd., 2020 U.S. Dist. LEXIS 225043 (S.D. Fla. Sept. 23, 2020); 

Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 n.12 (11th Cir. 1997).

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Claimants cannot meet their burden without showing that the prior storms 

were substantially similar, and that the conditions at the project were similar. Each 

storm presented a unique risk with different forecast parameters and different 

factors. Claimants must establish, for each prior storm, that the storm path, sea 

state, development, conditions, forecasts, and characteristics, and the conditions of 

the project site, were substantially similar to the circumstances presented by what 

became Hurricane Sally. 

Claimants must also establish that Skanska’s project considerations and 

limitations were substantially similar. For example, to meet their burden, Claimants 

must demonstrate substantial similarity in the number, location, and type of barges 

and tugs on site, equipment on the barges, mooring arrangements and locations, 

logistical considerations, and nature of demobilization. The latter is keydemobilization is the step required to prepare each barge for movement. The 

equipment and condition of each barge differs from day to day and week to week, 

and certainly from storm to storm, making any similarity, unlikely if not impossible.

Claimants do not allege that Skanska acted unreasonably or negligently in 

preparing for the prior storms. Moreover, there is no claim of a barge breakaway 

during prior storms. To the extent the Court permits admission of evidence related 

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to prior storms, such evidence should only be offered to show Skanska’s notice of a 

particular danger or defect.16

At a minimum, substantial similarity requires that the prior storm had a similar 

forecasted severity and path as was forecast for Hurricane Sally between September 

12 and 14, 2020. For example, a prior storm with a more severe forecast wind impact 

would not be substantially similar to the NHC/NWS forecasts for Hurricane Sally. 

Similarly, a prior storm that provided a week of advance warning ahead of landfall 

would not be substantially similar to the forecast for Hurricane Sally. The only 

storms with sufficient similarity are Hurricane Laura and Hurricane Marco in August

2020. 

3. The Court should exclude evidence and testimony related to prior storms 

under FRE 403. 

If the Court finds that Skanska’s prior storm preparations were relevant, 

Skanska requests that the Court exclude such evidence pursuant to FRE 403, which 

provides: 

Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion 

of the issue, misleading the jury, or by considerations of undue delay, 

waste of time or needless presentation of cumulative evidence.

 

16 See Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 650 (11th Cir. 1990).

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Absent a showing of substantial similarity, evidence regarding other storms will 

constitute a waste of time and lead to confusion of the issues.

4. Evidence of Preparations of Subsequent storms is inadmissible

Claimants may seek to introduce evidence of subsequent storm preparations 

or demobilization.17 This Court should exclude such evidence as subsequent 

remedial measures. FRE 407 of the Federal Rules of Evidence precludes 

introduction of subsequent remedial measures “to prove negligence or culpable 

conduct” on the part of the defendant in connection with an accident. “The use of 

the phrase ‘remedial measures’ is designed to bring within the scope of the rule any 

post-accident change, repair or precaution.”

18 Evidence of subsequent remedial 

measure is only admissible for “impeachment or — if disputed — proving 

ownership, control, or the feasibility of precautionary measures.” The rationale 

underlying the exclusionary rule is to encourage persons to take remedial steps to 

prevent and/or reduce the likelihood of future accidents.19 

The Court should preclude Claimants from introducing evidence or testimony 

related to Skanska’s preparations for subsequent storms, where such evidence is 

offered to suggest that Skanska’s earlier injury would have been more or less likely 

 

17 See Proposed Pretrial Order by Claimants, Rec. Doc. 1296, p. 41-42.

18 Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1567 n.14 (11th Cir. 

1991) (citation omitted) 

19 See Flaminio v. Honda Motor Co., 722 F.2d 463, 469, 472 (7th Cir. 1984). 

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to occur had the subsequent measures been taken in preparation for Hurricane Sally. 

To the extent Claimants may contend that such evidence goes to feasibility of 

preparations, Skanska avers that the Court should exclude such evidence under FRE 

403. The subsequent storms are not substantially similar to Hurricane Sally, the 

conditions surrounding the project were never the same, and Skanska’s ability to 

prepare for subsequent storms was not the same. 

III. CONCLUSION

Skanska respectfully submits that this Court exclude evidence of prior storms 

absent a showing of substantial similarity. Evidence related to storm preparations 

in 2017, 2018, and 2019 is irrelevant and inadmissible. Lastly, evidence related to 

subsequent storm preparations is inadmissible as subsequent remedial measures. 

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Respectfully submitted,

/s/ Harold K. Watson

Harold. K. Watson, Esq.

Derek A. Walker, Esq.

Charles P. Blanchard, Esq. 

Jon W. Wise, Esq.

CHAFFE MCCALL, LLP

801 Travis, Suite 1910

Houston, Texas 77002

Telephone: (713) 546-9800

Facsimile: (713) 546-9806

and

SCOTT A. REMINGTON

Florida Bar No. 122483

JEREMY C. BRANNING

Florida Bar No. 507016

CLARK PARTINGTON

P.O. Box 13010

Pensacola, FL 32591-3010 

Telephone: (850) 434-9200

Facsimile: (850) 432-7340

Attorneys for Skanska USA Civil Southeast 

Inc. and Skanska USA, Inc.

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CERTIFICATE OF COUNSEL CONFERENCE 

I certify that I conferred with counsel for Claimants, Brian Barr, Esquire, in 

a good faith effort to resolve the issues raised in this Motion as required by N.D. 

Fla. Loc. R. 7.1(B). Claimants oppose this Motion.

/s/ Jeremy C. Branning

JEREMY C. BRANNING

CERTIFICATE OF COMPLIANCE AS TO WORD COUNT

I hereby certify that, as required by Local Rule 7.1(F), this Motion in Limine 

and Memorandum in Support contains 2,271 words, counted as provided in Local 

Rule 7.1(F).

/s/ Jeremy C. Branning

JEREMY C. BRANNING

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been filed with the 

Clerk of Court and furnished to all counsel of record through the Court’s CM/ECF 

electronic filing system on this 14th day of October, 2021:

/s/ Jeremy C. Branning

JEREMY C. BRANNING

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