UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

MICHAEL J. TANNER, 

 Plaintiff, Case No. 14-cv-13478 

v Honorable Thomas L. Ludington 

GRAND RIVER NAVIGATION COMPANY, Inc. 

 

 Defendant. 

__________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART FIRST AND SECOND 

MOTIONS IN LIMINE, AND GRANTING THIRD MOTION IN LIMINE 

 Plaintiff initiated this admiralty law case by filing his complaint on September 8, 2014. 

ECF No. 1. In his complaint, Plaintiff alleges that Defendant Grand River is liable for an injury 

he sustained while serving as a first mate on the Olive L. Moore tug barge.1

 Tanner brings three 

claims against Grand River: (1) breach of its duty to provide a seaworthy vessel in violation of 

the Jones Act, 46 U.S.C. § 688 et seq.; (2) breach of an express or implied warranty to provide a 

seaworthy vessel reasonably fit for the purpose in which it was intended; and (3) failure to pay 

past and future maintenance and cure benefits in a timely manner. Id. 

On September 4, 2015, Defendant Grand River moved to strike the supplemental report 

of Plaintiff’s expert, Robert Ancell, and for partial summary judgment on four of Tanner’s 

damage theories. ECF Nos. 11, 12. Both motions were granted on December 9, 2015. 

 The jury trial is set to take place on October 18, 2016. On July 28, 2016 Defendant 

Grand River filed three motions in limine. See ECF Nos. 30-32. 

I. 

A. 

 

1

 The Olive L. Moore is alternatively called the Lewis J. Kuber. 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 1 of 8 Pg ID 663
- 2 - 

 The incident giving rise to the present action occurred on November 14, 2011. Tanner 

Dep. at 19. At that time Plaintiff Michael Tanner was employed by Defendant Grand River as a 

first mate assigned to the Olive L. Moore. Id. at 11-12. Tanner alleges that, while taking on a 

load at the Lafarge stone quarry and loading facility of Stoneport, Michigan, a mooring line he 

was holding abruptly and violently jerked and his glove was caught by a “fishhook” of wire 

protruding from the negligently maintained line. As a result, he alleges, his left shoulder was 

violently jerked and he was thrown to the ground. Tanner alleges that because of the incident he 

suffers from traumatic injuries to his left arm, shoulder, and neck. Id. at 21, 46-47 

 Tanner continued to work through his pain, both that day and beyond. In fact, a month 

later on December 17, 2011, Tanner certified that he had not been injured or suffered any injury 

while employed on the Olive L. Moore. See Def.’s Mot. for Summ. J. Ex. 1. However, over 

time Tanner realized that the injury was more serious than he had originally thought. Tanner 

Dep. at 20. When he was able to get off the boat, he sought medical attention, obtaining an x-ray 

in January, 2012, and an MRI in March, 2012. The MRI showed injuries to Tanner’s left 

shoulder, which he disclosed to Grand River in an injury report on April 27, 2012. See Def.’s 

Mot. for Summ. J. Ex. 2. 

 Plaintiff Tanner saw a number of physicians throughout 2012, including Dr. Harandi. 

Tanner Dep. at 46. Dr. Harandi eventually performed surgery on Tanner’s shoulder in early 

2013. Id. Tanner alleges that the surgery provided minimal relief, and he still experiences 

shooting pain from his left shoulder through his left arm on a regular basis. Id. at 47. Tanner 

further alleges that his constant pain continues to limit his work and other areas of his life. Id. 

 As a result of his continuing pain, two Doctors have recommended that Tanner undergo 

shoulder replacement surgery. One Doctor also recommended that Tanner undergo a four level 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 2 of 8 Pg ID 664
- 3 - 

neck fusion. Plaintiff Tanner chose to put off both of the recommended surgeries in order to 

continue working. Pl. Resp. to Summ. J. at 7. 

B. 

 On September 4, 2015 Defendant filed two motions. First, Defendant moved to strike 

the “supplemental” report of Plaintiff’s expert, Robert Ancell. Plaintiff had not complied with 

Rule 26(a) or (e) in furnishing the report and because the non-compliance was not harmless, 

Defendant’s motion was granted and Ancell’s “supplemental” report was stricken pursuant to 

Rule 37(c)(1). See Dickenson v. Cardiax and Thoracic Surgery of Eastern Tenn., 388 F.3d 976, 

983 (6th Cir. 2004 

Second, on September 4, 2015 Defendant Grand River moved for partial summary 

judgment on four of Plaintiff’s damages claims: (1) past lost wages; (2) future lost earning 

capacity; (3) past maintenance and cure; and (4) possible future maintenance and cure. Plaintiff 

stipulated that there was no evidence of past loss wages. Plaintiff also agreed that there was no 

issue regarding past maintenance and cure because his past medical expenses were covered by 

insurance, and agreed dismissal of that claim was appropriate as long as the dismissal was 

conditioned on Defendant’s responsibility for any subrogation claims from health insurance 

carriers. Summary judgment was also granted as to Plaintiff’s future lost earning capacity claim 

because Plaintiff failed to meet his burden of showing probable impairment of his future earning 

capacity. Finally, summary judgment was granted as to Plaintiff’s claim for possible future 

maintenance and cure because he had not yet undergone the recommended shoulder surgeries 

and thus his speculative damages were not sufficiently ascertainable. 

C. 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 3 of 8 Pg ID 665
- 4 - 

 Following issuance of the Court order on December 9, 2016 Plaintiff Tanner decided to 

undergo a second arthroscopic procedure on his shoulder when his vessel was “laid up” in late 

January. See ECF No. 26. The parties therefore requested an adjournment of the trial in order to 

review and evaluate Tanner’s post-surgical and recovery conditions, which was granted on 

January 19, 2016. Id. After the surgery was delayed, the parties requested a second adjournment, 

which was granted on April 12, 2016. 

II. 

 Under the current scheduling order, the trial is scheduled for October 18, 2016. On July 

28, 2016 Defendant Grand River filed three motions in limine. Each motion will be addressed in 

turn. 

A. 

 In its first motion in limine, Defendant seeks to preclude Plaintiff Tanner from offering 

medical testimony regarding his shoulder injury. See Mot. Limine I, ECF No. 30. Specifically, 

Defendant seeks to preclude Plaintiff from testifying that his shoulder and neck pain is not the 

result of arthritis. Defendant argues that Plaintiff is not a qualified medical expert, and thus his 

non-expert opinion is prohibited under Federal Rules of Evidence 701 and 702. Id. 

In response Plaintiff Tanner agrees that he cannot offer medical testimony, but argues 

that his testimony is not meant as a diagnosis, but is instead offered in the context of explaining 

why he did not immediately make an incident report about his work injury. See Response I, ECF 

No. 36. He also argues his testimony is offered for the purpose of highlighting that his arm went 

suddenly numb and immobile, suggesting that arthritis was not the sole cause of his pain. Id.

Plaintiff therefore argues that his testimony should not be excluded, and that any confusion 

regarding the testimony could be resolved by a limiting instruction under Rule 105. Id. (“If the 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 4 of 8 Pg ID 666
- 5 - 

court admits evidence that is admissible against a party or for a purpose–but not against another 

party or for another purpose–the court, on timely request, must restrict the evidence to its proper 

scope and instruct the jury accordingly.”). Plaintiff Tanner further argues that the Court could 

also instruct the jury that Mr. Tanner is not qualified to offer medical expertise, and that it should 

only consider his testimony for limited purposes. 

At the final pretrial conference held on August 25, 2016, the parties agreed that, while 

Tanner should be precluded from giving a medical diagnosis, he should be permitted to discuss 

the symptoms of his injury subject to a limiting instruction. Defendant’s first motion in limine 

will therefore be granted in part and denied in part. 

B. 

 In its second motion in limine, Defendant moves to preclude Plaintiff from introducing 

evidence concerning a “slidebar”, or railing system, that was on the Stoneport dock alongside the 

Olive L. Moore Tug on the day of the alleged accident. See Mot. Limine II, ECF No. 31. 

Defendant alleges that docks are extensions of land, not appurtenances of vessels, and therefore 

dock conditions are neither relevant nor probative of Plaintiff’s unseaworthiness claim under 

Rules 401, and 402. Grand River also argues such evidence is unfairly prejudicial under Rule 

403. 

Plaintiff Tanner’s response (wrongfully labeled on the docket) argues that Defendant’s 

motion should be denied. See Response II, ECF No. 35. Plaintiff concedes that the condition of 

the dock is irrelevant to his unseaworthiness claim, but argues that it is relevant to his negligence 

claim under the Jones Act. Id. Specifically, Plaintiff argues that the dock conditions are relevant 

to the question of whether the ship owner provided him with a reasonably safe vessel “on or off 

the ship” under Rannals v Diamond Jo Casino, 265 F.3d 442 (6th Cir. 2001) (holding that 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 5 of 8 Pg ID 667
- 6 - 

“[w]orkers who satisfy the definition of seaman under the Jones Act may recover under the Jones 

Act whenever they are injured in the service of a vessel, regardless of whether the injury occurs 

on or off the ship.”). Plaintiff also argues that admission of the evidence will not substantially 

prejudice Defendant under Rule 403. Defendant has not filed a reply. 

 At the final pretrial conference held on August 25, 2016, the parties agreed that while the 

dock conditions are irrelevant to Plaintiff’s unseaworthiness claim, they are relevant to his 

negligence claim under the Jones Act. The dock conditions will therefore be admissible for that 

limited purpose. Defendant’s second motion in limine will therefore be granted in part and 

denied in part. 

C. 

In its third and final motion in limine, Defendant moves to exclude testimony regarding 

the Number One Winch that was aboard the Olive L. Moore, but was inoperable on the day of 

the alleged accident. The inoperability of the Number One Winch allegedly forced Plaintiff to 

manually assist in moving the barge along the dock using a Bow Winch, which allegedly resulted 

in the injury to his shoulder and neck. See Mot. Limine III, ECF No. 32. Defendant alleges that 

the inoperability of the Number One Winch is irrelevant to the question of whether the Bow 

Winch was unseaworthy or created an unreasonably unsafe to work claim under Rules 401, and 

402. Grand River also argues such evidence is unfairly prejudicial under Rule 403. 

In his response (again wrongfully labeled on the docket) Plaintiff Tanner that 

Defendant’s motion should be denied because the inoperability of the Number One Winch was 

part of the causal chain ultimately leading to Plaintiff’s injury. See Response III, ECF No. 37. 

Plaintiff argues that the Bow Winch was inferior to the Number One Winch in two ways. First, 

Plaintiff argues that the location of the Bow Winch in the windlass room limits visibility of the 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 6 of 8 Pg ID 668
- 7 - 

mooring operations, as compared to the Number One Winch that is located on the main deck. Id. 

Second, Plaintiff argues that the Bow Winch requires the use of more cable than the Number 

One Winch, making injuries of the kind allegedly experienced by Tanner more likely. Id. 

In its reply, Defendant argues that Plaintiff’s opinion that the Bow Winch was inferior to 

the Number One Winch is not admissible under Rules 701 and 702. Defendant argues that 

Plaintiff has not been qualified as an expert in any technical field that would be called on to 

reach such an opinion under Rule 702, and that Tanner should be precluded from offering lay 

opinion testimony because the operability of the winches requires scientific, technical, or 

specialized knowledge under Rules 701(c) and 702. 

Defendant is correct. Because the question of whether the bow winch is unreasonably 

unsafe or rendered the ship unseaworthy is not proper lay opinion testimony under Rule 701(c), 

Plaintiff Tanner’s testimony on that point is inadmissible. Plaintiff has not been qualified as an 

expert on that point. Nor has he provided any expert testimony regarding the inferiority of the 

Bow Winch or any expert testimony regarding industry winch standards. Defendant’s third 

motion in limine will be granted, and Plaintiff Tanner will be precluded from offering testimony 

regarding the inoperable Number One Winch. 

III. 

 Accordingly, it is ORDERED that Defendant Grand River’s motion in limine to exclude 

Plaintiff’s testimony diagnosing his own medical condition, ECF No. 30, is GRANTED IN 

PART AND DENIED IN PART. 

 It is further ORDERED that Defendant Grand River’s motion in limine to exclude 

evidence of the condition of the dock as a basis for unseaworthiness, ECF No. 31, is GRANTED 

IN PART AND DENIED IN PART. 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 7 of 8 Pg ID 669
- 8 - 

 It is further ORDERED that Defendant Grand River’s motion in limine to exclude 

statements regarding the use of irrelevant equipment, ECF No. 32, is GRANTED. Plaintiff 

Tanner is PRECLUDED from offering testimony regarding the inoperable Number One Winch. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: August 26, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on August 26, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

1:14-cv-13478-TLL-PTM Doc # 43 Filed 08/26/16 Pg 8 of 8 Pg ID 670