UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Douglas Warford, Isabelle

Taylor, LLC, and CNA

Insurance Company

v. Civil No. 06-cv-463-JL

Opinion No. 2008 DNH 105

Industrial Power Systems,

Inc. and A.F. Theriault

& Son Ltd.

O R D E R

The plaintiffs, Douglas Warford, Isabelle Taylor, LLC (“the

shipowner”), and CNA Insurance Company, proceeding as Warford’s

assignee and the shipowner’s subrogee, are suing to recover for

personal injury and property damage arising out of an explosion

and fire on the shipowner’s fishing vessel, the F/V Isabelle

Taylor, insured by CNA. The defendants, Industrial Power Systems

(“IPS”) and A.F. Theriault & Son Ltd. (“Theriault”), move in

limine to preclude certain of the plaintiffs’ witnesses from

offering expert testimony at the upcoming bench trial. The court

heard oral argument on the motion at the final pre-trial

conference on May 15, 2008.

The court has jurisdiction over this matter under 28 U.S.C.

§ 1333(1) (maritime). For the following reasons, the defendants’

motions are denied without prejudice to renewal of their

objections to the anticipated testimony at trial.

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I. BACKGROUND

A flash fire aboard the Isabelle Taylor caused severe burns

to the ship’s engineer, Warford, while he was working in the

vessel’s switchboard, an electrical control designed and built by

IPS as part of an overhaul of the vessel’s electrical system

intended to allow the Isabelle Taylor to refrigerate its catch at

sea. The work on the overhaul took place at Theriault’s shipyard

in Nova Scotia, and included the installation of three new

generators manufactured by third parties. While Theriault

performed certain aspects of the work, including the installation

of the generators, under a written contract with the shipowner,

the actual labor involved in installing the switchboard was

performed on-site by an IPS technician, working in conjunction

with Warford himself.

Eventually, the Isabelle Taylor left the shipyard to return

to its home port in Portsmouth, New Hampshire, but the parties

dispute whether they understood that the work had been completed

at that point. The plaintiffs allege that neither Warford nor

the shipowner “was ever told that there was necessary work not

done or that the vessel was not ready to fish.” But the

defendants claim that the plaintiffs knew that, because the

generators had not yet been synchronized, the vessel could not be

operated without a crew member’s continually making manual

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adjustments to the voltage and frequency of the generators by

using of a voltage meter. The defendants say, in fact, that

IPS’s technician reviewed that procedure with Edwards before the

Isabelle Taylor had set out for Portsmouth, and that Warford was

attempting to execute that procedure at the time of the fire. He

started the blaze by placing an alligator clip from his meter

across the terminals of two different fuse blocks, and on the

“high side” of the fuse, i.e., on the side closer to the source

of the current, causing a short circuit. 

The plaintiffs, however, maintain that Warford attempted the

procedure only when he “discovered that the generators were not

load sharing properly as they should have been” and maintain that

the fire resulted from the defendants’ faulty installation of one

of the generators and defective design of the switchboard. 

First, the plaintiffs say, a loose bolt in the generator’s splice

block caused an erratic connection, manifesting itself in the

problems that required Warford to open the panel to test the

voltages. The plaintiffs fault the defendants for failing to

inspect the generators before the Isabelle Taylor left the

shipyard, and allowing it to leave without the electrical system

functioning properly.

Second, the plaintiffs say, the panel was defectively

designed because (1) the terminals on the fuse blocks were placed

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too close together, allowing Warford to place the alligator clip

across two of them at once, (2) the overload protection system

should have consisted of circuit breakers rather than fuses, or

at least a safer type of fuse holder, (3) this system should have

been placed at the shortest possible distance from the power

source, (4) the fuse holders should have been protected by a

shield, (5) the high-voltage zone of the fuse holders should not

have been included in the otherwise low-voltage panel, and 

(6) the panel lacked the necessary warnings. The plaintiffs also

assert that IPS should have warned Warford not to try to

manipulate the generators as he did.

In the fire, Warford suffered second-degree burns to his

face and left hand, necessitating hospitalization, and the

Isabelle Taylor suffered damage, necessitating repairs. The

shipowner seeks more than $202,000 in profits it allegedly lost

as the result of missing three fishing trips while the repairs

were completed. The Isabelle Taylor had been scheduled to embark

on a “pair trawling” venture with another similar boat, the F/V

Jean McCausland, just two days after the fire struck. So the

Jean McCausland ended up fishing with another trawler, which,

unlike the overhauled Isabelle Taylor, lacked the capacity to

carry fish, cutting the profitability of the venture in half,

according to the plaintiffs’ calculations.

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II. APPLICABLE LEGAL STANDARD

The plaintiffs have identified three expert witnesses to

testify on their behalf: Frederick Osborne, David DuBois, and

David “Nick” Jenkins. Under the Federal Rules of Evidence,

If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is

based upon sufficient facts or data, (2) the testimony

is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods

reliably to the facts of the case.

Fed. R. Evid. 702. As the structure of this rule suggests,

before the factfinder in a case can consider expert testimony

over the adverse party’s objection, the trial judge, serving as

“gatekeeper,” must determine whether the testimony satisfies the

relevant foundational requirements. See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 597 (1993). In a bench trial,

however, “where the factfinder and the gatekeeper are the same,

the court does not err in admitting the evidence subject to the

ability later to exclude it or disregard it if it turns out not

to meet the standard of reliability established by Rule 702.” In

re Salem, 465 F.3d 767, 777 (7th Cir. 2006); see also United

States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is

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One of these grounds is that the materials on Osborne’s

anticipated testimony provided to the defendants in discovery did

not contain “a complete statement of all opinions [he] will

express and the basis for them” as required by Fed. R. Civ. P.

26(a)(2)(B)(i). Because Theriault has previously waived this

argument, however, it is rejected without further discussion.

6

less need for the gatekeeper to keep the gate when the gatekeeper

is keeping the gate only for himself.”).

The defendants argue in tandem that each of the plaintiffs’

proffered expert witnesses lacks the requisite qualifications to

give some or all of his proffered opinion testimony, while

defendant Theriault challenges a number of the opinions on

additional grounds.1 The court will consider the defendants’

objections to each of the plaintiffs’ designated experts in turn. 

III. ANALYSIS

A. Frederick Osborne

The plaintiffs have designated Osborne to testify in support

of their theories of causation and liability against both

defendants. Specifically, Osborne believes that Theriault

deviated from accepted industry practice by failing to inspect

the generators before installing them, that one of the generators

had a loose bolt in its splice block that caused the electrical

system to malfunction, that the defendants should not have

allowed the Isabelle Taylor to leave Nova Scotia with its

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electrical system in that condition, and that these missteps

precipitated the fire by requiring Warford to open the control

panel in the first place. Osborne also believes that IPS

designed the control panel with a number of defects, listed in

Part I, supra, that allowed Warford to touch his meter clip to

the terminals of two separate fuse holders, sparking the fire.

Osborne runs a marine electrical service company in New

Bedford, Massachusetts, where he has spent almost twenty years

doing strictly electrical work on boats. Prior to that, he spent

more than a decade as a marine engineer; the vast majority of

that work was electrical as well. He holds no degree in

electrical engineering or any related field, however. While

Osborne’s company rarely installs marine generators, it regularly

does the work of connecting those generators to other components

of the boat’s electrical system. The company also performs

troubleshooting work on marine generators, including ones from

the same manufacturer as two of the Isabelle Taylor’s. Osborne’s

company also installs control panels designed and built by either

the company itself or by a third party. But the panels the

company designs are, by Osborne’s own admission, “much less

complicated” than the one IPS designed for the Isabelle Taylor. 

The company also has little experience synchronizing multiple

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Osborne explained at his deposition that, while boats with

two generators are common, in that arrangement one generator

usually serves as a backup power source, so that the generators

need not be synchronized like the three generators installed

aboard the Isabelle Taylor.

8

generators, because, according to Osborne, that arrangement is

uncommon on boats in the area.2

 

Because Osborne has never designed a control panel for a

system with synchronized generators, IPS argues that he is

unqualified to render opinions on its design of its panel,

likening them to “the pilot of a Piper Cub commenting on the

technique of the pilot of a Boeing 747 jetliner.” Similarly,

Theriault argues that Osborne cannot opine on the source of the

malfunction in the generator because he “is not a licensed

electrician [or] an engineer.” These arguments are misplaced.

“Rule 702 does not require specific educational training in

the area of expertise and . . . an expert need not have design

experience with the particular product in order to render expert

opinion about the unreasonableness of its design.” Tokio Marine

& Fire Ins. Co. v. Grove Mfg. Co., 958 F.2d 1169, 1175 (1st Cir.

1992); see also Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81-

82 (2d Cir. 1997); DaSilva v. Am. Brands, Inc., 845 F.2d 356, 361

(1st Cir. 1988). IPS has not identified any specific differences

between the electrical panel it built for the Isabelle Taylor and

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3

Indeed, insofar as the court can understand from the

materials presently before it, the alleged defects Osborne has

identified in the IPS panel--e.g., the placement of the fuse

holders, the type of overload protection used, the lack of

warnings--do not implicate features unique to a panel that

connects three generators, as opposed to only one or two.

9

the many electrical panels built by Osborne that would make him

incapable of providing the court with “technical[] or other

specialized knowledge” about the design of marine electrical

panels.3 Nor has Theriault identified any specific differences

between the wiring work it did on the Isabelle Taylor’s threegenerator system and the wiring and troubleshooting work Osborne

regularly does on other boats’ one- or two-generator sets. In

any event, “Rule 702 is not so wooden as to demand an intimate

level of familiarity with every component of a . . . device as a

prerequisite to offering expert testimony.” Microfinancial, Inc.

v. Premier Holidays Int’l, Inc., 385 F.3d 72, 80 (1st Cir. 2004). 

The First Circuit has upheld the admission of expert

testimony in maritime cases over objections similar to the ones

the defendants have raised here. See, e.g., Correa v. Cruisers,

A Div. of KCS Int’l, Inc., 298 F.3d 13, 25-26 (1st Cir. 2002)

(ruling that engineer experienced in repairing engines could

opine to defectiveness of fuel management system, despite lack of

experience with that particular engine component); Diefenbach v.

Sheridan Transp., 229 F.3d 27, 31 (1st Cir. 2000) (ruling that

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sea captain properly gave expert testimony on docking and

undocking equipment and procedures on integrated tug and barge,

despite his lack of experience with that kind of vessel). In

short, “expert witnesses need not have overly specialized

knowledge to offer opinions.” Levin v. Dalva Bros., 459 F.3d 68,

78 (1st Cir. 2006). This court will allow Osborne to testify

over the defendants’ objections as to his lack of qualifications.

IPS also argues that Osborne cannot testify because, in

developing his opinions about the design of the switchboard, he

did not employ a “‘theory or technique [that] . . . can be (and

has been) tested,’” that “‘has been subjected to peer review and

publication,’” and that “enjoys ‘general acceptance’ within ‘a

relevant scientific community.’” Kumho Tire Co. v. Carmichael,

526 U.S. 137, 149-50 (quoting Daubert, 509 U.S. at 592-94)

(further internal quotation marks omitted). As the Court made

clear in Kumho Tire, however, these “factors identified in

Daubert may or may not be pertinent in assessing reliability,

depending on the nature of the issue, the expert’s particular

expertise, and the subject of his testimony.” Id. at 150

(internal quotation marks omitted).

Thus, while the Court observed that “[e]ngineering testimony

rests upon scientific foundations, the reliability of which will

be at issue in some cases,” it also acknowledged that, “[i]n

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Osborne testified, in fact, to the absence of published

standards governing most marine electrical work, as opposed to

its shore-based counterpart.

5

IPS makes similar challenges to the testimony of Dubois and

Jenkins, which are rejected for essentially the same reasons.

11

other cases, the relevant reliability concerns may focus upon

personal knowledge or experience” and therefore be less likely to

implicate the Daubert factors. This is the latter kind of case:

Osborne claims to have formed his opinions on the design of the

switchboard based on his own experience in designing and

installing similar components.4 “In certain fields, experience

is the predominant, if not sole, basis for a great deal of

reliable expert testimony,” without regard to the particular

Daubert criteria. 3 Louis R. Frumer & Melvin I. Friedman,

Products Liability § 18A.04[6][f], at 18A-80.11 (1960 & 2008

supp.). So it is immaterial--and unsurprising--that an

experienced designer of marine electrical switchboards would draw

upon that experience, rather than peer-reviewed studies or other

published literature, in identifying the alleged defects in a

particular switchboard designed by somebody else.5

Theriault further argues that Osborne cannot opine as to its

alleged failure to inspect the generator before installation

because, at his deposition, he testified that he probably would

not have removed tape from the leads on the generator to check

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the connection before installation if it had arrived from the

manufacturer with the leads taped. Theriault also argues that

Osborne cannot opine as to its alleged failure to warn the

plaintiffs that the Isabelle Taylor’s electrical system was not

fully operational when she left Nova Scotia or that the

electrical panel contained high voltage because, Theriault

asserts, the plaintiffs were fully aware of both of those

hazards. “Objections of this type, which question the factual

underpinnings of an expert’s investigation, often go to the

weight of the proffered testimony, not to its admissibility.” 

Crowe v. Marchand, 506 F.3d 13, 18 (1st Cir. 2007).

Osborne’s deposition testimony does not conclusively

establish that the generator at issue came from its manufacturer

in a taped condition, excusing Theriault from its alleged

obligation to inspect it; likewise, the plaintiffs’ alleged

awareness of the dangers at issue is, at the moment at least,

simply one inference to be drawn from the evidence likely to be

offered at trial. If the court, sitting as factfinder, ends up

resolving these disputes in Theriault’s favor, that will

undoubtedly weaken Osborne’s opinions as to its liability, but

that possibility provides no basis for excluding those opinions

now, when the court has yet to hear the evidence. The

defendants’ motion to exclude Osborne’s testimony is denied,

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without prejudice to renewing it should the proof at trial leave

his opinions without the necessary factual support. 

B. David Dubois

While the plaintiffs have designated Dubois to testify on a

number of subjects, the defendants seek to exclude his opinions

only as they relate to liability and causation. Specifically,

the defendants challenge his conclusions that (1) they failed to

provide workmanlike performance in servicing the Isabelle Taylor,

(2) IPS was negligent in its design and installation of the

electrical panel, (3) Theriault was negligent in failing to

inspect the generator “so as to discover the loose bolt . . . and

in allowing the vessel to leave the yard with that condition

extant or with any electrical fault existing,” and (4) the

defendants are therefore “responsible” for the fire.

Dubois has been investigating incidents of personal injury

and property damage occurring on commercial vessels for nearly

thirty years through his affiliated companies, Marine Safety

Consultants and Maritime Claims. He attended the United States

Coast Guard Academy, receiving a bachelor’s degree in science

with a concentration in marine engineering and mathematics. He

then spent eight years in the Coast Guard, serving as a chief

engineer officer aboard a cutter, overseeing the overhaul of

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See Matos v. Silva Fishing Corp., 21 Fed. Appx. 24, 26 (1st

Cir. 2001) (unpublished disposition); Hopkins v. Jordan Marine,

Inc., 271 F.3d 1, 4 (1st Cir. 2001); Minott ex rel. Minott v.

Smith, No. 03-10, 2003 WL 22078070, at *2-*3 (D. Me. Sept. 5,

2003), rept. & rec. adopted, 2003 WL 22519653 (D. Me. Nov. 5,

2003), aff’d sub nom. Poulis-Minott v. Smith, 388 F.3d 354 (1st

Cir. 2004); In re Moran Towing & Transp. Co., 1989 A.M.C. 2492

(D. Me. 1989); see also Ferrara & DiMercurio, Inc. v. St. Paul

Mercury Ins. Co., 169 F.3d 43, 49 (1st Cir. 1999) (noting

Dubois’s investigation of a fire aboard a fishing vessel which

determined it was electrical in nature); but see Lisa v. Fournier

Marine Corp., 866 F.2d 530, 531 (1st Cir. 1989) (per curiam)

(affirming exclusion of Dubois’s testimony where proponent

“neither objected at trial to exclusion . . . nor explain[ed] on

appeal why it was erroneous”).

14

another cutter, and working as a marine inspector and

investigator. He has testified as an expert in a number of

reported maritime accident cases.6

The defendants nevertheless argue that Dubois lacks the

requisite qualifications to opine on their responsibility for the

fire, asserting that he has no experience or training in

electrical matters. In the court’s view, that cannot be fairly

said of a man who has spent nearly forty years inspecting and

overseeing the upgrades and repairs of commercial and Coast Guard

vessels, of which electrical systems are an essential part. Cf.

Hopkins, 271 F.3d at 4 (upholding admission of Dubois’s testimony

as to crewman’s departure from standard of care over objection

that Dubois was unqualified, noting that he “was a graduate of

the Coast Guard Academy who had served as an inspector of ships

Case 1:06-cv-00463-JL Document 59 Filed 05/16/08 Page 14 of 18
7Theriault also argues that Dubois, at his deposition, “was

either unable or unwilling to offer specific opinions regarding

what [it] did wrong in installing any of the systems aboard the

vessel or why it was wrong.” The court does not read Dubois’s

15

for the Coast Guard followed by years of consulting work in ship

inspection and investigating maritime accidents”). At his

deposition, in fact, Dubois repeatedly testified that he does

have a background in marine electrical work and demonstrated an

understanding--which the defendants have not attempted to

question--of the electrical concepts at issue.

That Dubois, in formulating his own opinions in this case,

relied in part on Osborne’s more specialized knowledge of that

subject--or, as Theriault complains, Osborne’s investigation of

the scene--does not disqualify Dubois from testifying on it

himself. “[W]hen an expert relies on the opinion of another,

such reliance goes to the weight, not to the admissibility of the

expert’s opinion.” Ferrara & DiMercurio, 240 F.3d at 9

(upholding admission of expert testimony on whether marine fire

had electrical origin over similar objections, including that one

expert had impermissibly relied on observations and report of

another). Here, as in Ferrara & DiMercurio, the court will allow

Dubois to give his proffered opinions, subject to crossexamination and argument by the defendants over his asserted lack

of expertise in and reliance on Osborne for electrical matters.7

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deposition testimony that way. While Dubois admitted that he was

unaware of the exact parameters of Theirault’s role in the design

and installation of the panel itself, he stated that Theriault

was at fault for failing to discover the loose connection in the

generator, for failing to test the ship’s electrical system, and

for failing to warn the plaintiffs of the dangers of operating

the ship with the system unfinished. 

16

The defendants’ motions to exclude Dubois’s opinions are denied

without prejudice to renewing their objections at trial.

C. David “Nick” Jenkins

The plaintiffs have designated Jenkins to testify to one

aspect of their damages: the profits allegedly lost due to the

Isabelle Taylor’s inability to participate in a pair trawling

venture for herring while she was undergoing repairs. The

defendants do not argue that Jenkins--who has worked as a

commercial fisherman for twenty years, eight of them as the

manager of an entire fishing fleet--is unqualified to give this

opinion. Instead, the defendants characterize his damage

calculation, summarized in Part I, supra, as “entirely

speculative” because the Isabelle Taylor had never fished as part

of a pair trawling operation prior to the fire.

Just as in cases of land-based torts, a plaintiff in a

maritime action seeking to recover lost profits--including from a

lost opportunity at commercial fishing--need show them only to a

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reasonable certainty. See Yarmouth Sea Prods. Ltd. v. Scully,

131 F.3d 389, 395 (4th Cir. 1997) (citing The Conqueror, 166 U.S.

110, 125 (1897)); Miller Indus. v. Caterpillar Tractor Co., 733

F.2d 813, 822 (11th Cir. 1984); accord Trans-Asiatic Oil, Ltd. v.

Apex Oil Co., 804 F.2d 773, 782 (1st Cir. 1986) (applying

“reasonable certainty” test to claim for demurrage). The

defendants acknowledge not only this rule, but also that lost

fishing profits may be adequately shown “by catches of similar

vessels on the same fishing grounds during the period” at issue. 

See, e.g., Miller Indus., 733 F.3d at 822. That is the

plaintiffs’ proposed method of proof: to show that the Isabelle

Taylor would have caught at least as many fish as her would-be

trawling partner, the Jean McCausland, was able to catch in

tandem with a different boat on the same fishing grounds in the

same period. While the defendants are free to challenge the

resulting estimate by way of cross-examination or argument, they

have provided no basis for preventing Jenkins from testifying to

the estimate altogether. See, e.g., Guy v. Starwood Hotels &

Resorts Worldwide, Inc., 2005 DNH 126, 13 (denying motion to

exclude evidence of plaintiff’s lost profits where “defendants’

questions about the accuracy of the estimate can be addressed

through cross-examination”). Their motions to exclude Jenkins’s

testimony on this subject are denied.

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IV. CONCLUSION

For the foregoing reasons, the defendants’ motions in limine

(document nos. 25 and 31) are DENIED without prejudice to renewal

of the defendants’ objections at trial.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: May 16, 2008

cc: Christine Friedman, Esq.

William H. Welte, Esq.

Lee Stephen MacPhee, Esq.

Peter G. Callaghan, Esq.

Gregory P. Hansel, Esq.

Michael Kaplan, Esq.

Daniel P. Luker, Esq.

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